*1 that he chose further Appellant if in the manner as case each so punishment, .... his jury but one conviction to assess there been court, judg- in the discretion of sentences whether should determined con- subsequent second and cumulated, judge. not the trial would be be that the sentence may victions either argu- recently this same rejected We have begin suspended or shall imposed v. Tyson ment in State. judgment imposed sentence 2005, pet. Worth (Tex.App.Fort 176-77 suspended preceding in the conviction or filed). third issue overruled. Appellant’s operate, ceased to or that
has sen- imposed suspended shall run tence IV. Conclusion concurrently with the other case or issues, we appellant’s Having overruled cases. affirm the trial court. judgment of 42.08(a) CRim. PROC. Ann. art. Tex.Code (Vernon of the Supp.2005). Section that if is found person code states
penal arising of more than one offense out
guilty episode, same criminal the sentences
of the concurrently if
may consecutively run sentence is for conviction an
each penal of the
offense section 22.021 younger code committed a victim INDEPENDENT WAXAHACHIE years age than at the time of seventeen DISTRICT, SCHOOL the commission of offense. Tex. Penal Appellant, 3.03(b)(2) (Vernon Supp. Ann. Code 2005). Appellant argues that this case falls within the rule established Tim and Ed JOHNSON Apprendi New Supreme Jersey Court White, Appellees. may not exposed that a defendant be to a No. 10-04-00367-CV. penalty exceeding the maximum he would if punished to the facts according receive Texas, Appeals Court jury alone. reflected verdict Waco. 483, 120 S.Ct. U.S. Nov. 2005. (2000). L.Ed.2d Here, jury appellant’s after the assessed Dissenting Opinion Sept. sentences, punishment thirty-year at two judge the trial entered order cumulat-
ing the sentences. cumulation
sentences, sixty years, does not exceed the
statutory Ag- maximum the offense. sexual assault of a child under
gravated degree felony punishable is a first
fourteen years life in not more than 99 penitentiary.
state Ann. Penal Code (Vernon (Vernon 2003); § 22.021 12.32 Thus, appellant
Supp.2005). sentence
received, run afoul of sixty years, does not
Apprendi. *2 Eichelbaum,
Dennis Schwartz & Ei- PC, Frisco, appellant. chelbaum Ortiz, Goetz, A. Daniel V. Shane Rosset- Goetz, Arlington, appellees. ti GRAY, Before Chief Justice Justice VANCE, and Justice REYNA. However, 4. offense on December OPINION by separate were no-billed REYNA, FELIPE Justice. juries in April grand Independent School District Waxahachie filed suit September (WISD) appeal arguing that the files this *3 of wrongful termination against WISD for plea to the denying trial court erred its Parker, against and employment their jurisdiction newly-enacted (Defendant McLemore, Employ- and Tims Tim plaintiffs, because the ees) prosecution. and for malicious WISD White, underly- Ed Johnson and filed Employees filed separate the Defendant its lawsuit both WISD and The jurisdiction. to the Defendant pleas subject employees regarding the same and a motion to dismiss Employees filed of matter. we find that cause Because Appellees that had not exhaust- argued action WISD does not involve remedies their administrative ed subject matter the cause of Defendant on malicious employees, we affirm. WISD’s a plea claim. filed prosecution WISD History Factual and Procedural jurisdiction that argued and because Appellees filed suit Tim and Johnson Ed White were em- Em- and Defendant the school district by as maintenance ployed WISD coordina- filing are from Appellees barred ployees, August tors. Johnson and White of under the election suit (Appellees) grievance written Tort statute of Texas Claims remedies against certain members of Board (TTCA). Trustees, harassment, granted The trial court Act complaining and denied Employees’ Defendant motion stalking, Superin- and micromanagement. plea and motion to reconsider. Bobby tendent E. Parker told WISD’s Em- court filing grievance “pretty that of the The trial severed day parties ap- much sealed fate.” next from WISD and both [their] leave, placed were to this pealed separate administrative actions Court. days and five later employment In this appeal, WISD Appellees appealed terminated. the ter- its denying trial court erred employment through mination of their jurisdiction. Their procedures. WISD’s administrative appeal by administrative was denied Immunity Sovereign Board of Trustees on November im Governmental entities liability from under the doctrine mune tort employees Jerry In October sovereign immunity legisla unless Tims, acting at McLemore and Charles County Dallas immunity. ture has waived direction, reported Parker’s to the local v. Mental Health & Mental Retardation police had accessed (Tex.1998). Bossley, 968 S.W.2d computer network obtained Sovereign immunity components: has two security of all em- social numbers liability from immunity immunity from Trus- Shortly after the Board of ployees. Taylor, v. Hosp. Falls St. suit. Wichita administrative tees denied (Tex.2003). Immunity by 106 S.W.3d appeal, Johnson was arrested the Wax- from suit waived the extent govern- with tampering ahachie Police records, by TTCA. Tex. Crv. third-degree felony. created 101.025(a)(Vernon 2005); charged arrested and White was Rem.Code Ann Dept. Parks and v. Mi an tutes irrevocable election Wildlife randa, (Tex.2004). plaintiff immediately and forever Immunity protects from the state any bars recovery by plaintiff suit or being sued without its consent. Tex against any individual employee of the Jones, as DOT regarding unit 1999). suit, Absent the State’s consent subject matter. jurisdic trial court lacks matter (b) against any of a suit em- tion. id. Whether a trial court has ployee of a unit consti- jurisdiction question matter is a tutes irrevocable election law reviewed de novo. Tex. Nat. Res. immediately and forever IT-Davy, Conservation Comm’n *4 any recovery by plaintiff bars suit or 849, (Tex.2002). S.W.3d against governmental regarding unit In a suit a against governmental subject the same matter unless the gov- entity, the plaintiff affirmatively must ernmental unit consents. jurisdiction demonstrate the court’s al by (c) The of a arising settlement claim leging immunity a valid waiver and immediately under this shall chapter and pleading showing that the trial court any forever bar the claimant from suit Miranda, jurisdiction. has at S.W.3d any against recovery employee or from grant deciding whether to a When regard- unit governmental plea jurisdiction, the trial court the same matter. allegations looks to in the to petition jurisdictional gether any relevant evi (d) employee A judgment against an Blue, dence. Bland Sch. Indep. Dist. v. governmental immediately a unit shall (Tex.2000). 547, S.W.3d party obtaining forever bar the The substance of WISD’s judgment any suit or against re- jurisdiction newly-amended involves sec- covery governmental from the unit. tion 101.106 of the Texas Civil Practice and (e) If a suit is filed under this chapter Code. Tex. Remedies Civ. PRAC. & against governmental both a unit and (Vernon 2005). § 101.106 Previously Ann. any employees, employees of its 101.106, “Employees entitled Not immediately shall be dismissed on the Judgment” After Liable Settlement or of a governmental motion “A judgment stated: an action or a unit. chapter of a claim under settlement this (f) any involving bars If employee suit is filed matter employ- governmental claimant of a unit on based conduct governmental ee of the unit general employ- whose act scope within gave omission Act of employment rise to claim.” if could ee’s it have 959, R.S., 1,§ May Leg., 69th ch. brought chapter against been under this (amended 2003) 1985 Tex. Gen. governmental Laws the suit is consid- (current version at Tex. Civ. ered to be employee & Rem. 101.106). § Legislature only. employee’s capacity official On Code amended section 101.106 to its current motion, employee’s the suit Remedies,” form. Entitled “Election employee shall be dismissed unless section 101.106is as follows: plaintiff pleadings files amended dis-
(a)The filing
chap-
missing
employee
naming
of a
under this
ter
governmental
unit consti-
unit as defendant
(3)
the suit is
day
employees;
30th
and when
before the
after
date the
and its
motion is filed.
government em
initially
conduct is al
employee’s
when the
ployee
&
101.106.
Tex.
Civ. PRAC. Rem.Code
scope
within
leged
have been
his
Legislature
amended section
Villasan,
at
employment.”
apparently
101.106
force
have held that once the
758. The decisions
to impose
choose whether he would seek
motion to dismiss the
files a
government
tort
on a
unit or on
101.106(e), the
employees under section
acting as individ
governmental employees
grant the motion and dis
trial court must
capacity.
uals outside their official
O’Rourke,
employees
Villasan
S.W.3d
miss the
from the suit. Villa
(Tex.App.-Beaumont 2005, pet.
759-60
san,
761-62; Hernandez v.
at
filed).
immediately
The choice of one
Dist.,
Duncanville Sch.
No. 3:04-CV-
irrevocably
plaintiff’s
bars
claims
(B),
**5-6,
at
2028-BH
Because amended pacity section 101.106 con- files motion under section language 101.106(f), tains similar to that of former dismisses the 101.106, previous section we look employee to inter- and amends petition his to name pretations governmental of former section 101.106 then the suit is analysis. May our See Act of as a suit against govern considered R.S., 959, 1, Leg., § 69th ch. 1985 mental unit. Tex. Pkac. & Tex. Crv. Rem.Code (amended 2003) (current 101.106(f). 3305, However, § Gen. Laws if the employee motion, version at Tex. govern Crv. Prac. Rem.Code makes no such then the & 101.106). § While the former protected statute did is the irrevocable bar of it, 101.106(b). not interpretations address section former Tex. Crv. PRAC. & Rem. 101.106(b). § section 101.106 did precisely not differentiate be- Code It is because 101.106(b) tween the government employee whether section does address the was in his capaci- capacity sued official or individual employee, subsection (b) ty in applies order to determine whether the stat- employees sued their offi ute’s bar applied. capacity ‘Whether the cial who fail to a motion file under 101.106(f). claim unit falls section PRAC. & Rem. Tex. Civ. (f). relevant, 101.106(b), § under TTCA is but whether Code
787 101.106(b) interpreta Again previous look to we Similarly, because section for our applies this tions former section 101.106 chapter” omits “under it also 1985, 17, May 69th employees analysis. sued in their individual ca- Act of See 1, capacity 959, employees R.S., sued this 1985 Tex. Gen. pacities, Leg., as ch. (amended 2003) (current usually 3305, sued under common law. ver are Laws 120 Huang, See McGowen S.W.3d Tex. Crv. sion at Prac. & 2003, pet. de- (Tex.App.-Texarkana statute, 459 101.106). the former Under nied). protected unit is government against the whether suits Therefore, under constru- both situations. based on the same employees its were “plain com- 101.106 in the Bossley, was irrelevant. cause of action words,” the meaning mon of the statute’s inquiry 968 at 343. relevant S.W.2d this chap- absence of a reference “under action in causes of the two whether which the capacity ter” Id.; subject matter. the same volved Computek employee is sued is intentional. Obersteller, 960 S.W.2d Newman v. Computer Supplies, Inc. Wal- Clark, Office (Tex.1997); Beasley v. ton, (Tex.App.-Dallas 156 S.W.3d (Tex.App.-Houston [1st S.W.2d Barfield, pet.) (quoting no LaPorte v. McGowen, pet.); no Dist.] Villasan, (Tex.1995)); cases, previous “same S.W.3d at agree at 762. we Accordingly, S.W.3d “arising out subject matter” is defined as that under section transactions, actions, occur- whether the Defendant were 343; Bossley, 968 S.W.2d rences.” capaci- sued in their official or individual Newman, 960 at 622. Other S.W.2d ties irrelevant. judicata the factors of res as courts use determining subject mat relevant Subject Same Matter McGowen, 120 at 459. ter. also lawsuit argues that the judicata, doctrine of res deter Under the Em and the Defendant involve the same mining whether suits matter, involves the same on consideration of transaction based required by the statute. Crv. time, are related “whether *7 101.106(b). PRAC. & WISD motivation, they whether space, origin, states that the matter of the law form trial and whether a convenient the of suit was unlawful termination the to a trial unit conforms their treatment as Appellees employment, and the malicious expectations un parties’ or business prosecution claim v. Block derstanding usage.” Sanders Appel- Employees is connected with the buster, Inc., 382, 386 termination claim. lees unlawful WISD denied) 2004, pet. (quoting App.-Beaumont that, but Em states Defendant (second) Judgments of Restatement to ployees ultimately actions which led McGowen, 24(2)); at S.W.3d employment, of Appellees’ termination Corp., 837 Barr v. Resolution Trust (citing of there be no cause action would (Tex.1992)). 627, 631 S.W.2d Thus, argues that ac WISD. argue that the suit Appellees, tions and occurrences between in- Employees and the Defendant WISD, are Employees and the Defendant set of facts: those two different they volves inextricably intertwined that can so involving their unlawful termination Therefore, not WISD con separated. be prosecution. malicious involving those their Appellees’ tends claim that agree. We barred. is forever
The Defendant into Employees reported Ap- paragraphs ed different in their peti- pellees alleged police theft to the two tion and separate para- included Appellees’ employment months after had graphs specific request was a for damages been terminated. WISD claims that the each from defendant. two causes of are intertwined be- We that the rise to giving find facts cause the actions of Em- Defendant of sufficiently different causes action are termination, led to the Appellees’ separated by time place and do not and because the accusations out Appellees were well known arise of to transactions or oc- those day rejected Board the Appel- Board currences so as to different constitute sub- However, appeal. lees Appellees state 101.106(b). ject matters under section day that on the appeal their administrative McGowen, Bossley, 343; denied, they were unaware that the Therefore, S.W.3d at 459. does Defendant them accused of apply which it a means wrongdoing, reported much less their sus- should be dismissed law- picions police. Appellees’ adminis- suit. The trial err in denying court did not trative appeal shortly was denied before jurisdiction. WISD’s Accord- Also, they were arrested. ter- actual only we ingly, overrule WISD’s issue. of employment, mination their WISD, of complaint their and the Conclusion termination, leading up to their oc- nearly curred four months before Having issue, only WISD’s overruled we filing
were arrested. of a grievance judgment affirm the of the trial court. by Appellees claim subsequent and the employment termination (Chief Justice GRAY with a dissents in alleged filing griev- retaliation for By separate note: order issued Novem ance filing are the actions that led to 23, 2005, ber Appellant’s motion for the unlawful termination claim. al- rehearing being aby majority denied leged false accusations criminal conduct justices participated origi who made the police subsequent and the appeal. nal decision of this But the motion Appellees, arrest of none of oc- which rehearing pointed prob out sufficient curred before or contributed to termi- lems with opinion originally issued on Appellees’ employment nation four September opinion prior, months are the facts that led judgment being date withdrawn prosecution of the malicious claim. majority’s and the new opinion judg *8 peti- WISD also that ment dated November are substi proof tion is that causes the two My dissenting opinion tuted for them. consist of the same matter because September dated is withdrawn brought lawsuit was both will but be reissued on November and Defendant and problems For a further discussion of the in petition their seek re- being by created with explosion “Defendants, cover from jointly and sever- opinions, Kelly drawals and substituted see ally” prayer in their for Though relief. Games, 10-03-00369-CV, No. WL brought causes of action are in the Tex.App. LEXIS 9628 lawsuit, same state that this was 2005). (GRAY, C.J., Nov. judicial App.-Waco for purpose economy. The facts separat- concurring dissenting)). for each cause of action were Justice, damages, in out the difference GRAY, dissenting. way to sort Chief TOM problem is made evident any. if This probably type It niceties discussed is by refer- by WISD persuasively argued majority in that length opinion relief plaintiffs’ prayer for to the ence legislature equivalent to use the caused plaintiffs that recover prayer where try prevent a meat cleaver severally, them actual dam- “jointly everybody sight in suing punitive then on to seek ages” goes recently amended. when the statute was only the individual defen- damages only prerequi- The meat cleaver one the “recov- pleading, Based on the dants. section; this the bar site in to suit actual to the same ery” sought must relate 101.106(b) applied section a “suit for both “claims.” See damages Tex. Civ. recovery regarding ... 101.106(b)(Vernon Rem.Code Ann. matter_” Tex. Crv. PRAc. RemlCode 2005). jointly and could be How else 101.106(b)(Vernon 2005) (emphasis Ann. any damages? severally liable for added). majority neatly catego- The has currently with the for pled, prayer As leading up rized the events to the events damages, for joint and several relating to claim for ter- wrongful as that actions question there can be little brought against mination and the trans alleged to arise “out of brought wrongful prosecution claim for occurrence, action, transac or series of If it employees. the school district P. See Tex.R. Civ. tions or occurrences.” there, stop could with a that the decision 40(a). instance, in I But this think could give rise to two claims that may be recognized court this trial by plaintiffs have been in two asserted issue, only a technical overcome with suits, separate might we be finished with amendment, up to be followed pleading analysis. our damages appropriate segregation of with with an But we are not finished. are not the evidence and instruction We damage for limiting the use of evidence first, finished for two reasons. which The Thus, it applied. the claim to which only belabor, I will not is the use the term I believe defeated while “suit” section contradistin- jurisdiction by the manner of trial court’s guished from the term “claim” used else- it is pleading, pleading I believe statute, second, where and the is the be, be, and must remed defect could unity damages as pled actual Thus, is to appropriate ied. result plaintiffs. denying the trial court’s order reverse legislature first is The used simple. jurisdiction and remand the broader term “suit” in section proceed trial case to the court further 101.106(b) than the term “claim” as used opinion. ings consistent our See Su statute, example elsewhere America, Inc. v. David McDavid baru of 101.106(c). legislature must Inc., (Tex.2002); Nissan, something by meant differ- have use of Tims, 10-05-00006-CV, No. Johnson terms. ent Tex.App. LEXIS 2005 WL 29, 2005, no Second, (Tex.App. June judicial economy not withstand- —Waco not, h.). I majority *9 Because does pet. I ing, expect problems real and substantial respectfully dissent. segregating the actual wrongful damages alleged caused damages claim from the
termination malicious A fact prosecution claim. only single probably in a
finder