defense of official immunity in Texas

2025Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ dism'd w.o.j., per curiam, 907 S.W.2d 443 (Tex. 1995).

2019Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex. 2009)). 9 protections for claims against them in that capacity, although they may assert the defense of official immunity.”) (citing Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ dism’d w.o.j., 907 S.W.2d 443 (Tex.1995) (per curiam)).

2024Police Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309 , at *6 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.); City of Fort Worth v. Robinson, 300 S.W.3d 892 , 899- 900 (Tex. App.—Fort Worth 2009, no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied). 2 exception to the Tort Claims Act’s waiver of immunity2—may “inferentially rebut the defense of official immunity.” City of Lancaster, 883 S.W.2d at 656 n.5.

2005See City of Lancaster, 883 S.W.2d at 656 n. 5 (the statute governing the duty emergency vehicle operators owe to others “may be read to inferentially rebut the defense of official immunity for operators of emergency vehicles in some instances by collapsing the duty and good faith inquiries”).

2021See id. at 6 (“In this case we decide whether a doctor and nurse employed by a governmental entity were entitled to the defense of official immunity when sued individually for medical malpractice.”).

2011In Kassen v. Hatley, we held that government-employed medical personnel were not entitled to the defense of official immunity when sued individually for the negligent exercise of purely medical judgment. 887 S.W.2d 4, 11 (Tex.1994).

2009See Vela v. Rocha , 52 S.W.3d 398, 404 (Tex. App.—Corpus Christi 2001, pet. denied); Battin v. Samaniego , 23 S.W.3d 183 , 187–88 (Tex. App.—El Paso 2000, pet. denied).

2009See Vela v. Rocha, 52 S.W.3d 398, 404 (Tex.App.-Corpus Christi 2001, pet. denied); Battin v. Samaniego, 23 S.W.3d 183, 187-88 (Tex.App.-El Paso 2000, pet. denied).

2020“Persons sued in their official capacity may raise any defense available to the governmental unit, including sovereign immunity” although this immunity does not apply to a person sued in their individual capacity and “[p]ersons sued in their individual capacities, . . . may not rely on sovereign immunity protections for claims against them in that capacity, although they may assert the defense of official immunity.” Id. at 215 (citations omitted). “[P]ersons sued in both official and individual capacities may assert both official and sovereign immunity, although they enjoy sovereign immunity p

2020“Persons sued in their official capacity may raise any defense available to the governmental unit, including sovereign immunity” although this immunity does not apply to a person sued in their individual capacity and “[p]ersons sued in their individual capacities, . . . may not rely on sovereign immunity protections for claims against them in that capacity, although they may assert the defense of official immunity.” Id. at 215 (citations omitted). “[P]ersons sued in both official and individual capacities may assert both official and sovereign immunity, although they enjoy sovereign immunity p

2003In support of this argument, appellee cites City of Columbus v. Barnstone, 921 S.W.2d 268 (Tex. App.-Houston [1st Dist.] 1995, no writ) and Baker v. Story, 621 S.W.2d 639 (Tex. Civ.App.-San Antonio 1981, writ ref'd n.r.e.).

2003In support of this argument, appellee cites City of Columbus v. Barnstone, 921 S.W.2d 268 (Tex.App.—Houston [1st Dist.] 1995, no writ) and Baker v. Story, 621 S.W.2d 639 (Tex.Civ.App.—San Antonio 1981, writ refd n.r.e.).

2015Page 12 of 12 2015 Tex. App. LEXIS 5661 , *18 The Court reaffirmed this logic in its recent Conclusion opinion in Refaey when it held that the university "may rely on its [peace officer] The Rice parties were entitled to summary employee's assertion of immunity for judgment because Officer Cash purposes of invoking interlocutory established the defense of official immunity appellate jurisdiction under section and all of Thomas's claims against the 51.014(a)(5)." Refaey, 2015 Tex. LEXIS university or the police department are 351, 2015 WL 1869890, at *4 (citing City of derivative of his claims

2015No Texas case appears to address the precise situation before us, in which a private entity, such as an educational institution, may assert as a defense the fact that its employee established a defense of official immunity. 5 Binding precedent, however, is entirely clear that a private entity is “entitled to assert any affirmative defenses its employee has to liability.” DeWitt, 904 S.W.2d at 654 .

2000The doctrine of official immunity under Texas law has been described as follows: “When a government employee carries out the discretionary duties of his job in good faith and acts within the scope ofhis authority, the employee is entitled to official immunity from suit.” Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992) (Comyn, J., concurring).

1995The court noted that several cases in which the defense of official immunity was raised reveal that pretrial discovery of the defendants’ had occurred, citing Travis v. City of Mesquite, 830 S.W.2d 94, 97 (Tex.1992), and Brown v. Herman, 852 S.W.2d 91, 93 (Tex.App.-Austin 1993, orig. proceeding).

2011On appeal, DPS contends that Sergeant Parker did not have to satisfy the heightened need/risk assessment elaborated in Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.1997), for determining whether a public official acts in good faith for purposes of the official immunity defense for police pursuit cases.

2011On appeal, DPS contends that Sergeant Parker did not have to satisfy the heightened need/risk assessment elaborated in Wadewitz v. Montgomery , 951 S.W.2d 464, 467 (Tex. 1997), for determining whether a public official acts in good faith for purposes of the official immunity defense for police pursuit cases.

2008See Morse v. Frederick, — U.S. —,—n. 1, 127 S.Ct. 2618 , 2624 n. 1, 168 L.Ed.2d 290 (2007) (qualified immunity shields public officials from money damages, not injunctive or declaratory relief); City of El Paso v. Heinrich, 198 S.W.3d 400, 407 (Tex.App. — El Paso 2006, pet. granted) (official immunity does not apply to action for declaration that official acted in violation of constitutional rights); see Tex. Nat.

2008See Morse v. Frederick, — U.S. —,—n. 1, 127 S.Ct. 2618 , 2624 n. 1, 168 L.Ed.2d 290 (2007) (qualified immunity shields public officials from money damages, not injunctive or declaratory relief); City of El Paso v. Heinrich, 198 S.W.3d 400, 407 (Tex.App. — El Paso 2006, pet. granted) (official immunity does not apply to action for declaration that official acted in violation of constitutional rights); see Tex. Nat.

2008See Morse v. Frederick, ___ U.S. ___, ___ n. 1, 127 S.Ct. 2618 , 2624 n. 1, 168 L.Ed.2d 290 (2007) (qualified immunity shields public officials from money damages, not injunctive or declaratory relief); City of El Paso v. Heinrich, 198 S.W.3d 400, 407 (Tex.App.—El Paso 2006, pet. granted) (official immunity does not apply to action for declaration that official acted in violation of constitutional rights); see Tex. Nat.

2008See Morse v. Frederick, — U.S. —,—n. 1, 127 S.Ct. 2618 , 2624 n. 1, 168 L.Ed.2d 290 (2007) (qualified immunity shields public officials from money damages, not injunctive or declaratory relief); City of El Paso v. Heinrich, 198 S.W.3d 400, 407 (Tex.App. — El Paso 2006, pet. granted) (official immunity does not apply to action for declaration that official acted in violation of constitutional rights); see Tex. Nat.

2003Case law states that official immunity may protect state employees who are sued in their individual capacities, see, e.g., Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex.App.-El Paso 1994, no writ), and if the employee is protected from liability by official immunity, the governmental entity retains its sovereign immunity.

2003Case law states that official immunity may protect state employees who are sued in their individual capacities, see, e.g., Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex.App.—El Paso 1994, no writ), and if the employee is protected from liability by official immunity, the governmental entity retains its sovereign immunity.

1995The court noted that several cases in which the defense of official immunity was raised reveal that pretrial discovery of the defendants’ had occurred, citing Travis v. City of Mesquite, 830 S.W.2d 94, 97 (Tex.1992), and Brown v. Herman, 852 S.W.2d 91, 93 (Tex.App.-Austin 1993, orig. proceeding).

1994For example, in Brown v. Herman, 852 S.W.2d 91, 93 (Tex.App. — Austin 1993, orig. proceeding [leave denied]), the appellate court denied leave to file a petition for writ of mandamus when the relators sought relief from an order allowing limited discovery concerning their claim of official immunity.

2009See Vela v. Rocha , 52 S.W.3d 398, 404 (Tex. App.—Corpus Christi 2001, pet. denied); Battin v. Samaniego , 23 S.W.3d 183 , 187–88 (Tex. App.—El Paso 2000, pet. denied).

2009See Vela v. Rocha, 52 S.W.3d 398, 404 (Tex.App.-Corpus Christi 2001, pet. denied); Battin v. Samaniego, 23 S.W.3d 183, 187-88 (Tex.App.-El Paso 2000, pet. denied).

2015Page 12 of 12 2015 Tex. App. LEXIS 5661 , *18 The Court reaffirmed this logic in its recent Conclusion opinion in Refaey when it held that the university "may rely on its [peace officer] The Rice parties were entitled to summary employee's assertion of immunity for judgment because Officer Cash purposes of invoking interlocutory established the defense of official immunity appellate jurisdiction under section and all of Thomas's claims against the 51.014(a)(5)." Refaey, 2015 Tex. LEXIS university or the police department are 351, 2015 WL 1869890, at *4 (citing City of derivative of his claims

2015Id.

2024Police Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309 , at *6 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.); City of Fort Worth v. Robinson, 300 S.W.3d 892 , 899- 900 (Tex. App.—Fort Worth 2009, no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied). 2 exception to the Tort Claims Act’s waiver of immunity2—may “inferentially rebut the defense of official immunity.” City of Lancaster, 883 S.W.2d at 656 n.5.

2019Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex. 2009)). 9 protections for claims against them in that capacity, although they may assert the defense of official immunity.”) (citing Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ dism’d w.o.j., 907 S.W.2d 443 (Tex.1995) (per curiam)).

2019Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex. 2009)). 9 protections for claims against them in that capacity, although they may assert the defense of official immunity.”) (citing Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ dism’d w.o.j., 907 S.W.2d 443 (Tex.1995) (per curiam)).

2011Id. at 67, 69 .

2010See Telthorster, 92 S.W.3d at 461-62 ; see also Va. Indonesia Co., 910 S.W.2d at 907 .

2010See Telthorster, 92 S.W.3d at 461-62 ; see also Va. Indonesia Co., 910 S.W.2d at 907 .

2009See Tex. Bay Cherry Hill, L.P., 257 S.W.3d at 400 ; Tex. Dep’t of Health v. Rocha, 102 S.W.3d 348, 353 (Tex. App.—Corpus Christi 2003, no pet.); Nueces County v. Ferguson, 97 S.W.3d 205 , 215–16 (Tex. App.—Corpus Christi 2002, no pet.).

2009See Tex. Bay Cherry Hill, L.P., 257 S.W.3d at 400 ; Tex. Dep’t of Health v. Rocha, 102 S.W.3d 348, 353 (Tex. App.—Corpus Christi 2003, no pet.); Nueces County v. Ferguson, 97 S.W.3d 205 , 215–16 (Tex. App.—Corpus Christi 2002, no pet.).

2006See Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex. App.—Corpus Christi 2002, no pet.) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)) (when petition does not specify what capacity government official sued in, courts look at the “‘course of proceedings’” to determine nature of suit).