Texas A & M University v. Bishop, Paul A.--Appeal from 212th District Court of Galveston County

Appellant s Motion for Rehearing Denied; Concurring and Dissenting Opinions to the Denial of Rehearing filed April 10, 2003

Appellant s Motion for Rehearing Denied; Concurring and Dissenting Opinions to the Denial of Rehearing filed April 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-97-00153-CV

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TEXAS A&M UNIVERSITY, Appellant

V.

PAUL A. BISHOP, Appellee

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On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 94CV0958

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DISSENTING OPINION TO THE DENIAL OF REHEARING

On remand from the Texas Supreme Court, this Court held that Michael and Diane Wonio s decision to use a real knife in a drama production at Texas A&M University at Galveston, and the faculty advisors negligent supervision of the production, was an act of professional or occupational discretion. Because the defense of official immunity applies only to claims based on the exercise of governmental discretion, we held Texas A&M was not entitled to successfully assert the defense. On rehearing, Texas A&M contends our reliance on Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994) was misplaced. Because I agree, I respectfully dissent to the denial of Texas A&M s motion for rehearing.

Official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Case 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. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995). When, as in this case, the governmental unit s liability under the Texas Tort Claims Act is based on respondeat superior for an employee s negligence arising from the use of tangible personal property, the governmental unit s liability is derivative. Id. at 654. Thus, official immunity, like any other affirmative defense available to the employee, is relevant to the governmental entity s liability. Id.

The elements of the defense are (1) the performance of a discretionary function (2) in good faith (3) within the scope of the employee s authority. Chambers, 883 S.W.2d at 653. Discretionary acts are those that require personal deliberation, decision, and judgment, whereas ministerial acts require obedience to orders. Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex. App. San Antonio 1992, writ dism d w.o.j.).

It is undisputed that the faculty advisors were performing discretionary duties. Citing Kassen, however, Bishop contends the defense of official immunity applies only if the discretionary acts are governmental in nature. In Kassen, the court addressed whether medical doctors who work for a government institution are entitled to official immunity. 887 S.W.2d at 9. The court determined that, in the case of medical personnel, there must be a distinction between governmental and medical discretion. Id. at 11. The court found that, if the doctor was exercising purely medical discretion, rather than policy-making or administrative responsibilities at the time of the injury, the doctor was not entitled to the defense of official immunity. Id.

I believe the Supreme Court intended, in Kassen, to draw a distinction only between governmental and medical discretion, not between governmental and non-governmental discretion generally. First, the phrase non-governmental discretion is nowhere found in the majority opinion. Second, the court explicitly rejected drawing a distinction between activities that are uniquely governmental and those that are not. Id. at 10. Third, the plaintiffs framed their argument in terms that such actions by government-employed physicians and nurses are only medical functions, not governmental functions. Id. at 9. Fourth, the Supreme Court has never applied this aspect of its holding in Kassen outside the medical profession. See Gross v. Innes, 988 S.W.2d 727 (Tex. 1998) (holding Kassen applies to para-medics). Finally, and most importantly, the court posited its holding in terms of distinguishing between governmental and medical discretion. Id. at 11. The court summarized its holding by stating:

We hold that government-employed medical personnel are not immune from tort liability if the character of the discretion they exercise is medical and not governmental. A state-employed doctor or nurse has official immunity from claims arising out of the exercise of governmental discretion, but is not immune from liability arising from the exercise of medical discretion. Courts should look at the character of the discretion exercised in each instance.

This approach is not the same as the Armendarez s uniquely governmental test which focused on a state employee s function. Official immunity does not turn on whether a health-care employee s discretion was uniquely governmental or medical. The focus must remain upon the facts of the individual case and the underlying policies promoted by official immunity. We anticipate difficult cases in which government-employed medical personnel will have duties and responsibilities that coincide with private-sector providers. In such cases, if governmental factors and concerns colored the doctor s or nurse s discretion, policy considerations may still call for official immunity. Such decisions necessarily involve a balancing of individual rights and the public interest.

Id. at 11-12 (emphasis added).

Accordingly, the distinction between medical and governmental discretion discussed in Kassen does not apply to the facts of this case. I would hold that Kassen is limited to cases involving doctors and medical personnel employed by governmental entities. Because I believe Kassen is inapplicable to the facts of this case and therefore, categorization of the type of discretion exercised is inappropriate, I would hold there was no basis for finding the faculty advisors were performing any function other than a discretionary one.

Although argued only on rehearing, Bishop states that, even if the faculty advisors were performing discretionary duties that fact would not entitle them to official immunity because the advisors actions could not have been in good faith. Bishop claims the advisors decision to violate university policy and allow deadly weapons to be wielded by Drama Club students cannot constitute the good faith performance of a discretionary duty.

This argument is similar to that made in Rivas v. City of Houston, 17 S.W.3d 23 (Tex. App. Houston [14th Dist.] 2000, pet. denied). In Rivas, the appellant claimed an ambulance driver had no discretion not to use the lights and sirens when the ambulance was in emergency mode. Id. at 29. This court responded to appellant s claim by stating that, under well-settled law, we must focus on whether [the governmental employee] was performing a discretionary function, not on whether [he] had discretion to do an allegedly wrongful act while discharging that function . Id. (quoting Harris County v. Ochoa, 881 S.W.2d 884, 887 (Tex. App. Houston [14th Dist.] 1994, writ denied)). Although this reasoning from Rivas concerned the element of discretion, we find it also applicable to the good faith element because the good faith standard is not equivalent to a general negligence test, which addresses what a reasonable person would have done, rather than what a reasonable official could have believed. Rivas, 19 S.W.3d at 903 (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n. 1 (Tex. 1997)).

The test of whether a governmental employee acted in good faith is one of objective legal reasonableness. City of Lancaster, 883 S.W.2d at 656. Under this test, the employee will be deemed to have acted in good faith if a reasonably prudent employee, under the same or similar circumstances, could have believed that the employee s acts were justified. Vela v. Gomez, 4 S.W.3d 911, 913 (Tex. App. Corpus Christi 1999, no pet.)(citing Chambers, 883 S.W.2d at 656).

The record contains much testimony concerning the role of the faculty advisors. The Dean of Texas A&M University at Galveston, David James Schmidly, testified faculty advisors perform an advisory role, approving financial requests and assisting with scheduling events. Although the responsibilities of advisors include attendance at club meetings whenever possible, Schmidly testified that he did not believe advisors should have attended entire play rehearsals. Schmidly emphasized that the advisors were not compensated for advisor activities. Unless the advisors attended entire rehearsals, Schmidly did not see how the advisors could have discovered a real knife was being used in the play. William Charles Hearn, Senior Student Life Affairs Dean and Executive Associate Campus Dean, testified that advisors have a responsibility to ensure compliance with university regulations, but he did not believe the advisors should have attended more rehearsals. Hearn defined the advisors role as giving advice, approving check requests, helping to develop student leadership, and to oversee, but not directly supervise the clubs. The advisors testified that they assisted with finances and approval to use facilities, but neither advisor attended any of the rehearsals of this play. Dr. Curley, one of the advisors to the Drama Club, testified that he understood his role to be merely advisory and not supervisory. Curley added that if he had known about the use of the knife, he would have taken action.

Because the evidence showed the faculty advisors role was more advisory than supervisory, a reasonably prudent faculty advisor could have believed that there was no need to attend the play rehearsals. The evidence does not show the advisors had any reason to believe direct supervision was required or necessary. Accordingly, the evidence shows the faculty advisors acted in good faith as a matter of law. Because the evidence established as a matter of law that the faculty advisors were performing discretionary acts in good faith, I would hold the trial court erred in refusing to grant Texas A&M s motion for instructed verdict on the defense of official immunity.

For these reasons, I respectfully dissent to the denial of Texas A&M s motion for rehearing.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Concurring and Dissenting Opinions to the Denial of Rehearing filed April 10, 2003.

Panel consists of Justices Hudson and Edelman, and Senior Chief Justice Murphy.*

[1] Senior Chief Justice Paul C. Murphy sitting by assignment.