University of Incarnate Word and Christopher Carter v. Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus ( 2015 )

FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
06/12/15 3:11:01 PM
KEITH E. HOTTLE
Clerk
Exhibit "1"
WILLIAM MARSH RICE UNIV. V. THOMAS
No. 01-14-00908-CV, 2015 Tex. App. LEX1S 5661
(Tex. App. — Houston [1st Dist.] 2015)
No Shepard's SignalTM
As of: June 10, 2015 2:19 PM EDT
William Marsh Rice Univ. v. Thomas
Court of Appeals of Texas, First District, Houston
June 4, 2015, Opinion Issued
NO. 01-14-00908-CV
Reporter
2015 Tex. App. LEXIS 5661
WILLIAM MARSH RICE UNIVERSITY, believe that plaintiff was violating a
RICE UNIVERSITY POLICE protective order before the arrest, and
DEPARTMENT, AND OFFICER HENRY plaintiff did not raise a fact issue as to the
CASH, Appellants v. MICHAEL CLAYTON existence of probable cause or the
THOMAS, Appellee requirements of the department's General
Directive; [3]-By attempting to keep the
Prior History: [*1] On Appeal from the peace, protect campus employees and the
80th District Court, Harris County, Texas. general public, and arrest an individual
Trial Court Case No. 2013-06667. believed to be violating a protective order,
the officer was discharging the type of
Core Terms duties generally assigned to him, Tex.
Educ. Code Ann. § 51.212(b)(1) (2012).
immunity, arrest, protective order, parties,
summary judgment, peace officer, police Outcome
department, violating, duties, Judgment reversed and rendered.
commissioned, entitled to summary
judgment, summary judgment motion, LexisNexis® Headnotes
officer's, discretionary, interlocutory appeal,
trial court, good faith, Directive, entity, Civil Procedure > Appeals > Appellate
affirmative defense, university police, Jurisdiction > Interlocutory Orders
ministerial, probable
HN1 See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(5) (Supp. 2015).
Case Summary
Education Law > Administration &
Overview Operation > School Safety > Security
HOLDINGS: [1]-The denial of defendants' Personnel
summary judgment motion was improper
Governments > Local Governments > Police
in plaintiffs action alleging that he was Power
improperly arrested on campus because
the officer was performing a discretionary HN2 The Civil Practice and Remedies
act; [2]-The evidence relied on by the officer Code does not define "officer of the state,"
established that he had probable cause to and the Education Code does not
Page 2 of 12
2015 Tex. App. LEXIS 5661, *1
specifically state that a peace officer HN4 Because official immunity is an
commissioned by a private educational affirmative defense, the parties must
institution is an officer of the state. But the conclusively establish each element of the
Education Code does provide that any defense. Appellate courts apply the same
officer commissioned under the provisions standard for reviewing the denial of
of Tex. Educ. Code Ann. § 51.212 (2012), summary judgment where there is an
assertion of immunity as they do for the
is vested with all the powers, privileges,
granting of summary judgment.
and immunities of peace officers if the
officer (1) is on the property under the Civil Procedure > Appeals > Summary
control and jurisdiction of the Judgment Review > Standards of Review
commissioning institution, § 51.212(b)(1) Civil Procedure > > Summary Judgment >
(2012). Indeed, officers commissioned Entitlement as Matter of Law > Genuine
under Tex. Educ. Code Ann. ch. 51 are Disputes
explicitly included in the definition of "peace Civil Procedure > > Summary Judgment >
officers" in the Code of Criminal Procedure, Entitlement as Matter of Law > Legal
Tex. Code Crim. Proc. Ann. art. 2.12(8) Entitlement
(2014).
Civil Procedure > > Summary Judgment >
Entitlement as Matter of Law > Materiality of
Education Law > Administration &
Facts
Operation > School Safety > Security
Personnel HN5 The standard of review for summary
Civil Procedure > Appeals > Appellate judgments is well-established. Appellate
Jurisdiction > Interlocutory Orders courts review the trial court's ruling de
novo. The courts take as true all evidence
HN3 The "officer of the State" language in favorable to the nonmovant, and they
Tex. Civ. Prac. & Rem. Code Ann. § indulge every reasonable inference and
51.014(a)(5) (Supp. 2015), applies to resolve any doubts in the nonmovant's
private university peace officers, favor. The party moving for summary
specifically including those commissioned judgment bears the burden to show that no
under Tex. Educ. Code Ann. § 51.212 genuine issue of material fact exists and
(2012). An employer may rely on its that it is entitled to judgment as a matter of
employee's assertion of immunity for law, Tex. R. Civ. P. 166a.
purposes of invoking interlocutory
appellate jurisdiction under Tex. Civ. Prac. Education Law > Administration &
& Rem. Code Ann. § 51.014(a)(5). Operation > School Safety > Security
Personnel
Civil Procedure > > Defenses, Demurrers
HN6 Any officer commissioned under the
& Objections > Affirmative Defenses >
provisions of Tex. Educ. Code Ann. §
Immunity
51.212 (2012) is vested with all the powers,
Civil Procedure > Appeals > Summary privileges, and immunities of peace officers
Judgment Review > Standards of Review if the officer satisfies any of several
Page 3 of 12
2015 Tex. App. LEXIS 5661, *1
conditions, one of which is that he is on the HN8 To establish an official immunity
property under the control and jurisdiction defense, the following three elements must
of the respective private institution of higher be established: the performance of (1)
education, § 51.212(b)(1). Indeed, an discretionary duties (2) in good faith (3)
officer commissioned under § 51.212(a) is while acting within the scope of his
a "peace officer." Under § 51.212(c), an authority.
officer commissioned under that section
Torts > Public Entity Liability > Immunities >
must take and file the oath required of Qualified Immunity
peace officers and execute and file a good
Governments > Local Governments > Police
and sufficient bond conditioned on officer's
Power
fair, impartial, and faithful performance of
officer's duty. HN9 Discretionary actions are those that
require personal deliberation, decision and
Governments > Local Governments > Police judgment. By contrast, ministerial actions
Power require obedience to order or the
Governments > Local Governments > performance of a duty as to which the actor
Employees & Officials is left no choice. Ministerial acts are those
Governments > Local Governments > where the law prescribes and defines the
Claims By & Against duties to be performed with such precision
and certainty as to leave nothing to the
Torts > Public Entity Liability > Immunities > exercise of discretion or judgment. The
Qualified Immunity investigatory duties of peace officers have
HN7 Government employees, such as been held to fall within those actions
peace officers, are entitled to immunity considered discretionary. Further, if, how,
from suit arising from the performance of and when to arrest a suspect is within a
(1) discretionary duties in (2) good faith as police officer's discretion.
long as they are (3) acting within the scope Torts > Public Entity Liability > General
of their authority. Common law official Overview
immunity is based on the necessity of
public officials to act in the public interest HN10 To determine whether a public official
with confidence and without the hesitation acted in good faith, courts use the objective
that could arise from having their judgment standard and ask whether a reasonably
continually questioned by extended prudent official, under the same or similar
litigation. The public would suffer if circumstances, could have believed that
government officials, who must exercise his conduct was justified based on the
judgment and discretion in their jobs, were information he possessed when the
subject to civil lawsuits that conduct occurred. The standard of good
second-guessed their decisions. faith as an element of official immunity is
not a test of carelessness or negligence, or
Torts > Public Entity Liability > Immunities > a measure of an official's motivation. This
Qualified Immunity test of good faith does not inquire into what
Page 4 of 12
2015 Tex. App. LEXIS 5661, *1
a reasonable person would have done, but Rice University police officer, alleging that
into what a reasonable person could have he was improperly arrested on the Rice
believed. campus. The defendants moved for
summary judgment, arguing that Cash and,
Torts > Public Entity Liability > General by extension, the police department and
Overview university (collectively, "Rice parties") are
HN11 An official acts within the scope of entitled to official immunity, which the trial
his authority if he is discharging the duties court denied. The Rice parties now appeal
generally assigned to him. from the trial court's order denying their
motion. Because the Rice parties were
Governments > Local Governments > Police entitled to summary judgment, we reverse
Power and render judgment that Thomas take
Governments > Local Governments > nothing.
Employees & Officials
Background
Torts > Public Entity Liability > Immunities >
Sovereign Immunity In November 2011, Officer Cash
responded to a radio call from the university
HN12 Official immunity directly protects police department's dispatcher that "a man
only the individual officer, not the entity that [on the Rice campus] may be violating a
employs him. But when the officer protective order by attempting to contact
establishes that he is entitled to that his wife or words to that effect." He
defense, the employer is entitled to assert encountered Thomas at the BioScience
it, as well. A private entity is entitled to Research Center building, identified
assert any affirmative defenses its himself, and spoke with Thomas. Thomas
employee has to liability. It would serve no gave his name and stated that [*21 he was
legislative purpose to declare a waiver of there to see his wife. Officer Cash asked
sovereign immunity when the basis of Thomas if a protective order existed, and
liability is respondeat superior and the acts Thomas did not deny that such an order
of the employee are covered by official existed. Officer Cash then handcuffed
immunity. Thomas out of concern for his own safety
and that of the public and took him to the
Judges: Panel consists of Chief Justice building security office.
Radack and Justices Brown and Lloyd.
Officer Cash then conducted an
Opinion by: Harvey Brown investigation, during which he spoke with
Thomas's wife, who stated that she had a
Opinion protective order against Thomas. Officer
Cash next called the district attorney's
MEMORANDUM OPINION office and spoke to an assistant district
Michael Clayton Thomas sued William attorney, who said the district attorney's
Marsh Rice University, the Rice University office would verify the existence of the
Police Department, and Henry Cash, a protective order and would accept charges
Page 5 of 12
2015 Tex. App. LEXIS 5661, *2
against Thomas for violating the order. In their first issue, the Rice parties argue
Officer Cash then arrested Thomas for that we have jurisdiction over this
violating a protective order. interlocutory appeal pursuant to Section
51.014(a)(5) of the Civil Practice and
Thomas's vehicle was towed from the Rice Remedies Code. See TEX. Civ. PRAC. &
University garage where he had parked, REM. CODE ANN. § 51.014(a)(5) (West Supp.
and officers transported Thomas to the 2015). That statute provides,
Harris County jail. While Thomas was being
processed at the jail, the officers learned HN1 A person may appeal from an
that the order against him was not a interlocutory order of a district court . . .
protective order, but a mutual restraining that: . . . denies a motion for summary
order, violation of which did not permit judgment that is based on an assertion
Thomas's arrest. Officers then took of immunity [*4] by an individual who is
Thomas back to the university campus, an officer or employee of the state or a
and he took a taxi to the lot where his car political subdivision of the state.
had been [*3] towed.
Id. According to the Rice parties, Officer
Thomas sued the Rice parties for Cash is a peace officer commissioned
negligence; false arrest; false under Section 51.212 of the Education
imprisonment; intentional infliction of Code and, as a peace officer, is or should
emotional distress; conversion of his be treated as an "officer . . . of the state."
vehicle; violations of the United States They conclude that he is therefore entitled
Constitution under Chapter 42, Section to an interlocutory appeal under Section
1983, of the United States Code; violations 51.014(a)(5). Thomas responds that we
of the Texas Constitution; battery; damage have no jurisdiction to hear this
to his vehicle; and malicious prosecution. interlocutory appeal, as Officer Cash "is
The Rice parties moved for a traditional not an officer or employee of the state."
summary judgment, arguing that the
HN2 The Civil Practice and Remedies
doctrine of official immunity barred
Code does not define "officer . . . of the
Thomas's claims against Officer Cash.
state," and the Education Code does not
Because Thomas based his claims against
specifically state that a peace officer
the university and the department on
commissioned by a private educational
theories of vicarious liability for Officer
institution is an "officer of the state." But
Cash's actions, the Rice parties argued
the Education Code does provide that
that summary judgment was also proper
"[a]ny officer commissioned under the
on those claims.
provisions of [Section 51.212] is vested
The trial court denied the Rice parties' with all the powers, privileges, and
motion, and the Rice parties now appeal immunities of peace officers if the officer
that order. (1) is on the property under the control and
jurisdiction of the" commissioning
Jurisdiction over this Interlocutory institution, as Officer Cash was when he
Appeal detained Thomas. TEX. EDUC. CODE ANN. §
Page 6 of 12
2015 Tex. App. LEXIS 5661, *4
51.212(b)(1) (West 2012) (emphasis appeals had jurisdiction over the officer's
added). Indeed, officers commissioned interlocutory appeal. Id. Turning to the
under Chapter 51 of the Education Code university's appeal, the Court noted that
are explicitly included in the definition [*5] "an employer may rely on its employee's
of "peace officers" in the Code of Criminal assertion of immunity for purposes of
Procedure. TEX. CODE CRIM. PROC. ANN. art. invoking interlocutory appellate jurisdiction
2.12(8) (West 2014). under Section 51.014(a)(5)." Id. (citing City
The Supreme Court of Texas recently of Beverly Hills v. Guevara, 904 S.W.2d
resolved this issue in William Marsh Rice 655, 656 (Tex. 1995) (per curiam)). It then
University v. Refaey, No. 14-0048, 2015 held that the court of appeals had
Tex. LEXIS 351, 2015 WL 1869890 (Tex. jurisdiction over the university's appeal, as
Apr. 24, 2015) (per curiam). Refaey was well. Id.
arrested by a Rice University police officer
The Supreme Court's holding in Refaey is
for driving while intoxicated, obstructing a
roadway, and evading arrest. 2015 Tex. dispositive of the Rice parties' first issue.
LEXIS 351, 2015 WL 1869890, at *1. The Because Officer Cash is an "officer . . . of
Harris County District Attorney's office later the state" within the meaning of Section
dismissed all charges. Id. Refaey sued the 51.014(a)(5), we have jurisdiction over his
arresting officer and the university for false appeal. See id. Because the university and
imprisonment, negligence, assault, and the police department based their own
intentional infliction of emotional distress. motions for summary judgment and their
Id. The officer and university moved for own standing to appeal on Officer Cash's
summary judgment on the grounds that assertion of immunity, we also have
the officer was entitled to the defense of jurisdiction over their appeal. See id.
official immunity. Id. The trial court denied Accordingly, we sustain the Rice parties'
the motion, and the defendants filed an first issue and proceed to the merits of the
interlocutory appeal pursuant to Section motion for summary judgment.
51.014(a)(5). Id. The court of appeals
dismissed the appeal for lack of jurisdiction, Rice Parties' Motion for Summary
holding that the officer was not an "officer Judgment
or employee of the state," and therefore
had no standing to appeal under that In their second issue, the Rice parties
section. Id. argue that the trial court erred by denying
The Supreme Court reversed, holding that their motion for summary judgment, which
HN3 "the 'officer . . . of the state' language presented a single issue: whether Officer
in Section 51.014(a)(5) applies to private Cash and, by extension, the university and
university peace officers," specifically its police [*7] department are entitled to
including those commissioned under
Section 51.212 of the Education Code.
2015 Tex. LEXIS 351, [WL] at *4. It
therefore concluded that the court [*6] of
Page 7 of 12
2015 Tex. App. LEXIS 5661, *7
summary judgment on the affirmative HN6 "Any officer commissioned under the
defense of official immunity.' provisions of [Section 51.212 of the
Education Code] is vested with all the
A. Standard of review and applicable powers, privileges, r81 and immunities of
law peace officers if the officer" satisfies any of
several conditions, one of which is that he
HN4 Because official immunity is an
"is on the property under the control and
affirmative defense, the Rice parties must
jurisdiction of the respective private
conclusively establish each element of the
institution of higher education." TEX. EDUC.
defense. Kassen v. Hatley, 887 S.W.2d 4,
CODE ANN. § 51.212(b)(1). Indeed, an officer
8 (Tex. 1994); Saade v. Villarreal, 280
commissioned under Section 51.212(a) of
S.W.3d 511, 522 (Tex. App.—Houston
[14th Dist.] 2009, pet. dism'd); see also the Education Code is a "peace officer." Id.
Joe v. Two Thirty Nine Joint Venture, 145 § 51.212(a); TEX. CODE CRIM. PROC. ANN. art.
S.W.3d 150, 156-57 (Tex. 2004). "We apply 2.12(8) (West 2014) (defining "peace
the same standard for reviewing the denial officers"); see also TEX. EDUC. CODE ANN. §
of summary judgment where there is an 51.212(c) (officer commissioned under that
assertion of immunity as we do for the section must "take and file the oath
granting of summary judgment." Welch v. required of peace officers" and "execute
Milton, 185 S.W.3d 586, 593 (Tex. and file a good and sufficient bond"
App.—Dallas 2006, pets. denied); see also conditioned on officer's fair, impartial, and
Saade, 280 S.W.3d at 522; Bartlett v. faithful performance of officer's duty).
Cinemark USA, Inc., 908 S.W.2d 229, 233
HN7 "Government employees, such as
(Tex. App.—Dallas 1995, no writ).
peace officers, are entitled to immunity
HN5 The standard of review for summary from suit arising from the performance of
judgments is well-established. We review (1) discretionary duties in (2) good faith as
the trial court's ruling de novo. Provident long as they are (3) acting within the scope
Life & Accident Ins. Co. v. Knott, 128 of their authority." City of Columbus v.
S.W.3d 211, 215 (Tex. 2003); FM Props. Barnstone, 921 S.W.2d 268, 272 (Tex.
Operating Co. v. City of Austin, 22 S.W.3d App.—Houston [1st Dist.] 1995, no writ);
868, 872 (Tex. 2000). "[W]e take as true all see Ballantyne v. Champion Builders, Inc.,
evidence favorable to the nonmovant, and 144 S.W.3d 417, 424 (Tex. 2004); City of
we indulge every reasonable inference and Lancaster v. Chambers, 883 S.W.2d 650,
resolve any doubts in the nonmovant's 653 (Tex. 1994); Tex. Dep't of Pub. Safety
favor." Knott, 128 S.W.3d at 215. The party v. Rodriguez, 344 S.W.3d 483, 488 (Tex.
moving for summary judgment bears the App.—Houston [1st Dist.] 2011, no pet.).
burden to show that no genuine issue of The Supreme Court of Texas has explained
material fact exists and that it is entitled to the policy purpose of the doctrine of official
judgment as a matter of law. TEX. R. Civ. P. immunity as follows: "Common law official
166a; Knott, 128 S.W.3d at 215-16. immunity is based on the necessity of
1 The motion also requested summary judgment on Thomas's defamation claim as barred by the statute of limitations. That
cause of action, however, does not appear in Thomas's live pleading and is therefore abandoned.
Page 8 of 12
2015 Tex. App. LEXIS 5661, *8
public officials to act in the public interest "The investigatory duties of peace officers
with confidence and without the hesitation have been held to fall within those actions
that could arise from having their judgment considered discretionary." City of
continually questioned [*9] by extended Columbus, 921 S.W.2d at 272. Further,
litigation." Ballantyne, 144 S.W.3d at 424. how, and when to arrest a suspect is
"The public would suffer if government within a police officer's discretion." Dallas
officials, who must exercise judgment and Area Rapid Transit v. Carr, 309 S.W.3d
discretion in their jobs, were subject to civil 174, 178 (Tex. App.—Dallas 2010, pet.
lawsuits that second-guessed their denied); see City of Columbus, 921 S.W.2d
decisions." Id. (quoting Kassen, 887 at 272.
S.W.2d at 8).
Thomas argues that Officer Cash's
B. Officer Cash's Defense of Official decision to arrest him could not have been
Immunity [*10] discretionary for three reasons: (1)
there was no probable cause to arrest him;
HN8 To establish his official immunity (2) Rice police department policy required
defense, Officer Cash must establish three Officer Cash to verify the existence of a
elements: the performance of (1) valid protective order before making an
discretionary duties (2) in good faith (3) arrest, and that requirement imposed a
while acting within the scope of his ministerial duty; and (3) Officer "Cash's
authority. Ballantyne, 144 S.W.3d at 424; defense that he acted because the [district
Chambers, 883 S.W.2d at 653; Rodriguez, attorney] told him the [district attorney]
344 S.W.3d at 488. would verify the protective order is suspect"
for a variety of reasons which are repetitive
1. Discretionary Act of his other two arguments. In his brief,
these arguments overlap and are all based
HN9 "Discretionary actions are those that
require personal deliberation, decision and on whether Officer Cash properly verified
judgment." Ervin v. James, 874 S.W.2d the existence of the protective order, in
713, 716 (Tex. App.—Houston [14th Dist], accordance with Rice police procedures.
1994, writ denied). By contrast, Because the court order involved was a
"[m]inisterial actions require obedience to restraining order, violation of which did not
permit Thomas's arrest, Thomas reasons
order or the performance of a duty as to
which the actor is left no choice." Id. that Officer Cash could not have believed
"Ministerial acts are those 'where the law that probable cause existed when he
prescribes and defines the duties to be arrested Thomas.
performed with such precision and Thomas relies on the fact that Officer Cash
certainty as to leave nothing to the exercise did not definitively determine whether the
of discretion or judgment."' Sw. Bell Tel., order was a protective order or a restraining
L.P. v. Emmett, No. 13-0584, 2015 Tex. order until after the arrest, which he
LEXIS 274, 2015 WL 1285326, at *7 (Tex. contends violates Rice University Police
Mar. 20, 2015) (quoting Chambers, 883 Department General Directive 08(6)(2) and
S.W.2d at 654). a resulting ministerial duty. The General
Page 9 of 12
2015 Tex. App. LEXIS 5661, *10
Directive2 states, [*11] in relevant part, questioning, detaining, and arresting
"When probable cause [exists] to believe a Thomas, Officer Cash was performing a
person has committed an action which discretionary act.
violates the terms of a valid Protective
Order, prior to arrest, verification of 2. Good Faith
existence of Protective Order will be
HN10 "To determine whether a public
made." According to Thomas, this section
official acted in good faith, we use the
of the General Directive imposed a
objective standard adopted in Chambers
ministerial duty on Officer Cash to
and ask whether a reasonably prudent
definitively confirm the existence of a
official, under the same or similar
protective order, either by contacting other
circumstances, could have believed that
law enforcement agencies or by reviewing
his conduct was justified based on the
the order himself.
information he possessed when the
The same section of the General Directive conduct occurred." Ballantyne, 144 S.W.3d
at 426; Chambers, 883 S.W.2d at 656.
provides two means by which an officer
"The standard of good faith as an element
"may" obtain information on a Protective
of official immunity is not a test of
Order—each of which consists of asking
carelessness or negligence, or a measure
another law enforcement agency—but
of an official's motivation." Ballantyne, 144
does not specify that any particular method
S.W.3d at 426. "This test of good faith does
must be used. It also provides that
not inquire into 'what a reasonable person
"[p]hysical possession [of a] Protective
would have done,' but into 'what a
Order is not necessary." The directive does
not "leave nothing to the exercise of reasonable [person] could have believed.'"
discretion or judgment" with respect to the Id. (quoting Telthorster v. Tennell, 92
manner of verification and [*12] therefore S.W.3d 457, 465 (Tex. 2002)); see
Chambers, 883 S.W.2d at 656-57.
does not impose a ministerial duty. Emmett,
2015 Tex. LEXIS 274, 2015 WL 1285326, Officer Cash presented his own affidavit
at *7; Chambers, 883 S.W.2d at 654. detailing [*13] the steps he took to
investigate whether a protective order
The evidence relied on by Officer Cash existed. He also presented an affidavit from
establishes that he had probable cause to Chief Steven McGee, police chief for Texas
believe that Thomas was violating a Christian University's Police Department,
protective order before the arrest, and in which Chief McGee opined that Officer
Thomas has not raised a fact issue as to Cash's beliefs and behavior were those of
the existence of probable cause or the a reasonable police officer under the
requirements of the department's General circumstances at the time of Thomas's
Directive. We hold that the evidence arrest. The only evidence to which Thomas
conclusively establishes that, in cites in response is his own testimony that,
2 The copy in the record, which Thomas attached to his response to the Rice parties' motion for summary judgment, is not
authenticated. Neither party addresses this fact in its briefs. We will assume without deciding that the document was properly
before the trial court.
Page 10 of 12
2015 Tex. App. LEXIS 5661, *13
after Officer Cash took him to the Rice Cash] was outside the scope of his
police station, "one of the officers held the authority when he arrested [Thomas].
papers and said, 'You violated this order,
that's why you're being under arrest,'" and The above statements constitute the
an unauthenticated recording of the entirety of his argument on this point.
dispatcher's radio call.3 He has not Thomas does not cite any authority or
identified any evidence that Officer Cash evidence in support of this theory.
could not reasonably have believed that Officer [15] Cash introduced evidence, in
Thomas was violating a protective order at the form of his own affidavit and that of
the time of the arrest. He therefore failed to Chief McGee, that he arrested Thomas in
raise a fact issue to survive summary the course of discharging his duties as a
judgment on this basis. See Ballantyne, peace officer at Rice University. And for the
144 S.W.3d at 426; Telthorster, 92 S.W.3d reasons we have already discussed, there
at 465; Chambers, 883 S.W.2d at 656-57. is no evidence that, at the time that he
arrested Thomas, Officer Cash
3. Scope of Officer Cash's Duties
"disregard[ed]" any mandatory policies of
HN11 "An official acts within the scope of his employer or a court order. Nor is there
[his] authority if [he] is discharging the any evidence that Officer Cash's
duties generally assigned to [him]." statements to the district attorney's
Chambers, 883 S.W.2d at 658. Thomas office—that he believed a protective order
did not challenge the "scope of duty" existed and that he did not have a copy of
element of the defense of official immunity that order—were false, much less that
in his response to the Rice parties' motion Officer Cash knew they were false when
for summary judgment. Nonetheless, on making them.4
appeal, he argues,
By attempting to keep the peace, protect
It is undisputed that [Officer Cash's] campus employees and the general public,
authority and duties did not include the and arrest an individual believed to be
authority to disregard the written violating a protective order, Officer Cash
mandated policies of his employer, did was discharging the type of duties
not include the authority to disregard generally assigned to him. Cf. City of
the express written order of a district Lancaster, 883 S.W.2d at 658. Recasting
judge, [and] did not include the authority those actions as being negligently
to make a false statement to the DA's performed or in violation of department
representative. Therefore, [Officer protocols does [*16] not remove them from
3 According to Thomas, the recording describes the order in question as a "restraining order," not a "protective order." But the
recording itself is not in the record. Thomas attached to his response to the motion for summary judgment only a photocopy of
a CD case and CD purportedly [*14] containing the recording. Although his response stated that he would file a copy of the disc
itself, he did not do so. There is thus no evidence in the record, other than Officer Cash's affidavit, of what the dispatcher said
or what Officer Cash heard in the dispatcher's radio call.
4We need not and do not opine on whether, if such evidence existed, it would suffice to meet Thomas's burden to
demonstrate the existence of a genuine issue of material fact as to whether Officer Cash acted within the scope of his duties.
Page 11 of 12
2015 Tex. App. LEXIS 5661, *16
the officer's scope of authority. Id.; Harris that he is entitled to that defense, the
Cnty. v. Ochoa, 881 S.W.2d 884, 888 (Tex. employer is entitled to assert it, as well. Id.
App.—Houston [14th Dist.] 1994, writ at 654; see Refaey, 2015 Tex. LEXIS 351,
denied) (officer's pursuit of suspect was 2015 WL 1869890, at *4.
act within scope of authority, even if No Texas case appears to address the
wrongly or negligently performed). precise situation before us, in which a
Officer Cash adduced evidence sufficient private entity, such as an educational
to meet his evidentiary burden to obtain institution, may assert as a defense the
summary judgment, and Thomas did not fact that its employee established a
raise any issues of material fact as to any defense of official immunity.5 Binding
element of Officer Cash's defense. We precedent, however, is entirely clear that a
therefore hold that Officer Cash private entity is "entitled to assert any
conclusively proved his entitlement to the affirmative defenses its employee has to
defense of official immunity and was liability." DeWitt, 904 S.W.2d at 654. In
entitled to summary judgment. DeWitt v. Harris County, 904 S.W.2d 650
(Tex. 1995), the Supreme Court addressed
C. The University and Police the question "whether a governmental
Department's Entitlement to Summary entity may have respondeat superior
Judgment liability under section 101.021(2) of the
Texas Tort Claims Act for the negligence of
The Rice parties argue that they are
its employee when the employee
entitled to summary judgment because
possesses official immunity" and answered
Thomas's claims against them all rest on
theories of vicarious liability. Thomas it in the negative. Id. at 651. Although the
employer in that case was a governmental
argues that Officer Cash cannot prove the
entity, the Court based its holding in part on
elements of his affirmative defense and,
therefore, the university and police whether a governmental entity should be
department are not entitled to summary treated differently than a private one. Id. at
judgment. We have already held that 654. It reasoned that, if Harris County "were
a private person, [it] would be entitled to
Officer Cash has proven his defense. Thus,
assert any affirmative defenses its
the only question remaining is whether the
employee has to liability." Id. It concluded
university and its police department are
that it "would serve no legislative purpose
entitled to summary judgment due to
[*18] to declare a waiver of sovereign
Officer Cash's official immunity.
immunity when the basis of liability is
HN12 Official immunity directly protects respondeat superior and the acts of the
only the individual officer, not the [*17] employee are covered by official immunity."
entity that employs him. E.g., DeWitt v. Id. The Court therefore held that the county
Harris Cnty., 904 S.W.2d 650, 653 (Tex. was entitled to judgment on the basis of its
1995). But when the officer establishes employee's official immunity. Id.
5 Although Refaey involved a similar fact pattern, the Supreme Court did not reach the merits of the motion for summary
judgment, and the court of appeals has not yet issued its opinion on remand.
Page 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 against Officer
Beverly Hills, 904 S.W.2d at 656 (relying
Cash. We reverse the order of the trial
on the reasoning of DeWitt, 904 S.W.2d at
court and render judgment that Thomas
654)). That holding would have no practical
impact unless the university is also entitled take nothing by his claims. We dismiss all
to rely on the officer's assertion of immunity pending motions as moot.
for purposes of the underlying motion for
summary judgment. There is no reason in Harvey Brown
this case to depart from the logic of DeWitt
and Refaey by holding that the university Justice
and police department cannot assert the
same defense as their employee.
We hold that the university and its police
department were entitled to summary [*19]
judgment.