Texas a & M University v. Bishop, Paul A. ( 2003 )

Motion for Rehearing Denied and Concurring and Dissenting Opinions on Motion for Rehearing filed April 10, 2003

Motion for Rehearing Denied and Concurring and Dissenting Opinions on Motion for 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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C O N C U R R I N G   O P I N I O N   O N

M O T I O N   F O R   R E H E A R I N G

            As noted in our prior opinion, when official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability.  Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).  A governmental employee is entitled to official immunity for: (1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith.  Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002).

            In this case, it is undisputed that the faculty advisors’ actions (or inactions) were within the scope of their authority and that they were discretionary to the extent of being non-ministerial.^[1]  Similarly, I do not believe there is a serious issue as to whether the faculty advisors were acting (or failing to act) in good faith.^[2]  Rather, the difficulty is determining whether Kassen^[3] applies.

            Ordinarily, if the other two elements are met, official immunity extends to any action or decision by a state employee that is discretionary (rather than ministerial).^[4]  See Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994).  However, government-employed medical personnel are not entitled to immunity for actions based on their exercise of purely medical discretion unmixed with any governmental discretion (the “Kassen exception”).  See id. at 11-12.  Kassen thus held that a summary judgment and directed verdict were erroneously granted to a state-employed doctor and nurse, respectively, because they each failed to establish that the discretion they exercised (in deciding not to admit a mental patient to their hospital) was at least partly governmental.  See id. at 7, 11-12.^[5]

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            The State argues that the only type of state employee to whom the Kassen exception applies is a health care provider.  Because the faculty advisors in this case were clearly not medical professionals, the State contends that their undisputedly non-ministerial actions automatically satisfy the discretionary act element of official immunity.

            Although Kassen was decided with regard to state health-care employees,^[6] the opinion does not limit its scope to such employees, and its rationale for drawing a distinction between governmental and non-governmental discretion^[7] could also apply to other areas of state employment, if any, where wholly non-governmental discretion is exercised. Any such ambiguity is further compounded by footnote 8 of Kassen, which does not appear to contemplate restricting the issue solely to state medical personnel (and which would not appear relevant or necessary in a purely medical context):

Official immunity applies to executive officials and to lower level personnel who exercise governmental discretion.  See Restatement of Torts (Second) § 895D cmt. d (1977).  We decline to attempt precisely to define when a government employee’s acts involve “governmental” discretion, but recommend that courts consider the following factors:

1. the nature and importance of the function that the employee is performing,

2. the extent to which passing judgment on the exercise of discretion by the employee will amount to passing judgment on the conduct of a coordinate branch of government or an agency thereof,

3. the extent to which the imposition of liability would impair the employee’s free exercise of discretion,

4. the extent to which financial responsibility will fall on the employee,

5. the likelihood that harm will result to the public if the employee acts,

6. the nature and seriousness of the type of harm that may be produced, and

7. the availability to the injured party of other remedies and forms of relief. 

See id. § 895D cmt. f.

See Kassen, 887 S.W.2d at 12 n.8.  We thus lack a sufficient basis to conclude, as the State contends, that the Kassen exception is necessarily limited to state medical employees.  Conversely, because the State has not chosen to address, legally or factually, whether the discretion exercised by the faculty advisors in this case was governmental in nature, we cannot reach that issue.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Concurring and Dissenting Opinions on Motion for Rehearing filed April 10, 2003.

Panel consists of Justices Hudson, Edelman, and Murphy.^[8]

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^[1]           As contrasted from a ministerial act, which requires obedience to orders or the performance of a duty to which the actor has no choice, a discretionary action involves deliberation, discretion, decision, or judgment.  City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994).  The focus is on whether the function is discretionary, not whether the actor had discretion to act negligently while discharging that function.  See id. at 653.

^[2]           The issue of good faith in this case is whether any reasonable faculty advisor, under similar circumstances, could have believed that the faculty advisors’ failure to supervise the play closely enough to discover and prohibit the use of a real knife was justified based on the information they possessed when the conduct occurred.  Cf. Telthorster, 92 S.W.3d at 465.  Because faculty advisors of reasonable competence could disagree on this issue, the faculty advisors acted in good faith as a matter of law.  See id.

^[3]           See Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994).

^[4]           Presumably, this is because the discretion exercised by most state employees is entirely governmental.

^[5]           Whether a governmental activity is discretionary is a legal question.  State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 (Tex. 2002).  In Kassen, the defendants failed to offer either facts or effective legal arguments to establish a governmental component for their decision.  See Kassen, 887 S.W.2d at 12.

^[6]           See id. at 10-12.

^[7]           See id.

^[8]           Senior Chief Justice Paul C. Murphy sitting by assignment.