TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00231-CV



Travis County, Texas, Appellant

v.

Mary A. Trevino; Angie Torres; Mary Alice Torres; and Isidro Torres, Jr., Individually and as Next Friend and Natural Guardian of Christina Chavez, Josephine Torres, and Steve Torres; and Christina Chavez and Josephine Torres, in their Majority Capacities, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 92-16665, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Appellees ⁽¹⁾ brought suit against Travis County d/b/a Office of the Medical Examiner of Travis County and Roberto J. Bayardo, M.D. for damages arising from the collection and removal of the body of Jose Angel Torres after he was struck by a pickup truck. The County appeals from the trial court's interlocutory order denying the County's motion for summary judgment based on the affirmative defense of official immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (West Supp. 1995); City of Beverly Hills v. Guevara, 38 Tex. Sup. Ct. J. 924, 925 (June 22, 1995). ⁽²⁾ We will reverse the trial-court order.

In a single point of error, the County contends that the trial court erred in overruling the motion for summary judgment based on the County's assertion of official immunity. Official immunity protects individual governmental officials from liability; sovereign immunity protects governmental entities from liability. DeWitt v. Harris County, 38 Tex. Sup. Ct. J. 916, 917 (June 22, 1995); Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592-93 (Tex. App.--Austin 1991, writ denied) (governmental unit is immune from liability absent constitutional or statutory provision that waives liability). The Texas Tort Claims Act waives the County's sovereign immunity in limited circumstances, including: "personal injury and death so caused by a condition or use of tangible or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." ⁽³⁾ Texas Tort Claims Act, Tex. Rev. Civ. Prac. & Rem. Code § 101.021(2) (West 1986) ("Tort Claims Act"); University of Tex. Medical Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); Texas Dep't of Human Servs. v. Benson, 893 S.W.2d 236, 239 (Tex. App.--Austin 1995, writ denied). Because Travis County addressed its motion for summary judgment to this provision of the Tort Claims Act and because of our limited jurisdiction in this interlocutory appeal, we consider only the official immunity defense as it relates to section 101.021(2). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (West Supp. 1995); Cameron County v. Alvarado, 900 S.W.2d 874, 878-79 (Tex. App.--Corpus Christi 1995, writ requested); Harris County v. Ochoa, 881 S.W.2d 884, 886 (Tex. App.--Houston [14th Dist.] 1994, writ denied).

Section 101.021(2) encompasses governmental liability based on respondeat superior for the misuse of tangible personal property other than motor-driven vehicles and equipment. DeWitt, 38 Tex. Sup. Ct. J. at 918. Respondeat superior imposes liability on an employer that is responsible for the acts of its employee, acting in the scope of his employment when the employee's negligence is shown to be the proximate cause of the injury. Marange v. Marshall, 402 S.W.2d 236, 239 (Tex. 1966). Accordingly official immunity, an affirmative defense of the employee, is relevant to the governmental entity's liability. DeWitt, 38 Tex. Sup. Ct. J. at 918-19; see Eakle v. Texas Dep't of Human Servs., 815 S.W.2d 869, 876 (Tex. App.--Austin 1991, writ denied).

Governmental employees are entitled to official immunity concerning the performance of their discretionary duties in good faith as long as they are acting within the range of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Official immunity is an affirmative defense. Id.; Dear v. City of Irving, 902 S.W.2d 731, 737 (Tex. App.--Austin 1995, writ requested). The County, therefore, had the burden to establish all elements of the defense. Kassen, 887 S.W.2d at 8; Dear, 902 S.W.2d at 737. The burden shifted to appellees to raise fact issues precluding summary judgment only if the County's motion and summary judgment proof established the right to summary judgment as a matter of law. Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.--Houston [14th Dist.] 1994, writ denied); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

The standard for reviewing the denial of a summary-judgment motion is the same as that for reviewing the grant of a motion. Ervin, 874 S.W.2d at 715. The movant had the burden to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law. In deciding whether a disputed material fact issue exists, the appellate court takes the evidence favorable to the nonmovant as true and must indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Tex. R. Civ. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

The duties at issue here are those of Douglas Martin, an investigator for the Travis County Medical Examiner, who removed Torres' body from the accident scene. In pertinent part, appellees seek damages for mental anguish and emotional distress based on the failure to remove body parts and personal effects by Martin's misuse of equipment at the scene of the accident. The County's motion for summary judgment ⁽⁴⁾ asserts that in removing the body Martin performed a discretionary act, in good faith and in the course and scope of his employment.

An act is discretionary, as opposed to ministerial, if the act involves personal deliberation, decision and judgment. Chambers, 883 S.W.2d at 654; Dear, 902 S.W.2d at 737. A ministerial act is one in which "``the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment . . . but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.'" Chambers, 883 S.W.2d at 654 (quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)).

The County supported its motion with Bayardo's affidavit which states that, to his knowledge, no statute or other legal guideline describes the method by which a person must remove a body or collect scattered body parts and tissue from an accident scene. The statute provides only that, in certain circumstances, a "body shall not be disturbed or removed from the position in which it is found without authorization from the medical examiner or authorized deputy . . . ." Tex. Code Crim. Proc. Ann. art. 49.25, § 8 (West 1979). One of the circumstances, applicable here, occurs "[w]hen any person is killed; or from any cause dies an unnatural death . . . ." Id. at § 6(2). Bayardo averred further, "My employees must use their own judgment and common sense to determine the manner in which they perform their tasks, as each circumstance may be different and require a different response." Because the person who removes or collects the body must exercise discretion in determining how to proceed in light of the surrounding circumstances, the duties incident to the removal of a body are discretionary. See City of Hemstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App.--Houston [1st Dist.] 1995, no writ) (police officer's duties incident to investigating crime discretionary); Chapman v. Gonzales, 824 S.W.2d 685, 688 (Tex. App.--Houston [14th Dist.] 1992, writ denied) (county personnel director's duties discretionary).

Appellees respond that the question of whether the act was discretionary does not apply here because the County contracted with a mortuary service to transport bodies from accident sites. Because a private contractor may perform this task, it is primarily a proprietary function and the County may be liable for any injury. See City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987); City of Fort Worth v. Adams, 888 S.W.2d 607, 610-11 (Tex. App.--Fort Worth 1994, writ denied) (city liable for proprietary functions). However, the proprietary-governmental distinction, created as an exception to the doctrine of sovereign immunity, applies only to municipalities. See generally 35 David B. Brooks, County and Special District Law § 2.7 (Texas Practice 1989). The characterization is not relevant to this inquiry. The County conclusively established the first element of the official immunity defense.

The County was also required to establish that Martin acted in good faith. The test for good faith is one of objective legal reasonableness without regard to whether the official involved acted with subjective good faith. Chambers, 883 S.W.2d at 656; ⁽⁵⁾ Gallia v. Schreiber, No. 01-94-00829-CV (Tex. App.--Houston [1st Dist.] Aug. 24, 1995, no writ h.); see Murillo v. Garza, 881 S.W.2d 199, 202 (Tex. App.--San Antonio 1994, no writ) (Chambers standard for good faith applies in all official immunity cases). To be entitled to summary judgment, the County, therefore, had to show that a reasonably prudent investigator might have believed the action taken was appropriate. Chambers, 883 S.W.2d at 656-57. The County did not need to show that taking a different action would have been unreasonable or that all reasonably prudent investigators would have acted as Martin did. Chambers, 883 S.W.2d at 657. To defeat the summary-judgment motion, appellees had to show that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id.; Kmiec, 902 S.W.2d at 121. If investigators of reasonable competence could disagree on the issue, immunity should be recognized. Chambers, 883 S.W.2d at 657.

In addition to Martin's and Bayardo's affidavits, Travis County submitted the accident report, a supplement to the report and weather records as summary judgment proof. The reports show that Torres was standing in the southbound lane of FM 973 with his dog when hit by a 1970 Chevrolet pickup truck at 8:50 p.m on January 5, 1992. The driver did not see Torres because of dense fog. The weather records indicate that the sun set at 5:44 p.m. that day and that, during the entire evening, the weather was foggy.

Martin's affidavit states that he arrived at the reported scene of the accident and "because of the very dense fog," he saw no sign of an accident. Martin found the actual location approximately one-half mile north of the reported location. He continues:

. . . I proceeded to take a flashlight and attempted to locate any body tissue which may have been scattered because of the impact of the vehicle. Due to the weather conditions and darkness, it was hard to view the area, so I searched the scene of the accident by flashlight and by the headlights from the police cars. When I verified that the police completed their photography and investigation, I put on rubber gloves and picked up brain tissue and bone fragments off the roadway and placed them in a plastic bag. I picked up all the tissue that I could find. With the assistance of an officer at the scene, I then moved the body covered with a sheet onto the stretcher. I decided to transport the remains of the deceased myself because of the dense fog. The fog created dangerous road conditions, poor visibility and potential danger for everyone involved at the scene.

In his affidavit, Bayardo states that the accident occurred on a roadway with no external lighting, that heavy fog obscured visibility and that the impact scattered portions of body tissue over a wide area. Bayardo concluded that, under the circumstances, removal of Torres' body was not only reasonable but also necessary to public safety and for the integrity of Torres' body.

Appellees first respond that the affidavits are subjective and conclusory and not competent summary judgment proof. Appellees did not raise this argument in their response to the motion for summary judgment. Nevertheless, they may contend on appeal that the summary-judgment proof is insufficient to support the motion for summary judgment as a matter of law. Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 829 (Tex. App.--Houston [14th Dist.] 1994, writ denied); see Clear Creek Basin Auth., 589 S.W.2d at 679; McCord v. Memorial Medical Ctr. Hosp., 750 S.W.2d 362, 364 (Tex. App.--Corpus Christi 1988, no writ) (party who does not file reply can challenge legal sufficiency of summary judgment proof on appeal). Having reviewed the affidavits, we conclude that they are competent summary-judgment proof on the element of good faith. The affidavits state the specific facts relating to the removal of the body and do more than simply state that Martin acted in good faith. See Kmiec, 902 S.W.2d at 121 (summary judgment evidence consisting of deposition excerpts sufficient to support summary judgment); compare Garza v. Smith, 860 S.W.2d 631, 634 (Tex. App.--Corpus Christi 1993, no writ) (appellants' assertions that they acted in good faith, standing alone, insufficient to support summary judgment).

Appellees next assert that they successfully rebutted the County's summary judgment proof on the element of good faith. However, nothing in the appellees' proof addresses how a reasonable person sent to retrieve the body would have collected and removed Torres' body and personal effects differently than Martin did. See Gallia, slip op. at 10 (to raise fact issue on good faith, nonmovant was required to present some proof that no reasonable police office would have taken actions that movant did). Rather, appellees focus on whether someone could have collected all the body parts and personal effects. Accordingly, we conclude that the County's conclusively established the element of good faith.

Finally, the County was required to prove that Martin was acting within the scope of his employment. A governmental employee acts within the scope of his authority when he discharges the duties generally assigned to him. Chambers, 883 S.W.2d at 658. In his affidavit signed on April 4, 1994, Martin states that he has been employed as an investigator with the Travis County Medical Examiner's Office since December 1, 1990, and that he was notified of the accident on January 5, 1992, and then investigated it. In his affidavit Bayardo states that, as the Chief Medical Examiner for Travis County, he is the employer and immediate supervisor for Martin who is an investigator for the office. Additionally, appellees allege in their fourth amended original petition that "Defendant Travis County, by its agents operating in the course and scope of employment, took possession of Mr. Torres, and transported him to Defendant's morgue . . . ." See Hennigan v. I. P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993) (judicial admission is conclusive upon party making it). The County established that Martin acted within the scope of his employment.

Because the County established its right to summary judgment as a matter of law, we sustain the County's point of error, reverse the trial-court order denying the motion for summary judgment and render judgment that summary judgment is granted in favor of Travis County based on its affirmative defense of official immunity to appellees' claims under section 101.021(2) of the Tort Claims Act.

Before Justices Powers, Aboussie and Kidd

Reversed and Rendered

Filed: October 11, 1995

Do Not Publish

1. ¹ Appellees are Mary A. Trevino; Angie Torres; Mary Alice Torres; and Isidro Torres, Jr., individually and as next friend and natural guardian of Christina Chavez, Josephine Torres and Steve Torres; and Christina Chavez and Josephine Torres, in their majority capacities.

2. ² Section 51.014(5) provides for an appeal of an interlocutory order that "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (West Supp. 1995). Because Travis County's motion was based on the official immunity of the employee who removed Torres' body, the County may appeal the trial court's denial of the summary judgment. City of Beverly Hills v. Guevara, 38 Tex. Sup. Ct. J. 924, 925 (June 22, 1995).

3. The Texas Tort Claims Act also grants a person having a claim under the Tort Claims Act permission to sue the governmental unit. Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 1986).

4. ⁴ The motion for summary judgment at issue here is the one filed in district court on March 1, 1995 and overruled in the trial court order signed on March 28.

5. ⁵ The test derives from the standard under federal law in which "``the test is one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith.'" City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), quoting Swint v. City of Wadley, 5 F.3d 1435, 1441-42 (11th Cir. 1993); see Murillo v. Garza, 881 S.W.2d 199, 202 (Tex. App.--San Antonio 1994, no writ) (test for good faith is one of objective legal reasonableness without regard to whether governmental official involved acted with subjective good faith).

sufficient to support summary judgment).

Appellees next assert that they successfully rebutted the County's summary judgment proof on the element of good faith. However, nothing in the appellees' proof addresses how a reasonable person sent to retrieve the body would have collected and removed Torres' body and personal effects differently than Martin did. See Gallia, slip op. at 10 (to raise fact issue on good faith, nonmovant was required to present some proof that no reasonable police office would have taken actions that movant did). Rather, appellees focus on whether someone could have collected all the body parts and personal effects. Accordingly, we conclude that the County's conclusively established the element of good faith.

Finally, the County was required to prove that Martin was acting within the scope of his employment. A governmental employee acts within the scope of his authority when he discharges the duties generally assigned to him. Chambers, 883 S.W.2d at 658. In his affidavit signed on April 4, 1994, Martin states that he has been employed as an investigator with the Travis County Medical Examiner's Office since December 1, 1990, and that he was notified of the accident on January 5, 1992, and then investigated it. In his affidavit Bayardo states that, as the Chief Medical Examiner for Travis County, he is the employer and immediate supervisor for Martin who is an investigator for the office. Additionally, appellees allege in their fourth amended original petition that "Defendant Travis County, by its agents operating in the course and scope of employment, took possession of Mr. Torres, and transported him to Defendant's morgue . . . ." See Hennigan v. I. P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993) (judicial admission is conclusive upon party making it). The County established that Martin acted within the scope of his employment.

Because the County established its right to summary judgment as a matter of law, we sustain the County's point of error, reverse the trial-court order denying the motion for summary judgment and render judgment that summary judgment is granted in favor of Travis County based on its affirmative defense of official immunity to appellees' claims under section 101.021(2) of the Tort Claims Act.

Before Justices Powers, Aboussie and Kidd

Reversed and Rendered

Filed: October 11, 1995

Do Not Publish

1. ¹ Appellees are Mary A. Trevino; Angie Torres; Mary Alice Torres; and Isidro Torres, Jr., individually and as next friend and natural guardian of Christina Chavez, Josephine Torres and Steve Torres; and Christina Chavez and Josephine Torres, in their majority capacities.

2. ² Section 51.014(5) provides for an appeal of an interlocutory order that "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5)