Anne Ballantyne, Mary McComb, Jon Sandige, Richard Schimpff, and Susie Willerson v. Champion Builders, Inc., and Primero Projects, L.L.C.

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-0260

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Anne Ballantyne, Mary McComb,

Jon Sandige, Richard Schimpff, and Susie Willerson, Petitioners,

v.

Champion Builders, Inc. and

Primero Projects, L.L.C., Respondents

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On Petition for Review from the

Court of Appeals for the Fourth District of

Texas

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Argued

on January 22, 2003

Justice Wainwright delivered

the opinion of the Court, in which Justice

Hecht , Justice Owen , Justice O = Neill , Justice Jefferson , Justice

Schneider , Justice Smith ,

and Justice Brister joined.

Justice O = Neill filed a concurring opinion, in

which Justice Hecht and Justice Jefferson joined.

Chief Justice Phillips did

not participate in the decision.

In this case, we decide whether the individual

members of a city = s board

of adjustment are afforded official immunity for state law claims arising from

their actions as members of the board.

Champion Builders, Inc. sued the individual

members of the City of Terrell Hills Board of Adjustment (BOA) for negligence,

gross negligence, and intentional interference with contract arising from the

BOA = s revocation of Champion = s permit to construct an apartment

building. The jury returned a verdict in

favor of Champion and rejected the members =

assertion of official immunity. The

trial court granted the BOA members =

motion for judgment non obstante veredicto

on official immunity. A divided court of

appeals, sitting en banc, relying on subjective evidence of the asserted

motivation of the members, reversed the judgment and held that more than a

scintilla of evidence supported the jury = s

failure to find that the good faith prong of the affirmative defense of

official immunity had been proven. 70

S.W.3d 221, 231 . We disagree. The BOA members established official immunity

at trial as a matter of law. We further

reaffirm that consideration of subjective evidence of the good faith element of

official immunity is inappropriate.

Therefore, we reverse the court of appeals =

judgment in part and render judgment that Champion take nothing.

I.

Background

Champion Builders, along with Roldan

Trevino and Armando Tamez Jr., initially planned to

construct an eight-unit apartment building on Eventide Drive in the City of

Terrell Hills in Bexar County, Texas.

Champion, Trevino, and Tamez formed Primero Projects, L.L.C. to develop the property. Pursuant to settlement, Champion and Primero have the only interests at stake in this lawsuit. [1] References to Champion in this opinion also

include Primero = s

interests.

When Champion applied for a building permit in

January 1994, the City denied it, citing excessive population density on the

lot. Champion scaled down the project

and planned a six-unit complex.

In May 1994 the city manager issued a building

permit to Champion for the construction of the six-unit complex. A group of Terrell Hills residents appealed

the issuance of the permit to the BOA.

The residents asserted that City Ordinance 634, which required every lot

to have 80 feet of frontage along the adjacent road, precluded construction of

the apartment complex on the portion of the Eventide lot that Champion

purchased. Terrell Hills, Tex.,

Ordinance 634, ' VII(B)

(July 22, 1982). The Eventide lot was divided

into two different zones for development.

Although the total lot had over 120 feet of frontage, the apartment

complex could be built only on the 66.83 feet of frontage that was zoned

semi-commercial. The Terrell Hills

residents hired an attorney and contested the issuance of the permit. The residents argued that only the 66.83 feet

of frontage zoned semi-commercial on the Eventide lot could be counted toward

the 80-foot frontage requirement of Ordinance 634. They concluded that the building permit

should be revoked because the planned development did not comply with Ordinance

634.

The city manager requested an opinion on this

issue from Charles Biery , an attorney in private

practice hired to serve as Terrell Hills city attorney. In his June 6, 1994 letter, Biery opined that the proposed apartment complex met the

requirements of the Ordinance because the lot had a total frontage along the

road of 123.33 feet. In Biery = s

opinion, the total dimensions of the entire lot determined the frontage

measurement for purposes of Ordinance 634, rather than the footage for the

commercially-zoned section of the lot.

Thus, Biery concluded that the city manager

properly issued the permit. The

residents believed that, as applied to Champion = s

application for a permit, the lot was required to have 80 feet of commercially

zoned frontage on Eventide as a condition of Champion = s

planned commercial use.

On June 7, 1994 the BOA convened a public hearing

to consider the appeal of the building permit issuance. At the meeting, the BOA heard from the

public, including Terrell Hills residents and James Spears, the owner of

Champion. Biery

also attended the meeting, and the BOA members had been provided with a copy of

his June 6 letter to the city manager.

After listening to the public comments, the BOA members discussed the

permit in an executive session with Biery . According to the transcript of the executive

session, Biery reiterated his opinion, set forth in

his June 6 letter, that the lot satisfied the frontage requirement and the City

properly issued the permit. The

transcript also shows that the BOA members considered the comments of the

residents, who opined through their attorney that the frontage of Champion = s lot did not meet the requirements of

Ordinance 634. Biery

explained to the BOA members that they were presented with different opinions from

two attorneys, and that the BOA members could A do

whatever [they] want[ed] to. @ He indicated that they would likely be sued

by one of the parties regardless of which decision they made. The transcript also includes a discussion of

subjective and derogatory views of some members of the BOA concerning the type

of residents who might be attracted to an apartment development. Some of the BOA members indicated that

persons who would move into the apartments may be loud, disruptive in the

community, and more likely to be involved in illegal activities. When they resumed the public meeting, the BOA

members voted to revoke the permit.

Champion appealed the BOA = s

decision to revoke the permit to district court. In August 1994, the trial court rendered

summary judgment in favor of Champion and ordered reinstatement of the

permit. The court of appeals affirmed

the judgment, and this Court denied review.

Dubose v. Champion Builders, Inc. , No. 04-94-00825-CV, 1995 WL

694975 (Tex. App. C San

Antonio Nov. 22, 1995, writ denied) (not designated for publication).

After its successful appeal, Champion, however,

did not seek to have the permit renewed.

Spears testified at trial that the litigation and appeal of the issuance

of the building permit hindered financing efforts for the apartment complex and

was a concern to Champion = s

partners in the planned development of the Eventide property. Champion ultimately decided to abandon the

project.

In June 1996, Champion sued the City, the BOA, and

the individual BOA members for revocation of the building permit and the City

for changes in the 1995 ordinances that increased the minimum square footage

requirement for single family apartments beyond the square footage of Champion = s project. Champion alleged that the individual BOA

members were negligent and grossly negligent for holding an illegal meeting,

revoking a permit to which Champion was entitled, and failing to follow the

advice of the city attorney. Champion

further asserted that by revoking the building permit the individual BOA

members were liable for tortious interference with

Champion = s

contracts with Primero and third parties to build the

apartment. Champion also asserted

takings claims against the City and the BOA.

The BOA members contended that they were shielded from liability by

official immunity. The court submitted

questions to the jury on negligence, gross negligence, tortious

interference, and the amount of damages to be awarded Champion, if any. In separate questions, the charge also asked

if the City or the BOA, as an entity, committed a taking and whether the

individual BOA members were entitled to official immunity.

The official immunity question listed the three

elements of official immunity and defined pertinent legal terms.

Were

the persons named below acting within their official immunity or privilege as

Board Members for the City of Terrell Hills =

Board of Adjustment during the occurrence in question?

A Official immunity or privilege @ means that:

a. the person acted in a discretionary function;

b. the person acted in good faith; and

c. the person acted within the scope of his or her authority.

A Discretionary function @ means an act that requires personal

deliberation, decision, and judgment. An

act by a government official in the course of performing a discretionary

function does not lose its discretionary status because it was wrongful. Actions which require obedience to orders or

the performance of a duty to which the person has no choice are ministerial.

A Good faith @

means an official or employee acts in good faith if a reasonably prudent

official or employee, under the same or similar circumstances, could have

believed that his or her acts were justified.

A Scope of authority @ means a public official or employee is

acting within the scope of his or her authority if he or she is discharging the

duties generally assigned to him or her even if they are performed wrongly or

negligently. Public officials and

employees are not liable for acts performed in good faith within the scope of

authority, even when the officials violate or misinterpret the law.

The charge instructed the jury to answer A yes @ or A no @ for each of the five board members.

The jury returned a verdict in favor of Champion

on all claims and rejected the BOA members =

immunity defense. The jury found over

$700,000 in actual and punitive damages against the defendants, over $600,000

of which was against the individual BOA members.

The City, the BOA, and the BOA members filed

motions for judgment n.o.v . The City and the BOA argued that there was

insufficient evidence to sustain the jury = s

verdict that there was a compensable taking.

The trial court agreed and granted the City = s

and the BOA = s motions

for judgment n.o.v .

The BOA members argued that they established their affirmative defense

of official immunity as a matter of law.

In response, Champion argued that official immunity does not protect

members of a board of adjustment, and, even if it does, the BOA members did not

meet their burden of proof at trial to establish all the elements of the

defense. The trial court granted the BOA

members = motion

for judgment n.o.v . on official immunity. Accordingly, the trial court entered a

take-nothing judgment against Champion.

The court of appeals affirmed the trial court = s judgment. 70 S.W.3d at 224 . Champion moved for rehearing en banc, which

the court of appeals granted. Id . On rehearing en banc, a divided court

affirmed the trial court = s

judgment for the City and the BOA as to the takings claim, but reversed the

judgment n.o.v . on official immunity of the BOA

members and remanded the case for entry of judgment in accordance with the jury = s verdict. Id .

The court of appeals held that the BOA members did not conclusively

establish that they were entitled to official immunity. Id. at 231 . The court of appeals stated that A [c] ourts

employ an objective standard in analyzing official immunity, @ but it determined, nevertheless, that

the jury properly considered subjective evidence of the BOA members = intent because the official immunity

defense A cannot be

stretched . . . to provide immunity to an official whose subjective bad faith

is demonstrated in the record. @ Id. at 229 . A split court of appeals denied further

reconsideration en banc. [2] The dissenting justices contended that the

majority erred by considering subjective evidence of the good faith element of

official immunity. Id. at 233 .

The BOA members petitioned this Court for review

asserting that they established official immunity as a matter of law and that

the court of appeals erred in considering subjective evidence in evaluating the

good faith prong of the immunity defense.

The BOA members also assert that they established official immunity as a

matter of law. In addition, the BOA

members contend that their assertion of official immunity amounted to an

assertion of legislative immunity.

Champion did not appeal the court of appeals =

judgment against it on the takings claims.

Because the issue of official immunity is dispositive ,

we turn to that issue.

II.

Applicability of Official Immunity

Champion asserts that official immunity does not

protect members of a board of adjustment.

Applying official immunity to the BOA members, it claims, would be A forcing the square peg of building

permit revocation . . . into the round hole of police officer high-speed chase

immunity precedent. @

Although we have approved the application of

official immunity in other contexts, we have not previously addressed whether

official immunity extends to the members of a city = s

board of adjustment. Official immunity

protects public officials from suit arising from performance of their (1)

discretionary duties (2) in good faith (3) within the scope of their

authority. City of Lancaster v.

Chambers , 883 S.W.2d 650, 653 (Tex. 1994) (citing Wyse v. Dep = t

of Pub. Safety , 733 S.W.2d 224, 227 (Tex. App. C Waco

1986, writ ref = d n.r.e .); Baker v. Story , 621 S.W.2d 639, 644 (Tex. Civ . App. _ San Antonio 1981, writ ref = d n.r.e .)).

We begin our analysis by reviewing Texas case law

on official immunity and its applicability to public officials who perform

functions similar to the BOA members to determine whether the A peg @

in this case is actually A square. @

We do not address whether legislative or judicial immunity was preserved

for review or whether either immunity applies to members of a city = s board of adjustment.

A.

Official Immunity in Texas

Fifty years ago, we recognized a A good faith @

immunity for certain public officials. Campbell

v. Jones , 264 S.W.2d 425 (Tex. 1954).

We held that trustees of a school board were not personally liable for

damages for an alleged breach of a teacher = s

contract. Id. at 427 . The trustees were charged with the

discretionary duty of renewing or terminating employment contracts and A in good faith were trying to comply

with what reasonably appeared to be the then rulings of the State

Superintendent. @ Id.

We refused to assent to a doctrine that would make public officials with

discretionary duties personally liable for mistaken judgment. Id .

Other courts referred to this defense as immunity

protecting A quasi-judicial @ officials. Austin v. Hale , 711 S.W.2d 64, 68

(Tex. App. C Waco

1986, no writ); Augustine v. Nusom , 671 S.W.2d

112, 115 (Tex. App. _ Houston [14th Dist.] 1984,

writ ref = d n.r.e .); Baker , 621 S.W.2d at 644 . In Baker , the court of appeals held

that where a public official has quasi-judicial or discretionary duties, A he enjoys immunity as long as he acts

in good faith within the scope of his authority. @ 621 S.W.2d at 644 . The summary judgment evidence, however, did

not conclusively establish that Dr. Jim Story, the head of the university

neurological surgery department and a state employee, was entitled to official

immunity. Id . at 645-46. Another appellate court acknowledged that an

employee of a state department, who collected facts and then made

quasi-judicial or discretionary determinations to take action against child day

care facilities, A enjoys

immunity as long as he acts in good faith within the scope of his authority. @

Augustine , 671 S.W.2d at 115 (quoting Baker , 621 S.W.2d at

644 ); see also Hale , 711 S.W.2d at 68 (concluding that investigators

with the Texas Department of Human Resources "cannot be held liable for

any negligent acts which they may have committed while acting within their

quasi-judicial authority").

In several more recent cases, we recognized

official immunity as an affirmative defense for law enforcement and emergency

response personnel. Telthorster

v. Tennell , 92 S.W.3d 457, 459-60 (Tex. 2002)

(police officer engaged in an arrest); Wadewitz

v. Montgomery , 951 S.W.2d 464, 467 (Tex. 1997) (police response to

burglary); Chambers , 883 S.W.2d at 653 (high-speed police vehicle

pursuit). We also have held that

official immunity protects government-employed medical personnel against claims

that arise out of their exercise of governmental, as opposed to medical,

discretion. Kassen

v. Hatley , 887 S.W.2d 4, 11 (Tex. 1994).

After we articulated the official immunity

standard in these contexts, courts of appeals continued to apply the doctrine

to other public officials. For example,

in Perry v. Greanias , the court of appeals

relied on Chambers to recognize that a city controller, charged with

conducting audits and assessing compliance in city contracts, was entitled to

official immunity from liability. 95

S.W.3d 683, 697-98 (Tex. App. C Houston

[1st Dist.] 2002, pet. denied).

Determining that the official = s

evidence proved conclusively that he acted in a discretionary capacity and in

good faith within the scope of his authority, the court affirmed the trial

court = s summary

judgment based on official immunity. Id .

at 699, 702. In Medina County

Commissioners =

Court v. Integrity Group, Inc. , the court of appeals held that individual

county commissioners were entitled to official immunity from suit arising from

their votes to deny approval of a property subdivision plan. 944 S.W.2d 6, 10 (Tex. App. C San Antonio, 1996, no writ); see

also Williams v. Houston Firemen's Relief and Ret. Fund , 121 S.W.3d 415,

436 (Tex. App. C Houston

[1st Dist.] 2003, no pet.) (trustees of firemen's relief and retirement fund

entitled to official immunity from personal liability in interpreting retirement

statute, promulgating guidelines, administering the fund, and denying claims

for benefits).

In summary, Texas courts have long recognized

official immunity, in substance if not by name, for a variety of public

officials.

B. Rationale of Immunity for Public Officials

Common law official immunity is based on the

necessity of public officials to act in the public interest with confidence and

without the hesitation that could arise from having their judgment continually

questioned by extended litigation. See

Kassen , 887 S.W.2d at 8 ; Baker , 621 S.W.2d

at 643-44 . A The

public would suffer if government officials, who must exercise judgment and

discretion in their jobs, were subject to civil lawsuits that second-guessed

their decisions. @ Kassen , 887

S.W.2d at 8 . Denying the affirmative

defense of official immunity to public officials in such circumstances A would contribute not to principled and

fearless decision-making but to intimidation. @ Wood v. Strickland , 420 U.S. 308, 319

(1975) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). Certainly, public officials may err in the

performance of their duties. Id.

at 321. The existence of immunity

acknowledges this fact, but recognizes that the risk of some error is

preferable to intimidation from action at all.

Id . In addition, some of

the most capable candidates would be deterred from entering public service if

heavy burdens on their private resources from monetary liability were a likely

prospect for errors in judgment. See

id. at 320.

We conclude that official immunity is a bar to

state law claims against individual members of a board of adjustment. We note that public officials are also

accountable through elections, state criminal and civil statutes, federal

causes of action, and other mechanisms in place to police the conduct of public

officials.

III. Analysis

The jury found against the BOA members on their

affirmative defense of official immunity.

The trial court granted a judgment n.o.v .,

finding the defense was established as a matter of law. The court of appeals reversed the judgment n.o.v . and remanded the case for entry of judgment on the

jury verdict. As the BOA members had the

burden of proof on their affirmative defense, they can meet that standard after

an adverse verdict only by establishing that official immunity had been proven

as a matter of law. Dow Chem. Co. v.

Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curiam );

see Schlumberger Tech. Corp. v. Swanson , 959 S.W.2d 171, 181 (Tex.

1997).

We consider whether the BOA members established

each of the elements of official immunity as a matter of law, i.e., whether the

BOA members were (1) acting within the scope of their authority (2) in

performing their discretionary duties in (3) good faith. Chambers , 883 S.W.2d at 653 ; Wyse ,

733 S.W.2d at 227 ; Baker , 621 S.W.2d at 644 .

A. Scope

of Authority

As we explained in Chambers , public

officials act within the scope of their authority if they are discharging the

duties generally assigned to them. 883

S.W.2d at 658 . The Local Government Code

authorizes a municipality to create a board of adjustment. Tex.

Loc. Gov = t Code '

211.008(a). A board of adjustment = s statutory authority includes the

power to hear and decide appeals of the city manager = s

zoning decisions, to hear and decide special exceptions to a zoning ordinance,

and to authorize certain zoning variances.

Id . ' '

211.009(a)(1)-(3). In exercising its

authority to hear and decide zoning appeals, the board of adjustment has the

power to A reverse

or affirm, in whole or in part, or modify @

the city manager = s zoning

decisions and make the correct determination.

Id . '

211.009(b). The Terrell Hills BOA was

formed pursuant to this statute, and Terrell Hills City Ordinance 634, sections

XI(A)(9)-(14) codifies the powers granted the BOA by the Legislature.

Champion argues that the BOA members were not

acting within the scope of their authority because no evidence was presented

that the BOA had ever revoked a permit before this instance. Therefore, Champion concludes that in the

absence of a prior instance of revocation of a building permit by the BOA, the

authority to revoke permits must be specifically vested in the city manager and

not the BOA. We are not persuaded,

however, by Champion = s

arguments. Where a statute or ordinance

confers authority on an entity to act, because such authority has not been

exercised previously does not mean that the authority does not exist.

After the BOA members voted to revoke the building

permit, a trial court in a prior proceeding reversed the BOA = s decision, and a court of appeals

affirmed based on its interpretation of Ordinance 634. DuBose , 1995 WL 694975 , at *2. Champion contends that the subsequent

judicial determination that the BOA erred also is evidence that the BOA members

were acting outside the scope of their authority at the time they voted to

revoke the permit. On the contrary, the

BOA members were expressly authorized by law to consider and affirm, reverse,

or modify the city manager = s

zoning decision. Tex. Loc. Gov = t Code ' 211.009(b). The fact that the BOA = s

action was later determined to be incorrect is not necessarily probative of

whether their prior actions were in discharge of the duties generally assigned

to them. See Chambers , 883 S.W.2d

at 658 .

We agree with the court of appeals that the BOA

members were acting within the scope of their authority. 72 S.W.3d at 228-29. The Ordinance and

statutes plainly authorize the BOA to revoke a building permit, and Champion

presents no compelling arguments to rebut this conclusion. The relevant sections of the Texas Local

Government Code and the Ordinance, which are the source of the BOA = s legal authority, conclusively

establish that hearing and deciding appeals of the issuance of building permits

based on zoning regulations is within the authority of the BOA and its members.

B.

Discretionary Function

We next determine whether the BOA members

performed a discretionary function or merely fulfilled a ministerial act when

they voted to revoke the building permit that the Terrell Hills city manager

issued to Champion. Ministerial acts are

those for which A the law

prescribes and defines the duty to be performed with such precision and

certainty as to leave nothing to the exercise of discretion or judgment. @

Comm = r

of the Gen. Land Office v. Smith , 5 Tex. 471, 479 (1849). If the public official must obey an order,

without having any choice in complying, the act is ministerial. Chambers , 883 S.W.2d at 654 (citing Wyse ,

733 S.W.2d at 227 ). If an action

involves personal deliberation, decision, and judgment, however, it is

discretionary. Id .

Champion argues that the BOA members were not

exercising discretion in voting to revoke the building permit because the

members had only one option C

to affirm the issuance of the building permit.

To support these contentions at trial, Champion argued that by

satisfying all of the requirements of Ordinance 634, issuance of the permit was

mandatory and ministerial.

Given the appellate powers the Legislature granted

to boards of adjustment, it is difficult to follow Champion = s argument that the BOA = s hearing and deciding appeals is only

a ministerial act. Appellate review of

an action, especially the power of a de novo review, almost inevitably involves

deliberation, judgment, and decision.

These are the very hallmarks of discretion. The BOA has the power to hear and decide

appeals from any decision or determination by a city administrative official

pertaining to the enforcement of the city = s

zoning ordinance. Terrell Hills, Tex.,

Ordinance 634, '

XI(A)(10) (July 22, 1982). The BOA may

reverse or affirm, in whole or in part, or modify any decision or determination

and make such determination as ought to be made. Id. '

XI(A)(13). The BOA members deliberated

and exercised discretion in making their decision. Accordingly, we agree with the court of

appeals. See 70 S.W.3d at

228 . In interpreting the applicable

ordinances and deciding as an appellate body to revoke the building permit, the

BOA members performed a discretionary function, as a matter of law.

C. Good

Faith

1. Justifiable Conduct of Reasonable

Officials

The parties vigorously contest whether the BOA

members acted in good faith. To

determine whether a public official acted in good faith, we use the objective

standard adopted in Chambers and ask whether a reasonably prudent

official, under the same or similar circumstances, could have believed that his

conduct was justified based on the information he possessed when the conduct

occurred. 883 S.W.2d at 656 ; see also

Telthorster , 92 S.W.3d at 465 ; Univ. of

Houston v. Clark , 38 S.W.3d 578, 584 (Tex. 2000). The standard of good faith as an element of

official immunity is not a test of carelessness or negligence, or a measure of

an official = s motivation. See Wadewitz ,

951 S.W.2d at 467 n.1; Chambers , 883 S.W.2d at 656 n.5. This test of good faith does not inquire into

A what a reasonable person would have

done , @ but into

A what a reasonable [person] could

have believed . @ Telthorster ,

92 S.W.3d at 465 (quoting Wadewitz , 951 S.W.2d

at 467 n.1).

Although there may be disagreement about the

merits of the BOA members =

decision, the decision was made in good faith if a reasonably prudent BOA

member could have believed that the facts justified his action when he voted to

revoke Champion = s

building permit. Champion asserts that

the judgment n.o.v . was improper because there was

more than a scintilla of evidence that the BOA members did not act in good

faith. Champion contends that it

presented evidence at trial that no legal controversy existed regarding the

frontage requirement for the six-unit apartment project and that, as a result,

the BOA members failed to establish that their votes were justified.

The BOA members had the responsibility to review

the city manager = s

issuance of the permit and to affirm, modify, or revoke the permit. The decision before them, they contend, was

not the clear-cut case that Champion describes.

Champion misconstrues the legal standard. When a public official considers two courses

of action that could reasonably be believed to be justified, and selects one,

he satisfies the good faith prong of official immunity as a matter of law. The inquiry is not what was the best course

of action, but whether the BOA members could have believed their actions were

justified at the time they were taken.

To show good faith in this context, we do not require the BOA members = application of Ordinance 634 to be

legally correct, only colorable. See Horsehead Indus., Inc. v. EPA , 999 F.Supp .

59, 64 (D.D.C. 1998) (When determining whether to award attorneys = fees to a prevailing party who sought

withheld documents under the Freedom of Information Act, the court considered,

among other factors, whether the withholding agency = s

interpretation of the request and the act A had

a colorable basis in law. @ );

Tex. Beef Cattle Co. v. Green , 921 S.W.2d 203, 211 (Tex. 1996) (noting

that a justification defense to a tortious

interference claim may be based on a A good-faith

claim to a colorable legal right, even though that claim ultimately proves to

be mistaken @ ).

The key facts underlying the dispute over

application of Ordinance 634 were undisputed, i.e., the number of feet of

frontage the lot had along the adjacent road and the frontage requirement set

forth in the Ordinance. The application

of an ordinance or statute to undisputed facts falls squarely within the domain

of the statutorily authorized reviewing body, notwithstanding different

opinions on the interpretation of the ordinance. See W. Tex. Water Refiners, Inc. v.

S&B Beverage Co. , 915 S.W.2d 623, 628 (Tex. App. C El

Paso 1996, no writ) ( A Interpretation

of a zoning ordinance is a question of law singularly appropriate to the

independent interpretation of [a] [c] ourt . @ ).

This legal determination is not within the province of the jury. See City of Austin v. Quick , 7 S.W.3d

109, 116 (Tex. 1998) (noting that the legality of a city ordinance is not a

question for the jury to decide). The

trial court properly held that good faith was satisfied as a matter of law

because the BOA members =

votes were justifiable.

Champion asserted that its expert on zoning

ordinances established that no reasonable BOA member would have made the

decision to revoke the permit. After

listening to the tape and reading the transcript of the June 7 executive

session, the expert testified that in his opinion the BOA members A should not have acted the way they did. @

The expert testimony does not change our conclusion that whether the

interpretation of the Ordinance in this case was performed in good faith is a

question of law.

2. Subjective Evidence

Champion also contends that the decision to revoke

the permit was motivated by the personal animus of some Terrell Hills residents

and the members of the BOA to having apartments built on Eventide Drive. It claims that the subjective opinions of

public officials vitiates their claim of immunity by precluding a finding of good

faith.

We have consistently held that probative evidence

on the issue of good faith is limited to objective evidence. See Wadewitz ,

951 S.W.2d at 466 ( A [A] court

must measure good faith in official immunity cases against a standard of

objective legal reasonableness, without regard to the officer = s subjective state of mind. @ ); accord Chambers , 883 S.W.2d

at 656 .

The U.S. Supreme Court has also established an

objective reasonableness test for determining whether a public official acted

in good faith as a condition to the protection of federal qualified immunity. [3] The Supreme Court stated bluntly: A [A] defense of qualified immunity may

not be rebutted by evidence that the defendant = s

conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant = s subjective intent is simply

irrelevant to that defense. @ Crawford-El v. Britton , 523 U.S. 574,

588 (1998).

Although the court of appeals acknowledged that

this Court has established an objective standard for the good faith analysis,

it nevertheless determined that subjective bad faith should be considered in

evaluating good faith in this case. 70

S.W.3d at 229-30 . We again reject

reliance on subjective evidence in considering the good faith prong of the

official immunity doctrine. It is not

germane to the official immunity analysis.

There are important reasons for limiting reliance

only to objective evidence in consideration of good faith. An objective standard furthers the purpose of

official immunity, which is to permit decisionmaking

public officials to perform their jobs without hesitation or concern that their

decisions will subject them individually to civil liability under state

law. Kassen ,

887 S.W.2d at 8 ; Baker , 621 S.W.2d at 643-44 . Suits against government officials exact

costs against our society, including A the

expenses of litigation, the diversion of official energy from pressing public

issues, and the deterrence of able citizens from acceptance of public office. @

Harlow , 457 U.S. at 814.

Employing a subjective standard of good faith significantly increases

these societal costs. Id. at

816. The Supreme Court explained:

[T]he

judgments surrounding discretionary action almost inevitably are influenced by

the decisionmaker = s

experiences, values, and emotions. These

variables . . . frame a background in which there often is no clear end to the

relevant evidence. Judicial inquiry into

subjective motivation therefore may entail broad-ranging discovery and the

deposing of numerous persons, including an official = s

professional colleagues. Inquiries of

this kind can be peculiarly disruptive of effective government.

Id. at 816-17. We

likewise recognize a substantial public interest in shielding public officials

from the costs associated with defending civil lawsuits instituted to challenge

their judgment on public issues.

Through the audio recording and the transcript of

the June 7 executive session, Champion attempted to show that the BOA members = actions were improperly

motivated. It claims that some of their

comments suggest that their feelings on the nature of apartment dwellers

controlled their decision to revoke the building permit. During the executive session, the BOA members

discussed whether the presence of the

apartments would lower property values by bringing A scum @ into the neighborhood and whether

residents of apartment complexes would bring A cars

on the street @ and A loud boom boxes. @ One BOA member referred to another apartment

complex in the area as a A whorehouse. @

Although we do not condone the negative comments

by the BOA members, the objective standard of good faith does not permit an

inquiry into what subjectively could have motivated the BOA = s decision. Wadewitz ,

951 S.W.2d, at 466 ; Chambers , 883 S.W.2d at 656 ; see also Crawford-El ,

523 U.S. at 588 . As conclusively

established through objective evidence at trial, the 80-foot street frontage

requirement in Ordinance 634 was justification for the BOA members = votes.

IV.

Conclusion

We hold that the BOA members established their

affirmative defense of official immunity as a matter of law. Therefore, the trial court properly granted

the BOA members = motion

for judgment n.o.v .

Accordingly, we reverse the court of appeals =

judgment in part and render judgment that Champion take nothing.

________________________________________

J. Dale Wainwright

Justice

OPINION

DELIVERED: July 9, 2004

[1] Primero = s three members each had a one-third interest in the

Eventide property. However, after the

dispute with the BOA arose, the members settled their interests in Primero with James Spears (owner of Champion) becoming sole

owner of Primero in return for Champion = s release of its one-third interest in the Eventide

property to Trevino and Tamez .

[2] The court of

appeals voted 3-3 to deny the motion for reconsideration of the en banc

opinion. The seventh justice was new to

the court and did not participate in the motion for reconsideration.

[3] Federal courts

recognize a qualified immunity for public officials, which is analogous

although not identical to our official immunity. Qualified immunity protects governmental

officers with discretionary authority from liability so long as their conduct

does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.

Crawford-El v. Britton , 523 U.S. 574, 588 (1998); Harlow v.

Fitzgerald , 457 U.S. 800, 818 (1982); Wood , 420 U.S. at 321-22 .