Jacob Schauer v. Charles Terrell Morgan

Opinion issued June 16, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00142-CV

JACOB M. SCHAUER, Appellant

V.

CHARLES TERRELL MORGAN, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 16330*RM01

CONCURRING AND DISSENTING OPINION

I join the panel’s opinion insofar as it holds that Morgan’s claims against

Schauer in his official capacity are barred by section 101.106 of the Tort Claims Act.

I respectfully dissent from the opinion insofar as it holds that Morgan’s claims against

Schauer in his individual capacity are barred by section 101.106. I write separately

for two reasons: to clarify the scope of the Court’s opinion and to explain my dissent.

Morgan originally sued Schauer in his individual capacity and as an employee

of the Garden Gate Apartments (“Garden Gate”) for injuries sustained when Schauer,

an Alvin police officer and security guard for Garden Gate, mistook Morgan for a

person on whom he was trying to serve a no-trespassing warning on behalf of the

apartments. Morgan alleged that when he refused to identify himself Schauer arrested

him, manhandling him and throwing him onto the hood of Schauer’s car and to the

ground in the process. Because Morgan alleged that Schauer injured him in his

official capacity as a peace officer, the City intervened and moved for summary

judgment on grounds of immunity. We held that the City was the real party in interest

for Morgan’s suit against Schauer in his official capacity and that the City’s immunity

to liability for the torts alleged to have been committed by Schauer was not waived

by the Tort Claims Act.

The Court now holds that, under former section 101.106 of

the Tort Claims Act, Schauer, likewise, is entitled to immunity from liability of

Morgan’s claims against him “involving the same subject matter,” whether those

claims are brought against him in his individual capacity or in his official capacity.

See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen.

Laws 3242 , 3305 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code

Ann. § 101.106 (Vernon 2005)).

I believe this holding rests on an overbroad

interpretation of former section 101.106 by this Court and its sister courts of appeal.

See id .

The Court’s opinion is grounded in case law interpreting section 101.106,

particularly Thomas v. Oldham , 895 S.W.2d 352 (Tex. 1995) and Newman v.

Obersteller , 960 S.W.2d 621 (Tex. 1997). These two cases, and their implications,

are very different from each other, however. In Thomas , the plaintiff sued Oldham,

Oldham’s employer, and the City of Houston for injuries sustained when Oldham’s

car rear-ended Thomas’s during the course of Oldham’s employment. Thomas , 895

S.W.2d at 354 . Thomas obtained money judgments against both Oldham and the

City, and both parties appealed. Id . The Texas Supreme Court held, “The express

language of section 101.106 states that a judgment in an action against the

governmental unit bars any action against the employee.” Id . at 355 (emphasis in

original). It added, “ Rather than providing blanket protection to employees, however,

section 101.106 merely protects them in those situations where a judgment or

settlement is obtained from the governmental employer .” Id. at 357 (emphasis

added). It explained:

The Tort Claims Act broadened, rather than restricted, an injured party’s

remedies. At common law, municipalities performing governmental functions

were completely immune from liability. The Tort Claims Act created a limited

waiver of that immunity. Although a plaintiff who pursues the statutory

remedy against the government may lose his or her common law remedy

against the employee, the plaintiff is not required to follow this course. He or

she may still opt to pursue the full common law remedy against the responsible

employee, foregoing or postponing any attempt to recover from the

government.

Id. at 357–58.

Under Thomas , section 101.106 bars a suit for damages against a governmental

employee when the plaintiff has already obtained a money judgment or settlement

against his governmental employer based on the same subject matter; in other words,

section 101.106 acts as a bar to double recovery. The injured party may elect to sue

the governmental employee individually and may recover against him so long as he

does not recover the same damages from the government; the employee is not,

however, provided “blanket protection” against an individual suit for damages if the

plaintiff chooses to recover damages from him rather than from the government.

In Newman , the Texas Supreme Court greatly expanded its holding in Thomas .

The plaintiff, Obersteller, a high school student, and his parents sued a school district

and the district’s head coach and athletic director, Newman, for intentional infliction

of emotional distress. Newman , 960 S.W.2d at 622 . No judgment was entered

against the school district; rather, summary judgment was entered in favor of the

school district on the ground that its immunity to liability was not waived by the Tort

Claims Act. See id. The trial court denied Newman’s own motion for summary

judgment on grounds of immunity under section 101.106 and section 21.912 of the

Education Code, and Newman filed an interlocutory appeal. Id. The Texas Supreme

Court held,

Section 101.106 provides that a judgment in an action against a governmental

unit bars any action against an employee. Tex. Civ. Prac. & Rem. Code

A nn . § 101.106; Thomas v. Oldham , 895 S.W.2d 352, 355 (Tex. 1995). The

Texas Tort Claims Act is a waiver of governmental immunity by the state for

certain actions. Tex. Civ. Prac. & Rem. Code Ann . § 101.025. However, the

Legislature has provided some exceptions to this waiver, one of which is an

action against an individual employee when a suit against a governmental

entity involving the same subject matter has proceeded to judgment. Tex. Civ.

Prac. & Rem. Code A nn . § 101.106. The language “bars any action” is an

unequivocal grant of immunity in this context. That section 101.106 does not

use the word “immunity” is of no consequence.

Id . (emphasis in original). Thus, the supreme court held that a governmental

employee is immune to suit for damages arising out of his torts if the employer is

immune, even though section 101.106 as it existed in its prior version (and as it exists

today) never uses the term “immunity.”

Justice Abbott wrote a vigorous dissent to Newman ’s expansion of the rule

established in Thomas . See 960 S.W.2d. at 623 (Abbott, J., dissenting). In Justice

Abbott’s view, former section 101.106 provided only that suit was barred against an

employee for the same acts that had given rise to a judgment or settlement against the

governmental unit by which he was employed; suit was not barred by a judgment in

favor of the governmental entity on the basis of governmental immunity. See id. at

624 . He pointed out that a bar does not equate to immunity and that an immunity

defense is a concept “completely different” from the defense afforded governmental

employees by section 101.026. Id. Specifically, the immunity defense provides that

“[g]overnment employees are entitled to official immunity from suit arising from the

performance of their (1) discretionary duties in (2) good faith as long as they are

(3) acting within the scope of their authority.” Id. (quoting City of Lancaster v.

Chambers , 883 S.W.2d 650, 653 (Tex. 1994)). Justice Abbott also observed that

section 101.106 was not located in the “exclusion and exception” section of the Tort

Claims Act but in the “procedures” section, and, as interpreted by the Newman

majority, was in tension with section 101.026, “Individuals’ Immunity Preserved,”

which was in the “exclusion and exception” section and stated: “To the extent an

employee has individual immunity from a tort claim for damages, it is not affected by

this chapter.” Id .; see Tex. Civ. Prac. & Rem. Code A nn . § 101.026 (Vernon

2005).

Following Newman , our sister courts—and today this Court—have interpreted

former section 101.106 as a statute conferring immunity on governmental employees

for acts committed in the course of their employment equal to the immunity enjoyed

by their employer. This blanket immunity is limited only by the necessity of

obtaining a judgment holding that the governmental entity is immune to suit.

In

other words, the appellate courts have interpreted section 101.106 as providing the

“blanket immunity” Thomas stated it did not provide. The effect has been the

elimination of the distinction between liability claims brought against a governmental

employee in his individual capacity for torts committed in the exercise of public

duties and those brought against him in his official capacity. Additionally, this

interpretation has eliminated the distinction between the absolute sovereign immunity

enjoyed by governmental entities, except where that immunity is expressly waived,

and the qualified immunity enjoyed at common law by governmental employees sued

in their individual capacities which Justice Abbott referenced in his Newman dissent.

The distinction between suits brought against governmental employees in their

official capacities and suits brought against them in their individual capacities is

crucial. The United States Supreme Court explained the difference in Kentucky v.

Graham : individual-capacity suits “seek to impose personal liability upon a

government official for actions he takes under color of state law,” while official-capacity suits “generally represent only another way of pleading an action against an

entity of which an officer is an agent.” 473 U.S. 159 , 165–66, 105 S. Ct. 3099, 3105

(1985). Unlike a suit against the public employee in his official capacity, which is

a suit against the government, a suit against him in his individual capacity is a suit

against his personal assets . Id. at 166 , 105 S. Ct. at 3105 . The Supreme Court

observed that a state official sued in his individual capacity may be able to assert

personal immunity defenses, including the defense of qualified official immunity, but

that these defenses are unavailable in an official-capacity action precisely because

liability in such an action lies only against the government. Id. at 166–67, 105 S. Ct.

at 3105–06.

Like federal law, Texas law exclusive of the line of cases interpreting section

101.106 limits the immunity of a governmental employee sued in his individual

capacity to (1) discretionary acts, (2) performed in good faith, and (3) within the

scope of his authority; the employee’s immunity is thus “qualified” official immunity,

as opposed to absolute sovereign immunity. See, e.g ., Ballantyne v. Champion

Builders, Inc. , 144 S.W.3d 417, 424 (Tex. 2004); City of Lancaster , 883 S.W.2d at

653 . However, the appellate courts that have interpreted section 101.106 in the wake

of Newman , including this Court today, have observed that “[u]nlike other provisions

of the Tort Claims Act, section 101.106 does not say that the provision applies only

when the employee is acting within the scope of his employment or in good faith.”

Aguilar v. Ramirez , No. 13–03–00339–CV, 2004 WL 1353723 , at *2 (Tex.

App.—Corpus Christi 2004, pet. denied) (mem. op.); Owens v. Medrano , 915 S.W.2d

214, 216 (Tex. App.—Corpus Christi 1996, writ denied); City of Galveston v.

Whitman , 919 S.W.2d 929 , 931–32 (Tex. App.—Houston [14th Dist.] 1996, pet.

denied). Thus, they have held or implied that, in cases to which section 101.106

applies, it is not necessary for a governmental employee sued in his individual

capacity to prove his entitlement to the affirmative defense of official immunity—his

immunity to liability is coextensive with that of his employer, which is absolute

unless expressly waived by the Tort Claims Act. The result of this uniquely strong

interpretation of the immunity conferred by section 101.106 is that “[t]he immunity

extended by section 101.106 has been recognized as harsh.” Aguilar , 2004 WL

1353723 , at *3; Brand v. Savage , 920 S.W.2d 672, 675 (Tex. App.—Houston [1st

Dist.] 1995, no writ).

In its opinion today, this Court has recognized that the remedy in cases where

a governmental employee enjoys immunity derivative of his employer’s under section

101.106 is indeed “harsh.” However, we have opined, returning to and quoting the

Texas Supreme Court in Thomas , that the harshness of the immunity granted to

governmental employees by section 101.106 is alleviated by the plaintiff’s ability to

forego or postpone any attempt to recover from the government until after he has sued

the individual employee. See Thomas , 895 S.W.2d at 357–58. I fear, however, that

this right has become illusory as the case law has evolved beyond Thomas .

In this case, Morgan did not sue the City of Alvin; he sued only Garden Gate

and Schauer in his individual capacity, alleging that Schauer was guilty of assault,

negligence, and trespass to his person as an agent of the City police force. Once

Morgan admitted, however, that he was asserting a claim against Schauer in his

official capacity as a police officer for the City, the City intervened, claiming

correctly that it was the real party in interest for claims brought against Schauer in his

official capacity. See Morgan , 2004 WL 2005968, at *3 ; see also Will v. Michigan

Dep’t of State Police , 491 U.S. 58, 71 , 109 S. Ct. 2304, 2312 (1989) (providing that

suit against police officer in his official capacity is merely another way of pleading

suit against governmental agency of which officer is agent). Then, the City

successfully moved for summary judgment on the ground that it was immune from

the damage claims brought against it unless its immunity was waived by section

101.106 of the Tort Claims Act, which it was not, and we affirmed that judgment. We

have now gone much further, however, in line with our sister courts’ interpretation

of Newman , and have derivatively immunized Schauer from liability in his individual

capacity from any and all claims arising from “the same subject matter.”

The expansive interpretation of former section 101.106 by the appellate courts,

including this one, has extended absolute protection to governmental employees for

all torts committed in the exercise of their governmental duties, whether they were

sued in their official capacity only, or in their individual capacity as well, and whether

they were acting in good faith or within the scope of their authority or not. Under this

interpretation of section 101.106, because a governmental entity is immune from

liability for the intentional torts of its employees, such as assault and battery, the

employee is immune from liability for those torts as well. The usual limits of the

qualified immunity accorded governmental employees does not apply. Thus, this

broad interpretation of the statute removes a powerful incentive for governmental

entities and governmental employees to control the behavior of persons carrying out

governmental duties—the threat of individual liability for those governmental

employees who carry out their official duties in bad faith or outside the scope of their

authority.

I can find no indication in the Tort Claims Act or in its legislative history that

the Legislature intended to create a uniquely powerful immunity statute by enacting

section 101.106. Rather, in Thomas , the Supreme Court construed section 101.106

as having the same intent as the federal statute on which it was modeled, namely

“barring simultaneous judgments against the United States and its employees.” 895

S.W.2d at 357 . As the Dallas Court of Appeals stated prior to Thomas ,

The purpose of the statute is clear—to protect a government

employee from individual liability for acts or omissions done in

the course and scope of his employment when the plaintiff obtains

a judgment or settlement on the claim against the governmental

employer for a claim under the Tort Claims Act based on the

same subject matter.

White v. Annis , 864 S.W.2d 127, 132 (Tex. App.—Dallas 1993, pet. denied). The

courts have lost sight of this purpose in their judicial expansion of the protection

afforded by section 101.106, even as the Legislature itself has explicitly styled

revised section 101.106 an “Election of Remedies” statute and has failed to revise its

immunity provision stating that an employee’s individual immunity from a tort claim

for damages is not affected by Chapter 101. See Tex. Civ. Prac. & Rem. Code Ann .

§§ 101.106, 101.026. In other words, the Legislature seems to agree with Thomas

and with Justice Abbott’s distinction in Newman , while the courts—at least the

appellate courts interpreting former section 101.106—do not.

The extension of blanket protection to governmental employees for torts

committed in the exercise of their governmental duties—regardless of the capacity

in which they are sued—should not be the inadvertent effect of the judicial

interpretation of a statute that does not use the term “immunity” and that is naturally

interpreted (1) as barring double recovery against both a governmental entity whose

immunity to suit has been waived by the Tort Claims Act and the governmental

employee whose torts in the exercise of his governmental duties gave rise to the suit

against the government and (2) beyond that, when a governmental entity has been

held immune to suit arising out of the torts of its employee, only as barring claims

made against the employee in his official capacity—not as barring liability claims

made against him in his individual capacity, unless he establishes a qualified official

immunity defense.

Last year, in Ballantyne , the Texas Supreme Court stated the purpose of the

official immunity defense, namely, “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.” Ballantyne ,

144 S.W.3d at 424 . It stated, “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.” Id. (quoting Kassen v. Hatley , 887 S.W.2d 4, 8

(Tex. 1994)). Once again, the court recognized official immunity as an affirmative

defense that acts as “ a bar to state law claims ” against governmental employees but

that protects those officials only “from suit arising from performance of their (1)

discretionary duties (2) in good faith (3) within the scope of their authority.” 144

S.W.3d at 422–24 (emphasis added). The same concept of qualified official

immunity should apply in a suit to which section 101.106 applies— i.e ., a suit brought

against a governmental employee in his individual capacity for torts committed in the

exercise of his public duties—even when the official immunity of the governmental

entity for which he works has not been waived and suit against the employee in his

official capacity is therefore barred.

Thus, while I join in the Court’s opinion in holding that Morgan’s suit against

Schauer in his official capacity is barred by former section 101.106 of the Tort Claims

Act, I dissent insofar as the opinion holds that section 101.106 in either its former or

its current form deprives a plaintiff of his right to maintain a suit for liability against

a governmental employee in his individual capacity for torts committed while

carrying out his governmental duties simply because the plaintiff has also sued the

governmental employee in his official capacity and the governmental employer has

been held immune to liability. I also dissent insofar as the opinion construes former

section 101.106 as relieving the governmental employee of the necessity of proving

the affirmative defense of qualified immunity to claims brought against him in his

individual capacity for torts committed in the exercise of his governmental duties.

I would hold that, while Morgan’s claims against Schauer in his official

capacity as an agent of the City of Alvin are barred by former section 101.106,

Morgan’s claims against Schauer in his individual capacity for torts committed in the

exercise of his duties as a peace officer are not barred by former section 101.106, but

that Schauer is entitled to assert the affirmative defense of qualified official immunity

to those claims.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Hanks, and Bland.

Justice Keyes, concurring and dissenting.