Texas a & M University v. Bishop, Paul A.

Appellant’s Motion for Rehearing Denied; Concurring and Dissenting

Opinions to the Denial of Rehearing filed April 10, 2003

Appellant’s

Motion for Rehearing Denied; Concurring and Dissenting Opinions to the Denial

of Rehearing filed April 10, 2003 .

In The

Fourteenth Court of Appeals

____________

NO. 14-97-00153-CV

____________

TEXAS A&M UNIVERSITY , Appellant

V.

PAUL A. BISHOP, Appellee

_________________________________________________

On Appeal from

the 212 th District Court

Galveston County , Texas

Trial Court

Cause No. 94CV0958

_________________________________________________

DISSENTING OPINION

TO THE DENIAL

OF REHEARING

On remand from the Texas Supreme

Court, this Court held that Michael and Diane Wonio’s

decision to use a real knife in a drama production at Texas A&M University at Galveston , and the

faculty advisors’ negligent supervision of the production, was an act of

“professional or occupational discretion.”

Because the defense of official immunity applies only to claims based on

the exercise of “governmental” discretion, we held Texas A&M was not

entitled to successfully assert the defense.

On rehearing, Texas A&M contends our reliance on Kassen v. Hatley , 887 S.W.2d 4 ( Tex. 1994) was

misplaced. Because I agree, I

respectfully dissent to the denial of Texas A&M’s

motion for rehearing.

Official immunity is an affirmative

defense. City of Lancaster v. Chambers , 883 S.W.2d 650, 653 ( Tex.

1994). Case law states that official

immunity may protect state employees who are sued in their individual

capacities, see, e.g., Jackson v.

Stinnett , 881 S.W.2d 498, 500 (Tex. App.—El Paso 1994, no writ), and if the

employee is protected from liability by official immunity, the governmental

entity retains its sovereign immunity. DeWitt v. Harris County , 904 S.W.2d 650, 653 ( Tex.

1995). When, as in this case, the

governmental unit’s liability under the Texas Tort Claims Act is based on respondeat superior for an employee’s negligence arising

from the use of tangible personal property, the governmental unit’s liability

is derivative. Id. at

654. Thus, official immunity, like any

other affirmative defense available to the employee, is relevant to the

governmental entity’s liability. Id.

The elements of the defense are (1)

the performance of a discretionary function (2) in good faith (3) within the

scope of the employee’s authority. Chambers , 883 S.W.2d at 653 . Discretionary acts are those that “require

personal deliberation, decision, and judgment, whereas ministerial acts require

obedience to orders.” Garza v. Salvatierra ,

846 S.W.2d 17, 22 (Tex. App.—San Antonio 1992, writ dism’d

w.o.j .).

It is undisputed that the faculty

advisors were performing discretionary duties.

Citing Kassen ,

however, Bishop contends the defense of official immunity applies only if the

discretionary acts are “governmental” in nature. In Kassen , the court addressed whether medical doctors who work

for a government institution are entitled to official immunity. 887 S.W.2d at 9 . The court determined that, in the case of

medical personnel, there must be a distinction between “governmental” and

“medical” discretion. Id. at

11. The court found that, if the doctor

was exercising purely “medical” discretion, rather than policy-making or

administrative responsibilities at the time of the injury, the doctor was not

entitled to the defense of official immunity.

Id.

I believe

the Supreme Court intended, in Kassen , to draw a distinction only between “governmental”

and “medical” discretion, not between “governmental” and “non-governmental”

discretion generally. First, the phrase

“non-governmental discretion” is nowhere found in the majority opinion. Second, the court explicitly rejected drawing

a “distinction between activities that are uniquely

governmental and those that are not.” Id . at

10. Third, the plaintiffs framed their

argument in terms “that such actions by government-employed physicians and

nurses are only medical functions, not governmental functions.” Id . at 9. Fourth, the Supreme Court has never applied

this aspect of its holding in Kassen outside the medical profession. See

Gross v. Innes , 988 S.W.2d 727 ( Tex. 1998)

(holding Kassen

applies to para -medics). Finally, and most importantly, the court

posited its holding in terms of distinguishing “between governmental and medical

discretion.” Id . at

11. The court summarized its holding by

stating:

We hold that government-employed medical

personnel are not immune from tort liability if the character of the discretion

they exercise is medical and not

governmental. A state-employed doctor or nurse has official immunity

from claims arising out of the exercise of governmental discretion, but is not

immune from liability arising from the exercise of medical discretion. Courts

should look at the character of the discretion exercised in each instance.

This approach is not the same as the Armendarez ’s “uniquely

governmental” test which focused on a state employee’s function. Official immunity does not turn on whether a

health-care employee’s discretion was uniquely governmental or medical .

The focus must remain upon the facts of the individual case and the

underlying policies promoted by official immunity. We anticipate difficult cases in which

government-employed medical personnel

will have duties and responsibilities that coincide with private-sector

providers. In such cases, if

governmental factors and concerns colored the doctor’s or nurse’s discretion, policy considerations may still

call for official immunity. Such

decisions necessarily involve a balancing of individual rights and the public

interest.

Id . at 11-12

(emphasis added).

Accordingly, the distinction between

medical and governmental discretion discussed in Kassen does not apply to the facts

of this case. I would hold that Kassen is limited

to cases involving doctors and medical personnel employed by governmental

entities. Because I believe Kassen is inapplicable to the facts of this

case and therefore, categorization of the type of discretion exercised is

inappropriate, I would hold there was no basis for finding the faculty advisors

were performing any function other than a discretionary one.

Although argued only on rehearing,

Bishop states that, even if the faculty advisors were performing discretionary

duties that fact would not entitle them to official immunity because the

advisors’ actions could not have been in good faith. Bishop claims the advisors’ decision to

violate university policy and allow deadly weapons to be wielded by Drama Club

students cannot constitute the good faith performance of a discretionary duty.

This argument is similar to that

made in Rivas v. City of Houston , 17

S.W.3d 23 (Tex. App.— Houston [14th

Dist.] 2000, pet. denied). In Rivas , the appellant claimed an

ambulance driver had no discretion not to use the lights and sirens when the

ambulance was in emergency mode. Id. at

29. This court responded to appellant’s

claim by stating that, under well-settled law, “we must focus on whether [the

governmental employee] was ‘performing a discretionary function, not on whether

[he] had discretion to do an allegedly wrongful act while discharging that

function’.” Id. (quoting Harris County v. Ochoa , 881 S.W.2d 884,

887 (Tex. App.—Houston [14th Dist.] 1994, writ denied)). Although this reasoning from Rivas concerned the element of

discretion, we find it also applicable to the good faith element because “the

good faith standard is not equivalent to a general negligence test, which

addresses what a reasonable person would

have done , rather than what a reasonable official could have believed .” Rivas , 19 S.W.3d at 903 (quoting Wadewitz v. Montgomery , 951 S.W.2d 464 , 467 n. 1

( Tex. 1997)).

The test of whether a governmental

employee acted in good faith is one of “objective legal reasonableness.” City of

Lancaster , 883

S.W.2d at 656 . Under this test, the

employee will be deemed to have acted in good faith if a reasonably prudent

employee, under the same or similar circumstances, could have believed that the

employee’s acts were justified. Vela v. Gomez , 4 S.W.3d 911, 913 (Tex.

App.—Corpus Christi 1999, no pet.)(citing Chambers ,

883 S.W.2d at 656 ).

The record contains much testimony

concerning the role of the faculty advisors.

The Dean of Texas A&M University at Galveston , David

James Schmidly , testified faculty advisors perform an

advisory role, approving financial requests and assisting with scheduling

events. Although the responsibilities of

advisors include attendance at club meetings whenever possible, Schmidly testified that he did not believe advisors should

have attended entire play rehearsals. Schmidly emphasized that the advisors were not compensated

for advisor activities. Unless the

advisors attended entire rehearsals, Schmidly did not

see how the advisors could have discovered a real knife was being used in the

play. William Charles Hearn, Senior

Student Life Affairs Dean and Executive Associate Campus Dean, testified that

advisors have a responsibility to ensure compliance with university regulations,

but he did not believe the advisors should have attended more rehearsals. Hearn defined the advisors’ role as giving

advice, approving check requests, helping to develop student leadership, and to

oversee, but not directly supervise the clubs.

The advisors testified that they assisted with finances and approval to

use facilities, but neither advisor attended any of the rehearsals of this

play. Dr. Curley, one of the advisors to

the Drama Club, testified that he understood his role to be merely advisory and

not supervisory. Curley added that if he

had known about the use of the knife, he would have taken action.

Because the evidence showed the

faculty advisors’ role was more advisory than supervisory, a reasonably prudent

faculty advisor could have believed that there was no need to attend the play

rehearsals. The evidence does not show

the advisors had any reason to believe direct supervision was required or

necessary. Accordingly, the evidence

shows the faculty advisors acted in good faith as a matter of law. Because the evidence established as a matter

of law that the faculty advisors were performing discretionary acts in good

faith, I would hold the trial court erred in refusing to grant Texas A&M’s motion for instructed verdict on the defense of official

immunity.

For these reasons, I respectfully

dissent to the denial of Texas A&M’s motion for

rehearing.

/s/ J. Harvey Hudson

Justice

Judgment

rendered and Concurring and Dissenting Opinions to the Denial of Rehearing filed

April 10, 2003 .

Panel

consists of Justices Hudson and Edelman, and Senior Chief Justice Murphy. *

[1] Senior Chief Justice Paul C. Murphy sitting

by assignment.