Kenneth Mark Dorrough v. John Murray Faircloth and Helen Bowen

Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-13-00884-CV

Kenneth Mark DORROUGH,

Appellant

v.

John Murray FAIRCLOTH and Helen Bowen,

Appellees

From the 216th Judicial District Court, Bandera County, Texas

Trial Court No. CV-11-320

Honorable M. Rex Emerson, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

REVERSED, VACATED, AND DISMISSED WITH PREJUDICE

In response to a complaint that Appellee John Faircloth was interfering with others’ right

to fish, Appellant Kenneth Mark Dorrough, a deputy game warden, entered Faircloth’s lakefront

property. He saw Appellee Helen Bowen, Faircloth’s wife, questioned her briefly, and then

questioned Faircloth. After a heated verbal exchange between Faircloth and Dorrough, Appellees

sued Dorrough alleging several intentional torts, and moved for a temporary injunction against

Dorrough. The trial court granted the Appellees’ motion. Asserting his immunity from suit as a

deputy game warden, Dorrough twice moved for summary judgment. The trial court denied both

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of Dorrough’s motions, and he filed this interlocutory appeal of the latter order. For the reasons

given below, we reverse the trial court’s order, vacate the temporary injunction, and dismiss

Appellees’ suit with prejudice.

BACKGROUND

Appellees, a married couple, own lakefront property on Medina Lake. In September 2009,

because of a drought, land adjacent to the Faircloths’ property that had been underwater was

exposed and dry. Dorrough received a telephone complaint from Curtis Coolidge, an off-duty San

Antonio police officer. Coolidge asserted that John Faircloth prevented him from driving his golf

cart across the lake bed while Coolidge and his children were searching for a place to fish.

In response, Dorrough entered the Faircloths’ property to investigate Coolidge’s complaint.

Dorrough went to the Faircloths’ house, knocked on the door, looked into their windows, and then

saw Helen Bowen outside. Dorrough questioned Bowen briefly. As Dorrough was leaving,

Faircloth returned home. Dorrough questioned Faircloth, and their conversation escalated into a

verbal confrontation. The Faircloths insisted Dorrough leave their property, and he complied.

Based on this encounter, Appellees sued Dorrough for trespass to real property, threat of

bodily injury, intrusion on seclusion, and intentional infliction of emotional distress. They also

moved for a temporary injunction to prevent Dorrough from approaching them or their property.

Dorrough answered and asserted that, at the time of the confrontation, he was a properly

commissioned deputy game warden. Dorrough initially asserted he was immune from suit under

the election of remedies provision of the Texas Tort Claims Act.1 See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(f) (West 2005). After the trial court granted the Faircloths’ temporary

1

Dorrough is represented by the Office of the Attorney General.

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injunction and denied Dorrough’s motion to dismiss and no evidence summary judgment,

Dorrough filed a motion for reconsideration.

In his motion for reconsideration, Dorrough for the first time cited Filarsky and asserted

common-law official immunity as a defense. See Filarsky v. Delia, 132 S. Ct. 1657, 1661–62

(2012). The trial court denied his motion for reconsideration but abated the cause pending

resolution of this appeal. On appeal, Dorrough complains the trial court erred when it denied his

motion for reconsideration based on common-law official immunity.

SUBJECT-MATTER JURISDICTION

As a threshold question, we must determine whether Dorrough successfully invoked this

court’s subject-matter jurisdiction. See City of Hous. v. Estate of Jones, 388 S.W.3d 663, 667

(Tex. 2012) (per curiam) (addressing timeliness of notice of appeal following denial of amended

motion); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“Appellate courts

have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly

provides such jurisdiction.”). The trial court denied Dorrough’s motion to dismiss on February

22, 2013, but his notice of appeal was not filed until December 12, 2013. Because his notice of

appeal appeared to be untimely, we ordered Dorrough to show cause why his appeal should not be

dismissed for want of jurisdiction. See TEX. R. APP. P. 25.1(b) (jurisdiction of appellate court);

Estate of Jones, 388 S.W.3d at 667.

A. Meeting Elements for Interlocutory Appeal

In his timely response to our order, Dorrough asserted he was entitled to an interlocutory

appeal under section 51.014(a)(5). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West

Supp. 2013). The section authorizes a person to pursue an interlocutory appeal if a trial court

denies that person’s “motion for summary judgment that is based on an assertion of immunity by

an individual who is an officer or employee of the state.” Id. Although the statute’s plain language

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refers to a “motion for summary judgment,” its provision is not limited to a specific type of

procedural vehicle. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (“If the trial court

denies the governmental entity’s claim of no jurisdiction, whether it has been asserted by a plea to

the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that

an interlocutory appeal may be brought.”).

Dorrough’s motion for reconsideration asserted for the first time common-law official

immunity as a state official. In determining whether the trial court’s denial of Dorrough’s motion

authorizes an interlocutory appeal, we look to the motion’s contents rather than its title. See Austin

State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (per curiam) (“[A]n appeal may be taken

from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of

the procedural vehicle used.”). Dorrough’s motion raised official immunity, and the trial court

denied his motion. Dorrough met the requirements for an interlocutory appeal under section

51.014(a)(5). See id.

B. Timeliness of Notice of Appeal

The trial court denied Dorrough’s motion for reconsideration on November 24, 2013; his

notice of appeal was due on December 16, 2013. See TEX. R. APP. P. 26.1(b). He filed his notice

of appeal four days before the due date, which made it timely. See id. Given a timely notice of

appeal filed on a statutorily authorized basis for interlocutory appeal, we have subject-matter

jurisdiction for this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); TEX. R. APP.

P. 25.1(b); Estate of Jones, 388 S.W.3d at 667. We turn to the substantive issue of official

immunity for a deputy game warden.

OFFICIAL IMMUNITY FOR DEPUTY GAME WARDEN

Although Dorrough initially sought immunity from suit under the Texas Tort Claims Act,

see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f), he now concedes he does not meet the Act’s

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“government employee” definition, see id. § 101.001(2) (defining an employee as one “who is in

the paid service of a governmental unit”). Instead, he relies on common-law official immunity to

bar the Faircloths’ suit. See Filarsky, 132 S. Ct. at 1661–62. We first consider whether common-

law official immunity extends to a deputy game warden.

A. Common-Law Official Immunity

Official immunity is a common-law doctrine that protects government officials from

liability and suit. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422, 424 (Tex. 2004)

(immunity from suit); Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex. 2002) (immunity from

liability). “Texas courts have long recognized official immunity, in substance if not by name, for

a variety of public officials.” Ballantyne, 144 S.W.3d at 423.

1. Purpose of Official Immunity

“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.” Id. at 424; accord Filarsky, 132 S. Ct.

at 1661–62. If official immunity were not available, “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.” Ballantyne, 144 S.W.3d at 424; accord Filarsky, 132 S. Ct. at

1665. Despite public officials’ fallibility in exercising discretion and judgment, “[d]enying the

affirmative defense of official immunity to public officials in such circumstances ‘would

contribute not to principled and fearless decision-making but to intimidation.’” Ballantyne, 144

S.W.3d at 424.

2. Courts Define Official Immunity

Because official immunity is a common-law doctrine, courts determine its scope and

applicability. See Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 375 (Tex. 2006) (“[I]t

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remains the judiciary’s responsibility to define the boundaries of the common-law doctrine and to

determine under what circumstances sovereign immunity exists in the first instance.”); accord City

of Leon Valley Econ. Dev. Corp. v. Little, 422 S.W.3d 37, 42 (Tex. App.—San Antonio 2013, no

pet.). In a number of cases, the Texas Supreme Court and intermediate appellate courts have

decided whether official immunity extends to certain public officials. E.g., Ballantyne, 144

S.W.3d at 424; Medina Cnty. Comm’rs Court v. Integrity Grp., Inc., 944 S.W.2d 6, 8–10 (Tex.

App.—San Antonio 1996, no writ).

3. Standard of Review

Whether the doctrine of official immunity may extend to a deputy game warden is a

question of law which we review de novo. See City of Hous. v. Williams, 353 S.W.3d 128, 133

(Tex. 2011).

B. Does Official Immunity Extend to a Deputy Game Warden?

In this case of first impression, we must decide whether a deputy game warden may invoke

official immunity. We note that other courts have extended official immunity to a variety of public

officials carrying out discretionary official duties, such as the following:

• An employment lawyer, Filarsky, 132 S. Ct. at 1660, 1667;

• A city’s Board of Adjustment members, Ballantyne, 144 S.W.3d at 424;

• A city’s public school board trustees, Campbell v. Jones, 264 S.W.2d 425 (Tex.

1954);

• Police officers, Telthorster, 92 S.W.3d at 459–60;

• Government-employed medical personnel performing governmental (non-medical)

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

• County commissioners, Medina Cnty. Comm’rs Court, 944 S.W.2d at 8–10; and

• Volunteer firefighters, Green v. Alford, 274 S.W.3d 5, 14 (Tex. App.—Houston

[14th Dist.] 2008, pet. denied) (en banc).

The two cases that are most relevant here are Green and Filarsky.

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1. Green v. Alford

In Green, the en banc court applied official immunity to a “volunteer firefighter for the

Pasadena Volunteer Fire Department.” Green, 274 S.W.3d at 9. The opinion does not expressly

state that Green was not paid for his service as a firefighter. However, it identified him as a

volunteer firefighter in a volunteer fire department, and relying on the ordinary meaning of

volunteer, we may conclude Green was an unpaid worker. See id. Without discussing whether

Green was paid, the court decided Green was a governmental employee performing discretionary

duties within the scope of his authority, and examined only the good faith element of his

affirmative defense of official immunity. Id.

2. Filarsky v. Delia

In Filarsky, a case decided after Green, the Supreme Court addressed official immunity

and who qualifies for its protections. Filarsky, 132 S. Ct. at 1663–66. In addition to reciting the

benefits of official immunity for public officials, id. at 1665–66 (e.g., “avoiding ‘unwarranted

timidity’”), Filarsky addressed how the common law historically “extended certain protections to

individuals engaged in law enforcement activities,” id. at 1664. It noted that a private individual

called to serve in a posse comitatus “is entitled to the same protection in the discharge of his duties

as the sheriff himself.” Id. It also observed that a “special constable, duly appointed according to

law . . . [was] as fully protected as any other office.” Id. (second alteration in original).

3. Extending Official Immunity to a Deputy Game Warden

In Texas, the legislature has authorized the commissioning and service of deputy game

wardens. TEX. PARKS & WILD. CODE ANN. § 11.020 (West 2002). The statute generally describes

the official duties they are authorized to perform, creates performance standards, identifies some

of the purposes they accomplish on behalf of the State, and directs the commission to create

regulations governing them. Id. The statute also states that deputy game wardens “serve without

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compensation from the state.” Id. Given Green’s precedent that a volunteer firefighter is a

government employee for purposes of invoking official immunity, Green, 274 S.W.3d at 9, the

statutory authorization for deputy game wardens, TEX. PARKS & WILD. CODE ANN. § 11.020, and

Filarsky’s recitation of the benefits of extending official immunity to public officials, Filarsky,

132 S. Ct. at 1665–66, we hold that the common-law doctrine of official immunity extends to

deputy game wardens. We turn now to whether Dorrough successfully invoked official immunity.

OFFICIAL IMMUNITY FOR DORROUGH

Dorrough did not originally invoke common-law official immunity; instead, he initially

moved for summary judgment based on no evidence, and the trial court denied his motion.

A. Nature of Motion for Reconsideration

In his motion for reconsideration, Dorrough raised common-law official immunity, and re-

urged his no evidence motion. But a defendant “should not move for no-evidence summary

judgment based on an affirmative defense that it has the burden to prove at trial.” Thomas v. Omar

Invs., Inc., 129 S.W.3d 290, 293 (Tex. App.—Dallas 2004, no pet.); accord Nowak v. DAS Inv.

Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Because common-

law official immunity is an affirmative defense, and Dorrough has the burden to prove each of its

elements, Ballantyne, 144 S.W.3d at 423; Telthorster, 92 S.W.3d at 460–61, a no evidence motion

was inapt, see Thomas, 129 S.W.3d at 293; Nowak, 110 S.W.3d at 680. Therefore, “[w]e look to

the substance of [his] plea for relief to determine [its] nature.” State Bar of Tex. v. Heard, 603

S.W.2d 829, 833 (Tex. 1980); see Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121

(Tex. 1991) (“[D]ecisions of the courts of appeals [should] turn on substance rather than procedural

technicality.”).

Although Dorrough several times referred to his “no evidence motion,” Dorrough also

moved the trial court to “grant summary judgment in his behalf on the basis of immunity [under

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section 101.106(f)] when considered together with Filarsky v. Delia,” he attached evidence

supporting his motion, and he submitted additional evidence in his motion for leave to file a

response to the Faircloths’ amended motion. Thus, we construe his plea for relief as a traditional

motion for summary judgment. See TEX. R. CIV. P. 166a(c) (authorizing traditional summary

judgment based on the motion’s grounds and evidence submitted with the motion); Heard, 603

S.W.2d at 833. We turn to the applicable law and standard of review.

B. Elements of Official Immunity

Official immunity, sometimes called qualified immunity, is an affirmative defense.

Ballantyne, 144 S.W.3d at 423; Kassen, 887 S.W.2d at 8; Chambers, 883 S.W.2d at 653; see City

of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993) (noting that qualified immunity and

official immunity are terms that are often used interchangeably). The elements of official

immunity are well-established: public officials must be “(1) acting within the scope of their

authority (2) in performing their discretionary duties in (3) good faith.” Ballantyne, 144 S.W.3d

at 422; accord Telthorster, 92 S.W.3d at 461.

C. Standard of Review

When a defendant moves for traditional summary judgment on the affirmative defense of

official immunity, he must conclusively prove each element of his defense. Ballantyne, 144

S.W.3d at 424; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. If the defendant

movant meets this burden, and the nonmovant’s summary judgment evidence fails to raise a

genuine issue of material fact on any essential element, the movant is entitled to judgment. TEX.

R. CIV. P. 166a(c); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

To establish the element of good faith, a public official must conclusively prove that “a

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

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conduct was justified based on the information he possessed when the conduct occurred.”

Ballantyne, 144 S.W.3d at 426; accord Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at

656. The test for good faith turns not on “‘what a reasonable person would have done,’” but rather

on “‘what a reasonable [person] could have believed.’” Ballantyne, 144 S.W.3d at 426 (quoting

Telthorster, 92 S.W.2d at 465). The official “must prove only that a reasonably prudent [official],

under similar circumstances, might have [acted the same way].” Telthorster, 92 S.W.2d at 465;

accord Chambers, 883 S.W.2d at 656. If the official meets this burden, the nonmovant “must

show that ‘no reasonable person in the defendant’s position could have thought the facts were such

that they justified defendant’s acts.’” Chambers, 883 S.W.2d at 657; accord Telthorster, 92

S.W.2d at 465.

We review the summary judgment evidence to determine whether Dorrough met his

burden, and then whether the Faircloths met theirs.

D. Summary Judgment Evidence

In the July 12, 2013 hearing on Dorrough’s motion to reconsider the trial court’s earlier

denial of his motion for summary judgment, Dorrough complained that the Faircloths had

submitted a response after 5:00 p.m. the previous day. Dorrough asked the court not to rule on his

motion until he had time to read and respond to the Faircloths’ amended petition. The trial court

granted Dorrough’s oral motion, and gave him permission to file a written supplement to his

motion for reconsideration. The court also gave the Faircloths permission to respond to any

supplement Dorrough submitted. The court expressly agreed it would consider the supplement

and response before it decided Dorrough’s motion for reconsideration. As part of his supplement,

Dorrough submitted an affidavit, with exhibits, from Lieutenant Colonel Danny Shaw, a deputy

director of law enforcement for the Texas Parks and Wildlife Department. The record does not

show that the Faircloths objected to Shaw’s affidavit or exhibits. We consider Shaw’s affidavit,

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exhibits, and the other summary judgment evidence as it pertains to each element of official

immunity.

E. Scope of Authority

The first element of official immunity we consider is whether Dorrough was acting within

the scope of his authority.

1. Applicable Law

“[P]ublic officials act within the scope of their authority if they are discharging the duties

generally assigned to them.” Ballantyne, 144 S.W.3d at 424; accord Chambers, 883 S.W.2d at

658. The Parks and Wildlife Code expressly authorizes “[a] commissioned deputy game warden

[to] enforce state laws relating to hunting and fishing” in a prescribed geographical area. TEX.

PARKS & WILD. CODE ANN. § 11.020; see also 31 TEX. ADMIN. CODE § 55.62 (2013) (Tex. Parks

& Wildlife Dep’t, Deputy Game Wardens) (“A deputy game warden is authorized . . . to perform

such game and fish duties as may be assigned by the regular game warden, in geographical areas

designated by the Department.”).

2. Shaw’s Affidavit, Exhibits

In Shaw’s affidavit, he stated he reviewed the relevant Department records; he concluded

that Dorrough met all the commissioning requirements and was a properly commissioned deputy

game warden on the date of the incident. He provided a geographical assignment log that showed

Dorrough was assigned to the “Bandera/San Antonio” geographical area, and the Faircloths’

property is within that area. He stated that Dorrough was authorized to investigate a complaint

alleging a violation of the Parks and Wildlife Code. See TEX. PARKS & WILD. CODE ANN.

§ 62.0125 (prohibiting any person from “intentionally interfer[ing] with another person lawfully

engaged in the process of hunting or catching wildlife” and defining that process to include “other

acts preparatory to hunting or catching of wildlife that occur on land or water on which the affected

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person has the right or privilege of hunting or catching that wildlife”). Shaw concluded that

Dorrough was acting within his official capacity as a deputy game warden when he questioned the

Faircloths.

3. Faircloths’ Affidavits

The Faircloths assert Dorrough was not acting within the scope of his authority because he

acted improperly in confronting them, he misidentified himself as a game warden, and he should

not have asked them for their property deed. They insist these alleged errors show Dorrough was

acting outside the scope of his authority.

4. Dorrough Acted Within Scope of Authority

Taking the Faircloths’ affidavits as true, we nevertheless conclude they failed to raise a

genuine issue of material fact on the element of scope of authority. Even if some aspects of

Dorrough’s investigation were “later determined to be incorrect,” such alleged errors do not put

Dorrough’s investigation of Coolidge’s complaint outside the scope of his authority. See

Ballantyne, 144 S.W.3d at 425; Chambers, 883 S.W.2d at 658. The controlling question for the

scope of authority is not whether Dorrough made errors in his investigation; rather, it is whether

he was discharging the duties generally assigned to him. See Ballantyne, 144 S.W.3d at 424;

Chambers, 883 S.W.2d at 658.

The relevant sections of the Parks and Wildlife Code conclusively establish that

investigating allegations of violations of the Parks and Wildlife Code is within the authority of a

deputy game warden. Cf. Ballantyne, 144 S.W.3d at 425. Further, Shaw’s affidavit and the

attached exhibits, to which the Faircloths did not object, conclusively establish that Dorrough was

properly commissioned and investigating within his assigned geographical area. Thus, Dorrough

met his burden to conclusively prove he was acting within the scope of his authority when he

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investigated Coolidge’s complaint, and the Faircloths’ evidence fails to raise a genuine issue of

material fact on this element.

We turn to the next element—whether Dorrough was performing a discretionary function.

F. Mandatory or Discretionary Function

Citing the Parks and Wildlife Code, Dorrough avers he was performing a discretionary

function when he investigated Coolidge’s complaint and questioned the Faircloths. See TEX.

PARKS & WILD. CODE ANN. § 11.020 (deputy game wardens). The Faircloths do not assert that a

deputy game warden’s investigation is a mandatory function rather than a discretionary one. We

consider the applicable law distinguishing mandatory and discretionary functions, and whether a

deputy game warden’s investigation is a discretionary function.

1. Distinguishing Mandatory and Discretionary Functions

As opposed to a mandatory function, “[i]f an action involves personal deliberation,

decision, and judgment, . . . it is discretionary.” Ballantyne, 144 S.W.3d at 425; accord Chambers,

883 S.W.2d at 655. Although a deputy game warden’s duties do not comprise all the duties of a

peace officer, the deputy’s law enforcement duties invite comparisons to police officer case

precedents. See TEX. PARKS & WILD. CODE ANN. § 11.020(c) (authorizing a deputy game warden

to “enforce state laws relating to hunting and fishing”). In analyzing a police officer case,

Chambers opined that “[t]he decision to pursue a particular suspect will fundamentally involve the

officer’s discretion, because the officer must, in the first instance, elect whether to undertake

pursuit.” Chambers, 883 S.W.2d at 655. We are persuaded that such logic applies here.

2. Is a Deputy Game Warden’s Investigation a Discretionary Function?

A deputy game warden is authorized to investigate complaints of violations of the Parks

and Wildlife Code, but there is no requirement that the deputy investigate every complaint. See

TEX. PARKS & WILD. CODE ANN. § 11.020 (“A commissioned deputy game warden may enforce

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state laws relating to hunting and fishing . . . .” (emphasis added)). Thus, by deciding whether to

investigate a particular complaint, the deputy game warden exercises discretion. Cf. Chambers,

883 S.W.2d at 655. Therefore, we hold that a deputy game warden performs a discretionary

function when the deputy investigates a complaint. Cf. id. We conclude Dorrough conclusively

proved he was performing a discretionary function, and the Faircloths failed to raise a genuine

issue of material fact on this element. We turn to the final element: good faith.

G. Good Faith

The parties vigorously dispute whether Dorrough acted in good faith when he questioned

the Faircloths. To establish good faith, Dorrough must conclusively prove that a reasonably

prudent deputy game warden faced with similar circumstances could have acted as he did. See

Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 656. If

Dorrough meets this burden, the Faircloths must then “show that ‘no reasonable person in

[Dorrough’s] position could have thought the facts were such that they justified [his] acts.’”

Chambers, 883 S.W.2d at 657; accord Telthorster, 92 S.W.2d at 465. We consider the summary

judgment evidence.

1. Shaw’s Affidavit

a. Audio Recording

In his affidavit, Shaw averred that he listened to the Faircloths’ audio recording of the

verbal confrontation. He noted the recording lasted about two minutes and twenty-seven seconds.

In the recording, he heard a verbal confrontation between John Faircloth and Dorrough. At the

beginning of the conversation, Dorrough was “speaking in a calm voice.” More than once,

Dorrough identified himself as a game warden and asked for John Faircloth’s identification. Four

times Shaw heard a female voice tell John Faircloth to calm down. Shaw also noted that John

Faircloth cut off “Dorrough in all attempts to converse with him about the initial complaint.”

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b. Additional Information

In his affidavit, Shaw also included excerpts from Dorrough’s written statement. Dorrough

stated he felt threatened by John Faircloth’s running at him, swinging his arms, and screaming in

his face. Dorrough admitted he yelled at John Faircloth, but only in response to John Faircloth’s

provocative speech and actions.

c. Shaw’s Conclusion

After briefly describing his almost thirty-years’ experience working for the Texas Parks

and Wildlife Department, beginning as a game warden and advancing to deputy director of law

enforcement, Shaw reviewed the applicable statutes and regulations governing deputy game

wardens. Shaw stated he had reviewed the circumstances of this matter, and concluded that

Dorrough erred when he misidentified himself as a game warden. Nevertheless, Shaw concluded

that when Dorrough investigated Coolidge’s complaint and questioned the Faircloths, he was

“acting in an official capacity as a deputy game warden and his actions were reasonable.”

d. Dorrough Met His Burden

Given Shaw’s affidavit and exhibits, to which the Faircloths did not object, we conclude

that Dorrough met his summary judgment burden to establish that a reasonable deputy game

warden could have acted as he did under similar circumstances. See Ballantyne, 144 S.W.3d at

426; Telthorster, 92 S.W.3d at 465. Because Dorrough met his burden, the evidentiary burden

shifted to the Faircloths. See Telthorster, 92 S.W.3d at 466–67; Chambers, 833 S.W.2d at 657.

2. Faircloths’ Affidavits

To raise a genuine issue of material fact on good faith, the Faircloths had to show that no

reasonable deputy game warden could have acted as Dorrough did. See Ballantyne, 144 S.W.3d

at 426; Telthorster, 92 S.W.3d at 465. In their affidavits, the Faircloths averred the following

regarding Dorrough’s conduct on the day in question:

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• his breath smelled of alcohol,

• he entered their property without their permission;

• he peered through their windows;

• he yelled obscenities at John Faircloth and threatened to strike him;

• he repeatedly demanded to see their deed;

• he threatened John Faircloth with arrest if he told any more people to leave the lake

bed area; and

• he acted out of animus for the Faircloths.

Because good faith is a test of objective legal reasonableness, Dorrough’s subjective intent is

irrelevant, and we do not address it. See Ballantyne, 144 S.W.3d at 427–28. Nevertheless, we

address the remaining alleged facts.

The Faircloths do not allege Dorrough was intoxicated or incapacitated, nor do they

provide any evidence of such impairment; they merely state that his breath smelled of alcohol.

They aver that Dorrough peered, yelled, demanded, and threatened, and they imply that these

actions show bad faith per se.

Taking the Faircloths’ affidavits as true, they are nevertheless no evidence that no

reasonable deputy game warden could have acted as Dorrough did. Their assertions merely

provide the basis for their lay opinions about Dorrough’s actions. Cf. Medina County Comm’rs

Court v. Integrity Group, Inc., 944 S.W.2d 6, 10 (Tex. App.—San Antonio 1996, no writ)

(deciding that plaintiff’s affidavits failed to meet its burden to controvert defendants’ good faith).

The Faircloths failed to provide any statute or regulation showing that Dorrough was

prohibited from acting as he did. Further, they provided no affidavit from any authority familiar

with deputy game warden duties, procedures, and conduct that no reasonable deputy game warden

could have acted as Dorrough did given the applicable law and the facts he had at the time. See

Telthorster, 92 S.W.2d at 465; Chambers, 883 S.W.2d at 657. See generally Telthorster, 92

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S.W.3d at 464 (opining on the “volatile and changing circumstances” those conducting “street-

level police work” sometimes encounter).

While the Faircloths may have raised questions of whether another reasonably prudent

deputy game warden would have acted as Dorrough did, the Faircloths failed to meet their burden

to show no reasonable deputy game warden could have acted as Dorrough did given the applicable

law, John Faircloth’s conduct, and the other circumstances present here. See City of San Antonio

v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (explaining that the applicable test “is one of

‘objective legal reasonableness’ and the immunity protects ‘all but the plainly incompetent or those

who knowingly violate the law’” (quoting Chambers, 883 S.W.2d at 656)); Telthorster, 92 S.W.3d

at 465, 467; Chambers, 883 S.W.2d at 657.

CONCLUSION

As we previously determined, we have subject-matter jurisdiction in this interlocutory

appeal to decide whether the trial court erred when it denied Appellant Kenneth Mark Dorrough’s

motion for reconsideration—which we construe as a traditional motion for summary judgment.

We hold that the common-law doctrine of official immunity extends to a deputy game

warden.

To invoke immunity from suit, Dorrough had to conclusively prove the elements of his

affirmative defense of official immunity. Having reviewed the summary judgment evidence, we

conclude Dorrough met his summary judgment burden to prove he acted within the scope of his

authority while performing a discretionary act. For the element of good faith, we conclude

Dorrough met his burden to prove that a reasonable deputy game warden could have acted as he

did, and the Faircloths failed to meet their burden to prove that no reasonable deputy game warden

could have acted as Dorrough did. Thus, Dorrough is immune from suit, and the trial court lacked

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subject-matter jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

(Tex. 2004).

Therefore, we reverse the trial court’s order, vacate the temporary injunction, and dismiss

the Faircloths’ suit with prejudice.

Patricia O. Alvarez, Justice

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