Opinion

02-10-308-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00308-CV

Cen-Tex Childcare, Inc. f/k/a Mesa Family Services,

Inc.

APPELLANT

V.

Sheila Broderick Johnson, as Administratrix of the

Estate of Sierra Odom, Deceased; Jonathan Odom, Individually; Tawnya Ballard,

as Next Friend of Dante Andreus Jamieson Ballard, a Minor; and Heather

Jamieson, Individually

APPELLEES

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FROM Probate

Court No. 2 OF Tarrant COUNTY

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OPINION

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I.

Introduction

Appellant

Cen-Tex Childcare, Inc. f/k/a Mesa Family Services, Inc. (Cen-Tex) is a private

corporation that provides foster home services pursuant to a contract with the

Department of Family and Protective Services (the Department). After a child

died following abuse by her foster parents, Appellees filed the underlying

wrongful death lawsuit against Cen-Tex and others. [1]

Appellees allege that Cen-Tex failed to report physical abuse and neglect,

failed to properly supervise and train its employees, and negligently exercised

its child-placement duties. The trial court denied Cen-Tex’s motion for

summary judgment based on official immunity, and Cen-Tex filed this

interlocutory appeal.

Before

the court is Appellees’ motion to dismiss this appeal for lack of subject

matter jurisdiction. Because we hold that civil practice and remedies code

section 51.014(a)(5) does not permit immediate appellate review of the trial

court’s interlocutory summary judgment order, we grant Appellees’ motion and dismiss

this appeal for lack of subject matter jurisdiction.

II.

Discussion

Civil

practice and remedies code section 51.014(a)(5) provides that a person may file

an interlocutory appeal from an order that “denies a motion for summary

judgment that is based on an assertion of immunity by an individual who is an

officer or employee of the state or a political subdivision of the state.”

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5) (Vernon 2008). Cen-Tex

argues that we have jurisdiction over this interlocutory appeal because

official immunity extends to private contractors of the state. See, e.g.,

Putthoff v. Ancrum , 934 S.W.2d 164 , 169–70 & n.7 (Tex. App.—Fort

Worth 1996, writ denied). Appellees respond that section 51.014(a)(5) only

permits interlocutory appeals by those who are officers or employees of the

state and that Cen-Tex is not an officer or employee of the state.

We

“have jurisdiction to consider immediate appeals of interlocutory orders only

if a statute explicitly provides such jurisdiction.” Tex. A&M Univ.

Sys. v. Koseoglu , 233 S.W.3d 835, 840 (Tex. 2007) (citing Stary v.

DeBord , 967 S.W.2d 352 , 352–53 (Tex. 1998)). The applicability of section

51.014(a) is a question of law that we review de novo. Id. (citing State

v. Holland , 221 S.W.3d 639, 642 (Tex. 2007)). When construing section

51.014, our sole objective is to give effect to the legislature’s intent. Id.

(citing Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W.2d 937,

939 (Tex. 1993)). “In determining the Legislature’s intent, we begin by

looking to the plain meaning of the statute’s words.” Id. at 840–41

(citing Liberty Mut. Ins. Co. v. Garrison Contractors, Inc. , 966 S.W.2d

482, 484 (Tex. 1998)). “We strictly construe Section 51.014(a) as ‘a narrow

exception to the general rule that only final judgments are appealable.’” Id.

at 841 (quoting Bally Total Fitness Corp. v. Jackson , 53 S.W.3d 352, 355

(Tex. 2001)).

To

appeal pursuant to section 51.014(a)(5), the appellant must be “an individual

who is an officer or employee of the state or a political subdivision of the

state.” See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5).

Cen-Tex conceded at oral argument that it is not an “officer of the state,” so

it must be an employee of the state to be entitled to an interlocutory appeal

pursuant to section 51.014(a)(5). [2] In this regard, civil

practice and remedies code section 101.001(2) defines “employee” to mean

a person, including

an officer or agent, who is in the paid service of a governmental unit by

competent authority, but does not include an independent contractor, an

agent or employee of an independent contractor , or a person who performs

tasks the details of which the governmental unit does not have the legal right

to control.

Id . § 101.001(2)

(Vernon 2011) (emphasis added). Cen-Tex’s contract with the Department clearly

defines Cen-Tex as an independent contractor. [3] Thus, because the

definition of employee expressly excludes an independent contractor, Cen-Tex is

not an employee of the state. See id.

In Koseoglu ,

the Texas Supreme Court interpreted section 51.014(a) in the context of an appeal

by a government official from an interlocutory order denying a plea to the

jurisdiction based on sovereign immunity. See 233 S.W.3d at 837 ,

840–46. The court specifically decided that the appellate court had jurisdiction

over the interlocutory appeal pursuant to section 51.014(a)(8), but in doing so

the court also analyzed section 51.014(a)(5). Id. at 837, 842, 843 .

Discussing section 51.014(a)(5), the court stated that “there is no other way

to read section 51.014(a)(5) than to conclude that only ‘an individual who is

an officer or employee of the state or a political subdivision of the state’

may appeal an interlocutory order denying a motion for summary judgment” based

on official immunity. Id. at 843 .

Cen-Tex

does not address Koseoglu but instead argues that it is entitled to seek

interlocutory review of the trial court’s summary judgment order because this

and other Texas courts have held that official immunity extends to private

parties under contract to perform governmental duties. See Titus Reg’l Med.

Ctr. v. Tretta , 180 S.W.3d 271, 274 (Tex. App.—Texarkana 2005, no pet.); Guerrero

v. Tarrant Cnty. Mortician Servs. , 977 S.W.2d 829, 832 (Tex. App.—Fort

Worth 1998, pet. denied); Knowles v. City of Granbury , 953 S.W.2d 19, 24

(Tex. App.—Fort Worth 1997, pet. denied); Putthoff , 934 S.W.2d at 169–70

& n.7. However, Cen-Tex confuses its potential entitlement to official

immunity after a final adjudication of the case with its entitlement to

immediate appellate review of an interlocutory order denying a motion for

summary judgment. The issue presented by Appellees’ motion to dismiss is not

whether Cen-Tex may ultimately be entitled to official immunity but is instead

whether Cen-Tex is “an individual who is an officer or employee of the state.”

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5).

None

of the cases that Cen-Tex cites resolves the issue presented. Guerrero

and Knowles are distinguishable because they were not interlocutory

appeals. [4] See Guerrero ,

977 S.W.2d at 831–32; Knowles , 953 S.W.2d at 21 . Moreover, although

they were both interlocutory appeals, neither Tretta nor Putthoff

undertook any analysis of whether the individual or entity seeking immediate

appellate review of the interlocutory orders was an individual who is an

officer or employee of the state. See Tretta , 180 S.W.3d at 273–74; Putthoff ,

934 S.W.2d at 169–70 & n.7. Further, both Tretta and Putthoff

were decided before Koseoglu . Regardless of whether Cen-Tex may

ultimately be entitled to official immunity because of its contract with the

Department, see Tretta , 180 S.W.3d at 274 ; Guerrero , 977 S.W.2d

at 832 ; Knowles , 953 S.W.2d at 24 ; Putthoff , 934 S.W.2d at 169–70

& n.7, Cen-Tex cannot seek immediate appellate review of the trial court’s

interlocutory order denying its motion for summary judgment because it is not

“an individual who is an officer or employee of the state.” See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5); Koseoglu , 233 S.W.3d at

843 .

We

hold that we do not have jurisdiction to review the trial court’s interlocutory

order denying Cen-Tex’s motion for summary judgment based on official immunity

because Cen-Tex is not an officer or employee of the state. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5); Koseoglu , 233 S.W.3d at

843 . We therefore dismiss this appeal for lack of subject matter

jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

III.

Conclusion

In

light of the foregoing, we grant Appellees’ motion and dismiss this appeal for

lack of subject matter jurisdiction.

ANNE GARDNER

JUSTICE

PANEL:

GARDNER,

WALKER, and MCCOY, JJ.

DELIVERED: March 31, 2011

[1] The Appellees are Sheila

Broderick Johnson, as Administratrix of the Estate of Sierra Odom, Deceased;

Jonathan Odom, Individually; Tawnya Ballard, as Next Friend of Dante Andreus

Jamieson Ballard, a Minor; and Heather Jamieson, Individually.

[2] Cen-Tex does not contend

that it is an officer or employee of a political subdivision of the state.

[3] The first sentence of the

contract states: “The Texas Department of Family and Protective Services,

hereinafter referred to as the Department, and Mesa Family Services, Inc., an

independent contractor, hereinafter referred to as the Contractor, do hereby

make and enter into this contract.” Cen-Tex was formerly known as Mesa Family

Services, Inc.

[4] In Knowles , this

court reaffirmed the rule that “official immunity does extend to private

parties who contract to undertake governmental duties” and ultimately applied

the doctrine of official immunity to the independent contractor seeking

official immunity. See 953 S.W.2d at 24 . Our holding today is not

inconsistent with Knowles because Knowles was not an

interlocutory appeal. See id. at 21 . The issue of whether an

independent contractor may be entitled to official immunity following a full

adjudication of the case is not before us.