holding that state law enforcement officers entitled to official immunity for discretionary acts performed in good faith and in the scope of their employment
How later courts described this case
- holding that state law enforcement officers entitled to official immunity for discretionary acts performed in good faith and in the scope of their employment
- describing circumstances in Dent v. City of Dallas that demonstrated discretionary act
- “Historically, this doctrine, as its name implies, shields the sovereign from liability. Where the question concerns the liability of a governmental officer or employee, rather than the liability of the sovereign itself, the problem is one of official immunity, not sovereign immunity.” (quoting Baker v. Story, 621 S.W.2d 639, 643 (Tex. Civ. App. 1981))
- noting Act’s retention of employees’ common-law official immunity
Written by the judges who cited it.
The opinion
BUTTS, Justice,
concurring.
I agree that the affidavit of officer Baeza does not support the defense of qualified immunity. The majority opinion is concerned only with a summary judgment which is based on the alleged qualified immunity. However, it is noteworthy that .the pleadings in the case and the motion for summary judgment touch on another defense: the ministerial duty of Baeza. Therefore, there is also a question whether the affidavit can be said to support the defense of official immunity based on performance of a ministerial duty. It is clear that Tex.Civ.Prac. & Rem.Code Ann. § 51.014(5) (Vernon Supp. 1993) does not limit the immunity defense in a summary judgment interlocutory appeal to “qualified” immunity only; it includes any official immunity.
Although the general rule is that a public officer may not be liable for damages in the performance of a purely ministerial duty, a recognized exception is when there is negligent performance of a ministerial duty. Under the facts of this case, while the defense of ministerial duty may have been presented, the trial judge properly could have rejected *59 this immunity defense in the face of a negligence question. Those matters may be determined at trial.
In addition, since this interlocutory appeal is permitted only by a statute which strictly curtails jurisdiction, the “notice” question raised by the pleadings cannot be considered by the appellate court. Therefore, I concur in the affirmance.