# Newman v. Obersteller Ex Rel. Obersteller

> Texas Supreme Court · April 18, 1997 · 40 Tex. Sup. Ct. J. 497

URL: https://www.frixlaw.com/law-library/cases/9770753

## Case

- **Full name:** Ronnie NEWMAN, Petitioner, v. Paul OBERSTELLER and Susan D. Obersteller as Next of Friend of Kurt Obersteller, Respondents
- **Court:** Texas Supreme Court
- **Decided:** April 18, 1997
- **Citations:** 40 Tex. Sup. Ct. J. 497; 960 S.W.2d 621; 1997 Tex. LEXIS 42; 1997 WL 195262
- **Precedential status:** Published
- **Opinion:** Dissent by Abbott
- **Judges:** Enoch, Phillips, Gonzalez, Hecht, Cornyn, Spector, Owen, Baker, Abbott
- **Cited by:** 131 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770753

## How later opinions describe it (automated extraction)

- holding that denial of summary-judgment motion invoking statutory bar of former Texas Civil Practice and Remedies Code section 101.106 was appealable under section 51.014(a)(5), despite fact that section 51.014(a) did not list rulings based on former section 101.106 as appeala…
- holding that the predecessor statute to section 101.106 was an immunity statute, and the court of appeals therefore erred by not exercising jurisdiction over the governmental employee’s appeal
- holding that the predecessor statute to section101.106 was an immunity statute, and the court of appeals therefore erred by not exercising jurisdiction over the governmental employee's appeal
- holding that the original version of § 101.106(e) conferred immunity on governmental officials when a case against a governmental unit arising out of the same facts had proceeded to judgment

## Opinion text

ABBOTT, Justice,
dissenting.
By saying that a bar is immunity, the Court today equates apples with oranges. Because I believe that the concepts are distinct and that the Court oversteps its bounds in expanding the scope of Section 51.014(5) and misinterpreting Section 101.106, I dissent.
Unless a statute specifically authorizes an interlocutory appeal, an appeal may be taken only from a final judgment. North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). The Legislature determines, by statute, whether a particular type of pretrial ruling may be appealable before a final judgment is rendered. In this case, the court of appeals correctly determined that Section 51.014(5) does not authorize an interlocutory appeal of the denial of a motion for summary judgment based on Section 101.106.
Section 51.014 provides five categories of pre-trial rulings that may be appealed on an interlocutory basis. City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex.1993). Section 51.014(5), which creates a limited right to an interlocutory appeal for summary judgment claims based on immunity, provides:
A person may appeal from an interlocutory order of a district court, county court at law, or county court 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 § 51.014(5). By its express terms, this narrow provision relates only to claims of immunity. A defense based on Section 101.106 does not involve an assertion of immunity, and therefore does not come within the scope of Section 51.014(5).
Section 51.014(5) contemplates direct grants of immunity. An immunity is an exemption, and in the context of Section 51.014(5), the exemption applicable to officers or employees of the state or a political subdivision of the state takes the form of qualified immunity. Kilburn, 849 S.W.2d at 812 . “Qualified immunity” is “one of several interchangeable terms,” including “official immunity,” “quasi-judicial immunity,” “discretionary immunity,” and “good faith immunity,” used to refer to an affirmative defense available for government employees sued in their individual capacities. Id. at 812 n. 1 (citing Travis v. City of Mesquite, 830 S.W.2d 94 , 100 n. 2, 102-03 (Tex.1992) (Cornyn, J., concurring)).
This Court has consistently noted that Section 51.014(5) is based on qualified immunity. In Travis v. City of Mesquite, 830 S.W.2d 94 (Tex.1992), we stated that “the Legislature amended Section 51.014 of the Texas Civil Practices and Remedies Code in 1989 to al *624 low a government employee an interlocutory appeal of an order denying a summary judgment based on official immunity.” Id. at 102 n. 4. We underscored that Section 51.014(5) reveals “just how important the legislature considers the defense of official immunity for government employees to be.” Id. (emphasis added). See also City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995)(“[S]eetion 51.014(5) ... authorizes interlocutory appeals of motions for summary judgment based on official immunity.”) (emphasis added); Kilburn, 849 S.W.2d at 812 (“Section 51.014(5) provides that the denial of a motion for summary judgment may be appealed if it ‘is based on an assertion of qualified immunity. ”)(emphasis added).
Newman’s claim to immunity is premised on the bar provision in Section 101.106 of the Texas Tort Claims Act. That section is not a grant of immunity, direct or indirect, and does not fall within the ambit of Section 51.014(5). Section 101:106 provides:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Tex. Civ. Phac. & Rem.Code § 101.106. As is plain from this language, a defense under Section 101.106 does not address any of the elements of an official or qualified immunity defense. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994) (“Government 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.”). Instead, the employee must prove only the existence of the requisite judgment or settlement of a claim against the governmental unit. Clearly, this defense is a concept completely different from that contemplated by Section 51.014(5).
The Court today holds that Section 101.106 confers immunity upon government employees. Without authority, the Court makes the sweeping statement that the language “bars any action” is “an unequivocal grant of immunity.” 960 S.W.2d 622 . I fail to see how such language can “unequivocally” grant a right that it does not even mention. If the Legislature had intended Section 101.106 to confer immunity, it could have expressly said so rather than using ambiguous language. See, e.g., Tex. Civ. PRAC. & Rem.Code § 101.026 (“Individual’s Immunity Preserved.”). The Court’s conclusion creates more confusion than clarity.
The Court asserts that the fact that Section 101.106 does not use the word “immunity” “is of no consequence.” 960 S.W.2d 622 . Such inexact statutory interpretation will surely be the bane of judges, lawyers, and litigants for years to come. The Legislature’s failure to include any language in Section 101.106 referable to immunity is significant, as is its choice of the term “bar.” A “bar” is a plea “constituting a sufficient answer to an action at law; so called because it bar[s], i.e., prevents], the plaintiff from further prosecuting it with effect, and, if established by proof, defeat[s] and destroy[s] the action altogether.” Blaok’s Law DICTIONARY 102 (6th ed. 1991) (emphasis in original). This is the exact function of Section 101.106. See Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex.1995). Further, this function is unequivocally different from that of an immunity-
The structure and language of Chapter 101 of the Tort Claims Act also compel the conclusion that Section 101.106 is not an immunity, but a bar. Subchapter A of the Act sets forth general provisions of the Act. Tex. Civ. Prao. & Rem.Code §§ 101.001-.003. Sub-chapter B establishes “tort liability of governmental units” by waiving sovereign immunity in specific circumstances. Id. §§ 101.021-.028. Subchapter C sets forth “exclusions and exceptions” to tort liability (ie., immunities). Id. § 101.051-.061. Whenever the Legislature intended to preserve immunity, it did so expressly. For example, Section 101.026, entitled “Individual’s Immunity Preserved,” states: “To the extent an employee has individual immunity from a tort claim for damages, it is not affected by this chapter.” Id. § 101.026. In each “exclusion and exception” section of Subchapter C, the statute provides that “this chapter does not apply” to a particular entity or *625 claim. See, e.g., id. § 101.051 (“Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district.”). Such language of exception or immunity is conspicuously absent from Section 101.106. Further, Section 101.106 is not even located in the “exclusions and exceptions” subehapter. Instead, Section 101.106 is located in Subchapter D, entitled “Procedures.” Id. §§ 101.101-.109. This subchap-ter provides the procedural requirements for notice, commencement of suit, legal representation, settlement, and payment and collection of judgments. Thus, the court of appeals correctly determined that Section 101.106 is merely a bar, not a grant of immunity. A contrary conclusion gives the erroneous appearance that the Legislature did not know what it was doing.
Nevertheless, the Court today interprets this procedural bar provision as a grant of immunity entitling the claimant to an interlocutory appeal. In so doing, the Court improperly expands this traditionally limited right to interlocutory appeal. The opportunity for appeal of an interlocutory order under Section 51.014(5) is “rare” and should be limited to the express terms of the statute granting the right. See Travis v. City of Mesquite, 830 S.W.2d 94 , 102 n. 4 (Tex.1992)(Comyn, J., concurring). It is not the province of this Court to expand this limited statutory provision, no matter the policy rationale behind such an expansion. See Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988) (“We are not free to rewrite the statutes to reach a result we might consider more desirable.”). The Court today creates a right to an interlocutory appeal where none exists. The proper forum for the creation of such a right is the Legislature, which could provide a statutory method for appealing orders based on Section 101.106. This the Legislature has failed to do, and we are bound by its decision.
Today, convenience prevails over correctness.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770753. Public record. Not legal advice.