Albright v. Texas Dept. of Human Services

• Decision Date: 29 July 1993
• Docket Number: No. 01-92-00729-CV,01-92-00729-CV
• Citation: 859 S.W.2d 575
• Parties: Vivian ALBRIGHT, Individually and as Next Friend of T.A., and George Cantu, Appellants, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Aida Villareal, Valerie Johnson, and Debra Emerson, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 575

859 S.W.2d 575

Vivian ALBRIGHT, Individually and as Next Friend of T.A. and George Cantu, Appellants, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Aida Villareal, Valerie Johnson, and Debra Emerson, Appellees.

No. 01-92-00729-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 29, 1993.

John W. Donovan, Houston, for appellants.

Ann Hartley, Dan Morales, Will Pryor, Mary Keller, Delmar L. Cain, Austin, for appellees.

Before HEDGES, DUGGAN and O'CONNOR, JJ.

OPINION

HEDGES, Justice.

In this action against the Texas Department of Human Services (TDHS) and three of its employees, plaintiffs Vivian Albright, individually and as next friend of T.A., and George Cantu alleged negligence and wrongful conduct in the removal of a child from her home on suspicion of sexual abuse. We must decide (1) whether summary judgment affidavits were sufficient to establish the good faith requisite of official immunity claimed by individual defendants Aida Villareal, Valerie N. Johnson, and Debra Emerson; and (2) whether the trial court properly granted TDHS's motion to dismiss based on plaintiffs' failure to comply with the court's special exceptions order. We affirm as to defendants Villareal, Johnson, and Emerson and reverse and remand as to TDHS.

On July 15, 1988, Vivian Albright called TDHS to report that her six-year-old daughter, T.A., was suffering from gonorrhea, according to a doctor who had examined her. Caseworker Villareal went to Albright's home the next day to interview T.A., but no one was there. When Villareal returned the following day and attempted to interview the child, Albright interrupted the interview. Villareal persuaded Albright to bring T.A. to the TDHS office, where she continued the interview.

Albright had taken T.A. to the Humana Hospital Southmore Laboratory for a second gonorrhea test on July 15, 1988. She told Villareal that the original diagnosis of gonorrhea, made by Dr. Eoin Harvey, was incorrect. She later admitted knowing that the results of the second gonorrhea test were not available at the time she made that statement. Based on her interview of the child, Villareal concluded that T.A. might have been sexually abused by Albright's boyfriend, George Cantu. Albright denied that Cantu had sexually abused T.A.

Villareal determined that T.A. was in danger of being sexually abused and should be immediately removed from her mother's home. After a hearing at which TDHS was granted temporary possession of T.A., the agency placed T.A. in foster care on July 16, 1988. Johnson was assigned as T.A.'s caseworker under Emerson's supervision. Later in July 1988, T.A. was placed in the possession of her maternal grandmother. In November 1988, Johnson was advised that because T.A. was denying abuse, Albright's and T.A.'s therapist was not sure that the child had ever even suffered sexual abuse. TDHS nonsuited its custody case in December, and T.A. was returned to Vivian in early December 1988.

In 1990, plaintiffs filed suit against TDHS under the Texas Tort Claims Act and against employees Villareal, Johnson, and Emerson. The trial court granted the individual defendants an interlocutory summary judgment on the basis of official immunity. Subsequently, the court granted TDHS's motion to dismiss based on the failure of the plaintiffs to comply with special exceptions.

Plaintiffs sought damages based on defendants' alleged wrongful and negligent conduct. Specifically, they contended that TDHS, through its representatives, wrongfully took possession of T.A. and kept her for five months, without just cause and without the consent of T.A. or her mother. Further, they alleged that the individual defendants wrongfully and maliciously accused Albright of being an unfit mother and Cantu of molesting the child, and that defendants' negligent acts, including the misuse of files, records, notes, reports, recordings, and other documentation proximately caused the plaintiffs' injury. Additionally, the individual defendants "acted in bad faith, [and] in a reckless and careless disregard for the rights and well being of the plaintiffs...."

In point of error one, plaintiffs assert that genuine issues of material fact precluded the trial court's granting summary judgment in favor of the individual defendants as a matter of law. In their motion, the individual defendants raised the affirmative defenses of both statutory and common-law official immunity and asserted that "when a DHS employee, acting in good faith and within the scope of her employment, takes actions to protect a child reasonably believed to be in danger, that employee is immune from liability for those actions." Plaintiffs responded that their controverting evidence raised fact issues concerning (1) whether the individual defendants' actions were taken in good faith, and (2) whether they were acting outside the scope of their employment. They further asserted that the allegations in their second amended petition and deposition testimony raised the issue of the maliciousness and personal liability of the individual defendants.

The supreme court has mandated the following standards for reviewing a motion for summary judgment:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); see also Clark v. Pruett, 820 S.W.2d 903, 905-906 (Tex.App.--Houston [1st Dist.] 1991, no writ).

A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for a summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991). If a defendant moves for summary judgment based on an affirmative defense, the defendant's burden is to conclusively prove all the elements of the affirmative defense as a matter of law. Montgomery, 669 S.W.2d at 310-11; Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex.App.--Houston [1st Dist.] 1991, writ denied). "The non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement ... and he must present summary judgment proof when necessary to establish a fact issue." City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

The individual defendants based their motion for summary judgment in part on the affirmative defense of statutory immunity. They asserted that Villareal is immune from liability under section 17.08 of the Texas Family Code, which provides:

A person who takes possession of a child under Section 17.03 of this code is immune from civil liability if, at the time possession is taken, he had reasonable cause to believe there was an immediate danger to the physical health or safety of the child.

TEX.FAM.CODE ANN. § 17.08 (Vernon 1986). They further urged that they are all immune from liability under Texas Family Code § 34.03, whereby a person reporting or assisting in the investigation of a report of child abuse is immune from liability unless that person acted in bad faith or with malice. TEX.FAM.CODE ANN. § 34.03 (Vernon Supp.1993).

The individual defendants also raised the affirmative defense of official immunity. A well-founded public policy underlies this common-law concept. If public employees were held liable for negligent conduct in the course and scope of their official duties, "the prudent would be reluctant to enter governmental service and even competent persons who entered public life would not be zealous in discharging their duties." Baker v. Story, 621 S.W.2d 639, 643-44 (Tex.App.--San Antonio 1981, writ ref'd n.r.e.). Immunity is particularly important in the area of investigation of child abuse, "where the investigator is required to make a decision that, in all likelihood, is going to be viewed by someone as improvident, no matter what the decision is." Austin, 711 S.W.2d at 68. ¹

Under the doctrine of official immunity, state employees whose job status is classified as "quasi-judicial" are immune from personal tort liability for erroneous or negligent conduct as long as they act in good faith and within the scope of their employment. Eakle v. Texas Dep't of Human Serv., 815 S.W.2d 869, 875 (Tex.App.--Austin 1991, no writ); Russell v. Texas Dep't of Human Resources, 746 S.W.2d 510, 513 (Tex.App.--Texarkana 1988, writ denied); Austin v. Hale, 711 S.W.2d 64, 68 (Tex.App.--Waco 1986, no writ). Quasi-judicial status attaches to state employment that involves discretionary, rather than ministerial, acts. Eakle, 815 S.W.2d at 875; Austin, 711 S.W.2d at 67. Discretionary acts require deliberation, decision and judgment, whereas ministerial acts involve "obedience to orders, or the performance of a duty as to which the actor is left no choice." Baker, 621 S.W.2d at 645. Investigating and acting on gathered facts has been designated quasi-judicial action. Eakle, 815 S.W.2d at 875.

Individual defendants, Villareal, Johnson, and Emerson, all investigated the Albright case and all made decisions based on the facts they gathered. The actions of all three required deliberation, decision-making, and the exercise of judgment. We find that all three defendants held quasi-judicial positions. Moreover, because there is no evidence in the record that defendants acted outside the scope of their employment, we reject plaintiffs' challenge to the contrary.

The critical factor of good faith determines the availability of all three immunities claimed by the individual defendants. Good faith in the context of official immunity is an elusive concept. We have determined that a balancing test,...