Bexar County v. Giroux-Daniel

• Decision Date: 29 October 1997
• Docket Number: No. 04-97-00608-CV,A,GIROUX-DANIE,04-97-00608-CV
• Citation: 956 S.W.2d 692
• Parties: BEXAR COUNTY, Bexar County Sheriff's Civil Service Commission, and Ralph Lopez, Officially and Individually, Appellants, v. Angelappellee.
• Court: Texas Court of Appeals

Page 692

956 S.W.2d 692

BEXAR COUNTY, Bexar County Sheriff's Civil Service

Commission, and Ralph Lopez, Officially and Individually, Appellants, v. Angela GIROUX-DANIEL, Appellee.

No. 04-97-00608-CV.

Court of Appeals of Texas,

San Antonio.

Oct. 29, 1997.

Lori W. Hanson, Leslie J.A. Sachanowicz, Assistant Criminal District Attorney, San Antonio, for Appellant.

Philip Durst, Wiseman, Durst, Tuddenham & Owen, P.C., Austin, for Appellee.

Before RICKHOFF, STONE and ANGELINI, JJ.

OPINION

RICKHOFF, Justice.

In this appeal, we must determine the proper scope of an interlocutory appeal from the denial of summary judgment based on a claim of qualified immunity. Concluding that we do not have jurisdiction over the issues raised by some of the appellants, we dismiss those parts of the appeal. As to the remaining issues, we affirm the trial court's order denying summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

After working as a jail law librarian for eleven years, Angela Giroux-Daniel (Angela) was fired in 1995. The Bexar County Sheriff's Civil Service Commission upheld the termination. Angela brought this action against Bexar County, the Bexar County Sheriff's Civil Service Commission, and Sheriff Ralph Lopez, in his official and individual capacities, claiming that she was fired in retaliation for reporting misconduct at the sheriff's department. She asserted three causes of action: (1) a claim under 42 U.S.C. § 1983 for violation of the right to free speech guaranteed by the First Amendment; (2) a claim for violation of the right to free speech guaranteed by the state constitution; and (3) a retaliation claim under the state whistleblower act, see TEX. GOV'T CODE ANN. § 554.002 (Vernon Supp.1997). The defendants moved for summary judgment based, in part, on a claim of qualified immunity from suit. The trial court denied the motion, and the defendants have appealed. ¹

JURISDICTION

Generally, we do not have jurisdiction over appeals from interlocutory orders, such as an order denying a motion for summary judgment. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). But the Texas Civil Practice and Remedies Code expressly allows an 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(5) (Vernon 1997). We have jurisdiction over this appeal only to the extent it fits within section 51.014(5).

1. Jurisdiction Based on an Assertion of Qualified Immunity

The defendants moved for summary judgment on several grounds, including qualified immunity. Qualified immunity is an immunity from suit available to government officials sued in their individual capacities under § 1983. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). ² This court has previously indicated that section 51.014(5) does not allow an interlocutory appeal from an order denying a motion for summary judgment based on qualified immunity. See Texas Dep't of Pub. Safety v. Tanner, 928 S.W.2d 731 (Tex.App.--San Antonio 1996, no writ). In Tanner, the court referred to qualified immunity as a defense to a federal § 1983 action and to official immunity as a state common-law defense protecting government officials from suits arising out of the performance of their discretionary duties in good faith. See id. at 734 & n. 2. The defendant government official argued in one point of error that he was entitled to qualified immunity on the plaintiffs' § 1983 claim. The court held that it lacked jurisdiction over that point of error because it was "not based on official immunity." ³ Id. at 734. Tanner thus indicated that in an appeal under section 51.014(5), we may only consider arguments based on the state common-law defense of official immunity. A recent decision by our supreme court casts doubt on the continued viability of this narrow construction of section 51.014(5). See Newman v. Obersteller, No. 96-0374, 1997 WL 195262, --- S.W.2d ---- (Tex. April 18, 1997).

In Newman, the court considered whether courts of appeals have jurisdiction over denials of summary judgment based on section 101.106 of the Texas Tort Claims Act. Section 101.106 provides that a judgment on a tort claim against a governmental unit bars any action against an employee of the governmental unit involving the same subject matter. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.106 (Vernon 1997). The court held that section 101.106 is an immunity statute, even though it does not use the word "immunity." Newman, 1997 WL 195262,

at * 2, --- S.W.2d at ----. Therefore, section 51.014(5) allows an interlocutory appeal from the denial of a summary judgment motion based on section 101.106. Id. Newman thus establishes that interlocutory appeals under section 51.014(5) are not limited to assertions of state common-law official immunity. Based on Newman 's broadened construction of section 51.014(5), we conclude that we have jurisdiction over appeals from the denial of summary judgment based on qualified immunity. We also note that other courts of appeals have held that section 51.014(5) allows an interlocutory appeal from the denial of a summary judgment motion based on qualified immunity. See, e.g., City of Harlingen v. Vega, 951 S.W.2d 25, 26-27 (Tex.App.--Corpus Christi 1997 n.w.h.); Hudson v. Vasquez, 941 S.W.2d 334, 337 (Tex.App.--Corpus Christi 1997, n.w.h.); Spacek v. Charles, 928 S.W.2d 88, 91 (Tex.App.--Houston [14th Dist.] 1996, writ dism'd w.o.j.). Because the motion for summary judgment asserted that Sheriff Lopez was entitled to qualified immunity, we have jurisdiction over his appeal from the denial of the motion on that ground.

2. Jurisdiction Over the Governmental Entities' Appeals

Having concluded that we have jurisdiction over Sheriff Lopez's appeal from the denial of summary judgment, we must next consider whether we have jurisdiction over Bexar County's appeal.

To render Bexar County liable under § 1983, Angela seeks to prove that a Bexar County policymaker, Sheriff Lopez, violated her First Amendment right to free speech. See Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir.) (holding that a single decision by a government policymaker is sufficient to establish governmental liability under § 1983), cert. denied, --- U.S. ----, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996); Turner v. Upton County, 915 F.2d 133, 136 (5th Cir.1990) ("[I]t has long been recognized that, in Texas, the county sheriff is the county's final policymaker in the area of law enforcement."), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). Because the County's liability is thus conditioned on Sheriff Lopez's liability, the County argues that if Sheriff Lopez is entitled to summary judgment on the basis of qualified immunity, it is also entitled to summary judgment on the basis of immunity. Accordingly, the County argues that it may appeal the trial court's denial of summary judgment pursuant to section 51.014(5).

The County relies on City of Beverly Hills v. Guevara, 904 S.W.2d 655 (Tex.1995), a case involving the Texas Tort Claims Act. In Guevara, the Texas Supreme Court held that a local government may appeal under section 51.014(5) " 'based on an assertion of immunity by' " its employee because a local government is not liable under the Tort Claims Act if its employee has official immunity. See 904 S.W.2d at 656 (quoting TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(5)); see also DeWitt v. Harris County, 904 S.W.2d 650, 653-54 (Tex.1995); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993). Guevara does not apply here because it involved immunity from a suit under the Tort Claims Act, while this case involves immunity from a § 1983 suit. Unlike local governments sued under the Tort Claims Act, a local government sued under § 1983 has no immunity even if its employee is entitled to qualified immunity. See Leatherman, 507 U.S. at 166, 113 S.Ct. at 1162 (1993); Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418-19, 63 L.Ed.2d 673 (1980). Accordingly, we have no jurisdiction over Bexar County's appeal because it cannot be based on Sheriff Lopez's assertion of immunity. See City of Harlingen, 951 S.W.2d at 27-28. For the same reason, we also have no jurisdiction over the appeal of the Bexar County Sheriff's Civil Service Commission.

Similarly, we have no jurisdiction over the appeal of Sheriff Lopez in his official capacity. Suits against a government employee in his or her official capacity are just another way of pleading a suit against the government entity of which the official is an agent. City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.--Houston [1st Dist.] 1995, no writ). Accordingly, qualified immunity is not at issue when a government employee is sued in his or her official capacity. See Simpson v. Hines, 903 F.2d 400, 404 (5th Cir.1990).

3. Jurisdiction to Consider the Fact-Based Aspects of Immunity

Angela argues that we do not have jurisdiction to consider the fact-based aspects of Sheriff Lopez's defense. To evaluate this argument, we must determine the proper scope of a qualified immunity defense.

Government officials have a qualified immunity from § 1983 suits if they can establish that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). ⁴ In federal court, the denial of summary judgment based on qualified immunity is subject to interlocutory appeal "to the extent that it turns on an issue of law." See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The Supreme Court defined the parameters of such an interlocutory appeal in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151,...