Cameron County v. Carrillo

• Citation: 7 S.W.3d 706
• Parties: (Tex.App.-Corpus Christi 1999) CAMERON COUNTY, Appellant, v. REBECCA CARRILLO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRANCISCA SANCHEZ AND GUADALUPE B. SANCHEZ, Appellee. NUMBER 13-99-185-CV
• Decision Date: 04 November 1999
• Court: Court of Appeals of Texas

Page 706

7 S.W.3d 706 (Tex.App.-Corpus Christi 1999)

CAMERON COUNTY,Appellant, v. REBECCA CARRILLO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRANCISCA SANCHEZ AND GUADALUPE B. SANCHEZ,Appellee.

NUMBER 13-99-185-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

Nov. 4, 1999.

On appeal from the 197th District Court of Cameron County, Texas. [Copyrighted Material Omitted]

Before Justices Dorsey, Hinojosa, and Chavez

O P I N I O N

DORSEY, Justice.

This is an appeal from a denial of summary judgment filed by Cameron County asserting that because its deputy sheriff was entitled to official immunity, it cannot be liable under the Texas Tort Claims Act. Rebecca Carrillo sued Cameron County for the death of Francisca Sanchez. Ms. Sanchez died when she slammed her car into the rear of a tractor trailer that had been stopped with other traffic by a deputy sheriff to remove a tire from the roadway. Carrillo claims the sheriff was negligent in the use of his motor vehicle and in his failure to place warning signs where traffic was momentarily stopped.

Carrillo did not sue the deputy, but only the County for the negligence of the deputy. On October 5, 1998, the County filed a motion for summary judgment alleging that it was protected from suit by sovereign immunity, in that the alleged activities as plead by the plaintiff were not covered by the Texas Tort Claims Act. The trial court denied this motion on November 23. The County filed a "renewed motion for summary judgment," this time asserting sovereign immunity because of the deputy's official immunity and other grounds. The trial court denied this motion on March 19, 1999. This denial is the subject of this appeal.

JURISDICTION

Carrillo challenges this court's jurisdiction to hear this appeal on two bases. She first contends that this court has no discretion to extend the deadline for filing a notice of appeal and, because the County was late filing its notice of appeal, this court is without jurisdiction. She argues that an extension of time for filing a notice of appeal is not allowed for accelerated appeals. While we agree with the general rule that extensions of time are not available for accelerated appeals, because the record reveals that Cameron County's notice was timely filed, we do not reach that issue.

The trial court's order denying Cameron County's motion for summary judgment was signed on March 19. The County then had twenty days-or, until April 8, 1999-to file its notice of appeal. See TEX. R. APP. P. 28.1 (stating that when an appeal from an interlocutory order is allowed, the appeal will be accelerated); TEX. R. APP. P. 26.1(b) (notice of appeal in accelerated appeal must be filed within 20 days after order signed). The County timely filed its notice of appeal on April 8, 1999. Accordingly, we overrule Carrillo's first point.

Next, Carrillo argues that because this appeal is from the denial of the County's "renewed" motion for summary judgment, the appellate timetables actually began to run on October 5, when the trial court denied the County's original motion for summary judgment. Carrillo argues that the renewed motion for summary judgment is equivalent to a motion for rehearing, which is specifically prohibited from extending the deadline to file a notice of appeal in an accelerated appeal. See TEX. R. APP. P. 28.1. We disagree to the extent that the County's renewed motion for summary judgment urged, for the first time, that the County was entitled to sovereign immunity derivative of the sheriff's deputy's official immunity.

The County's first motion for summary judgment is styled "Motion for Summary Judgment and Severance." In that motion, the County argued that sovereign immunity is not waived for suits alleging a failure of the government to initially place warning signs or a non-use of tangible property. See TEX. CIV. PRAC. & REM. CODE 101.025, 101.021(2), 101.021(a) (Vernon 1997). The trial court denied that motion on November 23. On January 12, the County filed its "renewed" motion for summary judgment where it argued for the first time that the County's sovereign immunity is not waived because the deputy is entitled to official immunity. The trial court denied this motion on March 19. Texas Rule of Civil Procedure 166a does not limit the number of summary judgment motions a party may file. TEX. R. CIV. P. 166a; De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 756 (Tex. App.-San Antonio 1990, no writ), overruled on other grounds, Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994). We treat the County's "renewed" motion for summary judgment as a successive motion for summary judgment, and not a motion for rehearing, because it contains different grounds for summary judgment than did the earlier motion.

Further, interlocutory appeal is only available for an assertion of official immunity, and not the other issues advanced by the County in its renewed motion. See TEX. CIV. PRAC. & REM. CODE 51.014(5) (Vernon 1997); City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993). Availability of interlocutory appeal has been held to extend to a governmental unit's claim of sovereign immunity when based on an individual's assertion of qualified immunity. Guevara, 904 S.W.2d at 656; Kilburn, 849 S.W.2d at 812. We hold that this court has jurisdiction to review the March 19 denial of summary judgment, but only to the extent that the denial of summary judgment was based on a finding that Deputy Delgado was not entitled to official immunity. See Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex. App.-Houston [1st Dist.] 1993, no writ). We dismiss any remaining issues for want of jurisdiction.

ENTITLEMENT TO DERIVATIVE IMMUNITY

Relying on DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995), Cameron County asserts that if a government employee is protected from tort liability by official immunity, the County retains its sovereign immunity. While both are types of governmental immunity, sovereign immunity and official immunity are two distinct doctrines aimed at serving different policies. Sovereign immunity is an affirmative defense which holds that the sovereign may not be sued unless it has granted its express consent to be sued. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); cf. Petta v. Rivera, 985 S.W.2d 199, 204 (Tex. App.-Corpus Christi 1998, no pet.); Gonzalez v. Heard, Goggan, Blair & Williams, 923 S.W.2d 764, 766 (Tex. App.-Corpus Christi 1996, writ denied). On the other hand, official immunity is an affirmative defense that protects government employees from personal tort liability when performing their official duties. Harris County v. Ochoa, 881 S.W.2d 884, 888 (Tex. App.-Houston [14th Dist.] 1994, writ denied); Vasquez v. Hernandez, 844 S.W.2d 802, 804 (Tex. App.-San Antonio 1992, writ dism'd w.o.j.). Official immunity protects government employees from tort liability for their discretionary duties performed in good faith within the scope of their authority. See Chambers, 883 S.W.2d at 653 (Tex. 1994); City of Pharr v. Ruiz, 944 S.W.2d 709, 712 (Tex. App.-Corpus Christi 1997, no writ). Official immunity frees government officials to exercise their duties without fear of damage suits which would consume their time and energy and might appreciably inhibit their fearless, vigorous, and effective execution of their duties. Tyrrell v. Mays, 885 S.W.2d 495, 497 (Tex. App.-El Paso 1994, writ dism'd w.o.j.) (citing Armendarez v. Tarrant County Hosp. Dist., 781 S.W.2d 301, 305 (Tex. App.-Fort Worth 1989, writ denied)).

The Texas Tort Claims Act (the "Act") provides waiver of sovereign immunity-i.e., consent to sue the sovereign-"to the extent liability is created" by the Act. TEX. CIV. PRAC. & REM. CODE 101.025 (Vernon 1997). The Act creates liability for two types of cases. First, liability is created for the wrongful acts, omissions, or negligence of a government employee that results in property damage, personal injury and death if (1) the injury or property damage results from operation of a motor driven vehicle or equipment, (2) the employee would be personally liable to the claimant according to Texas law, and (3) the governmental unit would be liable to the claimant under Texas law if the governmental unit were a private person. Id. at 101.021(1). Second, the Act creates liability for personal injury and death caused by a condition or use of property if the governmental unit would be liable to the claimant under Texas law "were it a private person." Id. at 101.021(2). Thus, in both classes of cases, liability is not created for the governmental unit when the government would not be liable if it were a private person. Id.

Thus, where an employee is protected from liability under the doctrine of official immunity, the governmental entity's sovereign immunity remains intact. See Kilburn, 849 S.W.2d at 812; Murillo v. Vasquez, 949 S.W.2d 13, 17 (Tex. App.-San Antonio 1997, writ denied). This is true even where the individual is not sued along with the governmental entity. DeWitt, 904 S.W.2d at 654; Guevara, 904 S.W.2d at 656 (Tex. 1995) (employee not sued); Texas Dept. of Criminal Justice v. Watt, 949 S.W.2d 561, 565 (Tex. App.-Waco 1997, no writ) (employee not sued); Heikkila v. Harris County, 973 S.W.2d 333, 335 (Tex. App.-Tyler 1998, pet denied) (employee not sued); City of Hidalgo v. Prado, 996 S.W.2d 364, 368 (Tex. App.-Corpus Christi 1999); City of Houston v. Swindall, 960 S.W.2d 413, 416 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Thus, if Deputy Delgado would be protected by official immunity, Cameron County's sovereign immunity remains intact.

To be entitled to summary judgment on the basis of Delgado's official immunity, the County had the burden to establish that when the accident occurred Delgado was performing (1) a discretionary duty, (2) in good faith, (3) which was within the scope...