Garza v. Smith, 13-93-009-CV

• Decision Date: 29 July 1993
• Docket Number: No. 13-93-009-CV,13-93-009-CV
• Citation: 860 S.W.2d 631
• Parties: Antonio GARZA, et al., Appellants, v. Paul Harvey SMITH, Appellee.
• Court: Texas Court of Appeals

Page 631

860 S.W.2d 631

Antonio GARZA, et al., Appellants, v. Paul Harvey SMITH, Appellee.

No. 13-93-009-CV.

Court of Appeals of Texas Corpus Christi.

July 29, 1993.

Richard L. Bilbie, Asst. County Atty., Luis V. Saenz, County (Criminal Dist.) Atty., C. Douglas Wright, Asst. Dist. Atty., Cameron County Courthouse, Brownsville, for appellants.

Yolanda L. Garza, San Benito, for appellee.

Before NYE, C.J., and GILBERTO HINOJOSA and DORSEY, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

The issue presented by this appeal is whether appellants in their individual capacities are entitled to qualified immunity. Appellee, Paul Harvey Smith, sued Cameron County and appellants, both individually and in their official capacities, alleging that appellants erroneously and negligently entered another man's record of arrest and indictment for theft under Smith's name. Smith claims that the arrest and indictment refer to a different Paul Smith who is much older. Although the indictment against the other man was later dismissed, Smith's own record still shows an arrest warrant for felony theft. He further claims that appellants forwarded the erroneous information to the National Crime Information Center in Washington, D.C. and the Texas Crime Information Center in Austin, Texas. Smith alleges that appellants failed to search the records to determine if, in fact, a mistake existed, and they failed to correct the information or remove it from his record after he told them of the error. He contends that appellants' acts and omissions damaged his reputation, invaded his privacy, caused him mental anguish, and caused him to be rejected for employment positions.

Appellants deny that the actions alleged ever took place. By two points of error, they claim that the trial court erred in denying their motion for summary judgment and that they are entitled to qualified and prosecutorial immunity.

Ordinarily, the denial of a motion for summary judgment is an interlocutory order which cannot be appealed. The Texas Civil Practice and Remedies Code ¹ specifically allows appeal from an interlocutory order denying a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of a political subdivision of the state. See City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993). Thus, this court may hear the appeal.

Government officers have a common-law immunity from personal liability in performing discretionary duties in good faith within the scope of their authority. Travis v. City of Mesquite, 830 S.W.2d 94, 100 n. 2, 102-03 (Tex.1992) (Cornyn, J., concurring). Edgar v. Plummer, 845 S.W.2d 452, 453 (Tex.App.--Texarkana 1993, no writ), citing Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (Tex.1954); Austin v. Hale, 711 S.W.2d 64, 66-68 (Tex.App.--Waco 1986, no writ). This immunity is known as qualified, official, quasi-judicial, or good faith immunity. See Kilburn, 849 S.W.2d at 812 n. 1. The Texas Tort Claims Act preserves this individual immunity. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.026 (Vernon 1986). Appellants contend that they are entitled to summary judgment based upon qualified immunity because Smith did not allege any facts or make any claims that appellants acted willfully or maliciously. We disagree with appellants for two reasons. First appellants, in effect, are attempting to obtain summary judgment on the pleadings. We believe they are not entitled to do so on the record presented. Second, we find that Smith adduced summary judgment proof which raises fact questions regarding both malice and the exact nature of appellants' actions, if they indeed acted as alleged.

As noted above, appellants' argument that Smith failed to "make any claims" of willful or malicious conduct is really an attempt to obtain summary judgment on the pleadings. Summary judgment should not be based upon a pleading defect that could be cured by amendment. See Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974); Parras v. McLelland, 846 S.W.2d 44, 45-46 (Tex.App.--Corpus Christi 1992, writ denied). Generally, a trial court cannot dismiss a plaintiff's entire case if the pleadings state a valid cause of action, but are vague, overbroad, or otherwise susceptible to special exceptions. See Kutch v. Del Mar College, 831 S.W.2d 506, 508 (Tex.App.--Corpus Christi 1992, no writ). Summary judgment on the pleadings is proper only if the plaintiff fails to correct a pleading defect after being given an opportunity to amend, he files a further defective pleading, or the pleading deficiency cannot be cured by amendment because the facts alleged affirmatively negate the plaintiff's cause of action. See Herring, 513 S.W.2d at 9.

Here, neither Smith's pleadings nor his summary judgment proof explicitly state that appellants "acted willfully and maliciously." His failure to plead "willful or malicious" acts would more properly be the subject of special exceptions. See Brubaker v. Brookshire Mun. Water Dist., 808 S.W.2d 129, 133 (Tex.App.--Houston [14th Dist.] 1991, no writ); see also Dicker v. Lomas & Nettleton Fin. Corp., 576 S.W.2d 672, 676 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.). Although appellants did file special exceptions, they failed to specifically point out this defect in Smith's pleadings. See TEX.R.CIV.P. 91.

While Smith pleaded his causes of action against the County under the Tort Claims Act, generally alleging negligent misuse of property, he did indicate that appellants "knowingly" entered incorrect information in the criminal records and that when he informed them of the error, they failed to investigate or correct it. Further, Smith's affidavit states that appellants told him he would have to sue the county and that they were immune from prosecution. Smith did not plead or allege facts which affirmatively negate his cause of action. Herring, 513 S.W.2d at 9. Therefore, appellants are not entitled to summary judgment on the pleadings.

Next, in order to show themselves entitled to summary judgment, appellants had to prove conclusively all the elements of their defense as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Villareal v. Martinez, 834 S.W.2d 450, 452 (Tex.App.--Corpus Christi 1992, no writ); Perry v. Texas A & I University, 737 S.W.2d 106, 110 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). Official immunity is an affirmative...