Gonzalez v. Avalos

• Decision Date: 17 November 1993
• Docket Number: No. 08-93-00066-CV,08-93-00066-CV
• Citation: 866 S.W.2d 346
• Parties: Ernesto GONZALEZ, Appellant, v. Jesus R. AVALOS, Sr., as the surviving father of Andres Avalos, Deceased, and as the Administrator of the Estate of Andres Avalos, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 346

866 S.W.2d 346

Ernesto GONZALEZ, Appellant, v. Jesus R. AVALOS, Sr., as the surviving father of Andres Avalos, Deceased, and as the Administrator of the Estate of Andres Avalos, Deceased, Appellee.

No. 08-93-00066-CV.

Court of Appeals of Texas El Paso.

Nov. 17, 1993.

Rehearing Denied Dec. 15, 1993.

Dan Morales, Atty. Gen., Edwin M. Smith, Asst. Atty. Gen., Austin, for appellant.

Thomas E. Stanton, El Paso, for appellee.

Before OSBORN, C.J., and KOEHLER and LARSEN, JJ.

OPINION

KOEHLER, Justice.

This is a case involving defenses of official and governmental immunity. In this interlocutory appeal from a denial of summary judgment, filed pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5), (Vernon Supp.1993), ¹ an employee of the Department of Human Services contends that because he is immune from liability in a suit brought against him for the wrongful death of a child, the court erred in denying his motion for summary judgment. We affirm.

RELEVANT FACTS

Jesus Avalos, Appellee (Avalos), was the father of two children: Andres, age two, and Ricardo, age five. The children were in the custody of his former wife, Linda Avalos. On November 23, 1988, Avalos entered the El Paso office of Child Protective Services Division (CPS) of the Texas Department of Human Services (DHS) to report his concerns that his children were being abused by their mother's live-in boyfriend, Jesus Alvarez. His report was taken down by Elvia Caldera, a DHS social worker. The allegations made by Avalos to Ms. Caldera were that Ricardo was being physically abused, that he had three or four scratches or bruises on his neck, that he would not talk about the abuse for fear of retaliation, and that he had lost weight during the two month period Alvarez had been living with his mother. Caldera's report was forwarded to her supervisor, Ernesto Gonzalez (Gonzalez), the Appellant, the same day. On November 28, 1988, Gonzalez closed the Avalos case without assigning it for investigation.

On December 14, 1988, Andres was admitted to Vista Hills Hospital for treatment of severe injuries, injuries from which he subsequently died. Avalos, acting as surviving father and administrator of Andres' estate, sued DHS and Gonzalez for the wrongful death, alleging negligence and negligence per se. Gonzalez, who was sued in both his individual capacity and as a DHS employee, sought a summary judgment on several theories of immunity. Gonzalez has brought this interlocutory appeal from the order denying his motion for summary judgment.

STANDARD OF REVIEW

When reviewing a summary judgment appeal, we must determine whether the movant in the trial court carried his burden of showing that there is no genuine issue of a material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether or not there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant is to be taken as true, and in that connection, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49. Where the defendant is the movant, in order to prevail, he must by appropriate summary judgment evidence either (1) disprove at least one element of each of the plaintiff's theories of recovery or (2) plead and prove conclusively each essential element of an affirmative defense. Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.--Dallas 1992, no writ); Rayos v. Chrysler Credit Corporation, 683 S.W.2d 546, 547 (Tex.App.--El Paso 1985, no writ). The basic issue presented to us then is, did Gonzalez establish as a matter of law his non-liability for his alleged negligence by reason of some form of immunity.

LIABILITY AND IMMUNITY OF STATE EMPLOYEES

A state employee may be sued in either of two capacities: in his individual capacity, in which event he is personally liable for any judgment rendered against him; or in his official capacity, in which event any adverse judgment is paid by the state. An employee sued in his official capacity may raise any defense available to the state, including sovereign immunity. Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 586 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Russell v. Edgewood Independent School Dist., 406 S.W.2d 249, 252 (Tex.Civ.App.--San Antonio 1966, writ ref'd n.r.e.). When sued in his individual capacity, the employee is entitled to raise the defense of official immunity, rather than sovereign immunity. Baker v. Story, 621 S.W.2d 639, 643 (Tex.App.--San Antonio 1981, writ ref'd n.r.e.). Avalos sued Gonzalez in both his official and his individual capacity. Gonzalez argues that he was entitled to summary judgment because he is protected from liability by official immunity, by the statutory immunity created by Family Code, Section 34.03, and by sovereign immunity.

OFFICIAL IMMUNITY

In his first point of error, Gonzalez contends that as a state officer, he is immune from both criminal and civil liability. Public officials and employees whose jobs are classified as "quasi-judicial " are shielded from liability when they act in good faith within the scope of their employment. Eakle v. Texas Dep't of Human Services, 815 S.W.2d 869, 875 (Tex.App.--Austin 1991, writ denied); 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, 66 (Tex.App.--Waco 1986, no writ). To prevail on this theory, Gonzalez needed to prove: (1) that he held a quasi-judicial position as director of CPS; (2) that he acted within the scope of his authority as a quasi-judicial employee; and (3) that he acted in good faith. Eakle, 815 S.W.2d at 875; Austin, 711 S.W.2d at 66.

A quasi-judicial position is one that involves the exercise of discretionary, rather than ministerial, acts. Eakle, 815 S.W.2d at 875; Austin, 711 S.W.2d at 66. Though the distinction is not always easy to draw, discretionary actions require personal deliberation, decision, and judgment, while ministerial actions require obedience to orders or the performance of a mandated duty. Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex.1992) (Cornyn, J., concurring); Austin, 711 S.W.2d at 67. Quasi-judicial actions include discretionary acts such as gathering information in connection with an investigation and making decisions based upon that information. Eakle, 815 S.W.2d at 875-76; Austin, 711 S.W.2d at 66. The fact that an employee of the state has partly or primarily quasi-judicial duties does not eliminate the possibility that he may have some ministerial duties as well.

Gonzalez, as a supervisor of CPS, was required to make decisions and exercise discretion as to the extent of investigations and the priorities to be given reported abuse cases. His position with DHS was therefore quasi-judicial. See Austin, 711 S.W.2d at 67-68 (DHS employees who investigated a child abuse case held quasi-judicial positions).

Avalos contends, however, that Gonzalez did not act within the scope of his discretionary authority because he had no discretion under the Texas Family Code Section 34.05(a) to decide whether or not to investigate Avalos' allegations of abuse. ² We agree. Section 34.05(a) provides that "the Texas Department of Human Services ... shall make a thorough investigation promptly after receiving either the oral or written report of child abuse or neglect by a person responsible for a child's care, custody, or welfare.... The department may assign priorities to investigations based on the severity and immediacy of the alleged harm to the child...." [Emphasis added]. TEX.FAM.CODE ANN. § 34.05(a) (Vernon Supp.1993). Under Subsection (c), certain requirements for the investigation are specified: "The investigation shall include a visit to the child's home, unless the alleged abuse or neglect can be confirmed or clearly ruled out without a home visit, and an interview with and examination of the subject child...." [Emphasis added]. TEX.FAM.CODE ANN. § 34.05(c) (Vernon Supp.1993). Other provisions in the section state what "the investigation may include" and where it "may be conducted." It is obvious from a reading of the statute that the legislature chose the uses of the mandatory "shall" and the discretionary "may" very carefully. We hold that those provisions that use "shall" in relation to investigations and by their wording leave the employee no choice are mandatory. The provision requiring DHS to make a thorough investigation leaves no room for an employee to decide that no investigation is necessary when child abuse has been reported. Thus, Gonzalez' decision not to investigate was not within the scope of his authority and discretion. On the other hand, those provisions of Section 34.05 that use "may" or clearly give the employee some choice in how much investigation is necessary and what action is to be taken after completion of the investigation are discretionary. Thus in Austin, the Court held that the two DHS employees had official immunity from liability for alleged negligence in conducting the investigation and in failing to remove the child from the dangerous environment. Austin, 711 S.W.2d at 67-68.

Gonzalez argues that under the system of investigative priorities established by DHS pursuant to the provisions of Section 34.05(a) (quoted above), he was entitled to give Avalos' report of abuse a Priority III classification, which he claims required no investigation. The DHS administrative rules in effect at the relevant time set forth three priorities for intake and investigation. 40 TEX.ADMIN.CODE §§ 49.501 et seq. (West 1989). ³ Section 49.502 provided for the assignment of priorities to reports based upon the employee's evaluation of the harm or threatened harm to the child, the legal base for the...