Harris County v. DeWitt

• Decision Date: 19 May 1994
• Docket Number: No. A14-92-01306-CV,A14-92-01306-CV
• Citation: 880 S.W.2d 99
• Parties: HARRIS COUNTY, Appellant, v. Clara DeWITT, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 99

880 S.W.2d 99

HARRIS COUNTY, Appellant, v. Clara DeWITT, et al., Appellees.

No. A14-92-01306-CV.

Court of Appeals of Texas Houston (14th Dist.).

May 19, 1994.

Rehearing Denied June 23, 1994.

Mike Driscoll, David R. Hurley, Joan M. Denton, Sondra D. Hachem, Houston, for appellant.

Randal A. Kauffman, Houston, for appellees.

Before MURPHY, CANNON, DRAUGHN, SEARS and MORSE (Sitting by Assignment), JJ., en banc.

OPINION ON REHEARING

ROBERTSON, Justice.

The trial court, under the doctrine of respondeat superior, rendered judgment against Harris County for damages resulting from the deaths of Brenda and Richard Hopkins, Jr. We withdraw our original opinion, substitute the following opinion, reverse the judgment of the trial court, and render judgment that appellees take nothing.

The Highway 6 Roadhouse Cafe hired two off-duty Harris County Deputy Constables as security guards for a charity benefit held on August 1, 1982. One of these constables was J.W. Huckeba. At the end of the shift, as Huckeba was going to get his evening's wages, a person entered the establishment stating he had been in an accident. Huckeba told his colleague to call a wrecker, and Huckeba left the restaurant to investigate. The accident involved a Mazda and a black Thunderbird. The Mazda was pulled off onto the side of the road, but the Thunderbird was stranded in the lane closest to the center turning lane, its back end extending into the other lane of traffic. The driver of the Thunderbird said the car would not start. Huckeba then proceeded both to investigate the accident and take precautionary measures concerning the stranded vehicle. The deputy had only his flashlight with which to work, and he proceeded to use the flashlight to illuminate the wreck and indicate to the occasional light traffic that an obstruction was in the road. Because other people were trying to come onto the highway, the deputy gave his flashlight to the restaurant's manager to continue the directing of traffic so the deputy could attend to other tasks he deemed necessary, namely, preventing other people from crowding the highway. After he turned away, a motorcycle carrying two persons crashed into the Thunderbird. Both the driver and the passenger of the motorcycle died as a result of this crash.

The decedents, Brenda and Richard Hopkins, Jr., were survived by their daughter Candace who brought this suit against both the county and Deputy Huckeba individually for the death of her parents. The alleged acts of negligence committed by Huckeba consisted of his failing to remove the Thunderbird from the highway, failing to turn on the vehicle's lights, giving the flashlight to a layperson to assist in directing traffic, and failing to warn other drivers of the Thunderbird's presence in the roadway. The jury found both the decedent, Richard Hopkins, and the deputy each 50% negligent in causing the accident. The county submitted a motion for judgment notwithstanding the verdict, arguing that the trial court should disregard the jury's findings of negligence as to the deputy because his actions on the night of the accident were discretionary and thus protected by official immunity. The county also argued that because the deputy was not liable, the county could not be liable. The trial court granted the county's motion for judgment notwithstanding the verdict as to the deputy individually but still assessed liability against the county.

The pernicious nature of the Texas Tort Claims Act has been well documented; thus, we do not add to the chorus of pleas to the legislature to clarify the parameters of waivers of sovereign immunity. We merely state the provision at issue in the instant case: "A governmental unit in the state is liable for: ... (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986). The legal question before us today asks whether Huckeba's official immunity affects the analysis of the county's liability per the private person language of subsection two. This court, however, has already visited this question in a prior opinion, and we continue to adhere to the legal principle implied in that decision, which principle we today discuss in greater detail. ¹ See City of Houston v. Newsom, 858 S.W.2d 14 (Tex.App.--Houston [14th Dist.] 1993, no writ) (stating police officer's immunity means employer remains immune as well); see also City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993) (stating that city's immunity would apply only if city employee pled and proved his entitlement to qualified or official immunity).

Thus, in accordance with our prior opinion in Newsom, we hold that as a matter of law the governmental unit cannot be held liable under 101.021(2) when the employee of the governmental unit enjoys official immunity because the "private person" language in this section precludes appellees' interpretation insofar as it applies to the unique policy grounds supporting official immunity for police officers. The unique functions and obligations of a police officer have allowed such employees the benefit of official immunity from suit when their actions are alleged to be negligent, so long as their actions meet the three-prong test established for finding official immunity, those three prongs being the following: acting within the course and scope of their authority; performing discretionary functions; and acting in good faith. See Bozeman v. Trevino, 804 S.W.2d 341, 343 (Tex.App.--San Antonio 1991, no writ) (setting out elements of qualified (or official) immunity).

At the outset, we address appellees' cross-point because its resolution provides the foundation for the rest of the opinion. Appellees assert that the court erred in finding Huckeba entitled to official immunity. We find appellees' contention in this regard to be contrary to the existing case law. Appellees contend that Huckeba was not entitled to official immunity because his actions on the night of the incident were of a ministerial rather than discretionary nature. Discretionary acts are protected, when they are performed in good faith, because otherwise the quasi-judicial employees exercising them would be less than zealous in performing their jobs. See Baker v. Story, 621 S.W.2d 639, 643-44 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.) (stating public policy behind official immunity for discretionary or quasi-judicial duties). Ministerial acts are those which "the law prescribes and defines to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Commissioner v. Smith, 5 Tex. 471, 479 (1849). Thus, a significant aspect of the process of determining whether an act is ministerial or discretionary involves searching for a law or regulation controlling the acts of the officer in a particular situation. See Carpenter v. Barner, 797 S.W.2d 99, 102 (Tex.App.--Waco 1990, writ denied) (finding no law controlled officer's judgment in determining how to pull over, investigate, and help repair car with broken taillights). In Carpenter v. Barner, for example, there was no question that the officer was acting within the scope of his duty and in good faith. The only question before the court was whether the officer's actions were of a discretionary nature. The court held as a matter of law that the following decisions taken by the officer were within his discretion: "whether to stop the [vehicle] on the paved shoulder of the driveway or on the access road, how long the occupants of the vehicle should be detained, whether the occupants should be allowed out of the vehicle, where the vehicles should be positioned on the paved shoulder and in relation to each other, what warning lights or devices should be displayed during the stop and detainment." Carpenter, 797 S.W.2d at 102. The vehicle's occupant was injured while attempting to repair the taillight and filed suit against the officer who had pulled him over. The court found the officer officially immune from the lawsuit because of the inherently discretionary nature of the officer's actions. To find otherwise, said the court, would not serve the public interest and "would likely cause other peace officers under similar circumstances to flinch from acting because of the fear of liability." Id. at 102.

Similarly, in Huddleston v. Maurry, 841 S.W.2d 24 (Tex.App.--Dallas 1992, writ dism'd), the Dallas court of appeals addressed the distinction of a discretionary and ministerial act in assessing an officer's good faith in pursuing a high-speed chase. The court found the officer's pursuit to be in direct conflict with a statute permitting a driver of an emergency vehicle to exceed the speed limit. The statute also read, however, that its provisions permitting the driver to exceed the speed limit would not relieve the driver from his "duty to drive with due regard for the safety of all persons", nor would it "protect the driver from the consequences of his reckless disregard for the safety of others." Huddleston, 841 S.W.2d at 29. Although we find this case anomalous in its particular method of addressing the question of official immunity for officers engaging in high-speed chases, the court's use of the statute to find a ministerial act does accurately describe the key distinction between discretionary and ministerial acts.

The distinction was again addressed in the relatively recent case of Copeland v. Boone, 866 S.W.2d 55 (Tex.App.--San Antonio 1993, writ granted). In Copeland, the court found the act of executing a warrant pursuant to a trial court order was a ministerial act, noting that the mere execution of a warrant differs drastically in substance from a discretionary act such as a police officer exercising his judgment in whether to pursue a suspect for...