Leo v. Trevino

Decision Date08 June 2006
Docket NumberNo. 13-05-516-CV.,13-05-516-CV.
Citation285 S.W.3d 470
PartiesFilomena LEO, et al., in their Individual and Official Capacities, Appellants, v. Iliana TREVINO, et al., Appellees.
CourtTexas Court of Appeals

Julian C. Gomez, W. Jeremy Counseller, The Gomez Law Firm, PLLC, Fernando G. Mancias, Law Office of Fernando Mancias, McAllen, for appellants.

Joe Hernandez, Willette & Guerra, L.L.P., McAllen, Charles Willette Jr., Willette & Guerra, L.L.P., Brownsville, for appellees.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellants ("School District Employees")1 bring this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.2005). The School District Employees appeal from the trial court's denial of a no-evidence motion for summary judgment based in whole or in part upon an assertion of immunity. We sustain their issues concerning immunity, reverse the trial court's order, and render summary judgment in favor of School District Employees in their individual capacities. See City of San Antonio v. Hernandez, 53 S.W.3d 404, 406 (Tex.App.-San Antonio 2001, pet. denied). We dismiss that portion of the appeal relating to the School District Employees' remaining issue for lack of jurisdiction. See Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 699 (Tex.App.-San Antonio 1997, no pet.).

I. Background

On May 20, 2003, approximately two hundred eighth grade students from Cesar Chavez Middle School, in the La Joya Independent School District ("La Joya ISD"), went on a field trip to the McAllen Athletic Club. Activities included swimming. The School District Employees attended the event to supervise the students. The school district opted not to hire lifeguards for the event. Sometime during the day, eighth-grader Oscar Guadalupe Trevino, Jr., drowned in the swimming pool at the club.

Suit was filed on May 29, 2003, by appellees, Iliana Trevino and Oscar Guadalupe Trevino, individually and as personal representative of the Estate of Oscar Guadalupe Trevino, Jr. ("the Trevinos").2 Claims against the School District Employees are based upon alleged civil rights violations under title 42 of the United States Code, section 1983; the Trevinos claim that the School District Employees violated Oscar's constitutional substantive due process rights to life, liberty, and bodily integrity. U.S. CONST. amend. XIV; 42 U.S.C.A. § 1983 (West 2003 & Supp.2005).

On October 8, 2004, after extensive discovery in the matter, the La Joya ISD and the School District Employees jointly filed a no-evidence motion for summary judgment, urging that the Trevinos had tendered no evidence of critical elements of their claim, including (1) violation of a constitutionally protected right that was (2) clearly established at the time of the conduct in question and that (3) defendants had acted with deliberate indifference to that right. The trial court order denying the no-evidence motion for summary judgment was signed August 5, 2005. This appeal is brought only by the School District Employees, who contend the following: (1) suit against them in their official capacities is equivalent to suing the La Joya ISD, already a named defendant, and therefore those claims should be dismissed (second issue); and (2) as public officials sued in their individual capacities, the School District Employees are entitled to qualified immunity (third issue) unless the Trevinos establish that they violated "clearly established constitutional law," which the Trevinos have failed to do (first issue). Therefore, School District Employees urge that the trial court erred in failing to grant the no-evidence motion for summary judgment in their favor. Federal substantive law and Texas state procedural law apply to this matter.

II. Jurisdiction

Jurisdiction over this interlocutory appeal is based upon section 51.014(a)(5) of the Texas Civil Practice and Remedies Code and the assertion of qualified immunity. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.2005). This statute provides that an interlocutory appeal may be taken from the denial of a motion for summary judgment where the defense of qualified immunity has been raised by individuals who are officers or employees of the state or a political subdivision of the state. Id.; Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex.1993) (per curiam).

The Trevinos contend that the School District Employees sought summary judgment on grounds beyond immunity, including (1) whether there was a violation of a federal protected right and (2) whether suit could proceed against both La Joya ISD and the named individuals in their official capacity. The Trevinos urge that, inasmuch as argument was not limited to the issue of immunity, we do not have jurisdiction over the bulk of this appeal. In conjunction with qualified immunity from the section 1983 claims, the Trevinos also contend that we may not properly reach whether or not there was violation of a federal protected right.

A. Qualified Immunity under Section 1983

Claims raised by the Trevinos against the School District Employees are based solely upon alleged violations of constitutionally protected rights of due process. See 42 U.S.C. § 1983 (West 2003 & Supp.2005). School District Employees assert that qualified immunity precludes suit against them in their individual capacities for these claims. Government officials performing discretionary functions are clothed with a qualified immunity, shielding them from civil damages liability for violation of a constitutional right as long as their actions could reasonably have been thought to be consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Spacek v. Charles, 928 S.W.2d 88, 92 (Tex. App.-Houston [14th Dist.] 1996, writ dism'd w.o.j.).

The availability of interlocutory appeal to address the defense of qualified immunity does not distinguish between claims brought under federal or state law. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.2005). It is simply available from the denial of a motion for summary judgment "that is based on an assertion of immunity" by an appropriate state actor. Id. An assertion of immunity is a defense, rather than an element of the principal cause of action. Id.

When a federal claim is brought under section 1983, title 42 of the United States Code, availability of qualified immunity as a defense must be assessed pursuant to federal law. 42 U.S.C. § 1983 (West 2003 & Supp.2005); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir.1994) (op. on reh'g). Federal courts recognize a qualified immunity for public officials which is analogous although not identical to Texas's official immunity. Qualified immunity to a claim brought under section 1983 protects governmental officers with discretionary authority from liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 428 (Tex.2004) (quoting Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Section 1983 imposes liability for violations of rights protected by the United States Constitution, not for violations of duties of care arising under tort law. Taylor Indep. Sch. Dist., 15 F.3d at 450 (citing Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Therefore, the threshold inquiry in any section 1983 claim is whether the plaintiff has been deprived of a right secured by the Constitution. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); see Taylor Indep. Sch. Dist., 15 F.3d at 450 (stating the first step in deciding whether defendants are entitled to qualified immunity is to determine whether Constitutional rights were violated).

1. The Burden of Proof Under Section 1983

Qualified immunity is an affirmative defense which normally carries with it the burden of proof. Generally, a no-evidence motion for summary judgment asserting that a party can prevail on an affirmative defense is not appropriate. See Keszler v. Mem'l Med. Ctr. of E. Tex., 105 S.W.3d 122, 128 (Tex.App.-Corpus Christi 2003, no pet.).

However, under federal law and section 1983 claims, such is not the case. At the summary judgment stage of a section 1983 action, "a defendant asserting immunity is not required to establish the defense beyond peradventure, as he would have to do for other affirmative defenses." Cousin v. Small, 325 F.3d 627, 632 (5th Cir.2003) (per curiam). "The moving party is not required to put forth evidence to meet its summary judgment burden for a claim of immunity. It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity." Id. (quoting Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir.2000)).3 "Once the [movant] asserts this affirmative defense, the burden shifts to the plaintiff to rebut it." Id. (citing Beck, 204 F.3d at 633-34; Whatley v. Philo, 817 F.2d 19, 20 (5th Cir.1987)). Therefore, a no-evidence motion for summary judgment is sufficient to raise this defense.

2. Application of Federal Substantive Law

The Trevinos contend that it is error to apply the federal burden-shifting analysis to assess availability of qualified immunity. They argue that immunity is an affirmative defense under Texas state law, for which School District Employees at all times bore the burden of proof. The Trevinos urge that we should therefore not apply the provisions for burden-shifting set out under federal law, and, consequently, we never reach the question of...

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