Texas Dept. of Criminal Justice v. Watt

• Decision Date: 01 August 1997
• Docket Number: No. 10-97-008-CV,10-97-008-CV
• Citation: 949 S.W.2d 561
• Parties: TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant, v. Ruby Diane WATT, Individually a/n/f to Jessica Denise Jackson, and as the Administratrix of the Estate of William Corey Watt, Appellee.
• Court: Texas Court of Appeals

Page 561

949 S.W.2d 561

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant, v. Ruby Diane WATT, Individually a/n/f to Jessica Denise Jackson, and as the Administratrix of the Estate of William Corey Watt, Appellee.

No. 10-97-008-CV.

Court of Appeals of Texas Waco.

Aug. 1, 1997.

Dan Morales, Attorney General, Jorge Vega, Deputy Attorney General, Drew T. Durham, Deputy Attorney General for Criminal Justice, Ann Kraatz, Asst. Attorney General, Chief, Law Enforcement Defense Division, and Karen Denise Matlock, Bruce R. Garcia, Asst. Attorneys General, Austin, for appellant.

John L. Pierce, Navasota, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Ruby Diane Watt filed suit under the Texas Tort Claims Act against the Texas Department of Criminal Justice (TDCJ) alleging that prison officers at the Ferguson Unit in Madison County negligently caused the death of her son who was incarcerated in the unit at the time of his death. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-101.109 (Vernon 1997). Watt did not sue the officers individually.

TDCJ filed a motion for summary judgment on the basis of sovereign immunity. TDCJ asserted, among other things, that because the officers' qualified immunity inured to TDCJ's benefit, it is immune from liability. The trial court denied the motion.

JURISDICTION

Ordinarily, the denial of a motion for summary judgment cannot be appealed. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). However, section 51.014(5) of the Civil Practice and Remedies Code provides for an interlocutory appeal of the denial of a summary judgment "that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(5) (Vernon 1997). Because TDCJ's motion for summary judgment was "based on" official immunity of the prison officers, we have jurisdiction. City of Beverly Hills v. Guevara, 911 S.W.2d 901, 902 (Tex.App.--Waco 1995, no writ); Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.--Houston [1st Dist.] 1993, no writ).

MOTION FOR LEAVE TO FILE OUT-OF-TIME BRIEF IN AN INTERLOCUTORY APPEAL

Prior to discussing the merits of the appeal, we must first dispose of TDCJ's "Motion for Leave to File Brief Out of Time," which is currently pending before the court. TDCJ filed a timely motion for extension of time to file its brief on January 27, 1997, requesting a 14-day extension. We denied the motion, citing this court's opinion in City of Beverly Hills v. Guevara, 886 S.W.2d 833, 835 (Tex.App.--Waco 1994), overruled on other grounds, 904 S.W.2d 655 (Tex.1995), as authority. TDCJ then filed a motion asking us to grant permission to file its brief late. We did not rule on the motion. TDCJ subsequently tendered a brief.

Rule 42 of the Rules of Appellate Procedure controls the timetable for accelerated appeals. TEX.R.APP. P. 42. We have held that Rule 42 does not give us the authority to grant extensions of time to file either the record or the brief. Guevara, 886 S.W.2d at 835; see TEX.R.APP. P. 42(a)(3). However, in Guevara, we did explain that the wording of Rule 42 allows the appellate court, in its discretion, to consider late-filed material if its tardiness is "reasonably explained." 886 S.W.2d at 835. After reviewing TDCJ's motion, we will exercise our discretion and consider TDCJ's late-filed brief. TEX.R.APP. P. 42(a)(3); see id.

FACTUAL BACKGROUND

William Corey Watt was an inmate in TDCJ's Institutional Division, Ferguson Unit, serving time for sexual assault. On September 18, 1989, William Corey Watt allegedly spit on an officer. Due to this unacceptable behavior, it was ordered that he be placed in a "management cell." William Corey Watt refused to voluntarily comply with the cell move, and after the supervising officer received medical clearance, a "forced cell move" was ordered. A five-member team was assembled, and after William Corey Watt repeatedly refused to comply with the supervising officer's directives to exit his cell, the team entered the cell in order to restrain and move him to the "management cell." When the team entered, William Corey Watt violently resisted their attempts to restrain him, striking out at and struggling with the officers. All members of the team were needed to restrain William Corey Watt because he was "exceptionally strong." Even after the officers applied handcuffs and leg restraints and began carrying him to the infirmary for a mandatory medical examination prior to being placed in a management cell, William Corey Watt still continued to fiercely struggle, requiring the officers to place him on the ground in order to get a more secure hold on him. Upon reaching the infirmary, the officers placed William Corey Watt on a gurney where he continued to struggle against all restraints which ultimately resulted in a broken neck and death.

William Corey Watt's mother sued TDCJ, alleging her son died as a result of the negligent actions of prison officers and the negligent implementation of personal property at TDCJ's Ferguson Unit. TDCJ moved for summary judgment on the basis of the affirmative defense of sovereign immunity. The trial court denied the motion, and TDCJ appealed.

SUMMARY JUDGMENT STANDARD OF REVIEW

In reviewing a summary judgment, we must determine whether TDCJ met its burden by establishing as a matter of law that no genuine issue of material fact exists. TEX.R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989). In deciding whether a genuine issue of material fact exists, we must accept all evidence favorable to Watt, the nonmovant, as true, indulging every reasonable inference and resolving all doubts in her favor. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). We will consider evidence which favors TDCJ only if it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

As the defendant, TDCJ had the burden of proving its entitlement to summary judgment as a matter of law by either: (1) conclusively negating one of the essential elements of each of Watt's claims; or (2) pleading and conclusively establishing each essential element of an affirmative defense. Randall's Food Mkts., 891 S.W.2d at 644; Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975); Morris v. Dallas Morning News, Inc., 934 S.W.2d 410, 412 (Tex.App.--Waco 1996, writ denied). Because TDCJ's motion for summary judgment raised the affirmative defense of sovereign immunity, we must determine whether it established that defense as a matter of law. If it did, then the trial court erred in denying TDCJ's motion for summary judgment and we will reverse and render judgment in favor of TDCJ.

WAIVER OF SOVEREIGN IMMUNITY

Generally, governmental units enjoy immunity from tort liability unless that immunity has been waived by the provisions of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-101.009. Section 101.021 expressly waives sovereign immunity in certain instances. A governmental unit is liable for "personal injury and death so caused by a condition or use of tangible property or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Id. § 101.021(2). Watt's cause of action is brought under section 101.021(2).

A governmental entity does not have respondeat-superior liability under section 101.021(2) for the negligence of its employee if the employee possesses official immunity. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); see City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995). Consequently, despite the fact that sovereign immunity and official immunity are distinguishable, TDCJ cannot be liable under section 101.021(2) for the negligence of its employees if the employees are cloaked with official immunity. DeWitt, 904 S.W.2d at 653-54; Guevara, 911 S.W.2d at 903.

OFFICIAL IMMUNITY

Official immunity in Texas is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Guevara, 911 S.W.2d at 903. A governmental employee has official immunity for the performance of discretionary duties within the scope of the employee's authority, provided the employee acts in good faith. Id. Watt has conceded that the prison officers were acting within their scope of authority as employees of TDCJ. However, Watt and TDCJ disagree as to whether the prison officers were performing a discretionary duty and were acting in good faith. Therefore, our role as a reviewing court is to determine whether TDCJ's summary judgment evidence establishes as a matter of law that the officers were performing a discretionary duty and were acting in good faith.

Discretionary Duty

As a general rule, official immunity attaches to a governmental employee's official actions only when the employee's job requires the exercise of personal judgment or discretion. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994); Chambers, 883 S.W.2d at 653-54. However, a governmental employee's performance of duties that are merely ministerial in nature is not protected by official immunity. Id. The distinction between these two categories is necessarily one of degree, because any official act that is ministerial still requires the actor to use some discretion in its performance. However, the supreme court has attempted to differentiate between the two by stating that:

If an action involves personal deliberation, decision and judgment, it is discretionary; actions which require obedience to orders or the...