Texas Dept. of Human Services v. Benson

• Decision Date: 08 February 1995
• Docket Number: No. 03-94-00061-CV,03-94-00061-CV
• Citation: 893 S.W.2d 236
• Parties: TEXAS DEPARTMENT OF HUMAN SERVICES, Texas Department of Protective and Regulatory Services, Janice Caldwell, Burton Raiford, Glenn Williams, and Janie Medina, Appellants, v. Ned BENSON, Appellee.
• Court: Texas Court of Appeals

Page 236

893 S.W.2d 236

TEXAS DEPARTMENT OF HUMAN SERVICES, Texas Department of Protective and Regulatory Services, Janice Caldwell, Burton Raiford, Glenn Williams, and Janie Medina, Appellants, v. Ned BENSON, Appellee.

No. 03-94-00061-CV.

Court of Appeals of Texas Austin.

Feb. 8, 1995.

Rehearing Overruled March 15, 1995.

Dan Morales, Atty. Gen., Michelle E. Dains [Signed Appellants' Brief], Asst. Atty. Gen., Tort Litigation Div., Austin, TX, for appellants.

Philip Durst [Signed Appellee's Brief], Wiseman, Durst & Tuddenham, Austin, TX, for appellee.

Before CARROLL, C.J., and POWERS and B.A. SMITH, JJ.

SMITH, Justice.

This appeal asks us to determine whether the Texas Family Code assures confidentiality to those who report suspected child abuse, notwithstanding the right of the accused to review all records of the investigation. We must also decide whether the Texas Tort Claims Act waives a state agency's immunity for damages when a complainant is injured because his identity is disclosed in writing to the suspects under investigation. Finally we address the state's immunity for attorney's fees under the Texas Declaratory Judgment Act.

BACKGROUND

In April 1990 Reverend Ned Benson contacted the Texas Department of Human Services ¹ (the "Department") to report allegations that two members of his congregation were physically and emotionally abusing their five-year-old twin boys. ² Benson made In April 1992 Benson filed this lawsuit against the Department, seeking damages under the Tort Claims Act and declaratory relief requiring the Department to guard the confidentiality of persons who report child abuse. See Tex.Civ.Prac. & Rem.Code Ann. §§ 37.004, 101.021 (West 1986). Benson alleged that the Department's negligence caused his termination and damaged his reputation; he claimed additional damages for medical expenses to combat depression and for legal expenses to him and the church. Although the Department notes that many complaints against Benson contributed to his termination--lack of pastoral care, financial misfeasance, and declining membership rolls--in August 1993 a jury found that the Department's negligence was a proximate cause of injury to Benson and awarded damages of $611,000. The trial court reduced this award to $250,000, the maximum recovery allowed under the Tort Claims Act. See id. § 101.023. The trial court also rendered a declaratory judgment holding that the Department violated confidentiality provisions of the Texas Family Code when it revealed Benson's identity; it ordered the Department not to divulge such information in the future without a court order.

the report only after requesting and receiving assurances that his identity would not be disclosed to the family. In September 1990 the Department released to the accused information that identified Benson as the complainant. After learning of Benson's role in reporting the allegations of abuse against them, the parents filed a one million dollar libel suit against the church and Benson. Several weeks later, Benson was asked to resign. The libel suit was later dismissed, but it took more than a year to resolve the ecclesiastical charges.

The Department appeals, bringing twenty-four points of error. We will affirm the declaratory judgment but reverse the damages award, compelled by recent supreme court authority to hold that Benson has not stated a cause of action under the Tort Claims Act. Benson brings a cross-point complaining of the trial court's failure to award attorney's fees for the declaratory relief granted. Because the supreme court has ruled that the Declaratory Judgment Act waives governmental immunity for attorney's fees, we will remand this issue for the trial court's consideration.

TORT CLAIMS

To clarify our discussion of the issues, we begin by reviewing the details of Rev. Benson's experience with the Department. Benson had received confidential communications from members of his congregation that the father and stepmother were mistreating the children but were accusing the mother of the abuse. ³ Unable to persuade these other individuals to report their suspicions, Benson called the Department himself in April 1990. Before making his report, Benson asked Elaine Jones, a Department caseworker, if his call would be confidential: "Now I mean specifically, you're telling me that there is no way that the people that I call in to talk about or anyone in their family will ever find out that I called or anything that I say in the course of this phone call." Jones assured him that his call was confidential and then entered notes of their hour-long conversation in the Department's file.

The suspects of the investigation requested a copy of the Department's file. In September 1990, just minutes before the stepmother was to pick up the file, Jones advised members of the Department's legal office that she had promised confidentiality to Benson. Attorneys in that office determined that they had no legal basis for withholding Benson's identity, so the file was released without redacting his name.

Under the doctrine of governmental immunity, the state and its agencies are not liable for the negligence of employees unless the state consents to be sued through a constitutional or statutory provision for liability. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). To waive governmental immunity, the legislature must use clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). In

1969 the legislature enacted the Texas Tort Claims Act to waive governmental immunity in limited circumstances. See Tex.Civ.Prac. & Rem.Code Ann. Ch. 101 (West 1986 & Supp.1995). Section 101.021 of the Act provides that the state may be sued and held liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if:

(A) the property damage, personal injury, or death arise from the operation or use of motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Id. § 101.021 (emphasis added). The jury was instructed that it could find the Department negligent only if it found that the negligence involved the condition or use of tangible personal property. On appeal, the Department argues that it is immune from liability because the alleged negligent acts did not involve the use of tangible personal property. Benson counters that the written report is tangible personal property and that it was the unedited "condition" of this written report that caused him harm.

Much judicial ink has been penned in attempts to discern when the negligence of a governmental unit sufficiently involves tangible personal property to waive governmental immunity. See, e.g., Texas Dep't of Mental Health and Mental Retardation v. Petty, 848 S.W.2d 680 (Tex.1992); Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169 (Tex.1989); Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex.1983); Eakle v. Texas Dep't of Human Servs., 815 S.W.2d 869 (Tex.App.--Austin 1991, writ denied); Wilkins v. State, 716 S.W.2d 96 (Tex.App.--Waco 1986, writ ref' n.r.e.); Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38 (Tex.App.--Austin 1982, writ ref'd n.r.e.). We need not sort through that historical line of cases because a recent pronouncement of the supreme court governs Benson's cause of action. In University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex.1994), the court held that while paper can be touched, information recorded on paper is not tangible personal property. In that medical malpractice cause of action, the court ruled that failure to record information and failure to rely on information recorded in a medical file does not constitute a use of tangible personal property that waives governmental immunity:

While the paper on which doctors and nurses may record information about a patient's condition is tangible in that paper can be seen and touched, information itself is an abstract concept, lacking corporeal, physical or palpable qualities. Information thus, is intangible; the fact that information is recorded in writing does not render the information tangible property.

Id. at 178-79 (emphasis added). Benson urges us to limit York to its medical malpractice context. He insists that he was harmed by the unedited "condition" of the notes, which were released without redacting his name. Any attempt to distinguish Benson's case from York on this basis ignores a key similarity: The information contained in the notes harmed Benson, not a physical condition of the written report itself. As the dissent in York observes and protests, "[I]t is not the tangible physical file that counts, but the mental informational content, which [the court] concludes is not 'tangible.' " Id. at 180.

Rev. Benson has been poorly treated by Department employees who negligently promised confidentiality and then ignored those promises in disclosing his identity to suspects under investigation. The jury decided that he should be compensated for injuries caused by the Department's negligence. The state, however, is liable only if its governmental immunity has been waived. York holds that "the Legislature has not, by clear and unambiguous language, eliminated governmental immunity for injuries resulting from the misuse of information, even if that information is recorded in writing." Id. at

                179.   However unfairly Benson was treated, his cause of action in tort involves the misuse of information recorded in writing, and we reluctantly hold that it is precluded by York.   We sustain the Department's points of error regarding the Tort Claims Act
                

DECLARATORY JUDGMENT

In...