Univ. of the Incarnate Word v. Redus

• Citation: 474 S.W.3d 816
• Decision Date: 26 August 2015
• Docket Number: No. 04–15–00120–CV,04–15–00120–CV
• Parties: University of the Incarnate Word and Christopher Carter, Appellants v. Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus, Appellees
• Court: Court of Appeals of Texas

474 S.W.3d 816

University of the Incarnate Word and Christopher Carter, Appellants

v.Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus, Appellees

No. 04–15–00120–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 26, 2015

Laurence S. Kurth, Matthew Fisher Wymer, Beirne, Maynard & Parsons, L.L.P., San Antonio, TX, for Appellant.

Brent Clark Perry, Law Office of Brent C. Perry, Mason Herring, Herring Law Firm, Houston, TX, for Appellee.

Sitting: Karen Angelini, Justice, Patricia O. Alvarez, Justice, Jason Pulliam, Justice

OPINION

Opinion by: Jason Pulliam, Justice

University of the Incarnate Word (UIW) brings this interlocutory appeal from the trial court's order denying its plea to the jurisdiction. In its plea to the jurisdiction, UIW asserted the trial court is without subject matter jurisdiction because UIW is entitled to governmental immunity. On appeal, the Redus plaintiffs (the Reduses) filed a motion to dismiss contending this court lacks interlocutory jurisdiction. We dismiss UIW's interlocutory appeal for want of jurisdiction.

FACTS AND PROCEDURAL HISTORY

It is undisputed that UIW is a private institution of higher education and operates its own police department. This suit arises from an incident in which a UIW police officer, Cpl. Christopher Carter, conducted a DWI traffic stop and detention of UIW student Cameron Redus. During the detention Officer Carter shot Redus five times, resulting in Redus's death. The Reduses filed suit against UIW and Officer Carter and asserted causes of action of: (1) negligence and gross negligence based upon UIW's failure to exercise reasonable care in the hiring, training and employment of its police officers; (2) negligence, negligence per se, and gross negligence based upon Officer Carter's unwarranted use of excessive force; (3) wrongful death; and (4) survival. In their First Amended Answer, UIW and Officer Carter asserted several affirmative defenses, including UIW's assertion of governmental immunity from liability.

Although ambiguous, it appears UIW filed its plea to the jurisdiction based upon the assertion of governmental immunity from suit and liability. UIW also moved to dismiss the suit against Officer Carter based upon UIW's entitlement to governmental immunity. Pertinent to this interlocutory appeal, at the hearing on its plea to the jurisdiction, UIW asserted governmental immunity from suit pursuant to the limitations of liability outlined in the Texas Tort Claims Act (TTCA). The trial court denied UIW's plea to the jurisdiction and motion to dismiss. UIW perfected this interlocutory appeal filed pursuant to Texas Civil Practice and Remedies Code Section 51.014(a)(8).

ANALYSIS

THE REDUSES' MOTION TO DISMISS FOR WANT OF JURISDICTION

Within the procedural posture of this case, UIW seeks entitlement to file this interlocutory appeal under Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Section 51.014(a)(8) permits a party to appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001." TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (West 2015). The parties agree that the only definition of "governmental unit" implicated is that appearing in Section 101.001(3)(D), which defines "governmental unit" as any "other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution." TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(D) (West Supp.2014).

UIW contends it is "a ‘governmental unit’ with respect to its law enforcement activities." In narrowing the application of the TTCA in this way, UIW attempts to parcel out its law enforcement activities and claim operation as a "governmental unit", and thus, governmental immunity, for this one function. UIW contends it is a governmental unit with respect to its law enforcement activities because it derives its status and authority to operate a police department from Texas Education Code Section 51.212.

The Reduses contend this court does not hold interlocutory jurisdiction because UIW, as an institution, must satisfy the statutory definition of "governmental unit" and may not carve out its function as a police department. The Reduses contend the statute authorizing a private university to employ peace officers does not turn the university or its police department into a governmental unit. Because UIW is a private institution and does not derive its status and authority from statute, the Reduses contend it is not a governmental unit, and therefore, not entitled to bring this interlocutory appeal pursuant to Section 51.014(a)(8).

UIW's attempt to limit its qualification and operation as a governmental unit to its law enforcement activities, only, does not fit within the framework of the TTCA or the procedural context of this case. The TTCA permits interlocutory appeal from action taken on a plea to the jurisdiction filed by a governmental unit. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8).

Thus, the party that filed the plea is the same party that must qualify as a governmental unit. In this case, the Reduses filed suit against UIW as an institution, and UIW, as an institution, filed the plea to the jurisdiction. The Reduses did not file suit against, and UIW did not file its plea as, UIW Police Department or UIW, as it acts within the context of its police department. Because Section 51.014(a)(8) permits the filing of an interlocutory appeal only by the same entity that filed a plea to the jurisdiction, and UIW filed the plea, UIW is the entity that must qualify as a "governmental unit" to be permitted this interlocutory appeal.

Pursuant to these definitions, the issue to be determined is whether UIW, a privately run university, is a "governmental unit" as defined in Section 101.001(3)(D), and thus able to take an interlocutory appeal under Section 51.014(a)(8) from the trial court's denial of its plea to the jurisdiction. To satisfy the definition of "governmental unit," UIW must derive its status and authority from statute or the Texas Constitution. The parties agree that UIW does not derive its status or authority as an institution from the Texas Constitution. Thus, this court's examination must focus on whether UIW's status and authority is conferred by legislative enactment.

Standard of Review

An appellate court must review whether it has jurisdiction over an appeal de novo because jurisdiction is a legal question. See IFS Sec. Grp., Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex.App.—Dallas 2005, no pet.) ; Parks v. DeWitt Cty. Elec. Coop., Inc., 112 S.W.3d 157, 160 (Tex.App.—Corpus Christi 2003, no pet.). "If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed." Parks, 112 S.W.3d at 160.

Applicable Law

1. Interlocutory Jurisdiction

In general, appellate courts have jurisdiction over appeals from final judgments, only. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001). As a narrow exception to this rule, an interlocutory order of a trial court is appealable if explicitly authorized by Texas Civil Practice and Remedies Code Section 51.014(a). City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex.2012) ; see TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a). For this reason, determination whether Section 51.014(a) authorizes an interlocutory appeal is a jurisdictional issue. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex.2007) ; Bally Total Fitness Corp., 53 S.W.3d at 355.

2. Statutory Construction

Section 51.014 must be strictly construed as a narrow exception to the general rule that only final judgments and orders are appealable. See Bally Total Fitness Corp., 53 S.W.3d at 355 ; See America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.App.—Houston [14th Dist.] 1997, no pet.). In construing a statute, a reviewing court should determine and give effect to the legislature's intent and should presume "the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind." Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010). If the meaning of the statutory language is unambiguous, a reviewing court adopts, with few exceptions, the interpretation supported by the plain meaning of the provision's words and terms. SeeFitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865–66 (Tex.1999).

3. Determination of Interlocutory Jurisdiction Under Sections 51.014(a)(8) and 101.001(3)(D)

While no court has addressed the issue whether a privately run university is a "governmental unit" as defined in Sections 51.014(a)(8) and 101.001(3)(D), the Texas Supreme Court has interpreted these same statutes to address the issue whether a privately run charter school so qualifies. See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 84 (Tex.2011). Although the facts in LTTS Charter School are distinguishable, because it interprets the same statutory provisions pertinent to the determination of this court's jurisdiction in the case, LTTS Charter School is instructive and provides applicable guidance and authority. See e.g. Hwy 3 MHP, LLC v. Electric Reliability Council of Tex., 462 S.W.3d 204, 207–10 (Tex.App.—Austin 2015, no pet.) (analyzing and applying LTTS Charter School to issue whether electricity provider qualifies as a governmental unit).

In LTTS Charter School, C2 Construction asserted a breach-of-contract action against LTTS Charter School, Inc., a private non-profit corporation that operated an open-enrollment charter school called Universal Academy. LTTS Charter Sch., Inc., 342 S.W.3d at 75. The Texas Supreme Court analyzed Sections 51.014(a)(8) and 101.001(3) for the issue posed in that case: whether a privately run,...