Univ. of the Incarnate Word v. Redus, No. 15-0732

• Court: Supreme Court of Texas
• Writing for the Court: Justice Devine delivered the opinion of the Court.
• Citation: 518 S.W.3d 905
• Parties: UNIVERSITY OF THE INCARNATE WORD, Petitioner, v. Valerie REDUS, et al., Respondents
• Decision Date: 12 May 2017
• Docket Number: No. 15-0732

518 S.W.3d 905

UNIVERSITY OF THE INCARNATE WORD, Petitioner,
v.
Valerie REDUS, et al., Respondents

No. 15-0732

Supreme Court of Texas.

Argued December 7, 2016
Opinion Delivered: May 12, 2017

Laurence S. Kurth, Matthew F. Wymer, Akerman, LLP, San Antonio, Amy Warr, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, Austin, for Petitioner.

Brent C. Perry, Robert R. Burford, Burford Perry, LLP, Houston, Frank Herrera Jr., Jorge A. Herrera, The Herrera Law Firm, San Antonio, Mason W. Herring, Herring Law Firm, Houston, for Respondent.

Justice Devine delivered the opinion of the Court.

The Texas Civil Practice and Remedies Code provides for an interlocutory appeal

518 S.W.3d 906

from an order that "grants or denies a plea to the jurisdiction by a governmental unit." TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The term "governmental unit" has the same meaning here as it does in the Texas Tort Claims Act. Id. §§ 51.104(a)(8), 101.001 (defining the term). The issue we must decide is whether a private university that operates a state-authorized police department is such a "governmental unit." If it is, the university can pursue this interlocutory appeal from the trial court's order denying the university's plea to the jurisdiction. The court of appeals concluded, however, that the university is not a governmental unit and dismissed the appeal. 474 S.W.3d 816, 817 (Tex. App.—San Antonio 2015). Because we conclude that the university is a governmental unit for purposes of this interlocutory appeal, we reverse and remand.

I

Though University of the Incarnate Word (UIW) is a private university, it maintains a campus police department. The Legislature has authorized private institutions of higher education to employ and commission peace officers and operate police departments. TEX. EDUC. CODE § 51.212(a). This case arises from a UIW officer's use of deadly force following a traffic stop. The incident resulted in the death of Cameron Redus, a UIW student the officer pulled over on suspicion of driving while intoxicated.

Redus's parents sued UIW and the officer for their son's death. UIW raised governmental immunity as a defense in its answer and later asked the trial court to dismiss the suit in a plea to the jurisdiction. The trial court denied the plea, and UIW took an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code.¹ That provision authorizes an interlocutory appeal from an order granting or denying a governmental unit's plea to the jurisdiction. Although UIW does not claim to be a governmental unit generally, it contends it is a governmental unit when defending the actions of its police department. The court of appeals disagreed and dismissed the appeal. 474 S.W.3d at 825. We granted UIW's petition for review.²

II

Because section 51.014(a)(8) authorizes an interlocutory appeal from the grant or denial only of a governmental unit's plea to the jurisdiction, and UIW filed the plea in this case, UIW must be a governmental unit to pursue this appeal. Section 51.014(a)(8) defines "governmental unit" by reference to the Tort Claims Act, so we must look there for its definition. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The Tort Claims Act defines "governmental unit" as

(A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;

518 S.W.3d 907

(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;

(C) an emergency service organization; and

(D) 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.

Id. § 101.001(3)(A–D). UIW claims to be a governmental unit only under subpart D. To qualify as a governmental unit under the Tort Claims Act, then, UIW must satisfy subpart D's two conditions. First, UIW must be an "institution, agency, or organ of government," and, second, UIW must derive its "status and authority ... from the Constitution of Texas or from laws passed by the legislature under the constitution." Id. § 101.001(3)(D).

UIW concedes that, as a private university, it is not generally a "governmental unit." But UIW argues that a private entity can be a governmental unit for certain purposes and that it is a governmental unit when defending lawsuits arising from its law-enforcement function. UIW contends it is a governmental unit for purposes of defending its campus police department because its "status and authority" to "create a law enforcement agency or police department" arise from laws passed by the Legislature that allow private universities to commission and deploy peace officers to enforce criminal laws. TEX. EDUC. CODE § 51.212.

The Reduses respond that UIW is a private institution and that no state law makes UIW a part of the government. Rather, the statute authorizing UIW to commission and employ peace officers "requires that [UIW] be a private or independent institution." 474 S.W.3d at 823 (citing TEX. EDUC CODE § 51.212 ). The Reduses submit that previous cases recognizing ostensibly private institutions to be governmental units have relied on express statutory authority to that effect. See, e.g. , LTTS Charter Sch., Inc. v. C2 Constr., Inc. , 342 S.W.3d 73, 77 (Tex. 2011) (citing TEX. EDUC. CODE § 12.105 ); Klein v. Hernandez , 315 S.W.3d 1, 8 (Tex. 2010) (citing TEX. HEALTH & SAFETY CODE § 312.006(b) ). The Reduses argue that no comparable authority exists here.

The parties focus therefore on different aspects of subpart D's definition. TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D). Relying on the latter portion of the subpart, UIW argues it is a governmental unit because state law gives it the status and authority to create a police department and enforce state and local law—a governmental function. Relying on the subpart's first requirement, the Reduses counter that no state law makes UIW an "institution, agency, or organ of government," and that the Legislature has conditioned its authorization of UIW to operate a police department on UIW's status as a private institution.

Although private institutions are not commonly understood to be a part "of government," we have held that a private institution can be a governmental unit. In LTTS Charter School , we determined that a private charter school was a governmental unit entitled to an interlocutory appeal under section 51.014(a)(8). 342 S.W.3d at 82. In reaching this conclusion, we pointed

518 S.W.3d 908

to specific legislative grants of authority to open-enrollment charter schools, including the grant of all powers given to traditional public schools under Title 2 of the Education Code. Id. at 77 (citing TEX. EDUC. CODE § 12.104(a) ). We commented further that open-enrollment charter schools "have statutory entitlements to state funding" and services that "school districts receive," are generally subject to the laws and rules pertaining to public schools, and are obligated to comply...