Immunity Case Law From the Houston Courts of Appeals

Terms: Sovereign immunity | governmental immunity | official immunity | qualified immunity | absolute immunity |

Absolute Immunity

Holzwarth v. Beek (Tex.App.-Houston [14th Dist.] Oct. 17, 2006)(Seymore)
[absolute immunity]
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-05-00070-CV Robert W. Holzwarth v. Belinda Beek
Appeal from 151st District Court of Harris County

Update: Both 2006 Opinions in Precedent-Setting TSU Sovereign Immunity Case Withdrawn;
Substitute Opinions Issued

TSU v. State Street II (Tex.App.- Houston [1st Dist.] Jan. 11, 2006)(Justice Hanks)(substitute opinion)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Hanks
Before Justices Nuchia, Keyes and Hanks)
01-05-00758-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation
Appeal from 80th District Court of Harris County
Concurring and Dissenting Opinion by Justice Keyes

Comptroller v. Waites (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Nuchia)
[government entity law, sovereign immunity, ILA, UDJA, declaratory judgment claim re: indemnification of public
servant, effort to collect federal court judgment in Section 1983 suit based on sexual misconduct of police officer]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Judge Davie L. Wilson, Justices Nuchia and Higley
01-06-00536-CV The Comptroller of Public Accounts of Texas, The Attorney General of Texas, and Prairie View
A&M University v. Adrienne Waites
Appeal from 155th District Court of Waller County (Hon. Dan R. Beck)

Supreme Court's Tooke v. Mexia Immunity Ruling Impacts Numerous Appeals Involving Cities

City of Houston v. Southern Electrical (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)
[governmental entity law, sovereign immunity waiver, sue and be sued, plea to the jurisdiction, Tooke v. City of
Mexia, standing]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchi
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00015-CV        City of Houston v. Southern Electrical Services, Inc., As Assignee of The Morganti Group, Inc.
--Appeal from 157th District Court of Harris County
In the its second issue, the City contends that its immunity from suit is not waived by the "plead and be impleaded"
language in section 51.075 of the Local Government Code, or by the "sue and be sued" language in article II,
section 1 of the Houston City Charter. See Tex. Loc. Gov't Code § 51.075; Houston,Tex., Charter art. II, § 1. After
we issued our original opinion in this case overruling the City's second issue, the supreme court held, in Tooke v.
City of Mexia, that the phrases "sue and be sued" and "plead and be impleaded," by themselves, do not waive
governmental immunity. 197 S.W.3d 325, 342-43 (Tex. 2006) (overruling Missouri Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812 (Tex. 1970). Therefore, such language in section 51.075 of the Local
Government Code and the Houston City Charter cannot be the basis for ruling that the City's governmental
immunity has been waived.

However, in Tooke, the supreme court noted that the Legislature had recently enacted sections 271.151-.106 of
the Local Government Code, waiving immunity from suit for contract claims against most local governmental
entities and applying to contracts executed before the effective date of the act, unless immunity had been waived
before the act became effective. Tooke, 197 S.W.3d at 344-45. Although appellees urge this Court to decide this
appeal based on sections 271.151-.160, we conclude that the issue of the application of this statute should be
fully developed in the trial court. See City of Houston v. Clear Channel Outdoor, Inc., 197 S.W.3d 386 (Tex. 2006)

Prosecutors Held Entitled to Absolute Immunity

Holzwarth v. Beek (Tex.App.-Houston [14th Dist.] Oct. 17, 2006)(Seymore)
[absolute immunity, MSJ, adequate time for discovery, no evidence, traditions MSJ]
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-05-00070-CV Robert W. Holzwarth v. Belinda Beek
Appeal from 151st District Court of Harris County

Misuse of Information Not Actionable under Tort Claims Act - County Immune - Opportunity to
Amend Pleadings Denied Because Jurisdictional Defect Deemed Incurable

County of Galveston v. Nichols (Tex.App.--Houston [14th Dist. Oct 12, 2006)(Hedges)
[TTCA, sovereign immunity, no opportunity to amend, incurable jurisdictional defect, misuse of information]
REVERSED AND DISMISSED: Opinion by Chief Justice Hedges
(Before Chief Justice Hedges, Justices Brock Yates and Seymore)
14-06-00322-CV County of Galveston, Texas v. Cassaundra Nichols, Individually and a/n/f Minor 1, Minor 2 and
Minor 3--Appeal from 405TH District Court of Galveston County
("Cassaundra Nichols, individually and as next friend of Minor 1, Minor 2, and Minor 3, sued the County of
Galveston, Texas, alleging negligence. Galveston County filed a plea to the jurisdiction asserting governmental
immunity, which the trial court denied. Galveston County now brings this interlocutory appeal from the denial of its
plea. See Tex. Civ. Prac. & Rem. Code Ann. '51.014(a)(8) (Vernon Supp. 2006) (authorizing interlocutory appeal
from the denial of a plea to the jurisdiction based on governmental immunity). We reverse the trial court's order
and dismiss Nichols' cause of action for want of subject matter jurisdiction. ... Cassaundra Nichols alleges that the
misuse of the fax machine by Galveston County personnel caused her and her children injury, including mental
anguish, embarrassment, humiliation, and stress. In its plea to the jurisdiction, Galveston County asserted
governmental immunity. The trial court denied the plea.")

The City Can Do No Wrong, or Can it? - Justices Disagree on Whether Tort Claims Act Allows
Homeowners to Sue City for Spilling Sewage Into Their Home

Banda v. City of Galveston (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Hanks)
[governmental entity law, sovereign immunity, TTCA, motor-driven equipment, sewer spill]
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Keyes and Hanks
01-05-00331-CV Donna Banda and Robyn Worthen v. City of Galveston
Appeal from 10th District Court of Galveston County (Judge David E. Garner)
Dissenting opinion by Justice Keyes

Sep. 5, 2006 - Suit Dismissed on Immunity Grounds Without Opportunity to Amend Even
Though Plaintiff Could Have Asserted Constitutional Violations Claim Under Section 1983 -

Challenge to Sovereign Immunity Under Open-Courts Provision of Texas Constitution Rejected
Too

Cronen v. Ray and City of Houston (Tex.App.- Houston [14th Dist.] Sep. 5, 2006)(Anderson)
[governmental entity law, sovereign immunity, panhandling arrests challenged, false arrest, false imprisonment,
negligence]
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost)
14-05-00788-CV Charles D. Cronen v. John R. Ray and the City of Houston, Texas
Appeal from 127th District Court of Harris County (Judge SHAROLYN P. WOOD)
("As all of appellant's causes of action are barred by governmental immunity, the trial court did not err in granting
appellees' Special Exceptions and Pleas to the Jurisdiction and Alternatively Motions for Summary Judgment.")
("Appellant's Open Courts argument implicates the third guarantee: whether sovereign immunity unconstitutionally
deprived him of a meaningful legal remedy. Appellant complains that this court, by upholding the trial court's
dismissal of his causes of action pursuant to sovereign immunity law, would violate the Open Courts provision.
Appellant does not complain of any legislative action that prevents him from maintaining his lawsuits. Since
appellant does not challenge a legislative act that abridges a cognizable common law claim, his Open Courts
challenge is without merit. Id.")

August 15, 2006 - Thanks to Sovereign Immunity Student May Not Sue State University for
Failure to Protect Her from Sexual Assault

Dimas v. The Texas State University System (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Hedges)
[governmental immunity law, civil case, sovereign immunity, TTCA, failure to prevent sexual assault, plea to the
jurisdiction affirmed]
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00664-CV Marisa Dimas v. The Texas State University System, Et Al

Aug 15, 2006 - Children of Mother Killed in Collision Caused by Teen Driver Cannot Maintain
Suit Against City Because of Immunity

Townsend a/n/f of Patterson Children v. City of Alvin (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Hudson)
[governmental entity law, TTCA, sovereign immunity, auto fatality, police officer’s failure to take unauthorized drive
off the road, driver caused deadly collision, suit dismissed for lack of jurisdiction on the pleadings, no waiver]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00915-CV James Randel and Nancy Patterson , as Next Friends of Haley Patterson and Garrett Patterson
v. City of Alvin--Appeal from 239th District Court of Brazoria County
Raleigh Patterson, as next friend of Haley and Garrett Patterson, sued the City of Alvin (the “City”) for negligence
arising out of a fatal automobile accident. The trial court granted the City’s plea to the jurisdiction. On appeal,
James Randel and Nancy E. Townsend, appellants, substituted for Raleigh Patterson. The sole issue on appeal is
whether an Alvin police officer used or operated a vehicle in such a manner as to waive governmental immunity
under the Texas Tort Claims Act (TTCA). We affirm.
The trial court heard no evidence on this jurisdictional issue, and the facts before us are taken from the pleadings
at trial. The plaintiffs’ petition alleged Scott Elliott, an Alvin, Texas police officer, conducted a traffic stop for a
speeding violation and learned the seventeen-year-old driver, Michael Leroux, was unlicensed, untrained, had no
insurance for the vehicle, and could provide no form of identification. Despite this knowledge, Officer Elliott
“exercised control” over Leroux’s vehicle and “exhibited bad faith when he commanded Leroux to drive straight
home.” Only minutes later, Leroux ran a red light and broadsided another car, killing its driver, Kimberly Patterson.
Raleigh Patterson, Kimberly Patterson’s husband, was a passenger in the vehicle. Raleigh and Kimberly had two
children at the time of the accident, eight-year-old Haley and three-year-old Garrett.
Raleigh Patterson, as next friend of Haley and Garrett (the “Pattersons”), sued the City, the Alvin Police
Department, and Officer Scott Elliott for negligence under the TTCA. The trial court granted the City’s plea to the
jurisdiction, and the Townsends bring this appeal.
Holding: The Pattersons’ pleadings affirmatively negate the existence of jurisdiction, and we find the trial court did
not err by granting the City’s plea to the jurisdiction.

Judicial Immunity Held to Bar Suit

In Re J .B .H (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Yates)
[family law, judicial immunity, lack of jurisdiction]
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00745-CV In the Interest of J.B.H., a Minor Child
Appeal from 306th District Court of Galveston County (Susan Baker)

Following the Supreme Court's Holding in Tooke v. City of Mexia First Court of Appeals
Overrules Contractor’s Waiver of Immunity Argument Based on “Sue and Be Sued” Language,
Also Rejects Waiver by Conduct Theory

Channelview I.S.D. v. A. R. C. I. Ltd (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[breach of contract BoC, sovereign immunity, sue and be sued provision in Tex. Educ. Code Ann. § 11.151(a)
(Vernon 2006), waiver by conduct, new statutory waiver enacted by legislature]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Higley and Bland
01-04-00556-CV Channelview Independent School District v. A.R.C.I., Ltd.
Appeal from Co Civil Ct at Law No 2 of Harris County
(“Following the Texas Supreme Court’s holding in Tooke v. City of Mexia—and the court’s application of it to
section 11.151(a) in a companion case—we hold that the “sue and be sued” language in the statute does not
waive Channelview’s immunity from suit. Tooke v. City of Mexia, 49 Tex. Sup. Ct. J. 819, 2006 WL 1792223 (Tex.
June 30, 2006); Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 49 Tex. Sup. Ct. J. 861, 2006 WL
1793473 (Tex. June 30, 2006) (per curiam). We therefore reverse the trial court’s denial of Channelview’s plea to
the jurisdiction and remand the cause for further proceedings.”)
(“Following the Texas Supreme Court’s decision in Tooke, we hold that the “sue and be sued” language in section
11.151(a) of the Texas Education Code does not waive Channelview’s immunity from suit. See Tooke, 49 Tex.
Sup. Ct. J. at 830, 2006 WL 1792223, at *11.”)

First Court of Appeals Sets New Precedent in Holding That Historically Black State University
Waived Its Immunity By Its Outrageous Dealings with Contractors - Court's Only African-
American Justice Writes Opinion
                                                             In other TSU News, see: --> TSU President indicted
TSU v. State Street Bank (Tex.App.-Houston [1st Dist.] June 8, 2006)(majority opinion by Hanks)
[state university’s conduct sufficiently egregious to warrant recognition of waiver-by-conduct exception to
sovereign immunity to breach of contract claims; affirms denial of TSU’s plea to the jurisdiction against the breach
of contract claim; grants plea with respect to takings and declaratory judgment claims]
Decision: Affirm Trial Court Judgment in Part, Reverse Trial Court Judgment in Part, and Remand Case to Trial
Court for Further Proceedings: Opinion by Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-05-00758-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation
Appeal from 80th District Court of Harris County
TSU v. State Street Bank (Tex.App.-Houston [1st Dist.] June 8, 2006)(separate op. by Keyes)
[Justice Keyes agrees with waiver-by-conduct holding, but would not reach it; would hold that Plaintiffs have state a
viable takings (inverse condemnation) claim; concurs in remanding case]
http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=83173
Opinion Concurring in Part With, and Dissenting in Part To, this Court's Judgment; by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-05-00758-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation
Appeal from 80th District Court of Harris County

UTMB Wins Because of Immunity

UTMB v. Thompson (Tex.App.–Houston [14th Dist.] June 20, 2006)(Anderson)
[governmental entity law, TTCA. denial of university’s plea to the jurisdiction reversed, judgment of dismissal
rendered, sovereign immunity not waived]
REVERSED AND RENDERED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost
14-06-00014-CV University of Texas Medical Branch v. Tinesha T. Thompson
Appeal from 122nd District Court of Galveston County (Judge John A. Ellisor JR.)
The trial court denied appellant’s plea to the jurisdiction and this interlocutory appeal followed pursuant to Tex.
Civ. Prac. & Rem. Code Ann. §51.014(a)(8) (Vernon Supp. 2005).
Holding: Appellee’s suit does not invoke the limited waiver of immunity found in the Tort Claims Act for two reasons.
First, appellee’s allegations do not meet the Tort Claims Act’s requirement that tangible state personal property
cause appellee’s injury. See Tex. Civ. Prac. & Rem. Code Ann. §101.021(2). Second, the substance of appellee’s
claim is that appellant failed to timely diagnose and treat appellee’s appendicitis. Tangible State Personal Property
Did Not Cause Appellee’s Injury. Reversed and Rendered

First Court Justices Part Ways on Complex Immunity and Jurisdiction Issues - Case Heads to
the Supreme Court (No. 06-0566)

City of Seabrook v. Port of Houston Authority (Tex.App. - Houston [1st Dist.] May 18, 2006)(majority en banc
opinion by Bland)(dissent by Hanks and Keyes)(pet. filed July 5, 2006)
[governmental entities law, sovereign immunity]
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland
01-04-00925-CV The City of Seabrook, Texas v. Port of Houston Authority
Appeal from Co Civil Ct at Law No 3 of Harris County
Dissenting Opinion by Justices Hanks and Keyes
01-04-00925-CV The City of Seabrook, Texas v. Port of Houston Authority
Appeal from Co Civil Ct at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull)

Widow Can't Pursue Claim Arising from Husband Based on Erroneous Information Over
Husband's Alleged Suicide Attempt

City of Houston v. Degner (Tex.App. - Houston [1st Dist.] May 18, 2006)(Keyes)
[governmental entities law, TTCA, tort claims act, no waiver of immunity for false 911 information about alleged
suicide, life and death decision in reliance on erroneous information about cause of accident]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-05-00133-CV City of Houston and Harris County, Texas v. Tanya Lynn Degner, Individually and a/n/f of Blake
Degner, a Minor Child, and Ryan Allen Degner, a Minor Child
Appeal from 113th District Court of Harris County (Hon. Patricia Hancock)

Is Justice Jennings Changing His Mind on Availability of Declaratory Judgment When
Governmental Entity Asserts Immunity?

City of Houston v. Houston Firefighters’ Relief, No. 01-04-00807-CV (Tex.App.-Houston [1st. Dist] May 5, 2006)
(Jennings)
[employment law, governmental entity law, firefighters’ claim not barred by immunity, may rely on UDJA in cross-
claim to vindicate service credit by construing statute]
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-04-00807-CV City of Houston v. HOUSTON FIREFIGHTERS’ RELIEF AND RETIREMENT FUND, GEORGE
ANDERSON, ET AL.; AND ALVIN JAMES
Appeal from 151st District Court of Harris County (Hon. Caroline E. Baker)

Waiver-by-Conduct Theory Did Not Work in this Case

Waller County v. Curtis (Tex.App.–Houston [1st Dist.] April 6, 2006)(Higley)
[trial court’s denial of county’s plea to the jurisdiction against breach of contract claim reversed;
county’s immunity not overcome by “waiver by conduct” claim, evidence to support “sue and be sued” waiver not
submitted; possibility of waiver by legislative resolution acknowledged]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Higley
Before Justices Taft, Higley and Bland
01-05-01064-CV Waller County, Texas v. Michael Curtis
Appeal from 9th District Court of Waller County
(“Because there is no evidence of the legislature waiving immunity from suit by statute or by resolution, and
because Waller County did not waive immunity from suit by its conduct, we hold that Curtis is barred from bringing
suit against Waller County.”)

Suit against Employee Dismissed Based on Employer's Immunity

Wilson v. Harris County Water (Tex.App.–Houston [14th Dist.] March 28, 2006)(Seymore)(pet. denied)
[TTCA, dismissal affirmed for want of jurisdiction, employee dismissed too b/c governmental unit dismissed]
AFFIRMED: Opinion by Justice Charles Seymore
Before Justices Hudson, Fowler and Seymore
14-05-00078-CV Leroy Wilson v. Harris County Water Control & Improvement District # 21 and Mike Buckner
Appeal from 269th District Court of Harris County (Judge John Thomas Wooldridge)

City Wins Second Appeal Based on Immunity

City of Houston v. Harris II Majority Opinion (Tex.App.–Houston [14th Dist.] March 16, 2006)(by Guzman)
[governmental entities law, Texas Tort Claims Act, TTCA, City held to be immune under the facts of the case, law
of the case doctrine does not apply, trial court’s denial of City plea to the jurisdiction reversed and case dismissed
for want of jurisdiction]
REVERSED AND RENDERED: Opinion by Justice Guzman
Before Justices Edelman, Seymore and Guzman
14-04-01179-CV City of Houston v. Thomas and Chorlottiea Harris, Individually and as Next Friend of Joshua
Harris, A Minor
Appeal from Co Civil Ct at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull)
City of Houston v. Harris II Concurring Opinion by Justice Edelman

Phillips M.D. v. DaFonte (Tex.App.- Houston [14th Dist.] Feb. 7, 2006)(Fowler)(ILA, Immunity of gov. employee)
[immunity claim of employee of governmental entity, UTMB, ILA]
AFFIRMED: Justice Fowler
Before Justices Fowler, Edelman and Guzman
14-05-00522-CV Linda G. Phillips, M.D. and Patrick Adegboyega, M.D. v. Debbie DeFonte
Appeal from 56th District Court of Galveston County Lonnie Cox