OFFICIAL IMMUNITY OF PUBLIC OFFICIALS, OFFERS, GOVERNMENT EMPLOYEES
The affirmative defense of official immunity "is based on necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). The underlying policy is that officials should be afforded some leeway to err because "the risk of some error is preferable to intimidation from action at all." Id. at 424 (citing Wood v. Strickland, 420 U.S. 308, 319-21 (1975)). To that end, official immunity shields officials "from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light." Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002). "Police officers' particular need for [official] immunity is well recognized: 'nowhere else in public service is official immunity more appropriate or necessary than in police work. In their routine work, police officers must be free to make split-second judgments . . . based on their experience and training, without fear of personal liability.'" Id. (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J., concurring)).
Elements of Official Immunity Defense: What does the Defendant have to establish?
An officer's actions are shielded by official immunity when the following elements are proven: (1) the officer was performing a "discretionary" function or duty, (2) within the scope of his authority, (3) in "good faith." Ballantyne, 144 S.W.3d at 422; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. Consequently, to prevail on summary judgment based on Garner's official immunity from liability arising from his collision with Albarran, the City had the burden to conclusively establish that, with respect to Garner's actions from which his liability would arise: (1) Garner was performing a "discretionary" function, (2) within the scope of his authority, (3) in "good faith." See Telthorster, 92 S.W.3d at 461.
What is considered discretionary?
"Discretionary" functions involve "personal deliberation, decision, and judgment," in contrast to "ministerial" acts, which "require obedience to orders or the performance of a duty to which the actor has no choice." Chambers, 883 S.W.2d at 654; see Commissioner of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849) ("where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial").
An act is also said to be ministerial if "the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Chambers, 883 S.W.2d at 654 (quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)). In determining whether a government employee's action is "discretionary" versus "ministerial," the proper focus is "on whether the officer is performing a discretionary function, not on whether the officer has discretion to do an allegedly wrongful act while discharging that function." Id. at 653 (emphases added).
Texas courts have recognized that a police officer's operation of a motor vehicle may be deemed a discretionary function in certain situations. These situations include an officer's deciding to undertake and conducting of a high-speed pursuit of a suspect, see Chambers, 883 S.W.2d at 655, and an officer's decision to violate traffic laws in order to quickly reach a scene of suspected criminal activity and assist another officer there, see Harless v. Niles, 100 S.W.3d 390, 398 (Tex. App.--San Antonio 2002, no pet.). See also City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 704 (Tex. App.--Austin 2005, no pet.) (manner of firefighters' driving in response to emergency call was discretionary function as matter of law); City of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (manner of operating ambulance in response to emergency situation was discretionary function as matter of law). Although these decisions sometimes speak in apparent circularities--e.g., a police officer performs a "discretionary" function when responding to an "emergency" because responding to an "emergency" entails discretion and judgment--their underlying principle seems to be that when a police officer is performing certain law enforcement functions involving discretion and judgment (e.g, pursuit and detention of suspects), it follows that this discretion and judgment can extend to whether and how the officer utilizes a motor vehicle in performing these functions. See Chambers, 883 S.W.2d at 654; Harless, 100 S.W.3d at 397-98; see also Hudson, 179 S.W.3d at 704; Flaniken, 108 S.W.3d at 557.
In Chambers, for example, an officer's high-speed pursuit of a suspect who ran a red light was held to be a discretionary function because the officer had to elect whether to undertake pursuit, and "[b]eyond the initial decision to engage in the chase, a high speed pursuit involves the officer's discretion on a number of levels, including, which route should be followed, at what speed, should back-up be called for, and how closely should the fleeing vehicle be pursued." 883 S.W.2d at 655. In Harless, officers proceeding to the scene of "suspicious activity" to assist a fellow officer similarly had discretion to determine, in the first instance, whether to respond to a report of ongoing criminal activity. 100 S.W.3d at 398. These circumstances required officers to respond using personal deliberation or exercise professional expertise, decision, or judgment. See id. at 397.
SOURCE: Austin Court of Appeals 03-10-00328-CV - 6/23/11