Monday, July 25, 2011

TTCA: No waiver of immunity for intentional torts by government officials, officers, employees

The statutory sovereign immunity waiver effected by Texas Tort Claims Act (TTCA) is limited:
Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may be properly asserted in a jurisdictional plea. Miranda, 133 S.W.3d at 225-26. In a suit against the government, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging facts demonstrating a valid waiver of immunity. Whitley, 104 S.W.3d at 542. "State agencies are immune from liability in Texas unless the Legislature has waived that immunity." Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000).

Specifically, the TTCA waives the State's immunity for negligence arising "from the operation or use of a motor-driven vehicle" and personal injury "caused by a condition or use of tangible person or real property." TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)-(2) (West 2011).

The TTCA expressly retains the State's sovereign immunity for claims "arising out of assault, battery, false imprisonment, or any other intentional tort," including claims for intentional infliction of emotional distress. Id. § 101.057(2); see Nueces County v. Ferguson, 97 S.W.3d 205, 223 (Tex. App.—Corpus Christi 2002, no pet.) ("[T]he Texas Tort Claims Act specifically preserves sovereign immunity as to intentional torts . . . . Thus sovereign immunity is not waived for a claim of intentional infliction of emotional distress.").

SOURCE: Corpus Christi Court of Appeals - 13-11-00091-CV - 7/21/11


Here, the only tort alleged by appellees was "intentional infliction of mental distress" caused by the "intentional[] or knowing[] . . . psychological abuse" by TYC's "agents" who performed the strip search. Because TYC's sovereign immunity is not waived for intentional torts, appellees failed to allege facts demonstrating the trial court's jurisdiction over their intentional infliction of emotional distress claims. See Whitley, 104 S.W.3d at 542; see also Ferguson, 97 S.W.3d at 223. And because appellees' allegations include no facts involving the use of a motor vehicle or tangible property or negligence related to the condition of real property, their petition affirmatively negates a waiver of TYC's immunity under the TTCA and thus affirmatively negates the trial court's jurisdiction over any claim governed thereby. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)-(2); see also Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867. We conclude that the trial court erred in denying TYC's plea to the jurisdiction with regard to appellees' intentional infliction of emotional distress claim. See Fernandez, 28 S.W.3d at 3 (holding that the State is immune from liability unless immunity is waived by statute). TYC's first issue is sustained.

SOURCE: Corpus Christi Court of Appeals - 13-11-00091-CV - 7/21/11

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