

 











 
 
 
 
 
 
 
                                   NUMBER
13-01-835-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                        CORPUS CHRISTI-EDINBURG
 
 
HIDALGO COUNTY,                                                                 Appellant,
 
                                                   v.
 
 JAMES BRADY PARKER,                                                       Appellee.
 
                         On appeal from the
93rd District Court   
                                  of Hidalgo County, Texas.
 
 
                                      OPINION
 
         Before Chief Justice Valdez and
Justices Yañez and Rodriguez
                        Opinion by Chief Justice
Rogelio Valdez




This is an interlocutory appeal arising from the denial of a motion for
summary judgment.  Through three issues,
the appellant, Hidalgo County ( Athe County@), argues the trial
court erred when it denied its motion for summary judgment because: 1) the
County is immune; 2) the County articulated a legitimate, non-discriminatory
reason for plaintiff=s discharge; and 3) the
plaintiff failed to show a nexus between his workers= compensation claim and
his termination.  We affirm.
Facts




Appellee, James Brady Parker (AParker@), an employee of the
County, worked as a police officer in the Hidalgo County High Intensity Drug
Trafficking Area Task Force (Atask force@).  On August 8, 1997, Parker suffered an on the
job injury when, in the process of making an arrest, he slipped and fell
bruising his right forearm and legs.  On
August 18, 1997, he was diagnosed by Dr. Clark as having a contusion and
multiple changes in the right knee.  On
September 18, 1997, Parker was given a $2,500.00 raise, increasing his salary
to $30,500.00.  On April 8, 1998, Dr.
Clark informed the County=s district attorney that
Parker had a severe degenerative joint disease involving his right knee which
precludes him from returning to any kind of gainful employment.  Dr. Clark further stated he did not foresee
Parker being able to return to work in the near future.  In April 1998, Parker=s employer discussed
light-duty work such as answering the telephone, but Parker advised his
employer that he was not medically cleared to perform such work.  A letter dated July 8, 1998, informed Parker
that his position with the task force would be eliminated by December 31, 1998,
because of Abudget reduction cuts
mandated by the National HIDTA Office.@  Parker was informed a second time of his
prospective termination by a letter dated July 31, 1998.  On November 2, 1998, Parker=s employer received
another letter from Dr. Clark stating that Parker has a Asevere degenerative
problem in his right knee, for which he has had several operations, and has
postoperative problems including infections that have required additional
surgery.@  Dr. Clark further stated in that letter that
Parker is Apermanently disabled
from returning to his usual and customary work in law enforcement.@
On December 31, 1998, Parker=s position was
eliminated.  Officer Daniel Castillo, a
co-worker of Parker, also had his position cut for budgetary reasons.  Officer Castillo had not made a prior workers= compensation
claim.  
Procedural History
Parker brought his claim for retaliatory discharge under the Texas Labor
Code.  Tex.
Lab. Code Ann. ' 451.001 (Vernon Supp. 2002).  The County filed its motion for summary
judgment on November 26, 2001, arguing entitlement to summary judgment based on
1) official immunity, 2) no evidence as to a nexus between Parker=s workers= compensation claim and
his termination, and 3) arguing that the County articulated a legitimate,
non-discriminatory reason for Plaintiff=s discharge with Parker
providing no evidence of pretext.  The
trial court entered an order denying the motion for summary judgment.  The County filed this appeal under section
51.014(a)(5) of the civil practice and remedies code.  Tex.
Civ. Prac. & Rem. Code Ann. ' 51.014(a)(5) (Vernon Supp. 2002) (a person may appeal from an
interlocutory order if the summary judgment denial is based on an assertion of
immunity Aby an individual who is
an officer or employee of the state or a political subdivision of the state@).
Analysis




In reviewing a summary judgment record, appellate courts must apply the
following standards: (1) the movant has the burden of showing that there is no
issue of material fact and that he is entitled to judgment as a matter of law;
(2) in deciding whether there is a disputed material fact precluding summary
judgment, evidence favorable to the nonmovant will be taken as true; and (3)
every reasonable inference must be indulged in favor of the nonmovant and any
doubts resolved in his favor.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  When a defendant moves for summary judgment
on the basis of an affirmative defense, he must conclusively prove all
essential elements of that defense.  Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).  
In the County=s first issue on appeal
it argues the trial court erred in denying summary judgment because it was
entitled to the affirmative defense of official immunity.  The County asserts it is immune because Athe acts of its
employees are covered by official immunity.@  
Whether the County is entitled to immunity is a question of law.  Flippin v. City of Beaumont, 525 S.W.2d
285, 288 (Tex. Civ. App.BBeaumont 1975, no writ).  We review questions of law de novo.  See Hull & Co. v. Chandler, 889
S.W.2d 513, 517 (Tex. App.BHouston [14th Dist.]
1994, writ denied).  The County asserts official
immunity, not sovereign immunity, in bar of Parker=s claims.  Official immunity and sovereign immunity are
distinguishable.  Official immunity
protects individual officials from liability while sovereign immunity protects
governmental entities.  See City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656
(Tex. 1995). 
 The County relies on the analysis
in DeWitt v. Harris County, 904 S.W.2d 650, 651-54 (Tex. 1995), to
support its contention that it is entitled to vicariously assert the  official immunity
of  its employees.




In DeWitt, the issue presented was whether a governmental entity
may have respondeat superior liability under the Texas Tort Claims Act for the
negligence of its employee when the employee possesses official immunity.  Id. at 651.  In
that case, the plaintiff brought suit against a deputy constable and Harris
County for wrongful death based on the negligent acts of the deputy.  Id. 
The Texas Supreme Court held that AIt would serve no
legislative purpose to declare a waiver of sovereign immunity when the basis of
liability is respondeat superior and the acts of the employee are covered by
official immunity.@  Id. 
The court held that DeWitt County was not liable under the Texas Tort
Claims Act Afor the negligence of
its employee when the employee has no liability because of official immunity.@  Id. 
Three intermediate appellate courts which have
addressed the issue currently before us, distinguished DeWitt and held
that a governmental entity is not entitled to assert official immunity under
the Anti-Retaliation law.  See San
Antonio State Hosp. v. Lopez, No. 04-01-00755-CV, slip op. at 1, 2002 Tex.
App. LEXIS 3426, at *11 (Tex. App.BSan Antonio May 15,
2002, no pet. h.); Battin v. Samaniego, 23 S.W.3d 183, 188 (Tex. App.BEl Paso 2000, pet.
denied); Denton County v. Johnson, 17. S.W.3d 46, 51-52 (Tex. App.BFort Worth 2000, pet
denied); but see Harris County v. Louvier, 956 S.W.2d 106, 110 n.8 (Tex.
App.BHouston [14th Dist.]
1997, no pet.) (although Aexpressing no opinion on
this basis for immunity,@ the Fourteenth Court of
Appeals stated that the rationale in DeWitt would likely allow a
governmental entity to assert the official immunity of its employees to defend
a claim under the Anti-Retaliation law).  




In Denton, the Fort Worth Court of Appeals distinguished Dewitt,
noting that unlike the Texas Tort Claims Act, a supervisory employee cannot be
liable for a violation of the Anti-Retaliation law.  Denton, 17 S.W.3d at
47.  The court held that only an
employer is liable for an anti-retaliation claim, and it Afollows that without a
claim for which suit may be brought, there is no
affirmative defense to assert.@  Id. at 51.  The
court further reasoned:
Because no cause of
action existed under the Anti-Retaliation Law against [the chief deputy], [the
chief deputy] could not assert official immunity as an affirmative
defense.  Therefore, there was no defense
that the County could claim.
 
Id.

In Battin, the El Paso court adopted the reasoning in Denton.  Battin, 23 S.W.3d at
187.   In that case, plaintiffs
brought suit against the county sheriff, the county, and the civil service
commission.  Id. at
185-86.  That court reasoned that A[b]ecause official
immunity is an affirmative defense available only to an individual, neither the
Sheriff sued in his official capacity nor El Paso County are entitled to assert
it.@  Id. at 187.  The court reasoned that A[w]here a supervisor
cannot be sued as an individual, as in an anti-retaliation case, official
immunity has no application.  It follows
that official immunity cannot be vicariously asserted by the County.@  Id. at 188.
The Fourth Court of Appeals in Lopez Aadopt[ed] the reasoning
in Battin and Johnson,@ stating that the
premise upon which the holdings are based is Athat no cause of action exists against supervisory
employees under the Anti-Retaliation Law.@  Lopez, 2002 Tex. App. Lexis 3426 at *11.
This Court adopts the reasoning in Battin, Johnson, and Lopez
and holds that the affirmative defense of official immunity is not available to
the County as a defense to claims brought under section 451 of the labor
code.  Accordingly, the trial court did
not err in denying the County=s motion for summary
judgment on the basis of official immunity.
Appellant=s first issue is
overruled.  




Appellant=s second issue argues
Parker failed to establish a genuine issue of material fact that the reason
articulated for Parker=s dismissal was merely
pretextual.  In its third issue, the
County argues that the trial court erred in denying summary judgment because
Parker failed to show evidence of a nexus between his workers= compensation claim and
his termination.
In Texas, appeals may only be had from final orders or judgment, and
interlocutory orders may be appealed only if permitted by statute.  Jack B. Anglin Co. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992).  Our review of the first point of error was
permitted by statute under section 51.014(a)(5) of the civil practice and
remedies code which provides for an appeal from an interlocutory order denying
a motion for summary judgment that is based on an assertion of immunity.  Tex.
Civ. Prac. & Rem. Code Ann. ' 51.014(a)(5) (Vernon Supp 2002). 
Appellant=s remaining two points
of error, however, are not permitted by statute.  Accordingly, we dismiss those two issues for
want of jurisdiction.  Am. Home Prods.
Corp. v. Clark, 38 S.W.3d 92,
97 (Tex. 2000) (dismissal of interlocutory appeal for want of jurisdiction).  
Conclusion
          Having overruled the only issue
properly before this Court, we affirm the trial court=s order denying
appellant=s motion for summary judgment.                              
 
 
 
 
                                      
ROGELIO VALDEZ
Chief Justice
 
Publish.
Tex. R. App. P. 47.3.
 
Opinion delivered and filed
this 1st day of August, 2002.

