      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-03-00168-CV



          Texas A&M University, Texas A&M University System, Dr. Jerry Gaston,
                              and Eugene Ray, Appellants

                                                v.

                                   Don Thompson, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
         NO. 95-08113, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Texas A&M University, the Texas A&M University System, Dr. Jerry Gaston, and

Eugene Ray appeal from the interlocutory order denying the portion of their motion for summary

judgment asserting that Gaston and Ray were protected by various immunities from Don

Thompson’s complaints. We will affirm the order in part, but reverse and render judgment against

Thompson’s claims that appellants in their official capacities violated his federal constitutional

rights.


                                       BACKGROUND

               Thompson worked as an assistant power plant superintendent at Texas A&M

University (“TAMU”), a part of the Texas A&M University System (“the System”). Dr. Jerry
Gaston was a vice president for administration at TAMU and Eugene Ray was the deputy director

and interim executive director of TAMU’s physical plant department.

               Thompson’s complaints arise from the way in which appellants responded to his

reports of problems in the physical plant department’s solicitation of bids for an expansion of the

physical plant’s cogeneration program (“the Cogen project”). The System eventually approved a

development agreement with Tenneco that included a confidentiality agreement to prevent disclosure

of project documents during negotiations. Thompson and others reported that the System violated

the confidentiality agreement by disclosing some information to a competitor that bid unsuccessfully.

Thompson and others also reported this disclosure to auditors hired by the System to investigate the

Cogen project. Thompson continued to report this disclosure as a violation of law, and also reported

the failure by others to pass this report along as a separate violation of law. Thompson also reported

that special treatment was given to the competitor, that the competitor’s proposal might violate state

law, and that TAMU improperly modified its agreement with Tenneco. (Eventually, the Legislature

waived TAMU’s sovereign immunity, Tenneco sued, and TAMU paid Tenneco $27 million.)

               On January 13, 1995, Gaston and Ray asked for Thompson’s resignation. When he

declined, Gaston told Thompson he was suspended based on a state management audit report that

found poor management had caused morale problems in the physical plant department. Ray reported

that he received many complaints about Thompson and his supervisor’s handling of administrative

duties, and that Thompson had ignored Ray’s direct order to stop work on a chilled water pumping

project. Thompson was placed on administrative leave pending further investigation by an ad hoc

committee. Thompson said he was surprised because he had previously received only good



                                                  2
performance reviews and had not received any warning or counseling regarding his performance.

Gaston ordered Thompson escorted from the premises in plain view of the remaining staff.

Thompson’s belongings were placed in a box in the hallway outside his office and left there for

about a month before being inventoried. A banner proclaiming “Under New Management” was hung

on the physical plant building.

               On February 21, 1995, Gaston told Thompson that the committee recommended firing

him. Thompson was not allowed to address the committee, but was permitted to file a written

response. His employment was terminated on March 31, 1995 for his failure to follow TAMU

policies and his lack of people skills.

               Thompson requested an arbitration pursuant to TAMU policy. Several arbitrations

were set and postponed, but the final attempt was cancelled at Gaston’s direction and not

rescheduled despite Thompson’s requests.

               Thompson sued for violations of his constitutional and statutory rights by Gaston,

Ray, TAMU, and the System. In his fifth amended original petition, he complains that Gaston and

Ray individually and conspiratorially violated his rights under the First, Fourth, Fifth, and Fourteenth

Amendments to the federal constitution. He complains that they intentionally inflicted emotional

distress on him. He further complains that TAMU and the System violated his rights under the state

and federal constitutions and violated the Whistleblower Act.

               Appellants moved for summary judgment, contending that various forms of immunity

protected them from all of Thompson’s claims. They also raised other grounds for summary




                                                   3
judgment and reject Thompson’s version of events. The district court denied their motion without

stating a basis.


                                              DISCUSSION

                   Appellants raise a single issue on appeal, contending that the district court erred by

denying their motion for summary judgment based on their assertions of immunity. Appellants

assert the protection of sovereign immunity, qualified immunity, and quasi-judicial or official

immunity against Thompson’s numerous claims. Appellants claim sovereign immunity regarding

federal- and state-law claims made against Gaston and Ray in their official capacities. Regarding

claims made against Ray and Gaston in their individual capacities, appellants assert they are

protected by qualified immunity from federal claims and official immunity from state claims.

                   These immunities involve both immunity from suit and immunity from liability. See

Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). Immunity from suit bars

a suit against the State—depriving a trial court of subject matter jurisdiction even if liability is

undisputed—unless the state expressly gives consent to the suit. Id. Immunity from liability protects

the State from judgments, even where the Legislature expressly consents to permit a suit. Id.

Immunity from liability also persists unless it is waived. General Serv’s Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).

                   We review the denial of a motion for summary judgment under the same standard of

review that governs the granting of a summary judgment. See San Antonio Express News v. Dracos,

922 S.W.2d 242, 247 (Tex. App.—San Antonio 1996, no writ). Summary judgment is appropriate

only if the record establishes that there is no genuine issue of material fact, and that the movant is

                                                     4
entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P.

166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548-49 (Tex. 1985). A defendant who conclusively establishes all elements of an

affirmative defense is entitled to summary judgment. Cathey, 900 S.W.2d at 341.

                Thompson alleges five causes of action. Three are expressly against Gaston and Ray

individually; by two claims, he alleges they violated his federal constitutional rights and, by the third,

he contends that they intentionally inflicted emotional distress upon him. The remaining two claims

are expressly against TAMU and the System for violations of his federal and state constitutional

rights and the Texas Whistleblower Act. Because Thompson alleges that these violations occurred

at least in part through actions of Gaston and Ray, we will examine the application of sovereign

immunity to these claims as they can be construed against Gaston and Ray in their official capacities.


Official capacity

                A suit against state employees in their official capacities is equivalent to a suit against

the State; accordingly, employees acting in their official capacities share the State’s sovereign

immunity. See Kentucky v. Graham, 473 U.S. 159, 167 (1985); Texas Dep’t of Health v. Rocha, 102

S.W.3d 348, 353 (Tex. App.—Corpus Christi, 2003, no pet.). The Texas Supreme Court has long

recognized that sovereign immunity, unless waived, protects the State of Texas, its agencies, and its

officials from lawsuits for damages, absent legislative consent to sue the State. Federal Sign v.

Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Sovereign immunity protects universities.

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694, n.3 (Tex. 2003). Sovereign immunity




                                                    5
does not, however, bar plaintiffs from seeking equitable relief from violations of law or

determination of rights under the law. Federal Sign, 951 S.W.2d at 404.

                There is no dispute on appeal that Gaston and Ray are entitled by their employment

to claim sovereign immunity concerning claims made against them in their official capacities.


Federal claims

                Thompson claims that appellants, acting separately and in conspiracy, violated several

of his rights under the federal constitution. Suits for violations of the federal constitutional

provisions are statutorily authorized. See 42 U.S.C.A. §§ 1983, 1985 (West 2003). Section 1983

confers a private right of action against a person who deprives another of federal constitutional

rights.1 See Burnett v. Grattan, 468 U.S. 42, 44 n.3 (1984). Similarly, section 1985(3) creates a

private right of action for damages for injury or deprivation caused by two or more persons

conspiring to deprive another person or class of persons of constitutional rights. See id. n.4.

                Appellants contend that the Eleventh Amendment of the United States Constitution

bars a suit against Gaston and Ray in their official capacities in state district court. See U.S. Const.

amend XI. That amendment provides that “[t]he Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Id. Because


        1
          “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress . . . .” 42 U.S.C.A. § 1983
(West 2003).

                                                   6
the Eleventh Amendment expressly restrains only “[t]he Judicial power of the United States,”

however, this state-court suit presents no Eleventh Amendment question. See id. (emphasis added);

see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63-64 (1989); Maine v. Thiboutot, 448

U.S. 1, 9 n.7 (1980).

               Appellants alternatively contend that federal claims cannot lie against Gaston and Ray

in their official capacities because the State is not a person under sections 1983 and 1985. See Will,

491 U.S. at 71. Although the non-person status of the states might not seem to relate to immunity,

the following excerpt from the Supreme Court’s analysis makes plain the connection:


       Given that a principal purpose behind the enactment of § 1983 was to provide a
       federal forum for civil rights claims, and that Congress did not provide such a federal
       forum for civil rights claims against States, we cannot accept petitioner’s argument
       that Congress intended nevertheless to create a cause of action against States to be
       brought in state courts, which are precisely the courts Congress sought to allow civil
       rights claimants to avoid through § 1983.


Id. at 66-67. In other words, Congress did not by enacting section 1983 waive the states’ sovereign

immunity in state courts.

               Finding no waiver of the State’s immunity or other authorization of a suit for damages

against the State for violations of the federal constitution, we conclude that the district court erred

by denying the motion for summary judgment against Thompson’s claims for damages based on

violations of his federal constitutional rights by Ray and Gaston acting in their official capacities.

As set out above, because immunity does not bar suits for equitable relief from constitutional

violations, the district court correctly denied summary judgment against Thompson’s claims for

equitable relief. See Federal Sign, 951 S.W.2d at 404.

                                                  7
State claims

               Appellants contend that, because sovereign immunity shields them from liability in

their official capacities, the district court erred by denying their motion for summary judgment

against all state-law claims made against them in their official capacities.

               We conclude that the district court did not err by denying summary judgment against

the state-law claims made against Gaston and Ray in their official capacities. Thompson’s fourth

claim is not barred by sovereign immunity because he thereby requests equitable relief based on the

violations of constitutional rights by a state official. See Federal Sign, 951 S.W.2d at 404. The fifth

claim—violation of the Whistleblower Act—is within the scope of a statutory waiver of sovereign

immunity that expressly permits public employees who are discharged in violation of that act to sue

for damages. See Tex. Gov’t Code Ann. § 554.003(a) (West Supp. 2003); Texas Dep’t of Human

Servs. v. Green, 855 S.W.2d 136, 143 (Tex. App.—Austin 1993, pet. denied). The remainder of the

claims are either based on federal law or made against Gaston and Ray in their individual capacities;

they are accordingly discussed elsewhere. We affirm the denial of the motion for summary judgment

regarding Thompson’s fourth and fifth claims made against Gaston and Ray in their official

capacities.


Individual capacity

               Claims against government employees in their individual capacities are distinct from

claims against them in their official capacity.       Vela v. Rocha, 52 S.W.3d 398, 403 (Tex.

App.—Corpus Christi 2001, pet. denied). Some courts insist on distinguishing immunity from state-

law claims (quasi-judicial or official immunity) and immunity from federal section 1983 claims

                                                  8
(qualified immunity), although others find the terms interchangeable. Compare Haynes v. City of

Beaumont, 35 S.W.3d 166, 175 (Tex. App.—Texarkana 2000, no pet.) (distinguishing nomenclature

on federal and state claims) with City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993)

(qualified, official, discretionary, good-faith, and quasi-judicial immunities interchangeable).

                Thompson alleges that Gaston and Ray violated several constitutional rights, that they

conspired to do so, and that they intentionally inflicted emotional distress upon him. Appellants

assert that they are entitled to quasi-judicial or official immunity from all state law claims brought

against them in their individual capacities. Appellants also assert that they are entitled to qualified

immunity from the claims that they violated and conspired to violate Thompson’s federal

constitutional rights.


State claims

                Thompson’s only state-law claim against Gaston and Ray in their individual

capacities is that they intentionally inflicted emotional distress.2

                Unlike sovereign immunity, the doctrine of official immunity is not a bar to suit (a

jurisdictional issue) but is a bar to liability and shields the party claiming official immunity from

liability in the suit individually. McCartney v. May, 50 S.W.3d 599, 605 (Tex. App.—Amarillo

2001, no pet.). Official immunity is an affirmative defense which protects government employees

who act in good faith from liability, in their individual capacities, related to the performance of


        2
           To recover damages for intentional infliction of emotional distress, a plaintiff must prove
that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous;
(3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting
emotional distress was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999).

                                                   9
discretionary duties within the scope of the employee’s authority. City of Lancaster v. Chambers,

883 S.W.2d 650, 653 (Tex. 1994). Because official immunity is an affirmative defense and this is

a summary-judgment case, the defendants must conclusively establish all elements of the defense.

See id.; Vela, 52 S.W.3d at 404.

               Appellants moved for summary judgment contending that appellants acted within

their discretion, within the scope of their authority, and in good faith. Thompson responded that

appellants lacked the discretion and authority to create a committee to investigate him and to cancel

the arbitration hearing. He complains on appeal that appellants did not act within the scope of their

authority or in good faith when they suspended him on the basis of rumors and anonymous tips, did

not allow him to appear before an investigating committee, denied him the right to an impartial

tribunal, canceled the arbitration, escorted him off campus publicly, issued a press release that

stigmatized him, denied him any hearing, and terminated him while promoting others who performed

their jobs badly.

               We use a standard of objective reasonableness to measure good faith, without regard

to the official’s subjective state of mind. Scott v. Britton, 16 S.W.3d 173, 179 (Tex. App.—Houston

[1st Dist.] 2000, no pet.). To be entitled to summary judgment, an official must prove that a

reasonably prudent official might have believed that the action taken was appropriate. See id. The

official need not prove that it would have been unreasonable to take different action, nor that all

reasonably prudent officials would have acted as he did. Id. To controvert the official’s summary-

judgment proof on good faith, the plaintiff must show that no reasonable person in the defendant’s

position could have thought the facts were such that they justified defendant’s acts. See Chambers,



                                                 10
883 S.W.2d at 657. The Chambers test balances two competing interests: the “need” aspect

concerns the urgency and circumstances surrounding the employee’s action; the “risk” aspect refers

to the likelihood that the employee's act will cause serious harm. Chambers, 883 S.W.2d at 656-57.

This test applies to cases other than police chases. See Cobb v. Texas Dep’t of Crim. Justice, 965

S.W.2d 59, 64 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (fixing floor).

               Appellants asserted at trial that “[n]one of the Defendants’ actions are such that no

reasonable official would have acted in the manner alleged.” By affidavit, Ray and Gaston assert

that Thompson was fired for failing to stop working on a project as ordered and failing to work well

with others. The affiants describe management problems in the plant. They also assert that they

learned of Thompson’s view that he was being fired in retaliation for his reports about the

cogeneration bidding only in his response to the committee’s recommendation that Thompson be

fired. Gaston and Ray both assert that they acted within their authority and with good faith toward

Thompson.

               Neither affiant explains, however, why a reasonable official would think it

appropriate, for example, to remove Thompson using guards, create a committee to investigate his

employment but restrict his participation before that committee to responding to its report, and

cancel an arbitration required by TAMU policy requested repeatedly by Thompson, but not cancel

the arbitrations of other employees. There is no showing of urgency in his removal, of danger in his

participation in the committee hearing before his termination, or of any reason to cancel the

arbitration process. These actions call into question whether appellees acted in good faith toward




                                                11
Thompson. Although further proceedings may show these actions to be appropriate, we conclude

that the record before us does not show that a reasonable official could find these actions appropriate.

               Because we conclude that appellants did not establish every element of their defense,

the district court properly overruled the motion for summary judgment.


Federal claims

               The elements of a qualified immunity defense against section 1983 claims are

essentially the same as the elements of an official immunity defense under Texas law. See

McCartney v. May, 50 S.W.3d 599, 613 (Tex. App.—Amarillo 2001, no pet.). Section 1983

provides that every person who, under color of law, subjects any citizen to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured. 42 U.S.C.A. § 1983 (West 2003). The Due Process Clause of the Fourteenth Amendment

to the United States Constitution provides that no State shall deprive any person of life, liberty, or

property, without due process of law. U.S. Const. amend XIV. Government officials performing

discretionary functions generally are shielded from liability for civil damages if their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Dallas Indep. Sch. Dist. v.

Finlan, 27 S.W.3d 220, 242 (Tex. App.—Dallas 2000, pet. denied).

               When a defendant pleads qualified immunity to a section 1983 claim and shows he

is a government official whose position involves the exercise of discretion, the plaintiff then has the

burden to rebut the defense. Carrera v. Yepez, 6 S.W.3d 654, 661 (Tex. App.—El Paso 1999, pet.

dism’d w.o.j.) (citing Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992)). The plaintiff must

                                                  12
show that (1) the official’s conduct violated a federally guaranteed right, (2) the right was clearly

established, and (3) the official’s conduct was objectively unreasonable in light of the clearly

established right. Carrera, 6 S.W.3d at 661 (citing Salas, 980 F.2d at 306). If the conduct

complained of did not violate clearly established law, summary judgment is proper without an

inquiry into reasonableness because an official could not reasonably be expected to know that the

law forbade his conduct. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Finlan, 27

S.W.3d at 243. If the conduct complained of did violate clearly established law, the court must then

determine whether the defendant’s conduct was objectively reasonable. Finlan, 27 S.W.3d at 243.

While the alleged wrong need not have been previously held unlawful, the unlawfulness must be

apparent in light of pre-existing law in order to subject the official to liability. Id.; Brawner v. City

of Richardson, 855 F.2d 187, 192 (5th Cir.1988). As a result, qualified immunity is a powerful

shield that will protect “all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986).

                Thompson alleges that Gaston and Ray violated his rights under the First, Fourth,

Fifth, and Fourteenth Amendments. He complains of violations such as firing him for speaking on

matters of public concern, unreasonably searching and seizing his property, denying him the process

due and guaranteed in the termination of his employment, denying him process given to other fired

employees, and damaging his professional reputation without giving him the opportunity to clear his

name. He also alleges that they conspired to violate these rights. Appellants moved for summary

judgment on grounds that Gaston and Ray were entitled to qualified immunity from such claims

brought against them in their individual capacities.



                                                   13
                Thompson does not dispute that Gaston and Ray were in positions requiring

discretion. He disputes that they carried their burden on the remaining elements of the defense.

Thompson complains that appellants violated his property interest in his continued employment, his

liberty interest in his reputation, his right to speak freely, and his right to privacy.

                Property interest. Thompson asserts that the System created a property interest

through its employment policies 2.3.3 and 2.3.4. A protected property interest in employment,

process, or benefit exists only when an employee has a legitimate claim of entitlement to—not just

an abstract need, desire, or unilateral expectation of—the employment, process, or benefit. See

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). The presumption that employment in Texas

is at will is difficult to overcome. See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501,

502 (Tex.1998). An employment manual alters the at-will status only if it contains language that

specifically and expressly limits the employment relationship and curtails the employer’s right to

terminate the employee. Texas State Employees Union v. Texas Workforce Comm’n, 16 S.W.3d 61,

66 (Tex. App.—Austin 2000, no pet.). Thompson contends that the policy 2.3.3 alters the at-will

relationship by requiring “adequate cause” for dismissal of nonfaculty employees at TAMU, and that

2.3.4 creates a right for employees terminated for cause to have an arbitrator review his complaint

regarding their discharge. Thompson produced more than conclusory evidence that he had a right

that appellants violated.

                Both the idea that a manual can create property interests and the evidence that the

TAMU manual created such a property interest show that Thompson’s claimed right was well-

established. Appellants do not challenge Thompson’s claim that they denied him the arbitration



                                                   14
promised by TAMU policy and requested by Thompson. There is no evidence that the denial of this

clearly established right was objectively reasonable. There is at least a fact question regarding the

objective reasonableness of the denial of this right. We conclude that the district court did not err

by denying appellants’ motion for summary judgment on this issue.

                Liberty interest. To show deprivation of a constitutional liberty interest, Thompson

must show that he was discharged without meaningful process, that he requested and was denied a

chance to clear his name, and that false, defamatory charges were made public in connection with

the discharge. See Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir. 1989). Public officials

do not act improperly in publicly disclosing charges against discharged employees, but they must

thereafter afford procedural due process to the person charged. In re Selcraig, 705 F.2d 789, 798

(5th Cir.1983). Moreover, the process due such an individual is merely a hearing providing a public

forum or opportunity to clear one’s name, not actual review of the decision to discharge the

employee. Roth, 408 U.S. at 573 n.12. If a government employer discharges an individual under

circumstances that will do special harm to the individual’s reputation and fails to give that individual

an opportunity to clear his name, however, the individual may recover monetary damages under

section 1983 for the deprivation of his liberty under the Fourteenth Amendment. Rosenstein, 876

F.2d at 395-96. The employee must prove the following: that he was discharged, that defamatory

charges were made against him in connection with the discharge, that the charges were false, that

no meaningful public hearing was conducted pre-discharge, that the charges were made public, that

he requested a hearing in which to clear his name, and that the request was denied. Id. at 395-96.




                                                  15
               Thompson asserts that appellants violated his liberty interest in his reputation by their

conduct surrounding his suspension and dismissal and by failing to offer a forum in which he could

clear his name. He complains that they announced his suspension in a press release that alleged a

$300,000 cost overrun, that they had him escorted from the building by security in full view of those

nearby, that they posted a sign in full view of the campus that the plant was “under new management.

Thompson concedes that a committee was appointed to review his suspension, but complains that

he was prohibited from contacting the committee, submitting evidence to the committee before it

made its decision, being present when the committee interviewed witnesses in unsworn testimony,

testifying before the committee, or participating in other ways. As discussed above, he was also

denied the post-termination arbitration TAMU policy promised him. We find no evidence of any

other name-clearing hearing.

               There is ample evidence that the liberty interest was well-established, and there is no

evidence to suggest that appellants were objectively reasonable to deny Thompson’s name-clearing

hearing. There is at least a fact question regarding the objective reasonableness of the denial of the

right. The district court did not err by denying appellants’ motion for summary judgment on this

issue.

               Other rights. Thompson complains about violations of his right to free speech, to

privacy, and to equal protection. He contends that appellants violated his right to free speech by

firing him for speaking out on matters of public concern. He contends that appellants violated his

right to privacy by unreasonably searching and confiscating his property; some of his property either

vanished or was damaged, and the remainder was left unattended and univentoried in a box outside



                                                 16
his former office for a month after his termination. He contends that appellants violated his right to

equal protection by terminating him for reasons that did not result in termination of others and by

denying him the arbitration that was provided to others.

               The rights allegedly violated are well established. While there is some evidence

indicating that appellants had objectively reasonable bases for firing him, searching and seizing his

belongings, or treating him differently from others, the record contains other evidence indicating that

these actions were taken for retaliatory reasons that are not objectively reasonable; thus, a fact

question existsthat makes the denial of summary judgment appropriate. See Yepez, 6 S.W.3d at 654;

see also Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 698 (Tex. App.—San Antonio 1997, no

pet.). The district court did not err by denying the motion for summary judgment.

               Our decisions are based on the record before us in this interlocutory appeal of the

denial of a motion for summary judgment based on assertions of immunity. Further proceedings up

to and including trial may produce additional evidence that dictates a different ultimate conclusion.


                                          CONCLUSION

               We conclude that appellants have sovereign immunity from Thompson’s claims for

damages based on violations of his federal constitutional rights by Ray and Gaston acting in their

official capacities. We reverse the denial of the motion for summary judgment regarding these

claims, and render judgment that Thompson take nothing by them.

               We conclude that the district court properly determined that appellants were not

entitled to summary judgment based on their remaining assertions of immunity. We affirm the

remainder of the order denying appellants’ motion for summary judgment.

                                                  17
              The cause shall proceed on these remaining claims.




                                           W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed in Part; Reversed and Rendered in Part

Filed: December 18, 2003




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