Opinion issued June 4, 2015




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00908-CV
                          ———————————
  WILLIAM MARSH RICE UNIVERSITY, RICE UNIVERSITY POLICE
      DEPARTMENT, AND OFFICER HENRY CASH, Appellants
                                      V.
                MICHAEL CLAYTON THOMAS, Appellee


                   On Appeal from the 80th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-06667


                        MEMORANDUM OPINION

      Michael Clayton Thomas sued William Marsh Rice University, the Rice

University Police Department, and Henry Cash, a Rice University police officer,

alleging that he was improperly arrested on the Rice campus. The defendants

moved for summary judgment, arguing that Cash and, by extension, the police
department and university (collectively, “Rice parties”) are entitled to official

immunity, which the trial court denied. The Rice parties now appeal from the trial

court’s order denying their motion. Because the Rice parties were entitled to

summary judgment, we reverse and render judgment that Thomas take nothing.

                                    Background

      In November 2011, Officer Cash responded to a radio call from the

university police department’s dispatcher that “a man [on the Rice campus] may be

violating a protective order by attempting to contact his wife or words to that

effect.” He encountered Thomas at the BioScience Research Center building,

identified himself, and spoke with Thomas. Thomas gave his name and stated that

he was there to see his wife. Officer Cash asked Thomas if a protective order

existed, and Thomas did not deny that such an order existed. Officer Cash then

handcuffed Thomas out of concern for his own safety and that of the public and

took him to the building security office.

      Officer Cash then conducted an investigation, during which he spoke with

Thomas’s wife, who stated that she had a protective order against Thomas. Officer

Cash next called the district attorney’s office and spoke to an assistant district

attorney, who said the district attorney’s office would verify the existence of the

protective order and would accept charges against Thomas for violating the order.

Officer Cash then arrested Thomas for violating a protective order.


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      Thomas’s vehicle was towed from the Rice University garage where he had

parked, and officers transported Thomas to the Harris County jail. While Thomas

was being processed at the jail, the officers learned that the order against him was

not a protective order, but a mutual restraining order, violation of which did not

permit Thomas’s arrest. Officers then took Thomas back to the university campus,

and he took a taxi to the lot where his car had been towed.

      Thomas sued the Rice parties for negligence; false arrest; false

imprisonment; intentional infliction of emotional distress; conversion of his

vehicle; violations of the United States Constitution under Chapter 42, Section

1983, of the United States Code; violations of the Texas Constitution; battery;

damage to his vehicle; and malicious prosecution. The Rice parties moved for a

traditional summary judgment, arguing that the doctrine of official immunity

barred Thomas’s claims against Officer Cash. Because Thomas based his claims

against the university and the department on theories of vicarious liability for

Officer Cash’s actions, the Rice parties argued that summary judgment was also

proper on those claims.

      The trial court denied the Rice parties’ motion, and the Rice parties now

appeal that order.




                                         3
                   Jurisdiction over this Interlocutory Appeal

      In their first issue, the Rice parties argue that we have jurisdiction over this

interlocutory appeal pursuant to Section 51.014(a)(5) of the Civil Practice and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West

Supp. 2015). That statute provides,

      A person may appeal from an interlocutory order of a district court . . .
      that: . . . denies a motion for summary judgment that is based on an
      assertion of immunity by an individual who is an officer or employee
      of the state or a political subdivision of the state.

Id. According to the Rice parties, Officer Cash is a peace officer commissioned

under Section 51.212 of the Education Code and, as a peace officer, is or should be

treated as an “officer . . . of the state.” They conclude that he is therefore entitled

to an interlocutory appeal under Section 51.014(a)(5). Thomas responds that we

have no jurisdiction to hear this interlocutory appeal, as Officer Cash “is not an

officer or employee of the state.”

      The Civil Practice and Remedies Code does not define “officer . . . of the

state,” and the Education Code does not specifically state that a peace officer

commissioned by a private educational institution is an “officer of the state.” But

the Education Code does provide that “[a]ny officer commissioned under the

provisions of [Section 51.212] is vested with all the powers, privileges, and

immunities of peace officers if the officer (1) is on the property under the control

and jurisdiction of the” commissioning institution, as Officer Cash was when he

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detained Thomas. TEX. EDUC. CODE ANN. § 51.212(b)(1) (West 2012) (emphasis

added). Indeed, officers commissioned under Chapter 51 of the Education Code

are explicitly included in the definition of “peace officers” in the Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. art. 2.12(8) (West 2014).

      The Supreme Court of Texas recently resolved this issue in William Marsh

Rice University v. Refaey, No. 14-0048, 2015 WL 1869890 (Tex. Apr. 24, 2015)

(per curiam). Refaey was arrested by a Rice University police officer for driving

while intoxicated, obstructing a roadway, and evading arrest. 2015 WL 1869890,

at *1. The Harris County District Attorney’s office later dismissed all charges. Id.

Refaey sued the arresting officer and the university for false imprisonment,

negligence, assault, and intentional infliction of emotional distress. Id. The officer

and university moved for summary judgment on the grounds that the officer was

entitled to the defense of official immunity. Id. The trial court denied the motion,

and the defendants filed an interlocutory appeal pursuant to Section 51.014(a)(5).

Id. The court of appeals dismissed the appeal for lack of jurisdiction, holding that

the officer was not an “officer or employee of the state,” and therefore had no

standing to appeal under that section. Id.

      The Supreme Court reversed, holding that “the ‘officer . . . of the state’

language in Section 51.014(a)(5) applies to private university peace officers,”

specifically including those commissioned under Section 51.212 of the Education


                                             5
Code. Id. at *4. It therefore concluded that the court of appeals had jurisdiction

over the officer’s interlocutory appeal. Id. Turning to the university’s appeal, the

Court noted that “an employer may rely on its employee’s assertion of immunity

for purposes of invoking interlocutory appellate jurisdiction under Section

51.014(a)(5).” Id. (citing City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656

(Tex. 1995) (per curiam)). It then held that the court of appeals had jurisdiction

over the university’s appeal, as well. Id.

      The Supreme Court’s holding in Refaey is dispositive of the Rice parties’

first issue. Because Officer Cash is an “officer . . . of the state” within the meaning

of Section 51.014(a)(5), we have jurisdiction over his appeal. See id. Because the

university and the police department based their own motions for summary

judgment and their own standing to appeal on Officer Cash’s assertion of

immunity, we also have jurisdiction over their appeal. See id. Accordingly, we

sustain the Rice parties’ first issue and proceed to the merits of the motion for

summary judgment.

                  Rice Parties’ Motion for Summary Judgment

      In their second issue, the Rice parties argue that the trial court erred by

denying their motion for summary judgment, which presented a single issue:




                                             6
whether Officer Cash and, by extension, the university and its police department

are entitled to summary judgment on the affirmative defense of official immunity. 1

A.    Standard of review and applicable law

      Because official immunity is an affirmative defense, the Rice parties must

conclusively establish each element of the defense. Kassen v. Hatley, 887 S.W.2d

4, 8 (Tex. 1994); Saade v. Villarreal, 280 S.W.3d 511, 522 (Tex. App.—Houston

[14th Dist.] 2009, pet. dism’d); see also Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 156–57 (Tex. 2004). “We apply the same standard for reviewing the

denial of summary judgment where there is an assertion of immunity as we do for

the granting of summary judgment.” Welch v. Milton, 185 S.W.3d 586, 593 (Tex.

App.—Dallas 2006, pets. denied); see also Saade, 280 S.W.3d at 522; Bartlett v.

Cinemark USA, Inc., 908 S.W.2d 229, 233 (Tex. App.—Dallas 1995, no writ).

      The standard of review for summary judgments is well-established. We

review the trial court’s ruling de novo. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003); FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872 (Tex. 2000). “[W]e take as true all evidence favorable

to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Knott, 128 S.W.3d at 215. The party moving


1
      The motion also requested summary judgment on Thomas’s defamation claim as
      barred by the statute of limitations. That cause of action, however, does not
      appear in Thomas’s live pleading and is therefore abandoned.
                                         7
for summary judgment bears the burden to show that no genuine issue of material

fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV.

P. 166a; Knott, 128 S.W.3d at 215–16.

      “Any officer commissioned under the provisions of [Section 51.212 of the

Education Code] is vested with all the powers, privileges, and immunities of peace

officers if the officer” satisfies any of several conditions, one of which is that he

“is on the property under the control and jurisdiction of the respective private

institution of higher education.” TEX. EDUC. CODE ANN. § 51.212(b)(1). Indeed,

an officer commissioned under Section 51.212(a) of the Education Code is a

“peace officer.” Id. § 51.212(a); TEX. CODE CRIM. PROC. ANN. art. 2.12(8) (West

2014) (defining “peace officers”); see also TEX. EDUC. CODE ANN. § 51.212(c)

(officer commissioned under that section must “take and file the oath required of

peace officers” and “execute and file a good and sufficient bond” conditioned on

officer’s fair, impartial, and faithful performance of officer’s duty).

      “Government employees, such as peace officers, are entitled to immunity

from suit arising from the performance of (1) discretionary duties in (2) good faith

as long as they are (3) acting within the scope of their authority.”         City of

Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App.—Houston [1st Dist.]

1995, no writ); see Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424

(Tex. 2004); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994);


                                           8
Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App.—Houston

[1st Dist.] 2011, no pet.). The Supreme Court of Texas has explained the policy

purpose of the doctrine of official immunity as follows: “Common law official

immunity is based on the 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, 144 S.W.3d

at 424. “The public would suffer if government officials, who must exercise

judgment and discretion in their jobs, were subject to civil lawsuits that second-

guessed their decisions.” Id. (quoting Kassen, 887 S.W.2d at 8).

B.    Officer Cash’s Defense of Official Immunity

      To establish his official immunity defense, Officer Cash must establish three

elements: the performance of (1) discretionary duties (2) in good faith (3) while

acting within the scope of his authority. Ballantyne, 144 S.W.3d at 424; Chambers,

883 S.W.2d at 653; Rodriguez, 344 S.W.3d at 488.

         1. Discretionary Act

      “Discretionary actions are those that require personal deliberation, decision

and judgment.” Ervin v. James, 874 S.W.2d 713, 716 (Tex. App.—Houston [14th

Dist.] 1994, writ denied). By contrast, “[m]inisterial actions require obedience to

order or the performance of a duty as to which the actor is left no choice.” Id.

“Ministerial acts are those ‘where the law prescribes and defines the duties to be


                                         9
performed with such precision and certainty as to leave nothing to the exercise of

discretion or judgment.’” Sw. Bell Tel., L.P. v. Emmett, No. 13-0584, 2015 WL

1285326, at *7 (Tex. Mar. 20, 2015) (quoting Chambers, 883 S.W.2d at 654).

      “The investigatory duties of peace officers have been held to fall within

those actions considered discretionary.” City of Columbus, 921 S.W.2d at 272.

Further, “[i]f, how, and when to arrest a suspect is within a police officer’s

discretion.”   Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 178 (Tex.

App.—Dallas 2010, pet. denied); see City of Columbus, 921 S.W.2d at 272.

      Thomas argues that Officer Cash’s decision to arrest him could not have

been discretionary for three reasons: (1) there was no probable cause to arrest him;

(2) Rice police department policy required Officer Cash to verify the existence of a

valid protective order before making an arrest, and that requirement imposed a

ministerial duty; and (3) Officer “Cash’s defense that he acted because the [district

attorney] told him the [district attorney] would verify the protective order is

suspect” for a variety of reasons which are repetitive of his other two arguments.

In his brief, these arguments overlap and are all based on whether Officer Cash

properly verified the existence of the protective order, in accordance with Rice

police procedures. Because the court order involved was a restraining order,

violation of which did not permit Thomas’s arrest, Thomas reasons that Officer




                                         10
Cash could not have believed that probable cause existed when he arrested

Thomas.

      Thomas relies on the fact that Officer Cash did not definitively determine

whether the order was a protective order or a restraining order until after the arrest,

which he contends violates Rice University Police Department General Directive

08(B)(2) and a resulting ministerial duty.        The General Directive 2 states, in

relevant part, “When probable cause [exists] to believe a person has committed an

action which violates the terms of a valid Protective Order, prior to arrest,

verification of existence of Protective Order will be made.” According to Thomas,

this section of the General Directive imposed a ministerial duty on Officer Cash to

definitively confirm the existence of a protective order, either by contacting other

law enforcement agencies or by reviewing the order himself.

      The same section of the General Directive provides two means by which an

officer “may” obtain information on a Protective Order—each of which consists of

asking another law enforcement agency—but does not specify that any particular

method must be used. It also provides that “[p]hysical possession [of a] Protective

Order is not necessary.” The directive does not “leave nothing to the exercise of

discretion or judgment” with respect to the manner of verification and therefore

2
      The copy in the record, which Thomas attached to his response to the Rice parties’
      motion for summary judgment, is not authenticated. Neither party addresses this
      fact in its briefs. We will assume without deciding that the document was
      properly before the trial court.
                                          11
does not impose a ministerial duty. Emmett, 2015 WL 1285326, at *7; Chambers,

883 S.W.2d at 654.

      The evidence relied on by Officer Cash establishes that he had probable

cause to believe that Thomas was violating a protective order before the arrest, and

Thomas has not raised a fact issue as to the existence of probable cause or the

requirements of the department’s General Directive. We hold that the evidence

conclusively establishes that, in questioning, detaining, and arresting Thomas,

Officer Cash was performing a discretionary act.

      2.    Good Faith

      “To determine whether a public official acted in good faith, we use the

objective standard adopted in Chambers and ask whether a reasonably prudent

official, under the same or similar circumstances, could have believed that his

conduct was justified based on the information he possessed when the conduct

occurred.” Ballantyne, 144 S.W.3d at 426; Chambers, 883 S.W.2d at 656. “The

standard of good faith as an element of official immunity is not a test of

carelessness or negligence, or a measure of an official’s motivation.” Ballantyne,

144 S.W.3d at 426.      “This test of good faith does not inquire into ‘what a

reasonable person would have done,’ but into ‘what a reasonable [person] could

have believed.’” Id. (quoting Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex.

2002)); see Chambers, 883 S.W.2d at 656–57.


                                        12
      Officer Cash presented his own affidavit detailing the steps he took to

investigate whether a protective order existed. He also presented an affidavit from

Chief Steven McGee, police chief for Texas Christian University’s Police

Department, in which Chief McGee opined that Officer Cash’s beliefs and

behavior were those of a reasonable police officer under the circumstances at the

time of Thomas’s arrest. The only evidence to which Thomas cites in response is

his own testimony that, after Officer Cash took him to the Rice police station, “one

of the officers held the papers and said, ‘You violated this order, that’s why you’re

being under arrest,’” and an unauthenticated recording of the dispatcher’s radio

call. 3 He has not identified any evidence that Officer Cash could not reasonably

have believed that Thomas was violating a protective order at the time of the arrest.

He therefore failed to raise a fact issue to survive summary judgment on this basis.

See Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465; Chambers, 883

S.W.2d at 656–57.




3
      According to Thomas, the recording describes the order in question as a
      “restraining order,” not a “protective order.” But the recording itself is not in the
      record. Thomas attached to his response to the motion for summary judgment
      only a photocopy of a CD case and CD purportedly containing the recording.
      Although his response stated that he would file a copy of the disc itself, he did not
      do so. There is thus no evidence in the record, other than Officer Cash’s affidavit,
      of what the dispatcher said or what Officer Cash heard in the dispatcher’s radio
      call.
                                           13
      3.     Scope of Officer Cash’s Duties

      “An official acts within the scope of [his] authority if [he] is discharging the

duties generally assigned to [him].” Chambers, 883 S.W.2d at 658. Thomas did

not challenge the “scope of duty” element of the defense of official immunity in

his response to the Rice parties’ motion for summary judgment. Nonetheless, on

appeal, he argues,

      It is undisputed that [Officer Cash’s] authority and duties did not
      include the authority to disregard the written mandated policies of his
      employer, did not include the authority to disregard the express
      written order of a district judge, [and] did not include the authority to
      make a false statement to the DA’s representative. Therefore, [Officer
      Cash] was outside the scope of his authority when he arrested
      [Thomas].

The above statements constitute the entirety of his argument on this point. Thomas

does not cite any authority or evidence in support of this theory.

      Officer Cash introduced evidence, in the form of his own affidavit and that

of Chief McGee, that he arrested Thomas in the course of discharging his duties as

a peace officer at Rice University. And for the reasons we have already discussed,

there is no evidence that, at the time that he arrested Thomas, Officer Cash

“disregard[ed]” any mandatory policies of his employer or a court order. Nor is

there any evidence that Officer Cash’s statements to the district attorney’s office—

that he believed a protective order existed and that he did not have a copy of that




                                         14
order—were false, much less that Officer Cash knew they were false when making

them. 4

      By attempting to keep the peace, protect campus employees and the general

public, and arrest an individual believed to be violating a protective order, Officer

Cash was discharging the type of duties generally assigned to him. Cf. City of

Lancaster, 883 S.W.2d at 658.       Recasting those actions as being negligently

performed or in violation of department protocols does not remove them from the

officer’s scope of authority. Id.; Harris Cnty. v. Ochoa, 881 S.W.2d 884, 888

(Tex. App.—Houston [14th Dist.] 1994, writ denied) (officer’s pursuit of suspect

was act within scope of authority, even if wrongly or negligently performed).

      Officer Cash adduced evidence sufficient to meet his evidentiary burden to

obtain summary judgment, and Thomas did not raise any issues of material fact as

to any element of Officer Cash’s defense. We therefore hold that Officer Cash

conclusively proved his entitlement to the defense of official immunity and was

entitled to summary judgment.

C.    The University and Police Department’s Entitlement to Summary
      Judgment

      The Rice parties argue that they are entitled to summary judgment because

Thomas’s claims against them all rest on theories of vicarious liability. Thomas

4
      We need not and do not opine on whether, if such evidence existed, it would
      suffice to meet Thomas’s burden to demonstrate the existence of a genuine issue
      of material fact as to whether Officer Cash acted within the scope of his duties.
                                          15
argues that Officer Cash cannot prove the elements of his affirmative defense and,

therefore, the university and police department are not entitled to summary

judgment. We have already held that Officer Cash has proven his defense. Thus,

the only question remaining is whether the university and its police department are

entitled to summary judgment due to Officer Cash’s official immunity.

      Official immunity directly protects only the individual officer, not the entity

that employs him. E.g., DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995).

But when the officer establishes that he is entitled to that defense, the employer is

entitled to assert it, as well. Id. at 654; see Refaey, 2015 WL 1869890, at *4.

      No Texas case appears to address the precise situation before us, in which a

private entity, such as an educational institution, may assert as a defense the fact

that its employee established a defense of official immunity. 5 Binding precedent,

however, is entirely clear that a private entity is “entitled to assert any affirmative

defenses its employee has to liability.” DeWitt, 904 S.W.2d at 654. In DeWitt v.

Harris County, 904 S.W.2d 650 (Tex. 1995), the Supreme Court addressed the

question “whether a governmental entity may have respondeat superior liability

under section 101.021(2) of the Texas Tort Claims Act for the negligence of its

employee when the employee possesses official immunity” and answered it in the


5
      Although Refaey involved a similar fact pattern, the Supreme Court did not reach
      the merits of the motion for summary judgment, and the court of appeals has not
      yet issued its opinion on remand.
                                          16
negative. Id. at 651. Although the employer in that case was a governmental

entity, the Court based its holding in part on whether a governmental entity should

be treated differently than a private one. Id. at 654. It reasoned that, if Harris

County “were a private person, [it] would be entitled to assert any affirmative

defenses its employee has to liability.” Id. It concluded that it “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 therefore held that the county was entitled to judgment

on the basis of its employee’s official immunity. Id.

      The Court reaffirmed this logic in its recent opinion in Refaey when it held

that the university “may rely on its [peace officer] employee’s assertion of

immunity for purposes of invoking interlocutory appellate jurisdiction under

section 51.014(a)(5).” Refaey, 2015 WL 1869890, at *4 (citing City of Beverly

Hills, 904 S.W.2d at 656 (relying on the reasoning of DeWitt, 904 S.W.2d at 654)).

That holding would have no practical impact unless the university is also entitled

to rely on the officer’s assertion of immunity for purposes of the underlying motion

for summary judgment. There is no reason in this case to depart from the logic of

DeWitt and Refaey by holding that the university and police department cannot

assert the same defense as their employee.




                                         17
      We hold that the university and its police department were entitled to

summary judgment.

                                   Conclusion

      The Rice parties were entitled to summary judgment because Officer Cash

established the defense of official immunity and all of Thomas’s claims against the

university or the police department are derivative of his claims against Officer

Cash. We reverse the order of the trial court and render judgment that Thomas

take nothing by his claims. We dismiss all pending motions as moot.




                                             Harvey Brown
                                             Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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