Opinion issued July 11, 2019




                                     In The

                               Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                               NO. 01-17-00875-CV
                           ———————————
JOHN RUFF AND CATHERINE LOTH, INDIVIDUALLY AND AS NEXT
        FRIENDS OF A.R., A MINOR CHILD, Appellants
                                        V.
              THE UNIVERSITY OF ST. THOMAS, Appellee


                  On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Case No. 2016-19616


                          CONCURRING OPINION

     I join the Court’s opinion, but I write separately to highlight that the Chapter

33 parental-immunity cases relied on by the Court—Shoemake v. Fogel, Ltd., 826

S.W.2d 933 (Tex. 1992), Gem Homes, Inc. v. Contreras, 861 S.W.2d 449 (Tex.

App.—El Paso 1993, writ denied), and Plainview Motels, Inc. v. Reynolds, 127
S.W.3d 21 (Tex. App.—Tyler 2003, pet. denied)—were all decided under the pre-

2003 amendment versions of Chapter 33 and that under the post-2003 amendment

version of Chapter 33, immune persons can be designated as responsible third

parties. See In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 58 n.5 (Tex. App.—

Houston [1st Dist.] 2005, orig. proceeding) (“Under the newly enacted version, a

responsible third party may include persons . . . who are immune from liability to

the claimant.”) (citing TEX. CIV. PRAC. & REM. CODE § 33.011(6)); see also Fisher

v. Halliburton, 667 F.3d 602, 622 (5th Cir. 2012); Galbraith Eng’g Consultants,

Inc. v. Puchucha, 290 S.W.3d 863, 868 n.6 (Tex. 2009) (“The 2003 amendments

substantially broadened the meaning of the term ‘responsible third party’ . . .

regardless of whether . . . there is some other impediment to the imposition of

liability on them, such as a statutory immunity.”); David W. Holman, Responsible

Third Parties, 46 S. TEX. L. REV. 869, 885 (2005) (noting that a “claimant’s

parents whom the claimant cannot sue because of parental immunity” may now be

submitted as responsible third parties after 2003 amendments).

      Texas federal district courts applying Chapter 33 have therefore specifically

ruled that, despite assertions of parental immunity, parents—even if they are

already plaintiffs individually or as next friends of their minor children—may be

designated as responsible third parties to have their proportionate responsibility

determined by the fact finder. See Rubi v. MTD Prods., Inc., No. H-15-1831, 2016


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WL 7638150, at *5–6 (S.D. Tex. Dec. 13, 2016); Hernandez v. Bumbo (Pty.) Ltd.,

No. 3:12-cv-1213-M, 2014 WL 924238, at *2–5 (N.D. Tex. Mar. 10, 2014) (noting

that allowing designation of mother as responsible third party was “only

mechanism by which such alleged fault could be considered” because mother’s

“assertion of parental immunity would preclude Defendants from asserting any

claim for contribution against her, thereby making a claim by Defendants against

her legally untenable”).

      The University did not seek to designate Ruff and Loth as responsible third

parties—the “only mechanism by which [their] alleged fault could be considered.”

Hernandez, 2014 WL 924238, at *5. Therefore, on the record in this case, I agree

that the trial court erred in reducing the judgment based on the apportionment

findings.




                                            Richard Hightower
                                            Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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