The Latin phrase “rex non potest peccare” translates as “the king can do no wrong.” This mantra formed the basis of sovereign immunity in the English monarchy where the king—who was synonymous with the state—could not be liable for damages to mere citizens because no act of the crown could constitute a legal injury. Therefore, American law, which developed out of the English common law, begins with the same basic premise—the government is not liable to citizens for the harms it causes. However, the government can be liable for certain acts if it waives its immunity by statute. In our state, this statute is the Texas Tort Claims Act, which permits suit against governmental entities in limited, specific circumstances.

First and foremost, it is important to remember that state and local entities, including municipalities and school districts, are not immune from suit or liability for violations of federal law or the United States Constitution. Common federal claims against state and local entities include civil rights actions under §1983, suits for violations of federal copyright law, and suits alleging violations of the Americans with Disabilities Act or the Individuals with Disabilities Education Act. Governmental entities are susceptible to actions from plaintiffs under these statutes.

Under the Texas Tort Claims Act, a governmental unit in the state is liable for:

  • Property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

○ the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven  equipment; and

○ the employee would be personally liable to the claimant according to Texas law.

                        and

  • personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

The first part of the Texas Tort Claims Act is the most well-known to government employees and members of the public—a private citizen can sue the government when the use or operation of a motor vehicle or motor-driven equipment causes property damage, injury, or death. Importantly, the “use” of the motor vehicle or motor-driven equipment must be the cause of the plaintiff’s injury. The fact that an injury occurs “in” a motor vehicle is not always enough. This distinction is important when it comes to city and school buses. If the accident occurs because of the use of the bus—such as a driver hitting a pedestrian or another car—the Texas Tort Claims Act can be invoked to avoid governmental immunity. However, if a person is merely injured in a bus, and the use of the bus did not cause the injury, such as by injury to a student when the driver fails to supervise the passengers, governmental immunity may not be waived. Courts interpret the word “use” on a case by case basis depending upon the circumstances of the lawsuit. As such, governmental entities should take care any time motor-driven equipment, such as a golf cart, ATV, or certain power tools are used by government employees.

The second part of the Texas Tort Claims Act, frequently referred to as the “property” portion of the Act, imposes a kind of premises liability on governmental entities. Premises liability can range from the typical slip-and-fall case to serious injuries caused by unsafe infrastructure. Importantly, this section of the Texas Tort Claims Act does not apply to school districts or junior college districts (TEX. CIV. PRAC. & REM. CODE § 101.051). This section is intended to encourage government entities to maintain safe premises, and to use property carefully. Unlike the motor vehicle portion of the Texas Tort Claims Act, the property section only imposes liability for deaths or personal injuries—a plaintiff cannot recover for damage to his or her property. Routine maintenance of government-owned property and premises is central to avoiding liability under this provision.

Notably, Texas law divides the functions of municipalities into two categories: “governmental functions” and “proprietary functions.” A municipality can only be liable for wrongs committed when exercising “governmental functions” if the Texas Tort Claims Act applies. The Texas Civil Practice and Remedies Code lists a non-exhaustive list of governmental functions in Section 101.0215. However, a municipality is liable to the same extent as a private person when it causes injury when exercising “proprietary functions,” which include, but are not limited to: (1) the operation and maintenance of a public utility; (2) amusements owned and operated by the municipality; and (3) any activity that is abnormally dangerous or ultra-hazardous. Thus, a plaintiff does not have to show that the Texas Tort Claims Act applies in these circumstances.

Because the Texas Tort Claims Act absolves governmental entities from liability in many circumstances (and also caps possible damages), governmental entities should avoid paying settlements to demanding citizens unless specifically advised to do so by an attorney. The payment of funds to a private citizen to pay for a claim from which the entity is immune may constitute the use of public funds for a private purpose, which is prohibited under the Texas Constitution. Government employees are encouraged to become familiar with the Texas Tort Claims Act, and to consult legal counsel when immunity issues arise.

 

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.