DeWitt v. Harris County
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 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.