Governmental Unit Tort Liability In Texas

Under the Texas Tort Claims Act, a governmental unit is liable for property damage, personal injury, or wrongful death caused by an employee acting within the scope of his employment if it arose from the operation of a motor-vehicle or motor driven equipment, and the employee would be personally liable to the claimant according to Texas law. See TEX. CIV. PRAC. & REM. CODE 101.021(1) (Vernon 1997). A governmental unit includes a political subdivision of the State. See TEX. CIV. PRAC. & REM. CODE 101.001(2)(B) (Vernon Supp. 2000). Similarly, a governmental unit is liable for personal injury or death 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. See id. 101.021(2). The Texas Supreme Court in DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995) construed the italicized portion of both of these provisions to allow a county to assert the official immunity of its employees for their negligence when the basis of the county's liability is respondeat superior because that liability is derivative or indirect. See DeWitt, 904 S.W.2d at 653-54. Thus, the court observed "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 official are covered by official immunity." See DeWitt, 904 S.W.2d at 654. In Hornhorst v. University of North Texas, we held that use of the word "person" in the Anti-Retaliation Law refers only to employers. See 983 S.W.2d at 875-76. Our holding was based in part on the Texas Supreme Court's decision in Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998). See Hornhorst, 983 S.W.2d at 875. The issue in Bouchet was whether a prospective employer could be held liable for acts that would be violative of the Anti-Retaliation Law. See Bouchet, 963 S.W.2d at 56-57. The Texas Supreme Court held that the Anti-Retaliation law is "intended to apply only to employees and employers who acted under the Texas Workers' Compensation Act." Id. In noting the court's holding in Bouchet, we held that the Anti-Retaliation Law does not create a cause of action against the individual supervisor of an employer. See Hornhorst, 983 S.W.2d at 875-76 (citing Stewart v. Littlefield, 982 S.W.2d 133, 136-37 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (holding "person" means "employer" and no cause of action existed against individual supervisor)). But see City of Palestine v. Ramirez, 925 S.W.2d 250, 252-53 (Tex. App.--Tyler 1996) (allowing chief of police to assert official immunity to suit under Anti-Retaliation Law, prior to Bouchet).