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Thomas v. White3/20/2003
Cynthia M. White enrolled her child, Gearrin M. White, in Amelia Elementary School and its after school daycare program. On the first day, she arrived at school at approximately 4:30 p.m. to pick up Gearrin and was informed by the principal that Gearrin had walked off the school campus and had been retrieved from a street corner by a teacher after a citizen had called the school. White sued Beaumont Independent School District ("BISD"), alleging that the district failed to adequately supervise Gearrin during the after school daycare period; she also sued the Superintendent, Dr. Carrol Thomas, individually and in his official capacity, alleging that Thomas "failed and ignored to take the appropriate actions to resolve this matter." Thomas and BISD filed a motion for summary judgment on the grounds of sovereign immunity. The trial court denied the motion, and the defendants appealed pursuant to Tex. Civ. Prac. & Rem. Code Ann. ยง 51.014 (a)(5) (Vernon Supp. 2003)("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. . . .").
As a government employee asserting immunity, Thomas may appeal the denial of his motion for summary judgment. See City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 892 (Tex. App.--Fort Worth 2001, pet. denied)("The application of section 51.014(a)(5) does not depend on whether a person is sued in his individual or official capacity."); see also Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997)(The denial of a claim under an immunity statute may be appealed under Section 51.014(a)(5)). For BISD to pursue an interlocutory appeal under Section 51.014(a)(5), the motion for summary judgment must have been based upon an assertion of immunity by its employee. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993); Brazos Transit Dist. v. Lozano, 72 S.W.3d 442, 444 (Tex. App.--Beaumont 2002, no pet.). That may be accomplished, as it was noted in Kilburn and in Brazos, through the state's derivative assertion of the employee's qualified or official immunity. Id. We also have jurisdiction over the government's appeal when the individual employee, such as Dr. Thomas, asserts and appeals any claim of immunity. See Garza v. Morales, 923 S.W.2d 800, 801-02 (Tex. App.--Corpus Christi 1996, no writ)(City could appeal where individual employee raised judicial and official immunity); Village of Bayou Vista v. Glaskox, 899 S.W.2d 826, 828-30 (Tex. App.--Houston [14th Dist.] 1995, no writ)(City could appeal where individual employee raised government immunity and qualified immunity).
The appellants argue that White filed a tort suit for which the government's sovereign immunity has not been waived. Unless waived, sovereign immunity protects the State and its subdivisions from both suit and liability for damages. Texas Dep't of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Without the State's express consent to the suit, the trial court lacks subject matter jurisdiction to hear the suit. Id.; see also Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). A defendant is entitled to summary judgment on an affirmative defense, such as sovereign immunity, if he conclusively establishes all of the elements of the affirmative defense. Foster v. Denton Indep. School Dist., 73 S.W.3d 454, 459 (Tex. App.--Fort Worth 2002, no pet.).
The plaintiff's original petition articulates her cause of action, as follows:
Defendant, BEAUMONT INDEPENDENT SCHOOL DISTRICT, carelessly and negligently failed to adequately supervise GEAR
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