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Moore v. Novark9/28/1995
si-judicial. Id. at 597. Such an act clearly calls for the officer's "personal deliberation, decision, and judgment." Id. Here, Constable Moore's actions in investigating reported wrongful conduct by one of his employees and then furnishing those reports to federal authorities were discretionary and within the scope of his authority. After finding no fact issue was raised as to the officer's good faith in Boozier, the court held that she was entitled to judgement on her affirmative defense of official immunity as a matter of law. Id. at 598.
The record in this case also reveals no evidence disputing Constable Moore's good faith. Constable Moore obtained statements from the deputies and there is no evidence that he did not believe those statements. He merely cooperated with the FBI and U.S. Attorney's Office. To defeat Constable Moore's good faith defense, Novark had to show that no reasonable person in Constable Moore's position could have thought the facts were such that they justified Constable Moore's actions. See Chambers, 883 S.W.2d at 657. Novark failed in this proof; there is no evidence that Constable Moore's actions were unreasonable.
We hold that Constable Moore is entitled to official immunity as a matter of law and sustain his legal sufficiency challenge in point of error ten.
DEPUTIES SCHELSTEDER AND VAN SHOUBROUEK
Apart from the two points of error concerning the sanctions order already discussed, the deputies bring fourteen additional points of error. They complain of charge error, the sufficiency of the evidence, exclusion of evidence, the award of attorney's fees and calculation of pre-judgment interest.
Charge Error
The deputies complain of the trial court's refusal to submit their requested instructions. The trial court has wide discretion in submitting explanatory instructions and definitions. Wisenbarger v. Gonzales Warm Springs Rehab. Hosp., Inc., 789 S.W.2d 688, 692 (Tex. App. -- Corpus Christi 1990, writ denied). Instructions and definitions are proper when raised by the written pleadings, supported by the evidence, and they aid the jury in answering the questions in the charge. TEX. R. CIV. P. 277, 278.
If error in the charge is found, we then review the pleadings, evidence, and entire charge to determine if the error is harmful. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986). In order to reverse a judgement based on error in the charge, appellants must establish that " he error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgement . . . ." TEX. R. APP. P. 81(b)(1).
1. Good Faith Qualified Immunity
In the deputies' eighth point of error, they contend the trial court erred in refusing to instruct the jury on good faith which would entitle them to qualified immunity. Generally, immunity is a question of law for the court to decide at the earliest possible stage of litigation. Hunter v. Bryant, 502 U.S. 224, ___, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 646 n.6, (1987). A jury, however, if properly instructed, may decide the question of immunity if there is a disputed issue of material fact. Presley v. City of Benbrook, 4 F.3d 405, 409 (5th Cir. 1993); see also Baker v. Story, 621 S.W.2d 639, 645-46 (Tex. App. -- San Antonio 1981, writ ref'd n.r.e.) (instructed verdict reversed where state employee's immunity should have been submitted to jury).
As already discussed in connection with Constable Moore, the elements of the affirmative defense of official immunity are: (1) the perfor
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