Presented at the TWCA Convention 2015 - Bill Helfand of Chamberlain, Hrdlicka, White, Williams & Aughtry

1. INDIVIDUAL LIABILITY FOR WATER
AUTHORITY BOARD MEMBERS
Bill Helfand
Chamberlain, Hrdlicka, White, Williams &
Aughtry
Houston  San Antonio  Atlanta  Philadelphia  Denver
Copyright © 2014

2. Statutory “Employee” Immunity
• Since the most recent amendment to the Tort Claims Act,
employees, as defined by § 101.001(2), are essentially immune
from suits for torts
• Employee means a person who is in the paid service of a
Governmental Unit by a competent authority, but does not include an
independent contractor.
• To the extent board members are not “in the paid service,” they should be to
benefit from this legislative enactment.
• The filing of a suit under the Texas Tort Claims Act against a
governmental unit constitutes an irrevocable election by the
plaintiff and immediately and forever bars any suit or recovery
by the plaintiff against any individual employee of the
governmental unit regarding the same subject matter.
• Tex. Civ. Prac. & Rem. Code § 101.106(a)

3. Statutory “Employee” Immunity
• The settlement of a claim arising under the Texas Tort Claims Act shall
immediately and forever bar the claimant from any suit against or
recovery from any employee of the same governmental unit regarding
the same subject matter.
• Tex. Civ. Prac. & Rem. Code § 101.106(c).
• If a suit is filed under the Texas Tort Claims Act against both a
governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental
unit.
• Tex. Civ. Prac. & Rem. Code § 101.106(e).
• If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it
could have been brought under the Texas Tort Claims Act against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only. On the employee’s motion, the suit
against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date
the motion is filed.
• Tex. Civ. Prac. & Rem. Code § 101.106(f).

4. Common law immunity
• Government officers and employees who are sued in their
individual capacities are entitled to immunity from suit
arising from the performance of their (1) discretionary
duties, (2) in good faith, and so long as they are (3) acting
within the scope of their authority.
• City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
• This immunity is referred to as “official immunity,”
“qualified immunity,” or “quasi-judicial immunity.”
• See, e.g., Perry v. Texas A & I University, 737 S.W.2d 106, 109
(Tex. App.—Corpus Christi 1987, ref. n.r.e.).
• It is essentially outdated for torts claims in light of
amendments to Tort Claims Act
• But could have applicability to non-tort claims.

5. Common Law Immunity
Discretionary vs. Ministerial Acts
• Official immunity extends to acts that are discretionary in
character.
• An act is discretionary if it requires personal deliberation, decision,
and judgment.
• Government officers and employees who are sued in their
individual capacities have no immunity for “ministerial
acts,” and are liable for their tortious conduct to the same
extent as private individuals when their conduct involves
such acts.
• Ministerial acts require obedience to orders or the performance of a
duty as to which the official has no choice or discretion.

6. Legislative Immunity
• Absolute, legislative immunity attaches to all actions taken
in the sphere of legitimate legislative activity.
• Accordingly, local legislators are entitled to absolute immunity from
liability for their legislative activities.
• Includes state law claims
• Torres v. Owens, 380 S.W.2d 30, 34 (Civ. App.—Corpus Christi 1964, ref.
n.r.e.) (members of Board of Navigators and Canal Commissioners, who were
sued in their individual capacities, acted in quasi-judicial capacity in making
contract for dredging and letting it to particular contractor).
• and federal claims such as civil rights violations
• Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 970 (1998)
…local legislators are absolutely immune from suit under § 1983 for
their legislative activities.

7. Legislative Immunity
• Functional analysis applies to determine applicability
• first test focuses on nature of the facts used to reach the
decision.
• where the facts are legislative facts which relate to policy or a state of
affairs, decision is legislative and legislative privilege applies
• test involves the challenged action
• where action establishes a general policy it is legislative, but where the
action singles out individuals and allegedly disparate treatment results,
the action is administrative in nature and the legislative privilege will not
likely apply.
• Ultimately, when a legislator acts to create a policy which constitutes a
prospective rule, an overall plan, or overall policy, the act is protected by the
legislative privilege.
• Where, instead, legislative action is characterized as enforcement, or singles
out specific individuals, it is considered executive action subject only to a
qualified privilege or immunity.

8. Legislative Privilege
• Tied to legislative immunity and emanates from
considerations underlying the “speech and debate” clause
• "The purpose of the doctrine is to prevent legislators from having to
testify regarding matters of legislative conduct, whether or not they
are testifying to defend themselves.“
• Further related to the fact that the legitimacy of any legislative
enactment is judged on its face and not the description given by
any legislator.
• legislative act expresses the collective will of the legislative body
• “[w]hether an act is legislative turns on the nature of the act, rather than
on the motive or intent of the official performing it.” Bogan, 523 U.S. at
54, 118 S.Ct. at 973.
• Supported under state and federal jurisprudence
• Belongs to the governmental entity, even if not urged by an
individual.
• In re Perry, 60 S.W.3d 857, 859 (Tex. 2001)

9. Exception for ultra vires acts
• While statutory immunity likely would to some extent, common
law immunity does not, protect from individual liability for ultra
vires acts.
• To fall within the ultra vires exception, a suit must not complain of a
government officer’s exercise of discretion, but rather must allege, and
ultimately prove, that the officer acted without legal authority or
failed to perform a purely ministerial act.
• City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
• In the context of condemnations, direct or inverse, not likely to affect
individual board members
• Will of the majority of the board controls
• Decision of public purpose accorded high degree of deference
• A legislative declaration “is binding on the court unless it is manifestly wrong or
unreasonable, or the purpose for which the declaration is enacted is clearly and
palpably private. City of Arlington, Tex. v. Golddust Twins Realty Corp., 41 F.3d
960, 963 (5th Cir. 1994).
• Legal authority exists, even if propriety of decision is questioned

10. Take-aways
• Be in the “paid service” to be an Employee and thus
protected by the Tort Claims Act immunity for individuals
• Don’t act ultra vires
• Don’t act or take actions that could be construed as derogating
from ministerial duties.
• Few likely apply to board members
• Don’t take or participate in actions without legal authority
• Individual, as opposed to board, actions are much more dangerous
• Don’t take or participate in actions that could be construed as
advancing a self-interest.
• Would likely be argued as acting without legal authority