Archives for June 2012

Governmental Tort Liability, Governmental Immunity, Texas

View from under the Texas State Capitol DomeGovernmental entities are generally shielded from liability by “sovereign immunity”.  In order to hold a protected governmental entity accountable, a waiver of this immunity is necessary.  This post deals with governmental tort liability.  A separate analysis must be done for governmental contractual liability.

Texas Tort Claims Act

In Texas, Sec. 101.02 of the The Texas Tort Claims Act provides a waiver and permission to sue Texas Governmental units –  the State of Texas and all the several agencies of government that collectively constitute the government of Texas as well as the political subdivisions of Texas.  However, the waiver is not unlimited:

Sec. 101.021.  GOVERNMENTAL LIABILITY. A governmental unit in the state is liable for:

(1)  property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A)  the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B)  the employee would be personally liable to the claimant according to Texas law; and

(2)  personal injury and death so 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.

As you can see, the waiver is generally limited to the operation or use of a motor-driven vehicle or motor-driven equipment and a condition or use of tangible personal or real property.

Furthermore, Section 101.056 DISCRETIONARY POWERS preserves the governmental unit’s immunity for the performance or non-performance of an act left to the discretion of the governmental unit.

The Supreme Court of Texas has determined that “[a]n act is discretionary if it requires exercising judgment and the law does not mandate performing the act with such precision that nothing is left to discretion or judgment.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). Thus, “[a] distinction is drawn between the negligent formulation of policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for which immunity is waived.”Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007).

If the Texas Tort Claims Act applies and provides a waiver of immunity,  Sec. 101.023 of the Act limits the amount of recovery in those situations that fall within the waiver.

The Act must be studied with an eye toward the type of governmental entity that caused the harm.  For example,  Sec. 101.051 limits the waiver with regard to school districts or junior college districts to motor vehicles.

Notice Requirements

It is very important to pay attention to the Notice requirements in Sec. 101.101 of the Act:

NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1)  the damage or injury claimed;

(2)  the time and place of the incident; and

(3)  the incident.

(b)  A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.

(c)  The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.

One cannot assume that the Notice must be sent within six months.  There may be a city charter and ordinance requiring notice in a shorter time.  

In summary, the are limited situations where the Texas Tort Claims Act waives immunity, the Act must be examined closely for a particular fact scenario and special care must be taken to satisfy the Notice requirements.

It should also be noted that there are also other limited waivers of sovereign immunity.  For example, Sec. 180.006.  SOVEREIGN OR GOVERNMENTAL IMMUNITY WAIVED FOR CERTAIN CLAIMS provides a waiver for the back pay of firefighters and police officers.

Municipalities

Municipalities fall within the Texas Tort Claims Act, but have their own considerations.  I published an entire law review article on this subject while in law school, and it is a difficult subject to limit to a post.  However, the article can be found at Comment,  “Texas Municipal Liability: An Examination of the State and Federal Causes of Action,” 40 Baylor Law Review 595, 1988.

Sec. 101.0215 of the The Texas Tort Claims Act deals specifically with the liability of municipalities. Sec. 101.0215.  LIABILITY OF A MUNICIPALITY separates the functions of a municipality into its governmental functions and its proprietary functions.  The governmental functions are those “enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty…” and are covered by the Act.  On the other hand, proprietary functions,  those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality, are not covered by the Act; and a municipality is not immune from suit for torts committed in the performance of its proprietary functions. See Sec. 101.0215(b) .

Federal Cause of Action

42 U.S.Code §1983

Municipalities are also potentially liable for the deprivation of any rights, privileges, or immunities secured by the Constitution – constitutional torts.  42 U.S.Code §1983  provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

In Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), the United States Supreme Court held that a municipal entity is a “person” under §1983  and is liable under §1983 if a municipal “policy or custom” causes a plaintiff to be deprived of a federal right.  In so holding,  the Supreme Court held that a municipality can not be held liable under §1983 solely because it employs a tortfeasor.

As you can see, the analysis of whether a governmental entity has tort liability under a particular set of facts can be very involved and sometimes difficult.  An attorney with experience in governmental liability should be contacted as soon a practical to begin the analysis.

Injury Lawyer

We have experience with governmental liability cases, and if you or your family member has been seriously injured or killed by a governmental entity and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Employment Discrimination, Texas Lawyer

Texas Employment Discrimination Law

Texas is an employment at will state.  As recognized by the Texas Workforce Commissionabsent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

However, there are limitations to the “employment at will” doctrine.  One exception is the “public policy” exception which protects employees from termination or adverse job action in retaliation for the employee having refused to commit a criminal act on the employer’s behalf.

In addition, an employer cannot discriminate against an employee. The Texas Workforce Commission Civil Rights Division (TWCCRD) enforces the Texas Commission on Human Rights Act, (TCHRA). Chapter 21 of the Texas Labor Code codifies the Texas Discrimination laws:

Sec. 21.051.  DISCRIMINATION BY EMPLOYER.  An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1)  fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2)  limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Sec. 21.055 also makes it an unlawful employment practice to retaliate or discriminate against a person who (1)  opposes a discriminatory practice; (2)  makes or files a charge; (3)  files a complaint; or (4)  testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.

If you have suffered an employment harm, because of your racecolorreligionnational originsex (including sexual harassment and pregnancy), agedisability, or retaliation, the TWCCRD may have jurisdiction to investigate your claim.

Texas is also a right to work state.  Under the Texas right to work laws, employment may not be conditioned or denied on the basis of membership or non-membership in a union.  See the Texas Labor Code  §§101.052-.053.

Federal Employment Discrimination Law

There are also Federal laws prohibiting job discrimination which are enforced by the EEOC:

The federal laws prohibit employers from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business.

After timely filing with the EEOC and/or TWCCRD and allowing the agencies to investigate, employees may receive a Notice of Right to Sue.  Please see our post EEOC Charge of Discrimination.

You may also find useful information on these posts; Overtime Regulations, Wage and Hour Law, Texas Employment and Non Compete Agreements, and EEOC Charge of Discrimination, Defending and Resolving.

If you are a Texas employer in need of an Employment Lawyer with experience in defending Employment Discrimination case, please do not hesitate to give us a call.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 27 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

Sexual Abuse, Texas Lawyer

Sexual Abuse

Sexual abuse is unwanted sexual activity, with perpetrators using force, making threats or taking advantage of victims not able to give consent.

Child sexual abuse is particularly egregious.  In Texas, child sexual abuse is defined in the Family Code in CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT.   Examples of child sexual abuse are fondling a child’s genitals, masturbation, oral-genital contact, digital penetration, and vaginal and anal intercourse.  Child sexual abuse also includes exposure, voyeurism, and child pornography.  Notably, “abuse” in the Texas Family Code  includes the failure to make a reasonable effort to prevent sexual conduct harmful to a child.

Sexual abuse often emotionally scars its victims for life.

If you or your child have been sexually abused, you should report it to the appropriate authorities and obtain professional help as soon as possible.

There are a number of resources for those that have been abused or are aware of abuse.  For example, see the American Academy of Child and Adolescent Psychiatry, the Texas Attorney General and other online resources.

Those with pedophilia – a sexual perversion in which children are the preferred sexual object – are referred to as pedophiles.  Unfortunately, pedophiles are often clever at infiltrating organizations that give them exposure to their victims.  Parents should take steps to protect their children.  Child Safety for Parents has some interesting suggestions.

Examples of sexual abuse are not hard to find.  A popular camp in Missouri, Kanakuk Kamp, has been struck by pedophiles;  the first time by a Christian camp director that worked at the camp for 10 years, only to have another counselor charged with sexually abusing several campers less than 2 years later.   For as much good as they do, the Boy Scouts of America and Catholic Church have had to deal with pedophiles.  Colleges and schools have had pedophiles.  Businesses and governmental entities must protect their employees and customers from sexual abuse and sexual harassment.  Any organization that cares for children must concern itself with protecting those children from sexual abuse.

The schools, churches and various activities in which your children participate should have policies, procedures and background checks to help prevent sexual abuse.

Business and governmental entities should have policies, procedures and background checks to help prevent sexual abuse and sexual harassment.

An organization that identifies a pedophile or suspects child sexual abuse should report it to the proper authorities immediately.  The abuse should never be ignored.  A pedophile that goes unreported is likely to strike again.

We have experience with civil (as opposed to criminal) sexual abuse cases, and if you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, or Michelle JonesBoard Certified in Labor and Employment Law a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

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