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Fourth Court of Appeals

San Antonio, Texas


OPINION

No. 04-15-00120-CV

UNIVERSITY OF INCARNATE WORD,


Appellant

v.

Valerie REDUS, Individually, and Robert M. Redus, Individually


and as Administrator of the Estate of Robert Cameron Redus,
Appellees

From the 150th Judicial District Court, Bexar County, Texas


Trial Court No. 2014-CI-07249
Honorable Cathleen M. Stryker, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice


Patricia O. Alvarez, Justice
Irene Rios, Justice

Delivered and Filed: March 7, 2018

AFFIRMED

The University of Incarnate Word (“UIW”) is a private institution of higher education that

operates a state-authorized police department. At issue in this appeal is whether UIW is a

“governmental unit” that enjoys governmental immunity from suit under the common law doctrine

of sovereign immunity. Because we conclude UIW is not a governmental unit for purposes of the

common law doctrine of sovereign immunity, we affirm the trial court’s order denying UIW’s plea

to the jurisdiction.
04-15-00120-CV

BACKGROUND

This case arises from a UIW police officer’s use of deadly force following a traffic stop.

UIW student Cameron Redus had parked at his off-campus apartment building when he was

stopped by Cpl. Christopher Carter of UIW’s police department for suspicion of driving while

intoxicated. The incident resulted in the death of Cameron Redus, who was shot several times by

Cpl. Carter. Cameron Redus’s parents, Valerie and Robert Redus, brought a wrongful death and

survival action against UIW and Cpl. Carter, alleging claims of negligence and gross negligence.

In response to the lawsuit, UIW filed a “Plea to the Jurisdiction and Motion to Dismiss the Suit

Against Cpl. Carter.” UIW argued that notwithstanding its private charitable status in Texas, it was

entitled to governmental immunity with respect to the actions of its police department. UIW further

argued the Reduses’ claims had not been waived under the Texas Tort Claims Act (“TTCA”) and

should therefore be dismissed. UIW also moved to dismiss the suit against Cpl. Carter pursuant to

section 101.106 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e) (West 2011) (“If a suit is filed under this chapter 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.”). The trial court denied UIW’s plea to the jurisdiction

and motion to dismiss the suit against Cpl. Carter. UIW filed this interlocutory appeal.

On August 26, 2015, this court dismissed this appeal for lack of jurisdiction, holding that

because UIW was not a governmental unit, section 51.014 of the Texas Civil Practice and

Remedies Code failed to confer jurisdiction upon this court. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(8) (West Supp. 2017) (“A person may appeal from an interlocutory order of a

district court . . . that: . . . (8) grants or denies a plea to the jurisdiction by a governmental unit as

that term is defined in Section 101.001 . . . .”);Univ. of Incarnate Word v. Redus, 474 S.W.3d 816,

824 (Tex. App.—San Antonio 2015), rev’d, 518 S.W.3d 905 (Tex. 2017). On May 12, 2017, the
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Texas Supreme Court reversed, holding that UIW is a governmental unit for purposes of the

interlocutory appeal statute. Univ. of Incarnate Word v. Redus, 518 S.W.3d 905, 906 (Tex. 2017).

The supreme court focused on the TTCA’s definition of “government unit.” See TEX. CIV. PRAC.

& REM. CODE ANN. §§ 51.014(a)(8), 101.001 (West Supp. 2017). According to the supreme court,

“[t]o be a governmental unit under the [TTCA], UIW must (1) be an ‘institution, agency, or organ

of government’ and (2) ‘derive its “status and authority” as such from “laws passed by the

Legislature.”’” Redus, 518 S.W.3d at 909 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.001(3)(D)). The supreme court concluded that “UIW clearly derives its status and authority

to commission and employ peace officers and operate a police department from laws passed by

the Legislature.” Id. The question was “whether UIW is an ‘institution, agency, or organ of

government.’” Id. Because the TTCA did not further define these terms, the court looked to the

common law meaning of the terms, concluding that “an ‘organ of government’ is an entity that

operates as part of a larger governmental system.” Id. at 910.

The supreme court then considered whether UIW’s campus police department is part of a

larger governmental system. Id. The court looked to its previous case, LTTS Charter School, Inc.

v. C2 Construction, Inc., 342 S.W.3d 73 (Tex. 2011), where it had “concluded that a private charter

school was an ‘institution, agency or organ of government’ based on a legislative scheme that

made private charter schools part of the Texas public-education system.” Redus, 518 S.W.3d at

910 (discussing LLTS Charter School). The court explained that “[l]ike the charter school, UIW

must follow the same state-promulgated rules its public counterparts follow.” Id. The court

recognized, however, that some indicators present in its charter school case, LTTS Charter School,

were not present here. UIW lacks public funding, and the Legislature does not consider UIW a

governmental entity under provisions in the Government Code and Local Government Code,

which relate to property held in trust and competitive bidding. Redus, 518 S.W.3d at 910. Further,
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the court recognized “the Legislature’s intended role for private universities in public law

enforcement is less clear than its express inclusion of open-enrollment charter schools in the

public-school system.” Id.

The supreme court concluded that “[n]evertheless, the Legislature has authorized UIW to

enforce state and local law using the same resource municipalities and the State use to enforce law:

commissioned peace officers.” Id. at 911. “UIW’s officers have the same powers, privileges, and

immunities as other peace officers.” Id. (citing TEX. EDUC. CODE § 51.212(b)). The supreme court

reasoned that “[b]ecause law enforcement is uniquely governmental, the function the Legislature

has authorized UIW to perform and the way the Legislature has authorized UIW to perform it

strongly indicate that UIW is a governmental unit as to that function.” Id. Thus, the supreme court

concluded UIW is “entitled to pursue an interlocutory appeal under section 51.014(a)(8) of the

Civil Practice and Remedies Code.” Redus, 518 S.W.3d at 911.

The supreme court thus reversed this court’s order dismissing the appeal for lack of

jurisdiction and remanded the cause for this court to determine the merits of the plea to the

jurisdiction. The supreme court concluded by emphasizing that it was not commenting on the

merits of this interlocutory appeal:

Our conclusion that UIW is a governmental unit is not a comment on the merits of
UIW’s plea to the jurisdiction. Although UIW argues that it enjoys immunity from
suit and liability when sued for actions related to its law-enforcement function, that
issue is not before us. The issue of immunity is instead for the court of appeals and
will implicate principles of sovereign immunity that have no bearing on our
analysis here. See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427,
432 (Tex. 2016) (noting that sovereign immunity is a common-law doctrine and
that courts determine whether an entity is immune in the first instance); see also
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006) (noting
that “it remains the judiciary’s responsibility to define the boundaries of the
common-law doctrine and to determine under what circumstances sovereign
immunity exists in the first instance”). To determine whether an entity is immune,
courts should rely not on the Tort Claims Act’s definition of governmental unit, as

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we have here, but on the “nature and purposes” of sovereign immunity. Wasson
Interests, 489 S.W.3d at 432. In short, whether an entity is entitled to an
interlocutory appeal and whether an entity has sovereign immunity are separate
questions with separate analytical frameworks. As we did in LTTS Charter School,
“[w]e leave undecided the separate issue of whether [UIW] is immune from suit.”
342 S.W.3d at 78 n.44. The issue we decide is one of appellate jurisdiction only:
Did the court of appeals have jurisdiction to consider UIW’s interlocutory appeal?
It did.

Redus, 518 S.W.3d at 911 (alterations in original).

STANDARD OF REVIEW

“In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A party

may challenge the trial court’s subject matter jurisdiction by filing a plea to the jurisdiction. Id. at

225-26. “Whether a court has subject matter jurisdiction is a question of law.” Id. at 226. “Whether

a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction

is a question of law reviewed de novo.” Id. “Likewise, whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction is also a question of law.” Id. “However,

in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case

may require resolution by the finder of fact.” Id.

When a plea to the jurisdiction challenges the claimant’s pleadings, a court determines “if

the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the

cause.” Id. A court construes “the pleadings liberally in favor of the plaintiffs and look to the

pleaders’ intent.” Id. If the pleadings do not allege facts sufficient “to affirmatively demonstrate

the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to

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amend.” Id. at 226-27. “If the pleadings affirmatively negate the existence of jurisdiction, then a

plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.”

Id. at 227. However, if a plea to the jurisdiction challenges the existence jurisdictional facts, a

court considers “relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised.” Id. “If the evidence creates a fact question regarding the jurisdictional

issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved

by the fact finder.” Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise

a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law.” Id. at 228.

The supreme court has noted that “this standard generally mirrors that of a summary

judgment under Texas Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. According

to the court, this standard meets several goals:

We adhere to the fundamental precept that a court must not proceed on the merits
of a case until legitimate challenges to its jurisdiction have been decided. This
standard accomplishes this goal and more. It also protects the interests of the state
and the injured claimants in cases like this one, in which the determination of the
subject matter jurisdiction of the court implicates the merits of the parties’ cause of
action. The standard allows the state in a timely manner to extricate itself from
litigation if it is truly immune. However, by reserving for the fact finder the
resolution of disputed jurisdictional facts that implicate the merits of the claim or
defense, we preserve the parties’ right to present the merits of their case at trial.
Similar to the purpose of a plea to the jurisdiction, which is to defeat a cause of
action for which the state has not waived sovereign immunity (usually before the
state has incurred the full costs of litigation), the purpose of summary judgments in
Texas is “‘to eliminate patently unmeritorious claims and untenable defenses.’”
Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989) (quoting City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979)). By requiring the state to
meet the summary judgment standard of proof in cases like this one, we protect the
plaintiffs from having to “put on their case simply to establish jurisdiction.” Bland,
34 S.W.3d at 554. Instead, after the state asserts and supports with evidence that
the trial court lacks subject matter jurisdiction, we simply require the plaintiffs,

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when the facts underlying the merits and subject matter jurisdiction are intertwined,
to show that there is a disputed material fact regarding the jurisdictional issue.

Miranda, 133 S.W.3d at 228.

“Appellate courts reviewing a challenge to a trial court’s subject matter jurisdiction review

the trial court’s ruling de novo.” Id. “When reviewing a plea to the jurisdiction in which the

pleading requirement has been met and evidence has been submitted to support the plea that

implicates the merits of the case, we take as true all evidence favorable to the nonmovant.” Id.

“We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.

GOVERNMENTAL IMMUNITY FROM SUIT

Under the common-law doctrine of sovereign immunity, the state cannot be sued without

its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). “Governmental

immunity operates like sovereign immunity to afford similar protection to subdivisions of the

State, including counties, cities, and school districts.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). Governmental immunity has two components: (1) immunity from liability, which

bars enforcement of a judgment against a governmental entity; and (2) immunity from suit, which

bars suit against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Governmental immunity from suit deprives a trial court of subject matter jurisdiction and is

properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26.

In remanding, the supreme court directed this court to consider whether UIW was immune

from suit pursuant to the common-law definition of “governmental unit” and cited Wasson

Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016). In Wasson, the supreme court

explained that sovereign immunity’s origins is found in the common law. Id. at 431. The doctrine

“initially developed without any legislative or constitutional enactment.” Id. According to the

supreme court, “the very fact” the doctrine of sovereign immunity “has developed through the

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common law—and has remained there—has important implications.” Id. at 432. “Namely, as the

arbiter of the common law, the judiciary has historically been, and is now, entrusted with defining

the boundaries of the common-law doctrine and determining under what circumstances sovereign

immunity exists in the first instance.” Id. (citations omitted). The supreme court recognized “a

relatively simple two-step process for addressing the applicability of immunity.” Id. at 435. “The

judiciary determines the applicability in the first instance and delineates its boundaries.” Id. In

doing so, it looks to “both the nature and purposes of immunity.” Id. at 432. (emphasis added). “If

immunity is applicable, then the judiciary defers to the legislature to waive such immunity.” Id. at

435 (emphasis in original). The court explained the judiciary has “ordinarily ‘deferred to the

Legislature to waive sovereign immunity from suit, because this allows the Legislature to protect

its policymaking function.’” Id. at 432-33 (quoting Tex. Nat. Res. Conservation Comm’n v. IT-

Davy, 74 S.W.3d 849, 854 (Tex. 2002)).

The supreme court explained that in considering whether immunity applies in the first

instance, a court considers the nature of the act, that is, whether the act was a governmental

function. See id. at 435-37. Because governmental units “represent no sovereignty distinct from

the state and possess only such powers and privileges as have been expressly or impliedly

conferred upon them,” they enjoy immunity only for acts committed in the performance of their

lawful, governmental functions. Id. at 430. The supreme court has recognized “police and fire

protection and control” as a governmental function. See id. at 439 (acknowledging the “thirty-six

legislatively-defined governmental functions,” including police and fire protection and control);

see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(1) (West 2017).

A court’s inquiry does not end with considering whether the act was a governmental

function. See Wasson, 489 S.W.3d at 432. A court must also consider the purposes of sovereign

immunity. Id. The supreme court emphasized that “it is firmly established that ‘an important
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purpose [of immunity] is pragmatic: to shield the public from the costs and consequences of

improvident actions of their governments.’” Id. (quoting Tooke, 197 S.W.3d at 332) (alteration in

original) (emphasis added). On numerous occasions, the supreme court has pointed out that the

doctrine of immunity for governmental entities is inherently connected to the public fisc and the

preservation of separation-of-powers principles. See Brown & Gay Eng’g, Inc. v. Olivares, 461

S.W.3d 117, 121 (Tex. 2015); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012)

(noting that immunity respects “the relationship between the legislative and judicial branches of

government”); IT-Davy, 74 S.W.3d at 853-54. The doctrine of sovereign immunity acts to prevent

the judiciary from interfering with the legislature’s prerogative to allocate tax dollars. See Brown,

461 S.W.3d at 121 (“And while inherently connected to the protection of the public fisc, sovereign

immunity preserves separation-of-powers principles by preventing the judiciary from interfering

with the Legislature’s prerogative to allocate tax dollars.”). “[I]mmunity thus protects the public

as a whole by preventing potential disruptions of key government services that could occur when

government funds are unexpectedly and substantially diverted by litigation.” Id.

In looking at the nature and purposes of sovereign immunity, we agree with UIW that its

police department is engaging in the governmental function of law enforcement. However, we

disagree with UIW that finding its police department to be a governmental unit is consistent with

the purposes of sovereign immunity. UIW argues that “the purposes of sovereign immunity—

protecting the public fisc and preserving separation of powers—are well-served by shielding a

private university police department from suit arising from the performance of its law enforcement

functions.” According to UIW, “[i]f the private university dissolved its police force, the cost of

providing public safety would fall to local law enforcement.” UIW argues local law enforcement

would need additional funds to police the private campus, and taxpayers would as a result pay

more in taxes. This argument by UIW requires many assumptions: that UIW would dissolve its
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police force as a result of not being entitled to immunity, that additional local police officers would

need to be hired by the local police force, and that taxpayers would have to pay more in taxes. At

oral argument, UIW argued that this sequence of events is a “conceptual certainty.” There is

nothing in this appellate record to show the “certainty” of this chain of events. See Miranda, 133

S.W.3d at 228 (explaining that the burden is on the movant in a plea to the jurisdiction to show

immunity applies).

Moreover, even if UIW’s sequence of events came to pass, the purposes of sovereign

immunity are not implicated in this case. The supreme court has explained that the purposes of

sovereign immunity do not necessarily equate to saving taxpayers money. In Brown & Gay Eng’g,

Inc. v. Olivares, 461 S.W.3d 117, 119 (Tex. 2015), “a private engineering firm lawfully contracted

with a governmental unit to design and construct a roadway.” “The firm filed a plea to the

jurisdiction seeking the same sovereign-immunity protection that the governmental unit would

enjoy had it performed the work itself.” Id. With regard to why recognizing immunity applied to

the private engineering firm would comport with the purposes of sovereign immunity, the firm

argued that recognizing the application of immunity would save the government money in the long

term. Id. at 123. According to the firm, the costs of defending litigation and any money judgment

resulting would be passed on to the government. Id. “Citing the same rationale, an amicus brief”

urged the supreme court “to adopt a framework that would extend sovereign immunity to a private

entity performing discretionary government work, so long as the contractor is authorized to do so

and the government would be immune had it performed the work itself.” Id. “In proposing this

test, the amicus contend[ed] that, just as sovereign immunity has been extended to political

subdivisions performing governmental functions, it should be extended to private entities

authorized to perform those functions.” Id.

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The supreme court stressed that the government contractors had cited no evidence to

support their proposed justification and ignored “many factors at play within the highly

competitive world of government-contract bidding.” Id. The court also noted the government

contractors had disregarded “the fact private companies can and do manage their risk exposure by

obtaining insurance, as Brown & Gay did in this case.” Id. The court then continued,

But even assuming that holding private entities liable for their own negligence in
fact makes contracting with those entities more expensive for the government, this
argument supports extending sovereign immunity to these contractors only if the
doctrine is strictly a cost-saving measure. It is not.

Id. (emphasis added).

The supreme court explained that “[s]overeign immunity has never been defended as a

mechanism to avoid any and all increases in public expenditures.” Id. (emphasis added). “Rather,

it was designed to guard against the ‘unforeseen expenditures’ associated with the government’s

defending lawsuits and paying judgments ‘that could hamper government functions’ by diverting

funds from the allocated purposes.” Id. (quoting Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,

621 (Tex. 2011)). “Immunizing a private contractor in no way furthers this rationale.” Id. “Even if

holding a private party liable for its own improvident actions in performing a government contract

indirectly leads to higher overall costs to government entities in engaging private contractors, those

costs will be reflected in the negotiated contract price.” Id. “This allows the government to plan

spending on the project with reasonable accuracy.” Id.

The supreme court further reasoned that “[b]y contrast, immunizing the government—both

the State and its political subdivisions—from suit directly serves the doctrine’s purposes because

the costs associated with a potential lawsuit cannot be anticipated at the project’s outset.” Id. at

124. “Litigation against the government therefore disrupts the government’s allocation of funds

on the back end, when the only option may be to divert money previously earmarked for another

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purpose.” Id. “It is this diversion—and the associated risk of disrupting government services—that

sovereign immunity addresses.” Id. (emphasis added). Thus, the supreme court declined to extend

sovereign immunity to the private engineering firm performing a governmental function. See id.

Similarly, in this case, even if UIW decided to dissolve its police department as a result of

not being granted immunity for the actions of its police department, and even if local law

enforcement required additional officers to perform its law enforcement duties, such an expense is

something for which local law enforcement could plan and allocate resources. There is no risk of

disrupting previously allocated taxpayer funds and disrupting government services in this case.

See id.

We are mindful of the judiciary’s role in determining the applicability of immunity in the

first instance and delineating its boundaries. Wasson, 489 S.W.3d at 433. In carrying out our role,

we must consider that while sovereign immunity “protects the public as a whole by preventing

potential disruptions of key government services that could occur when government funds are

unexpectedly and substantially diverted by litigation,” “this benefit comes at a significant cost.”

Brown & Gay, 461 S.W.3d at 121. “[I]n ‘shield[ing] the public from the costs and consequences

of improvident actions of their governments,’ sovereign immunity places the burden of

shouldering those ‘costs and consequences’ on injured individuals.” Id. (quoting Tooke, 197

S.W.3d at 332). “And it does so by foreclosing—absent a legislative waiver—the litigation and

judicial remedies that would be available to the injured person had the complained-of-acts been

committed by private persons.” Id. at 122. Based on the record in this appeal, we cannot extend

governmental immunity to UIW’s police department under the common-law doctrine of sovereign

immunity.

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CONCLUSION

We conclude UIW’s police department is not entitled to governmental immunity and that

the trial court correctly denied its plea to the jurisdiction. Because UIW is not entitled to

governmental immunity, we need not address UIW’s other two issues relating to the TTCA. We

therefore affirm the trial court’s order denying UIW’s plea to the jurisdiction and motion to dismiss

the suit against Cpl. Carter.

Karen Angelini, Justice

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