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involving a similar relationship between governmental immunity and failure to state a claim under section 1983
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No. 04-06-00613-CV
Delivered and Filed: August 8, 2007.
Appeal from the 218th Judicial District Court, Wilson County, Texas Trial Court No. 06-03-0088-CVW, Honorable Fred Shannon, Judge Presiding.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This interlocutory appeal stems from the partial denial of a plea to the jurisdiction made by Karnes County and Neva Schmidt, in her individual and official capacity. We affirm in part and reverse and render in part.
Factual Background
Karnes County ("Karnes") and several area school districts entered into an Interlocal Cooperation Agreement creating a Juvenile Justice Alternative Education Program (JJAEP) with a boot camp component referred to as the Enrichment, Literacy, Insight, [sic] for Tomorrow's Encouragement (ELITE) program. Karnes County contracted with the JJAEP to provide services to its residents. Neva Schmidt is alleged to be the Chief/Facility Administrator of the JJAEP program. The stated purpose of the JJAEP is to benefit juveniles who have committed an offense or have been expelled from school with a structured environment, education, recreation, mentoring, counseling and family preservation.
Appellees, Tim and Jill Thomas, as friends of G.T. (the Thomases) refer to the JJAEP as the Karnes/Wilson County Juvenile Probation Department JJAEP.
G.T., a minor, was participating in a ninety-day program at the ELITE boot camp. All participants in the program, which subjects participants to rigorous physical activity, were required to submit to a physical exam before participating in the physical exercises. Upon his admission to the program, G.T.'s physical exam was incomplete and the ELITE officials failed to obtain a signed consent form from G.T.'s parents allowing him to take part in the exercises. When G.T. arrived on Friday, the program provided G.T. with a particular colored t-shirt indicating he was eligible to participate in the exercises despite the lack of parental consent. After participating in rigorous physical exercise, G.T. went home on Friday evening. When his parents took him to the doctor on Monday, the doctor found G.T. suffered from severe heat injury requiring hospitalization. The Thomases allege that by failing to provide G.T. with the proper colored t-shirt, G.T. was forced to exercise, leading to his injuries, and that the program's delayed medical response to G.T.'s injury caused him harm.
There is no dispute that G.T. should have received a different colored t-shirt indicating he was not qualified to participate in physical activities.
Appellees brought suit against, among others, Karnes County, Texas, as Karnes/Wilson Juvenile Probation Department ("Karnes") and Neva Schmidt, in her official and individual capacity. Karnes answered on its own behalf, asserting it was improperly sued as the Karnes/Wilson Juvenile Probation Department. Karnes also filed an answer on behalf of Neva Schmidt, in her official and individual capacity. Appellants filed a pleading entitled Comprehensive Motion to Dismiss (the "Motion to Dismiss") that sought dismissal based on lack of subject matter jurisdiction due to sovereign, governmental, or qualified immunity. The trial court granted the Motion to Dismiss except for the claims of misuse of property under the Texas Tort Claims Act, and negligence, and gross negligence claims for the denial of medical care under 42 U.S.C. § 1983. Appellants subsequently filed this interlocutory, accelerated appeal. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006).
The Motion to Dismiss essentially consisted of a plea to the jurisdiction as well as special exceptions.
Governmental Immunity
Sovereign immunity from suit defeats a trial court's subject matter jurisdiction over a cause of action. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). Governmental immunity affords similar protection to subdivisions of the State, including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). A governmental entity asserting immunity may submit a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction is based solely on jurisdictional claims and does not reach the merits of the case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). It is the plaintiff's burden to demonstrate the court's jurisdiction by alleging a valid waiver of immunity by the governmental entity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). If, after having an appropriate opportunity to amend, the plaintiff fails to demonstrate an actionable claim, the court must grant a plea to the jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
A. Standard of review
Whether a court has subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In considering jurisdictional pleas, an appellate court reviews the pleadings and any evidence relevant to the jurisdiction issue. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We construe the pleadings liberally in the plaintiff's favor. Id. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228.
B. Neva Schmidt
We first address the trial court's failure to dismiss the state law claims against Schmidt in her individual and official capacity. Karnes argues that the trial court should have dismissed the state law claims against Schmidt pursuant to section 101.106 of the Texas Civil Practice and Remedies Code which provides:
The Thomases sued Schmidt individually for negligence through the use or misuse of tangible personal property.
(a) The filing of a suit under this chapter 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.
. . . .
(e) 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.
Tex. Civ. Prac. Rem. Code Ann. § 101.106 (Vernon 2005). Section 101.106 is part of the Texas Tort Claims Act and is entitled "Election of Remedies." Id. "The purpose of section 101.106 is to force a plaintiff to choose whether he will seek to impose tort liability on a governmental unit or on governmental employees, individually." Williams v. Nealon, 199 S.W.3d 462, 465 (Tex.App.-Houston [1st Dist.] 2006, pet. filed) (citing Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex.App.-Waco 2005, pet. filed)). Appellees filed suit against Karnes and Schmidt, in her individual capacity, regarding the same subject matter and making the same claims. Clearly, Schmidt was entitled to an immediate dismissal of claims against her individually.
The Thomases assert this court does not have jurisdiction to hear Schmidt's appeal from the partial denial of the plea to the jurisdiction filed by Karnes because only a governmental unit may file an interlocutory appeal from a plea to the jurisdiction. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006). We disagree. Section 51.014(5) authorizes an appeal from an interlocutory order of the trial court denying a "motion for summary judgment that is based on an assertion of immunity by an . . . employee of the state or political subdivisions of the state." Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2006).
The Supreme Court, in analyzing an appeal by a governmental unit, concluded that the Legislature did not intend section 51.014(a)(8) to limit the benefits of an interlocutory appeal only to certain procedural vehicles. Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). The Supreme Court held that it was the substance of the pleading, not the specific title which mattered to the Legislature. Simons, 140 S.W.3d at 349.
The Fourteenth Court of Appeals found the Supreme Court's reasoning applicable in exactly the same situation as is present before us. In Phillips v. Dafonte, 187 S.W.3d 669 (Tex.App.-Houston [14th Dist.] 2006, no pet.), a former patient sued two state-employed doctors for negligence in diagnosing her breast cancer. The doctors moved to dismiss, alleging dismissal was mandatory under section 101.106(f) of the Tort Claims Act. Id. at 672. The trial court refused to dismiss, and the doctors filed an interlocutory appeal. Id. The plaintiffs urged the appellate court to dismiss the appeal for lack of jurisdiction. Relying on the reasoning of the Supreme Court in Simons, the Fourteenth Court of Appeals held that the significant fact for determining if an employee is entitled to an interlocutory appeal under section 51.014(a)(5) is whether the employee claims immunity as an employee of the State. Id. at 675. "By claiming immunity, they entitled themselves to an interlocutory appeal. That they raised immunity via a motion to dismiss is inconsequential. Again, the substance, or the topic, of the pleading, prevails over form, or the title of the pleading." Id. Having determined that we have jurisdiction to address Schmidt's appeal, we conclude the trial court erred in failing to dismiss the state law claims against Schmidt.
Texas Tort Claims Act
We turn to the appellees' claim that Karnes waived its governmental immunity because G.T.'s claims fall within the parameters of the Texas Tort Claims Act (TTCA). The TTCA provides a limited waiver of governmental immunity when a personal injury is proximately 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 under Texas law." Tex. Civ. Prac. Rem. Code Ann. §§ 101.021, 101.025 (Vernon 2005). Karnes asserts the defense of sovereign and governmental immunity, arguing G.T.'s injury was not caused by a use or misuse of property. To determine whether a governmental unit waived sovereign immunity, we look to the pleadings and may consider evidence, "when necessary to resolve the jurisdictional issues raised." Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).
According to the Thomases' pleadings, appellants waived their sovereign immunity by furnishing the incorrect color uniform and then not replacing it, which subjected G.T. "to excess physical activity and labor which was the direct causal link to his injuries and damages." Because no party contests the t-shirt is property, we examine whether appellants waived immunity by a condition or use of tangible property which proximately led to G.T.'s injuries.
A. "Use"
The Texas Supreme Court has defined "use" to mean "to put or bring into action or service; to employ for or apply to a given purpose." San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). The Court distinguishes between injuries based on the failure or non-use of property and the misuse of property. Miller, 51 S.W.3d at 587-88. In Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976), the Court held furnishing a football uniform, without a proper protective device for a player's knee, constituted a use of personal property. Similarly, in Robinson v. Central Texas MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989), the failure to provide a life preserver to a patient the Center had taken swimming constituted use. Importantly, "use" is not established when the governmental unit merely allowed someone to use the property, made the property available to someone, or simply provided property that created a "condition" and nothing more. Cowan, 128 S.W.3d at 246. The mere act of providing a t-shirt that is not inherently unsafe does not constitute a use or condition under the TTCA. Cowan, 128 S.W.3d at 245.
In this case, the parties agree the ELITE program gave G.T. the wrong colored shirt. The failure to replace the t-shirt with a different colored t-shirt does not constitute use. See Miller, 51 S.W.3d at 587-88 (holding a claim based on non-use of property does not allege "use" within the TTCA). See also Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (concluding that a failure to prescribe medications which allegedly could have prevented the injury is a non-use and not within the waiver). In Kerrville State Hospital, the Supreme Court limited the "precedential value" of Lowe and Robinson to "claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this integral component led to the plaintiff's injuries." Id. at 585. The Thomases do not assert that the t-shirt in question lacked an integral safety feature leading to G.T.'s injury.
Furthermore, Cowan notes that the TTCA's waiver of immunity under use of personal property only applies when the governmental unit is itself the user. Cowan, 128 S.W.3d at 245-46. In Cowan, the court held no waiver existed when the hospital provided a suicidal patient suspenders and a walker with which he hung himself, as the walker and suspenders were not inherently dangerous. "[T]he Hospital's immunity can be waived only for its own use of Cowan's walker and suspenders, and not by Cowan's use of them." Id. at 246. In this case, the ELITE program was the provider of the property, not the user of the property.
B. "Condition"
Waiver under the TTCA also exists when the governmental unit creates a condition of property that injures a plaintiff. Tex. Civ. Prac. Rem. Code Ann. §§ 101.021, 101.025 (Vernon 2005). The Thomases liken the improperly colored t-shirt to the defective signage in Texas Dept. of Transp. v. Henson, 843 S.W.2d 648 (Tex.App.-Houston [14th Dist.] 1992, writ denied). We disagree. In Henson, a sign affixed to a traffic barrel became detached and struck a motorist, injuring him. Id. at 649. The Henson court held the sign was tangible property, and that the traffic barrels were not maintained in a condition sufficient to perform properly their designated function, i.e., traffic control. Id. at 652. Additionally, the State had notice of the defect and failed to warn the motorist or make the condition reasonably safe. Id.
We find the Henson analogy inapposite. First, the Thomases' complaint is essentially based on the ELITE program's failure to provide the correct information to the drill instructors. The Texas Supreme Court has rejected misinformation or misuse of information as a "use" under the TTCA. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994). Second, G.T.'s injuries were not proximately caused by the color of the t-shirt or the condition it may have created. Instead, the claims are based on the drill instructors' alleged intentional harming of G.T. despite his ineligibility to exercise. Intentional torts do not fall within the purview of the TTCA. Tex. Civ. Prac. Rem. Code § 101.057(2) (Vernon 2005).
Here, the ELITE program provided G.T. with a particular t-shirt indicating his eligibility to exercise. At most, the ELITE program's acts may have created the appearance that G.T. was eligible to participate in the exercises, which in turn, led to his injury. The t-shirt itself, or lack thereof, is not the cause of the injury. See Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) ("Property does not cause injury if it does no more than furnish the condition that makes the injury possible").
Based on our review of the pleadings and evidence before the trial court, the Thomases failed to demonstrate a clear waiver of sovereign immunity by Karnes for acts falling under the TTCA. Thus, the trial court erred in not dismissing these claims against Karnes. We reverse that portion of the trial court's judgment, and render judgment in favor of Karnes. 42 U.S.C. § 1983
We next address the federal civil rights claims that remain pending against Karnes and Neva Schmidt, individually and in her official capacity. Schmidt, in her official capacity, sought dismissal based on the Thomases' failure to state a sufficient federal claim to invoke the trial court's jurisdiction under 42 U.S.C. § 1983. In her individual capacity, Schmidt urged dismissal based on her qualified immunity.
Liability under 42 U.S.C. § 1983 ("section 1983") requires proof that: (1) the defendant's conduct was committed under color of state law; and (2) the conduct deprived the plaintiff of a federal right, privilege or immunity. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). See also County of El Paso v. Dorado, 180 S.W.3d 854, 862 (Tex.App.-El Paso 2005, pet. denied). Under federal law, counties are not immune from section 1983 claims. See Howlett v. Rose, 496 U.S. 356, 375-76 (1990) (citing Owen v. City of Independence, 445 U.S. 622, 647 n. 30 (1980)) ("Municipal defenses-including an assertion of sovereign immunity-to a federal right of action are, of course, controlled by federal law"); Campos v. Nueces County, 162 S.W.3d 778, 785 (Tex.App.-Corpus Christi 2005, pet. denied). Counties and other local governmental entities are "persons" for purposes of section 1983 claims and may be liable for damages under 42 U.S.C. § 1983. Monell v. Dep't of Social Svcs., 436 U.S. 658, 690 (1978); Hoff v. Nueces County, 153 S.W.3d 45, 49-50 (Tex. 2004) (per curiam). Neva Schmidt's Official Capacity
The order granting the Motion to Dismiss dismissed all of the section 1983 claims except for "negligence/gross negligence claims for the denial of medical care noted in Austin v. Johnson under section 1983 as to Defendant Neva Schmidt" in her individual and official capacity. Suit against a public official in her "official capacity" is a suit against the county she represents. Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 708 (Tex.App.-San Antonio 2002, pet. denied). Thus, the federal claims against Schmidt in her official capacity are claims against Karnes, and will be referred to as such.
During oral argument, the parties agreed a negligence action cannot form the basis of a section 1983 claim.
Failure To State A Claim
Although Karnes acknowledges that a county government does not have immunity under section 1983, it argues the section 1983 claim must be dismissed for failing to state a proper claim. Since the burden was on the Thomases to establish subject matter jurisdiction, Karnes argues the Thomases were required to plead facts sufficient to support a claim under section 1983; otherwise, the Thomases' claims are tort claims barred by governmental immunity.
A. Procedure
Karnes' Motion to Dismiss was unsupported by any affidavits or other evidence relevant to the section 1983 claim. In addition to seeking dismissal for lack of subject matter jurisdiction, the Motion to Dismiss contained special exceptions objecting to Plaintiffs' Original Petition for failure to state a cause of action establishing subject matter jurisdiction within Texas and for the inability to overcome qualified immunity from suit pursuant to federal law for the federal claims. No specific paragraph or portion of Plaintiffs' pleadings were noted, nor were any specific deficiencies referenced. In addition, Karnes specially excepted to the failure to assert a maximum amount of damages. Following the filing of Plaintiff's First Amended Petition, Karnes filed a supplement to its Motion to Dismiss, attacking the Plaintiff's First Amended Petition. We have no reporter's record from the hearing on the Motion to Dismiss.
The only attachments to the Motion to Dismiss were certified copies of the minutes of the Karnes and Wilson County Commissioners' Court establishing the Karnes/Wilson Juvenile Probation Department.
The Supplemental Motion to Dismiss references a court hearing and alludes to findings by the trial court relating to deficiencies in the pleading and a requirement that the Thomases replead. However, the record is barren of any order granting the special exceptions or what claims or pleading the Thomases were to replead.
Karnes' argument for dismissal is focused entirely on the Thomases' allegations contained in the First Amended Petition. "When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226. In determining whether jurisdiction exists, "[w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. If the pleadings do not contain sufficient facts 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 amend." Id. at 226-27. Furthermore, "[i]f 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. We are also mindful that "[w]hether a determination of subject-matter jurisdiction can be made in a preliminary hearing or should await a fuller development of the merits of the case must be left largely to the trial court's sound exercise of discretion." Bland, 34 S.W.3d 547, 554 (Tex. 2000).
We have no opinion on the merits of the Thomases' claims.
B. Allegations Against Karnes
To sustain an action under section 1983, the Thomases had to allege two elements: (1) Karnes deprived G.T. of a right secured by the Constitution; and (2) Karnes was acting under color of state law, custom or usage. Parratt, 451 U.S. at 535. Karnes contends the Thomases failed to properly allege either element. The Thomases alleged that G.T. was subjected to physical and mental abuse while attending a juvenile boot camp. Specifically, they allege that Karnes inflicted cruel, unusual and excessive punishment on G.T., in violation of the Fourth, Fourteenth and/or Eighth Amendments, because Karnes' drill instructors were deliberately indifferent in failing to provide needed medical care and in failing to summon prompt medical care for G.T. These allegations mirror the allegations described in the case of Austin v. Johnson, 328 F.3d 204, 206-07 (5th Cir. 2003). Karnes contends the Thomases failed to plead a constitutional deprivation because the boot camp G.T. attended was an educational institution and corporal punishment does not implicate any constitutional right.
1. Violation of a Constitutional Right
Both parties rely on the Austin case for support. The Austin case involved a youth named John who was caught stealing a candy bar at school and was sentenced by a justice of the peace to attend a one day boot camp as punishment. While at the boot camp, he suffered severe dehydration and heat stroke, resulting in unconsciousness. John remained unconscious for over an hour before personnel called an ambulance. In reviewing the plaintiffs' claims the court noted that "[s]tate defendants do not incur Eighth Amendment liability unless `the individual was being held in custody after criminal conviction.'" Id. at 208. The Fifth Circuit further reflected that the Eighth Amendment is inapplicable to corporal punishment in schools, observing that schoolchildren have little need for the amendment's protection because schools are open institutions where children may leave without physical restraint. Id. (citing Ingraham v. Wright, 430 U.S. 651, 669-70 (1977)). The Fifth Circuit held that although a one day youth offender camp can hardly be equated to incarceration, this camp was of a sufficient custodial nature to implicate the Eighth Amendment.
There is no pleading or evidence indicating whether G.T. was adjudicated or on probation when he was referred to the boot camp. Nor is there clear evidence or pleadings relating to the nature of the program in which he was enrolled. Although the pleadings may be deficient, we cannot conclude that the pleadings affirmatively negate the Thomases' section 1983 claim. County of Cameron v. Brown, 80 S.W.3d at 559.
2. Acting Under Color of State Law
The second element of a section 1983 violation requires action under color of state law, custom or usage. In this regard, liability under section 1983 arises if a deprivation of constitutional rights was inflicted pursuant to acts which the county has officially sanctioned or ordered. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). This determination requires an analysis of: (1) a policy maker; (2) an official policy; and (3) a violation of constitutional rights whose moving force was the policy or custom. Monell, 436 U.S. at 694. These elements distinguish individual violations by employees from those of the governmental entity. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
The Thomases allege Karnes was acting under color of state law at all times but do not allege a specific policy maker in their pleadings; however, if construed liberally, the pleadings refer to Neva Schmidt as the Chief/Facility Administrator with responsibility over the program. The pleadings also lack any reference to an official policy. Nonetheless, an official policy can be established through misconduct so pervasive among non-policy making employees of the county as to constitute a custom or usage with the force of law. Monell, 436 U.S. at 691. The Thomases allege that Karnes authorized, tolerated as a practice, and ratified the misconduct of the drill instructors and Schmidt failed to require and/or properly train the drill instructors to provide and summon necessary medical aid for participants in need. The Thomases conclude that this misconduct constituted a policy, practice, or custom which was the proximate cause of G.T.'s injuries. Although the Thomases' pleadings lack clarity, we cannot conclude that they affirmatively negate their federal claims.
Neva Schmidt, in her Individual Capacity Schmidt first complains that to be individually liable under section 1983, a person must be personally involved in the acts causing the deprivation of the complainant's constitutional rights. Supervisory officials cannot be held vicariously liable for their subordinates' actions under section l983. See Monell, 436 U.S. at 691-94. She notes that there are no acts plead which are attributable to herself relating to the denial of medical care. However, the pleading specifically alleges that Schmidt was deliberately indifferent in failing to provide or summon needed medical care for G.T. Thus, the pleadings are not facially defective in linking Schmidt's actions to the alleged constitutional deprivation.
We note that the facts may establish that Schmidt had no involvement in the alleged lack of medical treatment of G.T. Counsel for the Thomases conceded during oral argument that currently, he would not represent that he could prove Schmidt participated in the gross negligence claim.
Schmidt also asserts qualified immunity divested the trial court of jurisdiction, and thus the trial court erred in not dismissing the section 1983 claims against her individually. Qualified immunity is available to a county official when sued in her individual capacity for a federal claim. Harlow v. Fitzgerald, 457 U.S. 800, 807-08 (1982); Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 694 (Tex.App. — San Antonio 1997, no pet.). "The doctrine of qualified immunity shields an official performing discretionary functions from liability for civil damages under section 1983, provided the official's conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware." Scott v. Britton, 16 S.W.3d 173, 180 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Harlow, 457 U.S. at 818).
Schmidt had the initial burden to raise and support her plea to the jurisdiction based on her defense of qualified immunity. See Perry v. Tex. A I Univ., 737 S.W.2d 106, 110 (Tex.App.-Corpus Christi 1987, writ ref'd, n.r.e.) (requiring proof, such as affidavits, supporting the defendant's assertion of official immunity). No evidence was submitted with Schmidt's plea to the jurisdiction to assist the trial court in determining whether the conduct complained of was discretionary. Schmidt's complaint is one that, under Miranda, goes to the merits of the case and requires evidence for its resolution. Miranda, 133 S.W.3d at 227-28. Absent any evidence, the trial court did not err in overruling the motion to dismiss the gross negligence claims against Schmidt in her individual capacity.
Conclusion
The Thomases failed to demonstrate a clear and unambiguous waiver of immunity regarding the state tort claims, and the trial court should have dismissed those claims against Karnes and Schmidt. We reverse and render said portion of the trial court's judgment. With respect to the section 1983 claims, the parties agree that a negligence claim will not support a section 1983 action, therefore, we reverse and render that portion of the judgment retaining the section 1983 negligence claim. We affirm the portion of the judgment retaining jurisdiction over Schmidt in her official capacity, and therefore over Karnes County, and over Neva Schmidt individually in regard to the section 1983 gross negligence claim for denial of medical care.