Monday, October 28, 2019
Texas State Tort Claims Act Essay Example for Free
Texas State Tort Claims Act Essay This paper seeks to analyze and discuss State of Texas tort claim act and how it applies to local justice and security agencies. Local justice may be deemed to include any case that may be brought against the State of Texas, its agencies and its officials in their official capacities that could make them liable in the performance of their functions. On the other hand the security agencies may be treated as any other ordinary claimant for damages under the Tort Act since the law does specifically provide special exemption as to their treatment.  The waiver in the law talks about the State of Texas its agencies and its officials in their official capacities and providing for how the state could be liable to any claimant there are no special consideration as far as security agencies are concerned.  The rest of the paper will discuss more in detail about the scope and limitations of the Act.       As a general rule, a state is immune from suit hence the so called sovereign immunity, unless there is waiver. The Texas Tort Claims Act is therefore basically a passed legislative act as a waiver of the State of Texas, its agencies and its officials in their official capacities from lawsuits for damages. They can now be sued in court and these entities mentioned may now be made liable provided the conditions before they could be liable as provided in the act are complied with. There are also exceptions to the waiver as provided in court decisions (Driskill v. State, 787 S.W.2d 369, 370 (Tex. 1990)).      What is the Texas Tort Claims Act in greater detail?    The Texas Tort Claims Act comprises a set of statutes for determining the liability of governmental entity for tortious conduct under law of the State of Texas. It may be noted that sovereign immunity is about non-suability of as a state under all conditions since the state may not be burdened with defending itself every time and then. However for consideration of either justice or equity, the state can make a waiver through legislation. It is therefore logical to agree that prior to the adoption of the Texas Tort Claims Act, individuals and entities in Texas including security agencies could are banned or prohibited from recovering damages from state or local governmental units for injuries as a result of negligent actions of a government employee or officer in the performance of a governmental function.        The state is justified in giving governmental units the sovereign immunity it deserves for the protection of the state from governmental time and resources which could be subjected to unnecessary diminishment from private litigation and persuade people and entities to bring many actions against public officials to the detriment of their functioning effectively. The rule is also believed to be a protection of the government from sham or false suits that otherwise may possibly go to the pockets of corrupts public officials or it could further drain government resources that are better used to promote public service.      The Texas Legislature however in the exercise of its plenary law-making function evaluated the situation and ended up enacting the Texas Tort Claims Act in 1969. The Tort Act specifically waived only sovereign immunity for a governmental entity while engaged in a governmental function.           Under the new law, a governmental unit in the state of Texas is now made 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. This provision is however subject to further conditions.      One condition is that the State of Texas in only liable if the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment. As for the personal liability to the person killed it would be the negligent employee who would be personally liable to the claimant according to Texas law.           The said part of the Tort Act should be further qualified by Tex. Civ. Prac. Rem. Code  § 101.021 which provided that 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.        Are there liability limits for governmental units under the Tort Act?  The answer to the question is in the affirmative since it is provided that that liability of a municipality under the Act is limited to maximum amount of $250,000 for each person in the form money damages in case the victim is more than one but the amount should not exceed $500,000 for each single occurrence in the case of bodily injury or death. As for single occurrence for injury to or destruction of property, the amount of damage that State of Texas could be liable is $100,000 for each (Texas Tort Claims Act, 1969).       Does the Act amend liabilities for the performance of proprietary functions? The answer to the question is in the negative as the Tort Act does not limit the liability of a city or agency of Texas for damages that result from the city or agency’s performance of proprietary functions. Since the new law in made to address performance of official governmental functions, it may be safe to state that prior to the passage of the Act, a city or agency in Texas could already be held liable for the negligent performance of these proprietary functions.         As distinguished from governmental functions, Tex. Civ. Prac. Rem. Code  § 101.0215 (b) provides that proprietary functions are those functions that a municipality involve the exercise of discretion which is performed in the interest of the inhabitants of the municipality.        Under Texas law, 36 thirty six activities that are considered governmental functions, hence activities not mentioned in the law under Tex. Civ. Prac. Rem. Code  § 101.0215 should be considered proprietary functions and therefore not covered by the Tort Act of 1969. In other words, there is no need for waiver for liability under proprietary acts since with or without the tort law the State of Texas could made liable.         To understand these proprietary acts, there is need to enumerate some and these include the operation of amusements that are owned and operated by the municipality and the operation and maintenance of a public utility.          For purposes of classifying whether an act is proprietary or not, the same may be considered propriety absent any evidence that it is part of the 36 enumerated governmental functions which are presumed exclusive. This carries a necessary implication for the purposes of implementing the Tort Act, any activity that the state or its agencies engages in ,when not part of the listed of governmental function, must be deemed proprietary in nature and the state, its agencies cannot invoke the immunity and this could mean unlimited amount of damages that the court may award.      Since the Act is a waiver of state immunity, hence implying immunity for those not waived. Hence it could be asked whether it grants implied immunity for individual public officials. As illustrated earlier the employees was made liable for the personal injury not the property damage, hence the answer to the question is in the negative.      The Act is clear that it applies only to immunity for the governmental entity itself or the state of Texas and its agencies. Issues of exemption public official from liability are not necessarily part of the state immunity but should be treated as issues under the concept of official immunity. To know the same there is need to note how Texas courts applied and adopted a doctrine of limited official immunity, where the courts may declare a public officer or employee not liable from personal liability for acts within the scope of the officer’s or employee’s governmental authority.       It must be made clear however that under present Texas case law, there is either absolute immunity or qualified immunity (Olowofoyeku,1993; Rosenwein, 1999) to a public servant. This will depend upon the type of authority enjoyed by that individual. To illustrate, there is no question that judges are generally entitled to the defense of absolute or complete immunity in the exercise of judicial functions (Turner v. Pruitt, 342 S.W.2d 422, Tex. 1961). This is however limited as far as negligent acts are concerned. Moreover it must be made clear the judicial function of judges is always governmental and never proprietary.     Having said this, it would mean that a great number of Texas public servants may only enjoy defense of qualified immunity from liability, where the liability for discretionary actions could be appreciated if the officials acted in good faith within the scope of the officer’s or employee’s authority.       As to what constitutes an action to be in good faith is a question of fact while a discretionary action requires latitude of exercising judgment. Necessarily therefore, qualified immunity for ministerial or mandatory actions should not be available since the public official is just complying with an order and therefore there is absence of choice (Worsham v. Votgsberger, 129 S.W. 157, Civ.App. 1919, no writ).The duties of jailers and sheriffs in their receipt and care for prisoners are typically considered or held to be ministerial, hence the same people could not just invoke qualified immunity as defense when they are charged in court to be negligent in their function.           It may be concluded that the State of Texas Tort Claim Act applies to local justice and security agencies the same with any other legal claimants in so far as the Tort Act allows the State of Texas, its agencies and its officials in their official capacities to be liable since the law takes the nature of waiver from the general rule that the sovereign state is immune from suit. A principle in law nicely puts it Where the law does not expressly exclude, the same must have been included. References: Driskill v. State, 787 S.W.2d 369, 370 (Tex. 1990) Olowofoyeku A. (1993) Suing Judges: A Study of Judicial Immunity; Clarendon Press, Rosenwein, B. (1999) Negotiating Space: Power, Restraint, and Privileges of Immunity in Early Medieval Europe ; Cornell University Press Worsham v. Votgsberger, 129 S.W. 157 (Civ.App. 1919, no writ) Tex. Civ. Prac. Rem. Code  § 101.021. Tex. Civ. Prac. Rem. Code  § 101.0215 (b) The Texas Tort Claims Act of 1969 Turner v. Pruitt, 342 S.W.2d 422 (Tex. 1961).
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