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Axtell v. University of Texas at Austin

The state does not waive its governmental immunity by using or misusing information.

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Appellant Luke Axtell sued the University of Texas at Austin (the University) and the University men’s athletic director DeLoss Dodds and former head men’s basketball coach Thomas Penders for negligence and for statutory violations pursuant to the Family Educational Rights and Privacy Act. Axtell contended that his educational records were faxed from a machine in the men’s basketball office to a local radio station, which then broadcast the information. On appeal, Axtell argues that the trial court erred in granting the University’s plea to the jurisdiction because his cause of action is permitted by the limited waiver of governmental immunity for injuries caused by tangible personal property under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. � 101.021(2) (West 1997). We hold that the tangible personal property exception of the Act does not encompass an injury resulting from the disclosure of confidential information, however that information is transmitted.

FACTUAL BACKGROUND

Axtell was a freshman basketball player at the University during the 1997-98 academic year until he was suspended for academic deficiencies on March 17, 1998. The Austin American Statesman reported the suspension of Axtell and others and also related that several players were disgruntled with Coach Penders. On March 18, a fax message containing a portion of Axtell’s educational records was sent from the men’s basketball office to two local radio stations, KVET and KJFK. KVET subsequently broadcast the information.

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