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Brazos Transit District v. Lozano

Texas Civil Practice and Remedies Code '51.014(a)(8) does not permit an appeal from any procedural vehicle, as long as it is based on sovereign immunity.

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OPINION

This appeal arises from a suit filed by Arturo Lozano against Brazos Transit District *fn1 (Brazos), Emmitt Davis, Jr., Christine Conn and Mary Battles for injuries sustained by Lozano as a bus passenger. Brazos filed a motion for summary judgment, which the trial court denied. *fn2 Brazos then filed this interlocutory appeal. Lozano filed a motion to dismiss the appeal on the grounds interlocutory appeal is not permitted in this case. *fn3 Lozano also seeks reasonable attorney fees and costs for the appeal pursuant to Tex. R. App. P. 45, providing damages for frivolous appeals. Brazos contends the appeal is authorized pursuant to sections 54.014(a)(5) and (8) of the Texas Civil Practices and Remedies Code and is not frivolous. See Tex. Civ. Prac. & Rem. Code Ann. � 51.014(a)(5), (8) (Vernon Supp. 2002).

Section (5) provides an interlocutory appeal from the denial of “a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” Id. Citing Puthoff v. Ancrum, 934 S.W.2d 164 (Tex. App.–Fort Worth 1996, writ denied), Brazos contends interlocutory review is available to both an individual official and his employer seeking summary judgment based upon official immunity. The court in Puthoff stated that under section (5) “[i]nterlocutory review is available to both the individual and his employer seeking summary judgment based on the doctrine of official immunity.” Id. at 166 n.2. We do not disagree with Puthoff but fail to see its applicability to the present case wherein neither Davis nor Brazos sought summary judgment based on the doctrine of official immunity. Antithetically, the appellants in Puthoff alleged the defenses of official and sovereign immunity in their answers and filed motions for summary judgment based on their claims of immunity. Id. at 166.

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