Opinion issued July 11 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 17 - 00875 - CV

——————————— JOHN RUFF AND CATHER INE LOTH, INDIVIDUAL LY AND AS NEXT

FRIENDS OF A.R., A M INOR CHILD , Appella nt s V. THE UNIVERSITY OF ST . TH OMAS , Appell e e On Appeal from the 190th District Court

Harris County, Texas Trial Court Ca se No. 2016 - 19616
CONCURRING OPINION I join the C ourt’s opinion, but I write separately to highlight that the Chapter 33 parental

- immunity cases relied on by the C ourt

— Shoemake v. Fogel, Ltd. , 826 S.W.2d 933 (Tex. 1992) , Gem Homes, Inc. v. Contreras , 861 S.W.2d 449 (Tex. App.

— El Paso 1993, writ denied) , and Plainview Motels, Inc. v. Reynolds , 1272

S.W.3d 21 (Tex. App.

— Tyler 2003, pet. denied)

— were all decided under the pre

2003 amendment versions of Chapter 33 and that under the post

- 2003 amendment version of Chapter 33 , immune persons can be designated as responsible third parties. See In re Unitec Elevator Servs. Co. , 178 S.W.3d 53, 58 n.5 (Tex. App.

— Houston [1st Dist.] 2005, orig. proceeding) (“ Under the newly enacted version, a responsible third party may include persons .
. . who are immune from liability to the claimant. ”) ( citing T EX . C IV . P RAC . & R EM . C ODE § 33.011(6) ); see also Fisher v. Halliburton , 667 F.3 d 602, 622 (5th Cir. 2012) ; Galbraith Eng’g Consultants, Inc. v. Puchucha , 290 S.W.3d 863, 868 n.6 (Tex. 2009) ( “The 2003 amendments substantially broadened the meaning of the term ‘responsible third party’
. . . regardless of whether
. . . there is some other impediment to the imposition of liability on them, such as a statutory immunity.”) ; David W. Holman, Responsible Third Parties , 46 S. T EX . L. R EV . 869, 885 (2005) (noting that a “claimant ’ s parents whom the claimant cannot sue because of parental imm unity” may now be submitted as responsible third part ies after 2003 amendments)
. Texas federal district courts applying Chapter 33 have therefore specifically ruled that, despite assertions of parental immunity, parents

— even if they are already plaintiffs individually or as next friends of their minor children

— may be designated as responsible third parties to have their proportionate responsibility determined by the fact finder. See Rubi v. MTD Prods., Inc. , No. H

- 15

- 1831, 20163

WL 7638150 , at *5

– 6 (S.D. Te x. Dec. 13, 2016); Hernandez v. Bumbo (Pty.) Ltd. , No. 3:12

- cv - 1213

- M, 2014 WL 924238, at *2

– 5 (N.D. Tex. Mar. 10, 2014) (noting that allowing designation of mother as responsible third party was “only mechanism by which such alleged fault could be conside red ” because mother’s “assertion of parental immunity would preclude Defendants from asserting any claim for contribution against her, thereby making a claim by D efendants against her legally untenable” )
. The University did not seek to designate Ruff and L oth as responsible third parties

— the “only mechanism by which [their] alleged fault could be considered .” Hernandez , 2014 WL 924238, at *5. Therefore, on the record in this case, I agree that the trial court erred in reducing the judgment based on the appo rtionment findings.

R ichard Hightower Justice Panel consists of Justices Lloyd, Kelly, and Hightower.