Opinion issued July 11, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-17-00875-CV

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JOHN RUFF AND CATHERINE LOTH, INDIVIDUALLY AND AS NEXT 

FRIENDS OF A.R., A MINOR CHILD, Appellants

V.

THE UNIVERSITY OF ST. THOMAS, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2016-19616

CONCURRING OPINION

I join the Court’s opinion, but I write separately to highlight that the Chapter 

33 parental-immunity cases relied on by the Court—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, 127 
2

S.W.3d 21 (Tex. App.—Tyler 2003, pet. denied)—were all decided under the pre2003 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 TEX. CIV. PRAC. & REM. CODE § 33.011(6)); see also Fisher 

v. Halliburton, 667 F.3d 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. TEX. L. REV. 869, 885 (2005) (noting that a “claimant’s 

parents whom the claimant cannot sue because of parental immunity” may now be 

submitted as responsible third parties 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, 2016 
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WL 7638150, at *5–6 (S.D. Tex. 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 considered” because mother’s 

“assertion of parental immunity would preclude Defendants from asserting any 

claim for contribution against her, thereby making a claim by Defendants against 

her legally untenable”).

The University did not seek to designate Ruff and Loth 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 apportionment 

findings.

Richard Hightower

Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.