Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-13-00884-CV

Kenneth Mark DORROUGH,

Appellant

v.

John Murray FAIRCLOTH and Helen Bowen,

Appellees

From the 216th Judicial District Court, Bandera County, Texas

Trial Court No. CV-11-320

Honorable M. Rex Emerson, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

REVERSED, VACATED, AND DISMISSED WITH PREJUDICE

In response to a complaint that Appellee John Faircloth was interfering with others’ right 

to fish, Appellant Kenneth Mark Dorrough, a deputy game warden, entered Faircloth’s lakefront 

property. He saw Appellee Helen Bowen, Faircloth’s wife, questioned her briefly, and then 

questioned Faircloth. After a heated verbal exchange between Faircloth and Dorrough, Appellees 

sued Dorrough alleging several intentional torts, and moved for a temporary injunction against 

Dorrough. The trial court granted the Appellees’ motion. Asserting his immunity from suit as a 

deputy game warden, Dorrough twice moved for summary judgment. The trial court denied both 
04-13-00884-CV

of Dorrough’s motions, and he filed this interlocutory appeal of the latter order. For the reasons 

given below, we reverse the trial court’s order, vacate the temporary injunction, and dismiss 

Appellees’ suit with prejudice.

BACKGROUND

Appellees, a married couple, own lakefront property on Medina Lake. In September 2009, 

because of a drought, land adjacent to the Faircloths’ property that had been underwater was 

exposed and dry. Dorrough received a telephone complaint from Curtis Coolidge, an off-duty San 

Antonio police officer. Coolidge asserted that John Faircloth prevented him from driving his golf 

cart across the lake bed while Coolidge and his children were searching for a place to fish. 

In response, Dorrough entered the Faircloths’ property to investigate Coolidge’s complaint. 

Dorrough went to the Faircloths’ house, knocked on the door, looked into their windows, and then 

saw Helen Bowen outside. Dorrough questioned Bowen briefly. As Dorrough was leaving, 

Faircloth returned home. Dorrough questioned Faircloth, and their conversation escalated into a 

verbal confrontation. The Faircloths insisted Dorrough leave their property, and he complied. 

Based on this encounter, Appellees sued Dorrough for trespass to real property, threat of 

bodily injury, intrusion on seclusion, and intentional infliction of emotional distress. They also 

moved for a temporary injunction to prevent Dorrough from approaching them or their property.

Dorrough answered and asserted that, at the time of the confrontation, he was a properly 

commissioned deputy game warden. Dorrough initially asserted he was immune from suit under 

the election of remedies provision of the Texas Tort Claims Act.1

 See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(f) (West 2005). After the trial court granted the Faircloths’ temporary 

1 Dorrough is represented by the Office of the Attorney General. 

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injunction and denied Dorrough’s motion to dismiss and no evidence summary judgment, 

Dorrough filed a motion for reconsideration. 

In his motion for reconsideration, Dorrough for the first time cited Filarsky and asserted 

common-law official immunity as a defense. See Filarsky v. Delia, 132 S. Ct. 1657, 1661–62 

(2012). The trial court denied his motion for reconsideration but abated the cause pending 

resolution of this appeal. On appeal, Dorrough complains the trial court erred when it denied his 

motion for reconsideration based on common-law official immunity. 

SUBJECT-MATTER JURISDICTION

As a threshold question, we must determine whether Dorrough successfully invoked this 

court’s subject-matter jurisdiction. See City of Hous. v. Estate of Jones, 388 S.W.3d 663, 667 

(Tex. 2012) (per curiam) (addressing timeliness of notice of appeal following denial of amended 

motion); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“Appellate courts 

have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly 

provides such jurisdiction.”). The trial court denied Dorrough’s motion to dismiss on February 

22, 2013, but his notice of appeal was not filed until December 12, 2013. Because his notice of 

appeal appeared to be untimely, we ordered Dorrough to show cause why his appeal should not be 

dismissed for want of jurisdiction. See TEX. R. APP. P. 25.1(b) (jurisdiction of appellate court); 

Estate of Jones, 388 S.W.3d at 667. 

A. Meeting Elements for Interlocutory Appeal

In his timely response to our order, Dorrough asserted he was entitled to an interlocutory 

appeal under section 51.014(a)(5). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West 

Supp. 2013). The section authorizes a person to pursue an interlocutory appeal if a trial court 

denies that person’s “motion for summary judgment that is based on an assertion of immunity by 

an individual who is an officer or employee of the state.” Id. Although the statute’s plain language 

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refers to a “motion for summary judgment,” its provision is not limited to a specific type of 

procedural vehicle. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (“If the trial court 

denies the governmental entity’s claim of no jurisdiction, whether it has been asserted by a plea to 

the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that 

an interlocutory appeal may be brought.”). 

Dorrough’s motion for reconsideration asserted for the first time common-law official 

immunity as a state official. In determining whether the trial court’s denial of Dorrough’s motion 

authorizes an interlocutory appeal, we look to the motion’s contents rather than its title. See Austin 

State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (per curiam) (“[A]n appeal may be taken 

from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of 

the procedural vehicle used.”). Dorrough’s motion raised official immunity, and the trial court 

denied his motion. Dorrough met the requirements for an interlocutory appeal under section 

51.014(a)(5). See id.

B. Timeliness of Notice of Appeal

The trial court denied Dorrough’s motion for reconsideration on November 24, 2013; his 

notice of appeal was due on December 16, 2013. See TEX. R. APP. P. 26.1(b). He filed his notice 

of appeal four days before the due date, which made it timely. See id. Given a timely notice of 

appeal filed on a statutorily authorized basis for interlocutory appeal, we have subject-matter 

jurisdiction for this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); TEX. R. APP.

P. 25.1(b); Estate of Jones, 388 S.W.3d at 667. We turn to the substantive issue of official 

immunity for a deputy game warden.

OFFICIAL IMMUNITY FOR DEPUTY GAME WARDEN

Although Dorrough initially sought immunity from suit under the Texas Tort Claims Act, 

see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f), he now concedes he does not meet the Act’s 

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“government employee” definition, see id. § 101.001(2) (defining an employee as one “who is in 

the paid service of a governmental unit”). Instead, he relies on common-law official immunity to 

bar the Faircloths’ suit. See Filarsky, 132 S. Ct. at 1661–62. We first consider whether commonlaw official immunity extends to a deputy game warden. 

A. Common-Law Official Immunity

Official immunity is a common-law doctrine that protects government officials from 

liability and suit. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422, 424 (Tex. 2004) 

(immunity from suit); Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex. 2002) (immunity from 

liability). “Texas courts have long recognized official immunity, in substance if not by name, for 

a variety of public officials.” Ballantyne, 144 S.W.3d at 423.

1. Purpose of Official Immunity

“Common law official immunity is based on the necessity of public officials to act in the 

public interest with confidence and without the hesitation that could arise from having their 

judgment continually questioned by extended litigation.” Id. at 424; accord Filarsky, 132 S. Ct. 

at 1661–62. If official immunity were not available, “candidates would be deterred from entering 

public service if heavy burdens on their private resources from monetary liability were a likely 

prospect for errors in judgment.” Ballantyne, 144 S.W.3d at 424; accord Filarsky, 132 S. Ct. at 

1665. Despite public officials’ fallibility in exercising discretion and judgment, “[d]enying the 

affirmative defense of official immunity to public officials in such circumstances ‘would 

contribute not to principled and fearless decision-making but to intimidation.’” Ballantyne, 144 

S.W.3d at 424. 

2. Courts Define Official Immunity

Because official immunity is a common-law doctrine, courts determine its scope and 

applicability. See Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 375 (Tex. 2006) (“[I]t 

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remains the judiciary’s responsibility to define the boundaries of the common-law doctrine and to 

determine under what circumstances sovereign immunity exists in the first instance.”); accord City 

of Leon Valley Econ. Dev. Corp. v. Little, 422 S.W.3d 37, 42 (Tex. App.—San Antonio 2013, no 

pet.). In a number of cases, the Texas Supreme Court and intermediate appellate courts have 

decided whether official immunity extends to certain public officials. E.g., Ballantyne, 144 

S.W.3d at 424; Medina Cnty. Comm’rs Court v. Integrity Grp., Inc., 944 S.W.2d 6, 8–10 (Tex. 

App.—San Antonio 1996, no writ).

3. Standard of Review

Whether the doctrine of official immunity may extend to a deputy game warden is a 

question of law which we review de novo. See City of Hous. v. Williams, 353 S.W.3d 128, 133 

(Tex. 2011).

B. Does Official Immunity Extend to a Deputy Game Warden?

In this case of first impression, we must decide whether a deputy game warden may invoke 

official immunity. We note that other courts have extended official immunity to a variety of public 

officials carrying out discretionary official duties, such as the following:

• An employment lawyer, Filarsky, 132 S. Ct. at 1660, 1667;

• A city’s Board of Adjustment members, Ballantyne, 144 S.W.3d at 424;

• A city’s public school board trustees, Campbell v. Jones, 264 S.W.2d 425 (Tex. 

1954);

• Police officers, Telthorster, 92 S.W.3d at 459–60;

• Government-employed medical personnel performing governmental (non-medical) 

functions, Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994); 

• County commissioners, Medina Cnty. Comm’rs Court, 944 S.W.2d at 8–10; and

• Volunteer firefighters, Green v. Alford, 274 S.W.3d 5, 14 (Tex. App.—Houston 

[14th Dist.] 2008, pet. denied) (en banc).

The two cases that are most relevant here are Green and Filarsky. 

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1. Green v. Alford

In Green, the en banc court applied official immunity to a “volunteer firefighter for the 

Pasadena Volunteer Fire Department.” Green, 274 S.W.3d at 9. The opinion does not expressly 

state that Green was not paid for his service as a firefighter. However, it identified him as a 

volunteer firefighter in a volunteer fire department, and relying on the ordinary meaning of 

volunteer, we may conclude Green was an unpaid worker. See id. Without discussing whether 

Green was paid, the court decided Green was a governmental employee performing discretionary 

duties within the scope of his authority, and examined only the good faith element of his 

affirmative defense of official immunity. Id. 

2. Filarsky v. Delia

In Filarsky, a case decided after Green, the Supreme Court addressed official immunity 

and who qualifies for its protections. Filarsky, 132 S. Ct. at 1663–66. In addition to reciting the 

benefits of official immunity for public officials, id. at 1665–66 (e.g., “avoiding ‘unwarranted 

timidity’”), Filarsky addressed how the common law historically “extended certain protections to 

individuals engaged in law enforcement activities,” id. at 1664. It noted that a private individual 

called to serve in a posse comitatus “is entitled to the same protection in the discharge of his duties 

as the sheriff himself.” Id. It also observed that a “special constable, duly appointed according to 

law . . . [was] as fully protected as any other office.” Id. (second alteration in original). 

3. Extending Official Immunity to a Deputy Game Warden

In Texas, the legislature has authorized the commissioning and service of deputy game 

wardens. TEX. PARKS & WILD. CODE ANN. § 11.020 (West 2002). The statute generally describes 

the official duties they are authorized to perform, creates performance standards, identifies some 

of the purposes they accomplish on behalf of the State, and directs the commission to create 

regulations governing them. Id. The statute also states that deputy game wardens “serve without 

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compensation from the state.” Id. Given Green’s precedent that a volunteer firefighter is a 

government employee for purposes of invoking official immunity, Green, 274 S.W.3d at 9, the 

statutory authorization for deputy game wardens, TEX. PARKS & WILD. CODE ANN. § 11.020, and 

Filarsky’s recitation of the benefits of extending official immunity to public officials, Filarsky, 

132 S. Ct. at 1665–66, we hold that the common-law doctrine of official immunity extends to 

deputy game wardens. We turn now to whether Dorrough successfully invoked official immunity. 

OFFICIAL IMMUNITY FOR DORROUGH

Dorrough did not originally invoke common-law official immunity; instead, he initially 

moved for summary judgment based on no evidence, and the trial court denied his motion.

A. Nature of Motion for Reconsideration

In his motion for reconsideration, Dorrough raised common-law official immunity, and reurged his no evidence motion. But a defendant “should not move for no-evidence summary 

judgment based on an affirmative defense that it has the burden to prove at trial.” Thomas v. Omar 

Invs., Inc., 129 S.W.3d 290, 293 (Tex. App.—Dallas 2004, no pet.); accord Nowak v. DAS Inv. 

Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Because commonlaw official immunity is an affirmative defense, and Dorrough has the burden to prove each of its 

elements, Ballantyne, 144 S.W.3d at 423; Telthorster, 92 S.W.3d at 460–61, a no evidence motion 

was inapt, see Thomas, 129 S.W.3d at 293; Nowak, 110 S.W.3d at 680. Therefore, “[w]e look to 

the substance of [his] plea for relief to determine [its] nature.” State Bar of Tex. v. Heard, 603 

S.W.2d 829, 833 (Tex. 1980); see Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 

(Tex. 1991) (“[D]ecisions of the courts of appeals [should] turn on substance rather than procedural 

technicality.”). 

Although Dorrough several times referred to his “no evidence motion,” Dorrough also 

moved the trial court to “grant summary judgment in his behalf on the basis of immunity [under 

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section 101.106(f)] when considered together with Filarsky v. Delia,” he attached evidence 

supporting his motion, and he submitted additional evidence in his motion for leave to file a 

response to the Faircloths’ amended motion. Thus, we construe his plea for relief as a traditional 

motion for summary judgment. See TEX. R. CIV. P. 166a(c) (authorizing traditional summary 

judgment based on the motion’s grounds and evidence submitted with the motion); Heard, 603 

S.W.2d at 833. We turn to the applicable law and standard of review.

B. Elements of Official Immunity

Official immunity, sometimes called qualified immunity, is an affirmative defense. 

Ballantyne, 144 S.W.3d at 423; Kassen, 887 S.W.2d at 8; Chambers, 883 S.W.2d at 653; see City 

of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993) (noting that qualified immunity and 

official immunity are terms that are often used interchangeably). The elements of official 

immunity are well-established: public officials must be “(1) acting within the scope of their 

authority (2) in performing their discretionary duties in (3) good faith.” Ballantyne, 144 S.W.3d 

at 422; accord Telthorster, 92 S.W.3d at 461.

C. Standard of Review

When a defendant moves for traditional summary judgment on the affirmative defense of 

official immunity, he must conclusively prove each element of his defense. Ballantyne, 144 

S.W.3d at 424; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. If the defendant 

movant meets this burden, and the nonmovant’s summary judgment evidence fails to raise a 

genuine issue of material fact on any essential element, the movant is entitled to judgment. TEX.

R. CIV. P. 166a(c); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. 

Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). 

To establish the element of good faith, a public official must conclusively prove that “a 

reasonably prudent official, under the same or similar circumstances, could have believed that his 

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conduct was justified based on the information he possessed when the conduct occurred.” 

Ballantyne, 144 S.W.3d at 426; accord Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 

656. The test for good faith turns not on “‘what a reasonable person would have done,’” but rather 

on “‘what a reasonable [person] could have believed.’” Ballantyne, 144 S.W.3d at 426 (quoting 

Telthorster, 92 S.W.2d at 465). The official “must prove only that a reasonably prudent [official], 

under similar circumstances, might have [acted the same way].” Telthorster, 92 S.W.2d at 465; 

accord Chambers, 883 S.W.2d at 656. If the official meets this burden, the nonmovant “must 

show that ‘no reasonable person in the defendant’s position could have thought the facts were such 

that they justified defendant’s acts.’” Chambers, 883 S.W.2d at 657; accord Telthorster, 92 

S.W.2d at 465. 

We review the summary judgment evidence to determine whether Dorrough met his 

burden, and then whether the Faircloths met theirs. 

D. Summary Judgment Evidence

In the July 12, 2013 hearing on Dorrough’s motion to reconsider the trial court’s earlier 

denial of his motion for summary judgment, Dorrough complained that the Faircloths had 

submitted a response after 5:00 p.m. the previous day. Dorrough asked the court not to rule on his 

motion until he had time to read and respond to the Faircloths’ amended petition. The trial court 

granted Dorrough’s oral motion, and gave him permission to file a written supplement to his 

motion for reconsideration. The court also gave the Faircloths permission to respond to any 

supplement Dorrough submitted. The court expressly agreed it would consider the supplement 

and response before it decided Dorrough’s motion for reconsideration. As part of his supplement, 

Dorrough submitted an affidavit, with exhibits, from Lieutenant Colonel Danny Shaw, a deputy 

director of law enforcement for the Texas Parks and Wildlife Department. The record does not 

show that the Faircloths objected to Shaw’s affidavit or exhibits. We consider Shaw’s affidavit, 

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exhibits, and the other summary judgment evidence as it pertains to each element of official 

immunity.

E. Scope of Authority

The first element of official immunity we consider is whether Dorrough was acting within 

the scope of his authority.

1. Applicable Law

“[P]ublic officials act within the scope of their authority if they are discharging the duties 

generally assigned to them.” Ballantyne, 144 S.W.3d at 424; accord Chambers, 883 S.W.2d at 

658. The Parks and Wildlife Code expressly authorizes “[a] commissioned deputy game warden 

[to] enforce state laws relating to hunting and fishing” in a prescribed geographical area. TEX.

PARKS & WILD. CODE ANN. § 11.020; see also 31 TEX. ADMIN. CODE § 55.62 (2013) (Tex. Parks 

& Wildlife Dep’t, Deputy Game Wardens) (“A deputy game warden is authorized . . . to perform 

such game and fish duties as may be assigned by the regular game warden, in geographical areas 

designated by the Department.”). 

2. Shaw’s Affidavit, Exhibits

In Shaw’s affidavit, he stated he reviewed the relevant Department records; he concluded 

that Dorrough met all the commissioning requirements and was a properly commissioned deputy 

game warden on the date of the incident. He provided a geographical assignment log that showed 

Dorrough was assigned to the “Bandera/San Antonio” geographical area, and the Faircloths’ 

property is within that area. He stated that Dorrough was authorized to investigate a complaint 

alleging a violation of the Parks and Wildlife Code. See TEX. PARKS & WILD. CODE ANN.

§ 62.0125 (prohibiting any person from “intentionally interfer[ing] with another person lawfully 

engaged in the process of hunting or catching wildlife” and defining that process to include “other 

acts preparatory to hunting or catching of wildlife that occur on land or water on which the affected 

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person has the right or privilege of hunting or catching that wildlife”). Shaw concluded that 

Dorrough was acting within his official capacity as a deputy game warden when he questioned the 

Faircloths. 

3. Faircloths’ Affidavits

The Faircloths assert Dorrough was not acting within the scope of his authority because he 

acted improperly in confronting them, he misidentified himself as a game warden, and he should 

not have asked them for their property deed. They insist these alleged errors show Dorrough was 

acting outside the scope of his authority. 

4. Dorrough Acted Within Scope of Authority

Taking the Faircloths’ affidavits as true, we nevertheless conclude they failed to raise a 

genuine issue of material fact on the element of scope of authority. Even if some aspects of 

Dorrough’s investigation were “later determined to be incorrect,” such alleged errors do not put 

Dorrough’s investigation of Coolidge’s complaint outside the scope of his authority. See 

Ballantyne, 144 S.W.3d at 425; Chambers, 883 S.W.2d at 658. The controlling question for the 

scope of authority is not whether Dorrough made errors in his investigation; rather, it is whether 

he was discharging the duties generally assigned to him. See Ballantyne, 144 S.W.3d at 424; 

Chambers, 883 S.W.2d at 658. 

The relevant sections of the Parks and Wildlife Code conclusively establish that 

investigating allegations of violations of the Parks and Wildlife Code is within the authority of a 

deputy game warden. Cf. Ballantyne, 144 S.W.3d at 425. Further, Shaw’s affidavit and the 

attached exhibits, to which the Faircloths did not object, conclusively establish that Dorrough was 

properly commissioned and investigating within his assigned geographical area. Thus, Dorrough 

met his burden to conclusively prove he was acting within the scope of his authority when he 

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investigated Coolidge’s complaint, and the Faircloths’ evidence fails to raise a genuine issue of 

material fact on this element. 

We turn to the next element—whether Dorrough was performing a discretionary function.

F. Mandatory or Discretionary Function

Citing the Parks and Wildlife Code, Dorrough avers he was performing a discretionary 

function when he investigated Coolidge’s complaint and questioned the Faircloths. See TEX.

PARKS & WILD. CODE ANN. § 11.020 (deputy game wardens). The Faircloths do not assert that a 

deputy game warden’s investigation is a mandatory function rather than a discretionary one. We 

consider the applicable law distinguishing mandatory and discretionary functions, and whether a 

deputy game warden’s investigation is a discretionary function. 

1. Distinguishing Mandatory and Discretionary Functions

As opposed to a mandatory function, “[i]f an action involves personal deliberation, 

decision, and judgment, . . . it is discretionary.” Ballantyne, 144 S.W.3d at 425; accord Chambers, 

883 S.W.2d at 655. Although a deputy game warden’s duties do not comprise all the duties of a 

peace officer, the deputy’s law enforcement duties invite comparisons to police officer case 

precedents. See TEX. PARKS & WILD. CODE ANN. § 11.020(c) (authorizing a deputy game warden 

to “enforce state laws relating to hunting and fishing”). In analyzing a police officer case, 

Chambers opined that “[t]he decision to pursue a particular suspect will fundamentally involve the 

officer’s discretion, because the officer must, in the first instance, elect whether to undertake 

pursuit.” Chambers, 883 S.W.2d at 655. We are persuaded that such logic applies here.

2. Is a Deputy Game Warden’s Investigation a Discretionary Function?

A deputy game warden is authorized to investigate complaints of violations of the Parks 

and Wildlife Code, but there is no requirement that the deputy investigate every complaint. See

TEX. PARKS & WILD. CODE ANN. § 11.020 (“A commissioned deputy game warden may enforce 

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state laws relating to hunting and fishing . . . .” (emphasis added)). Thus, by deciding whether to 

investigate a particular complaint, the deputy game warden exercises discretion. Cf. Chambers, 

883 S.W.2d at 655. Therefore, we hold that a deputy game warden performs a discretionary 

function when the deputy investigates a complaint. Cf. id. We conclude Dorrough conclusively 

proved he was performing a discretionary function, and the Faircloths failed to raise a genuine 

issue of material fact on this element. We turn to the final element: good faith.

G. Good Faith

The parties vigorously dispute whether Dorrough acted in good faith when he questioned 

the Faircloths. To establish good faith, Dorrough must conclusively prove that a reasonably 

prudent deputy game warden faced with similar circumstances could have acted as he did. See

Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 656. If 

Dorrough meets this burden, the Faircloths must then “show that ‘no reasonable person in 

[Dorrough’s] position could have thought the facts were such that they justified [his] acts.’” 

Chambers, 883 S.W.2d at 657; accord Telthorster, 92 S.W.2d at 465. We consider the summary 

judgment evidence. 

1. Shaw’s Affidavit

a. Audio Recording

In his affidavit, Shaw averred that he listened to the Faircloths’ audio recording of the 

verbal confrontation. He noted the recording lasted about two minutes and twenty-seven seconds. 

In the recording, he heard a verbal confrontation between John Faircloth and Dorrough. At the 

beginning of the conversation, Dorrough was “speaking in a calm voice.” More than once, 

Dorrough identified himself as a game warden and asked for John Faircloth’s identification. Four 

times Shaw heard a female voice tell John Faircloth to calm down. Shaw also noted that John 

Faircloth cut off “Dorrough in all attempts to converse with him about the initial complaint.”

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b. Additional Information

In his affidavit, Shaw also included excerpts from Dorrough’s written statement. Dorrough 

stated he felt threatened by John Faircloth’s running at him, swinging his arms, and screaming in 

his face. Dorrough admitted he yelled at John Faircloth, but only in response to John Faircloth’s 

provocative speech and actions.

c. Shaw’s Conclusion

After briefly describing his almost thirty-years’ experience working for the Texas Parks 

and Wildlife Department, beginning as a game warden and advancing to deputy director of law 

enforcement, Shaw reviewed the applicable statutes and regulations governing deputy game 

wardens. Shaw stated he had reviewed the circumstances of this matter, and concluded that 

Dorrough erred when he misidentified himself as a game warden. Nevertheless, Shaw concluded 

that when Dorrough investigated Coolidge’s complaint and questioned the Faircloths, he was 

“acting in an official capacity as a deputy game warden and his actions were reasonable.” 

d. Dorrough Met His Burden

Given Shaw’s affidavit and exhibits, to which the Faircloths did not object, we conclude 

that Dorrough met his summary judgment burden to establish that a reasonable deputy game 

warden could have acted as he did under similar circumstances. See Ballantyne, 144 S.W.3d at 

426; Telthorster, 92 S.W.3d at 465. Because Dorrough met his burden, the evidentiary burden 

shifted to the Faircloths. See Telthorster, 92 S.W.3d at 466–67; Chambers, 833 S.W.2d at 657.

2. Faircloths’ Affidavits

To raise a genuine issue of material fact on good faith, the Faircloths had to show that no 

reasonable deputy game warden could have acted as Dorrough did. See Ballantyne, 144 S.W.3d 

at 426; Telthorster, 92 S.W.3d at 465. In their affidavits, the Faircloths averred the following 

regarding Dorrough’s conduct on the day in question:

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• his breath smelled of alcohol,

• he entered their property without their permission;

• he peered through their windows;

• he yelled obscenities at John Faircloth and threatened to strike him;

• he repeatedly demanded to see their deed; 

• he threatened John Faircloth with arrest if he told any more people to leave the lake 

bed area; and

• he acted out of animus for the Faircloths.

Because good faith is a test of objective legal reasonableness, Dorrough’s subjective intent is 

irrelevant, and we do not address it. See Ballantyne, 144 S.W.3d at 427–28. Nevertheless, we 

address the remaining alleged facts. 

The Faircloths do not allege Dorrough was intoxicated or incapacitated, nor do they 

provide any evidence of such impairment; they merely state that his breath smelled of alcohol. 

They aver that Dorrough peered, yelled, demanded, and threatened, and they imply that these 

actions show bad faith per se. 

Taking the Faircloths’ affidavits as true, they are nevertheless no evidence that no 

reasonable deputy game warden could have acted as Dorrough did. Their assertions merely 

provide the basis for their lay opinions about Dorrough’s actions. Cf. Medina County Comm’rs 

Court v. Integrity Group, Inc., 944 S.W.2d 6, 10 (Tex. App.—San Antonio 1996, no writ) 

(deciding that plaintiff’s affidavits failed to meet its burden to controvert defendants’ good faith). 

The Faircloths failed to provide any statute or regulation showing that Dorrough was 

prohibited from acting as he did. Further, they provided no affidavit from any authority familiar 

with deputy game warden duties, procedures, and conduct that no reasonable deputy game warden 

could have acted as Dorrough did given the applicable law and the facts he had at the time. See

Telthorster, 92 S.W.2d at 465; Chambers, 883 S.W.2d at 657. See generally Telthorster, 92 

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S.W.3d at 464 (opining on the “volatile and changing circumstances” those conducting “streetlevel police work” sometimes encounter). 

While the Faircloths may have raised questions of whether another reasonably prudent 

deputy game warden would have acted as Dorrough did, the Faircloths failed to meet their burden 

to show no reasonable deputy game warden could have acted as Dorrough did given the applicable 

law, John Faircloth’s conduct, and the other circumstances present here. See City of San Antonio 

v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (explaining that the applicable test “is one of 

‘objective legal reasonableness’ and the immunity protects ‘all but the plainly incompetent or those 

who knowingly violate the law’” (quoting Chambers, 883 S.W.2d at 656)); Telthorster, 92 S.W.3d 

at 465, 467; Chambers, 883 S.W.2d at 657. 

CONCLUSION

As we previously determined, we have subject-matter jurisdiction in this interlocutory 

appeal to decide whether the trial court erred when it denied Appellant Kenneth Mark Dorrough’s 

motion for reconsideration—which we construe as a traditional motion for summary judgment. 

We hold that the common-law doctrine of official immunity extends to a deputy game 

warden. 

To invoke immunity from suit, Dorrough had to conclusively prove the elements of his 

affirmative defense of official immunity. Having reviewed the summary judgment evidence, we 

conclude Dorrough met his summary judgment burden to prove he acted within the scope of his 

authority while performing a discretionary act. For the element of good faith, we conclude 

Dorrough met his burden to prove that a reasonable deputy game warden could have acted as he 

did, and the Faircloths failed to meet their burden to prove that no reasonable deputy game warden 

could have acted as Dorrough did. Thus, Dorrough is immune from suit, and the trial court lacked 

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subject-matter jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 

(Tex. 2004). 

Therefore, we reverse the trial court’s order, vacate the temporary injunction, and dismiss 

the Faircloths’ suit with prejudice.

Patricia O. Alvarez, Justice

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