Exhibit "1" 

WILLIAM MARSH RICE UNIV. V. THOMAS 

No. 01-14-00908-CV, 2015 Tex. App. LEX1S 5661 

(Tex. App. — Houston [1stDist.] 2015) 

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/12/15 3:11:01 PM KEITH E. HOTTLE Clerk
No Shepard's SignalTM 

As of: June 10, 2015 2:19 PM EDT 

William Marsh Rice Univ. v. Thomas 

Court of Appeals of Texas, First District, Houston 

June 4, 2015, Opinion Issued 

NO. 01-14-00908-CV 

Reporter 

2015 Tex. App. LEXIS 5661 

WILLIAM MARSH RICE UNIVERSITY, 

RICE UNIVERSITY POLICE 

DEPARTMENT, AND OFFICER HENRY 

CASH, Appellants v. MICHAEL CLAYTON 

THOMAS, Appellee 

Prior History: [*1] On Appeal from the 

80th District Court, Harris County, Texas. 

Trial Court Case No. 2013-06667. 

Core Terms 

immunity, arrest, protective order, parties, 

summary judgment, peace officer, police 

department, violating, duties, 

commissioned, entitled to summary 

judgment, summary judgment motion, 

officer's, discretionary, interlocutory appeal, 

trial court, good faith, Directive, entity, 

affirmative defense, university police, 

ministerial, probable 

Case Summary 

Overview 

HOLDINGS: [1]-The denial of defendants' 

summary judgment motion was improper 

in plaintiffs action alleging that he was 

improperly arrested on campus because 

the officer was performing a discretionary 

act; [2]-The evidence relied on by the officer 

established that he had probable cause to 

believe that plaintiff was violating a 

protective order before the arrest, and 

plaintiff did not raise a fact issue as to the 

existence of probable cause or the 

requirements of the department's General 

Directive; [3]-By attempting to keep the 

peace, protect campus employees and the 

general public, and arrest an individual 

believed to be violating a protective order, 

the officer was discharging the type of 

duties generally assigned to him, Tex. 

Educ. Code Ann. § 51.212(b)(1) (2012). 

Outcome 

Judgment reversed and rendered. 

LexisNexis® Headnotes 

Civil Procedure > Appeals > Appellate 

Jurisdiction > Interlocutory Orders 

HN1 See Tex. Civ. Prac. & Rem. Code 

Ann. § 51.014(a)(5) (Supp. 2015). 

Education Law > Administration & 

Operation > School Safety > Security 

Personnel 

Governments > Local Governments > Police 

Power 

HN2 The Civil Practice and Remedies 

Code does not define "officer of the state," 

and the Education Code does not 
Page 2 of 12 

2015 Tex. App. LEXIS 5661, *1 

specifically state that a peace officer 

commissioned by a private educational 

institution is an officer of the state. But the 

Education Code does provide that any 

officer commissioned under the provisions 

of Tex. Educ. Code Ann. § 51.212 (2012), 

is vested with all the powers, privileges, 

and immunities of peace officers if the 

officer (1) is on the property under the 

control and jurisdiction of the 

commissioning institution, § 51.212(b)(1) 

(2012). Indeed, officers commissioned 

under Tex. Educ. Code Ann. ch. 51 are 

explicitly included in the definition of "peace 

officers" in the Code of Criminal Procedure, 

Tex. Code Crim. Proc. Ann. art. 2.12(8) 

(2014). 

Education Law > Administration & 

Operation > School Safety > Security 

Personnel 

Civil Procedure > Appeals > Appellate 

Jurisdiction > Interlocutory Orders 

HN3 The "officer of the State" language in 

Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(a)(5) (Supp. 2015), applies to 

private university peace officers, 

specifically including those commissioned 

under Tex. Educ. Code Ann. § 51.212 

(2012). An employer may rely on its 

employee's assertion of immunity for 

purposes of invoking interlocutory 

appellate jurisdiction under Tex. Civ. Prac. 

& Rem. Code Ann. § 51.014(a)(5). 

Civil Procedure > > Defenses, Demurrers 

& Objections > Affirmative Defenses > 

Immunity 

Civil Procedure > Appeals > Summary 

Judgment Review > Standards of Review 

HN4 Because official immunity is an 

affirmative defense, the parties must 

conclusively establish each element of the 

defense. Appellate courts apply the same 

standard for reviewing the denial of 

summary judgment where there is an 

assertion of immunity as they do for the 

granting of summary judgment. 

Civil Procedure > Appeals > Summary 

Judgment Review > Standards of Review 

Civil Procedure > > Summary Judgment > 

Entitlement as Matter of Law > Genuine 

Disputes 

Civil Procedure > > Summary Judgment > 

Entitlement as Matter of Law > Legal 

Entitlement 

Civil Procedure > > Summary Judgment > 

Entitlement as Matter of Law > Materiality of 

Facts 

HN5 The standard of review for summary 

judgments is well-established. Appellate 

courts review the trial court's ruling de 

novo. The courts take as true all evidence 

favorable to the nonmovant, and they 

indulge every reasonable inference and 

resolve any doubts in the nonmovant's 

favor. The party moving for summary 

judgment bears the burden to show that no 

genuine issue of material fact exists and 

that it is entitled to judgment as a matter of 

law, Tex. R. Civ. P. 166a. 

Education Law > Administration & 

Operation > School Safety > Security 

Personnel 

HN6 Any officer commissioned under the 

provisions of Tex. Educ. Code Ann. § 

51.212 (2012) is vested with all the powers, 

privileges, and immunities of peace officers 

if the officer satisfies any of several 
Page 3 of 12 

2015 Tex. App. LEXIS 5661, *1 

conditions, one of which is that he is on the 

property under the control and jurisdiction 

of the respective private institution of higher 

education, § 51.212(b)(1). Indeed, an 

officer commissioned under § 51.212(a) is 

a "peace officer." Under § 51.212(c), an 

officer commissioned under that section 

must take and file the oath required of 

peace officers and execute and file a good 

and sufficient bond conditioned on officer's 

fair, impartial, and faithful performance of 

officer's duty. 

Governments > Local Governments > Police 

Power 

Governments > Local Governments > 

Employees & Officials 

Governments > Local Governments > 

Claims By & Against 

Torts > Public Entity Liability > Immunities > 

Qualified Immunity 

HN7 Government employees, such as 

peace officers, are entitled to immunity 

from suit arising from the performance of 

(1) discretionary duties in (2) good faith as 

long as they are (3) acting within the scope 

of their authority. 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. The public would suffer if 

government officials, who must exercise 

judgment and discretion in their jobs, were 

subject to civil lawsuits that 

second-guessed their decisions. 

Torts > Public Entity Liability > Immunities > 

Qualified Immunity 

HN8 To establish an official immunity 

defense, the following three elements must 

be established: the performance of (1) 

discretionary duties (2) in good faith (3) 

while acting within the scope of his 

authority. 

Torts > Public Entity Liability > Immunities > 

Qualified Immunity 

Governments > Local Governments > Police 

Power 

HN9 Discretionary actions are those that 

require personal deliberation, decision and 

judgment. By contrast, ministerial actions 

require obedience to order or the 

performance of a duty as to which the actor 

is left no choice. Ministerial acts are those 

where the law prescribes and defines the 

duties to be performed with such precision 

and certainty as to leave nothing to the 

exercise of discretion or judgment. The 

investigatory duties of peace officers have 

been held to fall within those actions 

considered discretionary. Further, if, how, 

and when to arrest a suspect is within a 

police officer's discretion. 

Torts > Public Entity Liability > General 

Overview 

HN10 To determine whether a public official 

acted in good faith, courts use the objective 

standard and ask whether a reasonably 

prudent official, under the same or similar 

circumstances, could have believed that 

his conduct was justified based on the 

information he possessed when the 

conduct occurred. The standard of good 

faith as an element of official immunity is 

not a test of carelessness or negligence, or 

a measure of an official's motivation. This 

test of good faith does not inquire into what 
Page 4 of 12 

2015 Tex. App. LEXIS 5661, *1 

a reasonable person would have done, but 

into what a reasonable person could have 

believed. 

Torts > Public Entity Liability > General 

Overview 

HN11 An official acts within the scope of 

his authority if he is discharging the duties 

generally assigned to him. 

Governments > Local Governments > Police 

Power 

Governments > Local Governments > 

Employees & Officials 

Torts > Public Entity Liability > Immunities > 

Sovereign Immunity 

HN12 Official immunity directly protects 

only the individual officer, not the entity that 

employs him. But when the officer 

establishes that he is entitled to that 

defense, the employer is entitled to assert 

it, as well. A private entity is entitled to 

assert any affirmative defenses its 

employee has to liability. It would serve no 

legislative purpose to declare a waiver of 

sovereign immunity when the basis of 

liability is respondeat superior and the acts 

of the employee are covered by official 

immunity. 

Judges: Panel consists of Chief Justice 

Radack and Justices Brown and Lloyd. 

Opinion by: Harvey Brown 

Opinion 

MEMORANDUM OPINION 

Michael Clayton Thomas sued William 

Marsh Rice University, the Rice University 

Police Department, and Henry Cash, a 

Rice University police officer, alleging that 

he was improperly arrested on the Rice 

campus. The defendants moved for 

summary judgment, arguing that Cash and, 

by extension, the police department and 

university (collectively, "Rice parties") are 

entitled to official immunity, which the trial 

court denied. The Rice parties now appeal 

from the trial court's order denying their 

motion. Because the Rice parties were 

entitled to summary judgment, we reverse 

and render judgment that Thomas take 

nothing. 

Background 

In November 2011, Officer Cash 

responded to a radio call from the university 

police department's dispatcher that "a man 

[on the Rice campus] may be violating a 

protective order by attempting to contact 

his wife or words to that effect." He 

encountered Thomas at the BioScience 

Research Center building, identified 

himself, and spoke with Thomas. Thomas 

gave his name and stated that [*21 he was 

there to see his wife. Officer Cash asked 

Thomas if a protective order existed, and 

Thomas did not deny that such an order 

existed. Officer Cash then handcuffed 

Thomas out of concern for his own safety 

and that of the public and took him to the 

building security office. 

Officer Cash then conducted an 

investigation, during which he spoke with 

Thomas's wife, who stated that she had a 

protective order against Thomas. Officer 

Cash next called the district attorney's 

office and spoke to an assistant district 

attorney, who said the district attorney's 

office would verify the existence of the 

protective order and would accept charges 
Page 5 of 12 

2015 Tex. App. LEXIS 5661, *2 

against Thomas for violating the order. 

Officer Cash then arrested Thomas for 

violating a protective order. 

Thomas's vehicle was towed from the Rice 

University garage where he had parked, 

and officers transported Thomas to the 

Harris County jail. While Thomas was being 

processed at the jail, the officers learned 

that the order against him was not a 

protective order, but a mutual restraining 

order, violation of which did not permit 

Thomas's arrest. Officers then took 

Thomas back to the university campus, 

and he took a taxi to the lot where his car 

had been [*3] towed. 

Thomas sued the Rice parties for 

negligence; false arrest; false 

imprisonment; intentional infliction of 

emotional distress; conversion of his 

vehicle; violations of the United States 

Constitution under Chapter 42, Section 

1983, of the United States Code; violations 

of the Texas Constitution; battery; damage 

to his vehicle; and malicious prosecution. 

The Rice parties moved for a traditional 

summary judgment, arguing that the 

doctrine of official immunity barred 

Thomas's claims against Officer Cash. 

Because Thomas based his claims against 

the university and the department on 

theories of vicarious liability for Officer 

Cash's actions, the Rice parties argued 

that summary judgment was also proper 

on those claims. 

The trial court denied the Rice parties' 

motion, and the Rice parties now appeal 

that order. 

Jurisdiction over this Interlocutory 

Appeal 

In their first issue, the Rice parties argue 

that we have jurisdiction over this 

interlocutory appeal pursuant to Section 

51.014(a)(5) of the Civil Practice and 

Remedies Code. See TEX. Civ. PRAC. & 

REM. CODE ANN. § 51.014(a)(5) (West Supp. 

2015). That statute provides, 

HN1 A person may appeal from an 

interlocutory order of a district court . . . 

that: . . . denies a motion for summary 

judgment that is based on an assertion 

of immunity [*4] by an individual who is 

an officer or employee of the state or a 

political subdivision of the state. 

Id. According to the Rice parties, Officer 

Cash is a peace officer commissioned 

under Section 51.212 of the Education 

Code and, as a peace officer, is or should 

be treated as an "officer . . . of the state." 

They conclude that he is therefore entitled 

to an interlocutory appeal under Section 

51.014(a)(5). Thomas responds that we 

have no jurisdiction to hear this 

interlocutory appeal, as Officer Cash "is 

not an officer or employee of the state." 

HN2 The Civil Practice and Remedies 

Code does not define "officer . . . of the 

state," and the Education Code does not 

specifically state that a peace officer 

commissioned by a private educational 

institution is an "officer of the state." But 

the Education Code does provide that 

"[a]ny officer commissioned under the 

provisions of [Section 51.212] is vested 

with all the powers, privileges, and 

immunities of peace officers if the officer 

(1) is on the property under the control and 

jurisdiction of the" commissioning 

institution, as Officer Cash was when he 

detained Thomas. TEX. EDUC. CODE ANN. § 
Page 6 of 12 

2015 Tex. App. LEXIS 5661, *4 

51.212(b)(1) (West 2012) (emphasis 

added). Indeed, officers commissioned 

under Chapter 51 of the Education Code 

are explicitly included in the definition [*5] 

of "peace officers" in the Code of Criminal 

Procedure. TEX. CODE CRIM. PROC. ANN. art. 

2.12(8) (West 2014). 

The Supreme Court of Texas recently 

resolved this issue in William Marsh Rice 

University v. Refaey, No. 14-0048, 2015 

Tex. LEXIS 351, 2015 WL 1869890 (Tex. 

Apr. 24, 2015) (per curiam). Refaey was 

arrested by a Rice University police officer 

for driving while intoxicated, obstructing a 

roadway, and evading arrest. 2015 Tex. 

LEXIS 351, 2015 WL 1869890, at *1. The 

Harris County District Attorney's office later 

dismissed all charges. Id. Refaey sued the 

arresting officer and the university for false 

imprisonment, negligence, assault, and 

intentional infliction of emotional distress. 

Id. The officer and university moved for 

summary judgment on the grounds that 

the officer was entitled to the defense of 

official immunity. Id. The trial court denied 

the motion, and the defendants filed an 

interlocutory appeal pursuant to Section 

51.014(a)(5). Id. The court of appeals 

dismissed the appeal for lack of jurisdiction, 

holding that the officer was not an "officer 

or employee of the state," and therefore 

had no standing to appeal under that 

section. Id. 

The Supreme Court reversed, holding that 

HN3 "the 'officer . . . of the state' language 

in Section 51.014(a)(5) applies to private 

university peace officers," specifically 

including those commissioned under 

Section 51.212 of the Education Code. 

2015 Tex. LEXIS 351, [WL] at *4. It 

therefore concluded that the court [*6] of 

appeals had jurisdiction over the officer's 

interlocutory appeal. Id. Turning to the 

university's appeal, the Court noted that 

"an employer may rely on its employee's 

assertion of immunity for purposes of 

invoking interlocutory appellate jurisdiction 

under Section 51.014(a)(5)." Id. (citing City 

of Beverly Hills v. Guevara, 904 S.W.2d 

655, 656 (Tex. 1995) (per curiam)). It then 

held that the court of appeals had 

jurisdiction over the university's appeal, as 

well. Id. 

The Supreme Court's holding in Refaey is 

dispositive of the Rice parties' first issue. 

Because Officer Cash is an "officer . . . of 

the state" within the meaning of Section 

51.014(a)(5), we have jurisdiction over his 

appeal. See id. Because the university and 

the police department based their own 

motions for summary judgment and their 

own standing to appeal on Officer Cash's 

assertion of immunity, we also have 

jurisdiction over their appeal. See id. 

Accordingly, we sustain the Rice parties' 

first issue and proceed to the merits of the 

motion for summary judgment. 

Rice Parties' Motion for Summary 

Judgment 

In their second issue, the Rice parties 

argue that the trial court erred by denying 

their motion for summary judgment, which 

presented a single issue: whether Officer 

Cash and, by extension, the university and 

its police [*7] department are entitled to 
Page 7 of 12 

2015 Tex. App. LEXIS 5661, *7 

summary judgment on the affirmative 

defense of official immunity.' 

A. Standard of review and applicable 

law 

HN4 Because official immunity is an 

affirmative defense, the Rice parties must 

conclusively establish each element of the 

defense. Kassen v. Hatley, 887 S.W.2d 4, 

8 (Tex. 1994); Saade v. Villarreal, 280 

S.W.3d 511, 522 (Tex. App.—Houston 

[14th Dist.] 2009, pet. dism'd); see also 

Joe v. Two Thirty Nine Joint Venture, 145 

S.W.3d 150, 156-57 (Tex. 2004). "We apply 

the same standard for reviewing the denial 

of summary judgment where there is an 

assertion of immunity as we do for the 

granting of summary judgment." Welch v. 

Milton, 185 S.W.3d 586, 593 (Tex. 

App.—Dallas 2006, pets. denied); see also 

Saade, 280 S.W.3d at 522; Bartlett v. 

Cinemark USA, Inc., 908 S.W.2d 229, 233 

(Tex. App.—Dallas 1995, no writ). 

HN5 The standard of review for summary 

judgments is well-established. We review 

the trial court's ruling de novo. Provident 

Life & Accident Ins. Co. v. Knott, 128 

S.W.3d 211, 215 (Tex. 2003); FM Props. 

Operating Co. v. City of Austin, 22 S.W.3d 

868, 872 (Tex. 2000). "[W]e take as true all 

evidence favorable to the nonmovant, and 

we indulge every reasonable inference and 

resolve any doubts in the nonmovant's 

favor." Knott, 128 S.W.3d at 215. The party 

moving for summary judgment bears the 

burden to show that no genuine issue of 

material fact exists and that it is entitled to 

judgment as a matter of law. TEX. R. Civ. P. 

166a; Knott, 128 S.W.3d at 215-16. 

HN6 "Any officer commissioned under the 

provisions of [Section 51.212 of the 

Education Code] is vested with all the 

powers, privileges, r81 and immunities of 

peace officers if the officer" satisfies any of 

several conditions, one of which is that he 

"is on the property under the control and 

jurisdiction of the respective private 

institution of higher education." TEX. EDUC. 

CODE ANN. § 51.212(b)(1). Indeed, an officer 

commissioned under Section 51.212(a) of 

the Education Code is a "peace officer." Id. 

§ 51.212(a); TEX. CODE CRIM. PROC. ANN. art. 

2.12(8) (West 2014) (defining "peace 

officers"); see also TEX. EDUC. CODE ANN. § 

51.212(c) (officer commissioned under that 

section must "take and file the oath 

required of peace officers" and "execute 

and file a good and sufficient bond" 

conditioned on officer's fair, impartial, and 

faithful performance of officer's duty). 

HN7 "Government employees, such as 

peace officers, are entitled to immunity 

from suit arising from the performance of 

(1) discretionary duties in (2) good faith as 

long as they are (3) acting within the scope 

of their authority." City of Columbus v. 

Barnstone, 921 S.W.2d 268, 272 (Tex. 

App.—Houston [1st Dist.] 1995, no writ); 

see Ballantyne v. Champion Builders, Inc., 

144 S.W.3d 417, 424 (Tex. 2004); City of 

Lancaster v. Chambers, 883 S.W.2d 650, 

653 (Tex. 1994); Tex. Dep't of Pub. Safety 

v. Rodriguez, 344 S.W.3d 483, 488 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.). 

The Supreme Court of Texas has explained 

the policy purpose of the doctrine of official 

immunity as follows: "Common law official 

immunity is based on the necessity of 

1 The motion also requested summary judgment on Thomas's defamation claim as barred by the statute of limitations. That 

cause of action, however, does not appear in Thomas's live pleading and is therefore abandoned. 
Page 8 of 12 

2015 Tex. App. LEXIS 5661, *8 

public officials to act in the public interest 

with confidence and without the hesitation 

that could arise from having their judgment 

continually questioned [*9] by extended 

litigation." Ballantyne, 144 S.W.3d at 424. 

"The public would suffer if government 

officials, who must exercise judgment and 

discretion in their jobs, were subject to civil 

lawsuits that second-guessed their 

decisions." Id. (quoting Kassen, 887 

S.W.2d at 8). 

B. Officer Cash's Defense of Official 

Immunity 

HN8 To establish his official immunity 

defense, Officer Cash must establish three 

elements: the performance of (1) 

discretionary duties (2) in good faith (3) 

while acting within the scope of his 

authority. Ballantyne, 144 S.W.3d at 424; 

Chambers, 883 S.W.2d at 653; Rodriguez, 

344 S.W.3d at 488. 

1. Discretionary Act 

HN9 "Discretionary actions are those that 

require personal deliberation, decision and 

judgment." Ervin v. James, 874 S.W.2d 

713, 716 (Tex. App.—Houston [14th Dist], 

1994, writ denied). By contrast, 

"[m]inisterial actions require obedience to 

order or the performance of a duty as to 

which the actor is left no choice." Id. 

"Ministerial acts are those 'where the law 

prescribes and defines the duties to be 

performed with such precision and 

certainty as to leave nothing to the exercise 

of discretion or judgment."' Sw. Bell Tel., 

L.P. v. Emmett, No. 13-0584, 2015 Tex. 

LEXIS 274, 2015 WL 1285326, at *7 (Tex. 

Mar. 20, 2015) (quoting Chambers, 883 

S.W.2d at 654). 

"The investigatory duties of peace officers 

have been held to fall within those actions 

considered discretionary." City of 

Columbus, 921 S.W.2d at 272. Further, 

how, and when to arrest a suspect is 

within a police officer's discretion." Dallas 

Area Rapid Transit v. Carr, 309 S.W.3d 

174, 178 (Tex. App.—Dallas 2010, pet. 

denied); see City of Columbus, 921 S.W.2d 

at 272. 

Thomas argues that Officer Cash's 

decision to arrest him could not have been 

[*10] discretionary for three reasons: (1) 

there was no probable cause to arrest him; 

(2) Rice police department policy required 

Officer Cash to verify the existence of a 

valid protective order before making an 

arrest, and that requirement imposed a 

ministerial duty; and (3) Officer "Cash's 

defense that he acted because the [district 

attorney] told him the [district attorney] 

would verify the protective order is suspect" 

for a variety of reasons which are repetitive 

of his other two arguments. In his brief, 

these arguments overlap and are all based 

on whether Officer Cash properly verified 

the existence of the protective order, in 

accordance with Rice police procedures. 

Because the court order involved was a 

restraining order, violation of which did not 

permit Thomas's arrest, Thomas reasons 

that Officer Cash could not have believed 

that probable cause existed when he 

arrested Thomas. 

Thomas relies on the fact that Officer Cash 

did not definitively determine whether the 

order was a protective order or a restraining 

order until after the arrest, which he 

contends violates Rice University Police 

Department General Directive 08(6)(2) and 

a resulting ministerial duty. The General 
Page 9 of 12 

2015 Tex. App. LEXIS 5661, *10 

Directive2states, [*11] in relevant part, 

"When probable cause [exists] to believe a 

person has committed an action which 

violates the terms of a valid Protective 

Order, prior to arrest, verification of 

existence of Protective Order will be 

made." According to Thomas, this section 

of the General Directive imposed a 

ministerial duty on Officer Cash to 

definitively confirm the existence of a 

protective order, either by contacting other 

law enforcement agencies or by reviewing 

the order himself. 

The same section of the General Directive 

provides two means by which an officer 

"may" obtain information on a Protective 

Order—each of which consists of asking 

another law enforcement agency—but 

does not specify that any particular method 

must be used. It also provides that 

"[p]hysical possession [of a] Protective 

Order is not necessary." The directive does 

not "leave nothing to the exercise of 

discretion or judgment" with respect to the 

manner of verification and [*12] therefore 

does not impose a ministerial duty. Emmett, 

2015 Tex. LEXIS 274, 2015 WL 1285326, 

at *7; Chambers, 883 S.W.2d at 654. 

The evidence relied on by Officer Cash 

establishes that he had probable cause to 

believe that Thomas was violating a 

protective order before the arrest, and 

Thomas has not raised a fact issue as to 

the existence of probable cause or the 

requirements of the department's General 

Directive. We hold that the evidence 

conclusively establishes that, in 

questioning, detaining, and arresting 

Thomas, Officer Cash was performing a 

discretionary act. 

2. Good Faith 

HN10 "To determine whether a public 

official acted in good faith, we use the 

objective standard adopted in Chambers 

and ask whether a reasonably prudent 

official, under the same or similar 

circumstances, could have believed that 

his conduct was justified based on the 

information he possessed when the 

conduct occurred." Ballantyne, 144 S.W.3d 

at 426; Chambers, 883 S.W.2d at 656. 

"The standard of good faith as an element 

of official immunity is not a test of 

carelessness or negligence, or a measure 

of an official's motivation." Ballantyne, 144 

S.W.3d at 426. "This test of good faith does 

not inquire into 'what a reasonable person 

would have done,' but into 'what a 

reasonable [person] could have believed.'" 

Id. (quoting Telthorster v. Tennell, 92 

S.W.3d 457, 465 (Tex. 2002)); see 

Chambers, 883 S.W.2d at 656-57. 

Officer Cash presented his own affidavit 

detailing [*13] the steps he took to 

investigate whether a protective order 

existed. He also presented an affidavit from 

Chief Steven McGee, police chief for Texas 

Christian University's Police Department, 

in which Chief McGee opined that Officer 

Cash's beliefs and behavior were those of 

a reasonable police officer under the 

circumstances at the time of Thomas's 

arrest. The only evidence to which Thomas 

cites in response is his own testimony that, 

2 The copy in the record, which Thomas attached to his response to the Rice parties' motion for summary judgment, is not 

authenticated. Neither party addresses this fact in its briefs. We will assume without deciding that the document was properly 

before the trial court. 
Page 10 of 12 

2015 Tex. App. LEXIS 5661, *13 

after Officer Cash took him to the Rice 

police station, "one of the officers held the 

papers and said, 'You violated this order, 

that's why you're being under arrest,'" and 

an unauthenticated recording of the 

dispatcher's radio call.3He has not 

identified any evidence that Officer Cash 

could not reasonably have believed that 

Thomas was violating a protective order at 

the time of the arrest. He therefore failed to 

raise a fact issue to survive summary 

judgment on this basis. See Ballantyne, 

144 S.W.3d at 426; Telthorster, 92 S.W.3d 

at 465; Chambers, 883 S.W.2d at 656-57. 

3. Scope of Officer Cash's Duties 

HN11 "An official acts within the scope of 

[his] authority if [he] is discharging the 

duties generally assigned to [him]." 

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

did not challenge the "scope of duty" 

element of the defense of official immunity 

in his response to the Rice parties' motion 

for summary judgment. Nonetheless, on 

appeal, he argues, 

It is undisputed that [Officer Cash's] 

authority and duties did not include the 

authority to disregard the written 

mandated policies of his employer, did 

not include the authority to disregard 

the express written order of a district 

judge, [and] did not include the authority 

to make a false statement to the DA's 

representative. Therefore, [Officer 

Cash] was outside the scope of his 

authority when he arrested [Thomas]. 

The above statements constitute the 

entirety of his argument on this point. 

Thomas does not cite any authority or 

evidence in support of this theory. 

Officer [15] Cash introduced evidence, in 

the form of his own affidavit and that of 

Chief McGee, that he arrested Thomas in 

the course of discharging his duties as a 

peace officer at Rice University. And for the 

reasons we have already discussed, there 

is no evidence that, at the time that he 

arrested Thomas, Officer Cash 

"disregard[ed]" any mandatory policies of 

his employer or a court order. Nor is there 

any evidence that Officer Cash's 

statements to the district attorney's 

office—that he believed a protective order 

existed and that he did not have a copy of 

that order—were false, much less that 

Officer Cash knew they were false when 

making them.4 

By attempting to keep the peace, protect 

campus employees and the general public, 

and arrest an individual believed to be 

violating a protective order, Officer Cash 

was discharging the type of duties 

generally assigned to him. Cf. City of 

Lancaster, 883 S.W.2d at 658. Recasting 

those actions as being negligently 

performed or in violation of department 

protocols does [*16] not remove them from 

3 According to Thomas, the recording describes the order in question as a "restraining order," not a "protective order." But the 

recording itself is not in the record. Thomas attached to his response to the motion for summary judgment only a photocopy of 

a CD case and CD purportedly [*14] containing the recording. Although his response stated that he would file a copy of the disc 

itself, he did not do so. There is thus no evidence in the record, other than Officer Cash's affidavit, of what the dispatcher said 

or what Officer Cash heard in the dispatcher's radio call. 

4We need not and do not opine on whether, if such evidence existed, it would suffice to meet Thomas's burden to 

demonstrate the existence of a genuine issue of material fact as to whether Officer Cash acted within the scope of his duties. 
Page 11 of 12 

2015 Tex. App. LEXIS 5661, *16 

the officer's scope of authority. Id.; Harris 

Cnty. v. Ochoa, 881 S.W.2d 884, 888 (Tex. 

App.—Houston [14th Dist.] 1994, writ 

denied) (officer's pursuit of suspect was 

act within scope of authority, even if 

wrongly or negligently performed). 

Officer Cash adduced evidence sufficient 

to meet his evidentiary burden to obtain 

summary judgment, and Thomas did not 

raise any issues of material fact as to any 

element of Officer Cash's defense. We 

therefore hold that Officer Cash 

conclusively proved his entitlement to the 

defense of official immunity and was 

entitled to summary judgment. 

C. The University and Police 

Department's Entitlement to Summary 

Judgment 

The Rice parties argue that they are 

entitled to summary judgment because 

Thomas's claims against them all rest on 

theories of vicarious liability. Thomas 

argues that Officer Cash cannot prove the 

elements of his affirmative defense and, 

therefore, the university and police 

department are not entitled to summary 

judgment. We have already held that 

Officer Cash has proven his defense. Thus, 

the only question remaining is whether the 

university and its police department are 

entitled to summary judgment due to 

Officer Cash's official immunity. 

HN12 Official immunity directly protects 

only the individual officer, not the [*17] 

entity that employs him. E.g., DeWitt v. 

Harris Cnty., 904 S.W.2d 650, 653 (Tex. 

1995). But when the officer establishes 

that he is entitled to that defense, the 

employer is entitled to assert it, as well. Id. 

at 654; see Refaey, 2015 Tex. LEXIS 351, 

2015 WL 1869890, at *4. 

No Texas case appears to address the 

precise situation before us, in which a 

private entity, such as an educational 

institution, may assert as a defense the 

fact that its employee established a 

defense of official immunity.5Binding 

precedent, however, is entirely clear that a 

private entity is "entitled to assert any 

affirmative defenses its employee has to 

liability." DeWitt, 904 S.W.2d at 654. In 

DeWitt v. Harris County, 904 S.W.2d 650 

(Tex. 1995), the Supreme Court addressed 

the question "whether a governmental 

entity may have respondeat superior 

liability under section 101.021(2) of the 

Texas Tort Claims Act for the negligence of 

its employee when the employee 

possesses official immunity" and answered 

it in the negative. Id. at 651. Although the 

employer in that case was a governmental 

entity, the Court based its holding in part on 

whether a governmental entity should be 

treated differently than a private one. Id. at 

654. It reasoned that, if Harris County "were 

a private person, [it] would be entitled to 

assert any affirmative defenses its 

employee has to liability." Id. It concluded 

that it "would serve no legislative purpose 

[*18] to declare a waiver of sovereign 

immunity when the basis of liability is 

respondeat superior and the acts of the 

employee are covered by official immunity." 

Id. The Court therefore held that the county 

was entitled to judgment on the basis of its 

employee's official immunity. Id. 

5 Although Refaey involved a similar fact pattern, the Supreme Court did not reach the merits of the motion for summary 

judgment, and the court of appeals has not yet issued its opinion on remand. 
Page 12 of 12 

2015 Tex. App. LEXIS 5661, *18 

The Court reaffirmed this logic in its recent 

opinion in Refaey when it held that the 

university "may rely on its [peace officer] 

employee's assertion of immunity for 

purposes of invoking interlocutory 

appellate jurisdiction under section 

51.014(a)(5)." Refaey, 2015 Tex. LEXIS 

351, 2015 WL 1869890, at *4 (citing City of 

Beverly Hills, 904 S.W.2d at 656 (relying 

on the reasoning of DeWitt, 904 S.W.2d at 

654)). That holding would have no practical 

impact unless the university is also entitled 

to rely on the officer's assertion of immunity 

for purposes of the underlying motion for 

summary judgment. There is no reason in 

this case to depart from the logic of DeWitt 

and Refaey by holding that the university 

and police department cannot assert the 

same defense as their employee. 

We hold that the university and its police 

department were entitled to summary [*19] 

judgment. 

Conclusion 

The Rice parties were entitled to summary 

judgment because Officer Cash 

established the defense of official immunity 

and all of Thomas's claims against the 

university or the police department are 

derivative of his claims against Officer 

Cash. We reverse the order of the trial 

court and render judgment that Thomas 

take nothing by his claims. We dismiss all 

pending motions as moot. 

Harvey Brown 

Justice