JIM MATTOX 

Attorney General 

The Attorney General of Texas 

Dr,cember 23, 1985 

Suprrme Court Building 

P. 0. BOX 12548 

Austin, TX. 79711- 2548 

512/475.2501 

-Telex 9101874-1367 

Telecopier 5121475-0268 

Honorable Bill Messer, Chairman 

Calendars Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-404 

Re: Immmity of public officials 

under the Texas Free Enterprise 

and Antitrust Act of 1983 

714 Jackson. Suite 700 

Dallas, TX. 75202-4503 

2141742-8944 

Dear Reoresentativ,e Messer: 

4824 Alberta Ave.. Suit0 160 

El Paso. TX. 799012793 

915/5333464 

You have rquested our opinion regarding the extent of the 

immunity granted I:O officers and employees of governmental entities 

acting in their cfficial capacity under the Texas Free Enterprise and 

Antitrust Act of 1383. 

1001 Texas. Suite 700 

Houstm, TX. 77W2G3111 

71312255880 

606 Broadway. Suite 312 

Lubbock, TX. 79401-3479 

806/747-5238 

43~9 N. Tenth, Suite 6 

McAlle”, TX. 78501-1685 

512,882-4547 

2w Main Plaza, Suite 400 

sari Antonio, TX. 78205-2797 

51212254191 

An Equal OppOrtUnitYI 

Affirmative Action EmploW 

The Texas Free Enterprise and Antitrust Act of 1983 [hereinafter 

the "Act"] broitdly prohibits anticompetitive conduct affecting 

trade and conmerc:e in the state of Texas. Tex. Bus. & Conrm. Code 

$15.05(a)-(d). There are civil and criminal sanctions for violating 

the Act's prohibit:lons, and persons injured by a violation may sue for 

injunctive relied' and damages. Id. 9915.20, 15.21, 15.22. Treble 

damages may be awarded if theunlawful conduct was willful or 

flagrant. Id. IX.21. The purpose of the Act is to "maintain and 

promote econzc competition within this State." Id. $15.04. - 

Section 15.21(a)(l) of the Act provides in part: 

Any person or governmen tal entity, including 

the State of Texas and any of its political subdivisioms or tax-supported institutions, whose 

business or property has been injured by reason of 

any conduct declared unlawful in Subsection (a), 

(b), or (c) of Section 15.05 of this Act may sue 

any person, other than a municipal corporation, in 

district court in any county of this state. . . . 

(Emphasis added). 

The term "person" : Ls defined in section 15.03(3) which provides: 

The tlerm 'person' means a natural person, proprietombip, partnership, corporation, municipal 

corpora::ion. association, or any other public or 

private group, however organized, but does not 

p. 1849 
Honorable Bill Messer - Page 2 ,(JM-404) 

include the State of Texas, its departments, and 

its administrativ{ agencies. (Emphasis added). 

Thus, the Act's definition of "pcrsoa" expressly excludes the State of 

Texas, its departments, and its administrative agencies, while 

municipal corporations are expressly excepted from suit under section 

15.21(a)(l). See also Tex. Bus. & Comm. Code §§15.20, 15.22 (enforcement suits against "any person, other than a municipal corporation"). 

The term %uniciual coruoration'l is not defined in the Act. 

However, the general meaning'of the term includes other political 

subdivisions organized under state law. See Welch V. State, 148 

S.W.2d 876 (Tex. Civ. App. -. Dallas 1941, wrrref'd); see also State 

V. Texas Municipal Power Agency, 565 S.W.2d 258 (Tax. Civ. Apr 

Houston tlst Dist.1 1978, D'D writ). In addition, the leaislature is 

authorized to create municipal corporations other than those set out 

in the constitution, such as counties, cities or school districts, or 

those which are authorized under special provisions of the constitution, such as water districts or flood control districts. See Davis -- 

V. City of Lubbock, 326 S.W.2d 699 (Tex. 1959). Accordingly, we 

conclude that the immunity granted to municipal corporations under the 

Act extends to all politic:L:l subdivisions organized under the constitution and statutes of this state. 

The Act does not aidress the immunity of state and local 

officials from personal liability under its provisions. Official 

immunity is a common law doctrine developed by the courts so that 

public officers could carrg out discretionary duties without fear of 

personal liability for m3stak.a judgment. Campbell V. Jones, 264 

S.W.2d 425 (Tex. 1954); R;~:;ns V. Simpson, 50 Tex. 495 (1878). The 

doctrine of official immu~~:y is certainly not absolute. It does not 

bar a suit to enjoin a public official's unauthorized act. See Texas -- 

Highway Commission V. Texas Association of Steel Importers, 372 S.W.2d 

525 (Tex. 1963); Bullock v: Hardin. 578 S.W.2d 550 (Tex. Civ. App. - 

Austin 1979. writ ref'd n7c.e.). Nor does it aoolv to ministerial 

functions. -Rains V. Simpsc~n, 5d ~Tex.~ 495 (1878);~'see also Worsham V. 

Votgsberger, 129 S.W. 157 (T'ex. Civ. App. 1910, no writ). 

Judges, including justices of the peace, are immune from personal 

liability for all acts cr omissions arising in the course of a 

judicial proceezg over w'hich they have jurisdiction. Turner V. 

Pruitt, 342 S.W.2d 422 (Tex. 1961). Cf. Pulliam V. Allen, 104 S.Ct. 

1970 (1984); Stump V. Spar=, 435u.s. 349 (1978) (state judges 

enjoy absolute immunity from damage liability in civil rights suits 

under 42 U.S.C. section 19f'3 but may be required to pay attorney fees 

in successful suits for injunctive relief). Only when a judge clearly 

acts without jurisdiction nay he be held personally liable in a damage 

suit under the act. Turner V. Pruitt, supra. Similarly, legislators, -- 

including city council members , are entitled to absolute immunity from 

p. 1850 
Honorable Bill Messer - Pa:r,e 3,(JM-404) 

civil damage suits for am:ts taken in a legislative capacity. See 

Affiliated Capital Corp. vL City of Houston, 735 F.Zd 1555, 1568 (5th 

Cir. 1984). Other officers who perform discretionary functions have 

only a qualified immunity ~E~:om suit for personal liability. Harlow V. 

Fitzgerald, 457 U.S. 800 #:1982) (presidential aides); Campbell V. 

Jones, 264 S.W.2d 425 (Tm:. 1954) (school trustees); Sanders State 

Bank V. Hawkins, 142 S.W. 84 (Tex. Civ. App. - Texarkana 1911, no 

writ) (State Commissioner #of Insurance and Banking). Their discretionary functions are described as "quasi-judicial" functions. 

The Texas courts apply a different test from the federal courts 

to determine whether an of,E:Lcer's qualified immunity protects him from 

personal liability. A quasi-judicial officer who acts within his 

legal authority is not lirble for daamges, no matter what his motive 

is. Sanders State Bank v.Jawkins, supra. Texas courts will find him 

liable for mistaken judgmmt or unauthorized acts only when he has 

acted willfully or malici~msly. Campbell V. 

Highland Park Independent School District, 

Jones, supra; Stein V. 

540 S.W.2d 551 (Tex. Civ. 

APP. - Texarkana 1976) a,ff'd 574 S.W.2d 807 (Tax. Civ. App. - 

Texarkana 1978, writ di&;L);anders State Bank V. Hawkins. supra. 

As other Texas courts have formulated this test, a quasi-judicial 

officer is entitled to immunity as long as actions taken in his 

official capacity are in j:ood faith. Augustine V. Nusom, 671 S.W.2d 

112 (Tex. App. - Houston l:1.4th Dist.] 1984, writ ref'd n.r.e); Baker 

V. Story, 621 S.W.2d 639 (:Tax. App. - San Antonio 1981, writ a 

n.r.e.); Morris v. Nowotq, 323 S.W.2d 301 (Tex. Civ. App. - Austin 

1959, writ ref'd n.r.e.), cert. denied 361 U.S. 889, 361 U.S. 921 

(1959). The Texas test can be characterized as a subjective test, 

because the officer's motivation for his unauthorized conduct controls 

whether or not he is inmum from suit for damages. 

The United States Su~lreme Court has developed an objective test 

for determining the qualj.fied immunity of officers. In Harlow V. 

Fitzgerald, 457 U.S. 800 (,L982), the court held that 

government offj,cials performing discretionary 

functions, generally are shielded from liability 

for civil damagw insofar as their conduct does 

not violate clearly established statutory or 

constitutional rQ:hts of which a reasonable person 

would have known, 

457 U.S. at 818. Under th:ls test, the officer's immunity depends upon 

what "a reasonable person vould have known," and subjective intent for 

the action is not considencd. 

Prior decisions had developed a "good faith" standard, an 

affirmative defense which the defendant official had to plead. The 

"good faith" standard com:isted of both an objective and subjective 

p. 1851 
Honorable Bill Messer - PaE;e, 4(JM-404) 

aspect. 457 U.S. at 815; me Wood V. Strickland, 420 U.S. 308 (1975). --- 

Qualified imsamity vould be: defeated if the official 

knew or reasonaLLy should have known that the 

action he took within his sphere of official 

responsibility would violate the constitutional 

rights of the I:plaintiff], z if he took the 

action with the-ealicious intention to cause a 

deprivation of constitutioual rights or other 

injury. . . . (Emphasis in original). 

457 U.S. at 815 (quoting Wood V. Strickland). The Harlow court 

rejected the subjective element of the good faith defense because it 

raised a fact question which could not be resolved on suaxnary judgment 

and thus frustrated the court's policy that insubstantial claims 

should not proceed to trial. Therefore, in Barlow the court abandoned 

the subjective element of the two part test for official immunity in 

favor of the test quotetl above, which relies "on the objective 

reasonableness of an offi~:ial's conduct, as measured by clearly 

established law. . . ." 457 U.S. at 818. 

The Texas courts have applied the malice test for decades, and we 

believe they would apply Lt to questions of official immunity from 

civil suits under the Texas Free Enterprise and Antitrust Act. See. 

s, Augustine V. Nusom, iiw Sanders State Bank V. Hawkins, v 

Wright v. Jones, 38 S.W. 249 (Tex. Civ. App. 1896, writ ref d). 

During the time the United States Supreme Court applied the two part 

"good faith" test for official immunity, the Texas courts continued to 

apply the traditional test based on malicious or willful conduct. See 

Baker V. Stop, supra; St'ain V. Highland Park Independent School 

District, supra; see also%lcedo V. Diax, 647 S.W.2d 51 (Tex. App. - 

El Paso 1983). writ ref'd ;r.e. in part, granted in part, 650 S.W.2d 

67 (Tex. 1983), rev'd 659 lj.W.2d 30 (Tex. 1983). The Texas courts 

have adhered to the long--established Texas common law test for 

qualified official immunity and have not adopted or been influenced by 

recent developments in the :Eederal common law test. In our opinion, 

the Texas courts would apply the traditional malice standard to 

determine official immunit.]~ from liability for civil suits under the 

Texas Free Enterprise and Antitrust Act. 

The legislature, in ou'c opinion, did not change the common law 

rule on official immunity by enacting the antitrust law. Section 

15.04 does provide: 

The purpose cf this Act is to maintain and 

promote economic competition in trade and commerce 

occurring wholly or partly within the State of 

Texas and to provide the benefits of that competition to consumers in the state. The provisioas of 

p. 1852 
Honorable Bill Messer - PaL;e 5 (JM-404) 

this Act shall be construed to accomplish this 

purpose and shah be construed in harmony with 

federal judicia:: interpretations of comparable 

federal antitrur~, statutes to the extent consistent with thirrpurpose. (Emphasis added). 

The Fifth Circuit has applied the Barlow objective. test in a lawsuit 

brought under the Sherman Act. SeeAffiliated Capital Corp. V. City 

of Houston, 735 F.2d 1555 (5th C% 1984). In following Barlow, the 

Fifth Circuit did not interpret any word or provision of the federal 

antitrust statute. It instead applied a common law concept which 

exists outside of any statute to determine whether it could exercise 

judicial power over a partLcular public officer. Cf. Director of the 

Department of Agriculture 1~ Printing Industries Association of Texas, 

600 S.W.2d 264 (Tex. 1980) (sovereign immuuity from injunction suit). 

The Harlow standard defines the federal court's power to hold 

quasi-judicial officers pec:sonally liable in damages for mistakes of 

law; it does not construe the language of the Sherman Act. Section 

15.04 does not require the Texas courts to adopt the Fifth Circuit 

ruling on official immuni~:y in Affiliated Capital Corp. V. City of 

Houston. 

The legislature has nade the state liable for actual damages, 

court costs and attorney fees adjudged against a state officer or 

employee sued for an act ,XC omission in the scope of his office or 

employment if 

(1) the damaS,es arise out of a cause of action 

for negligence. ,Eccept a willful or wrongful act 

or an act of groez negligence; or 

(2) the damages arise out of a cause of action 

for deprivation cf a right, privilege, or immunity 

secured by the constitution or laws of this state 

or the United States, except when the court in its 

udgment or the jury in its verdict finds that the 

officer, contrack, or employee acted in bad 

faith. (Emphasis-added). 

V.T.C.S. art. 6252-26, 91. The legislature has used the subjective 

test for official immunity to separate the officers whose damages and 

legal expenses the state will pay from those whom it will leave to 

their own resources. It is unlikely that the legislature which 

finances the defense of public officers for acts of ordinary 

negligence or good faith v:.olations of legal rights would also intend 

an officer to be civilly liable under the antitrust act if his conduct 

violated statutorv riahts "of which a reasonable nerson would have 

known." Harlow ;. Fitsger,ald, 457 U.S. at 818.~ See also V.T.C.S. 

art. 6252-19b, 02(a) (policE1 subdivisions may pay actual damages, 

p. 1853 
Honorable Bill Messer - Page 6 (JM-404) 

court costs, and attorney jiees in negligence suits against officers). 

In our opinion, the Texas 'P:eee Enterprise and Antitrust Act does not 

change the Texas common law standard for qualified immunity of public 

officials. Under this st~ldard, public officials will be personally 

liable for quasi-judicial s.ctions in violation of the Act if they act 

willfully or maliciously. 

SUMMARY 

Judges and legislators are entitled to absolute 

immunity from civil damage suits under the Texas 

Free Enterprise and Antitrust Act of 1983, 

codified as sectllms 15.01 through 15.26 of the 

Texas Business ~vi Coarmerce Code. No such suit 

may be maintained against a judge or legislator 

for acts or violations taken as part of the 

judicial or lg!g;islative process. Executive 

officials with discretionary duties are entitled 

to qualified immmity from civil damage suits 

under the Texas antitrust laws. Such public 

officials are ilmune from such suits for unauthorized acts wcthin the scope of their official 

duties unless theg have acted willfully or maliciously. Any public official may be sued to enjoin 

unauthorized acts or omissions. 

JIM MATTOX 

Attorney General of Texas 

JACXHIGHTOWER 

First Assistant Attorney Gesaral 

NARY KELLER 

Executive Assistant Attorncr General 

ROBERT GRAY 

Special Assistant Attorney 'Zenera 

RICX GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrism 

Assistant Attorney General 

p. 1854