quick facts

The Texas Tort Claims Act

The government liability landscape in Texas is bleak for plaintiffs. Texas courts generally decline to create an implied cause of action for damages arising out of violations of the Texas Constitution. 1 Moreover, the Texas Tort Claims Act (“TTCA”)—the statute that governs tort liability of governmental entities in Texas—is riddled with exceptions and immunities. 2

The TTCA waives government immunity so that plaintiffs can sue government units for damages in certain instances of negligence. The waiver is limited to liability for injuries caused by vehicles, motor-driven equipment, defective realty, or tangible property. 3 Texas courts have read the TTCA’s election-of-remedies clause broadly, effectively immunizing government officials from personal liability for torts committed within the scope of employment. 4 A municipality may be liable for torts arising from the exercise of its proprietary functions, but claims involving the exercise of government functions are subject to the TTCA’s myriad immunities. 5

Broad Immunities and Exceptions

The TTCA explicitly excludes from its waiver of governmental immunity claims of “assault, battery, false imprisonment, or any other intentional tort.” 6 Even worse, because Texas courts have construed the TTCA’s election-of-remedies clause broadly, government officials are effectively immunized from personal liability for intentional torts committed within the scope of their employment. 7
For torts arising in emergency situations, the TTCA provides yet another bar to liability by declining to waive sovereign immunity for claims arising from the actions of a government employee who is responding to an emergency situation, unless the action is “taken with conscious indifference or reckless disregard for the safety of others.” 8

In addition to the statutory immunity discussed, Texas courts have invented their own version of qualified immunity derived from the common law: a government employee is immune from lawsuits for “(1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith.” 9 The Texas Supreme Court has held that this immunity applies to TTCA claims, explaining that a government entity is not liable for the negligence of its employee when the employee has no liability because of official immunity. 10