Case Information
*1 The Attorney General of Texas Dr,cember 23, 1985 JIM MATTOX
Attorney General Honorable Bill Messer, Chairman Opinion No. JM-404 Suprrme Court Building Calendars Committee P. 0. BOX 12548 Texas House of Representatives Re: Immmity of public officials Austin, TX. 79711- 2548 512/475.2501 P. 0. Box 2910 under the Texas Free Enterprise -Telex 9101874-1367 Austin, Texas 78769 and Antitrust Act of 1983 Telecopier 5121475-0268
Dear Reoresentativ,e Messer:
714 Jackson. Suite 700 Dallas, TX. 75202-4503
You have rquested our opinion regarding the extent of the
2141742-8944 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. 4824 Alberta Ave.. Suit0 160
El Paso. TX. 799012793 915/5333464 The Texas Free Enterprise and Antitrust Act of 1983 [hereinafter
the "Act"] broitdly prohibits anticompetitive conduct affecting 1001 Texas. Suite 700 [71312255880] Houstm, TX. 77W2G3111 trade and conmerc:e in the state of Texas. Tex. Bus. & Conrm. Code 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 $15.05(a)-(d). There are civil and criminal sanctions for violating damages may be awarded if theunlawful conduct was willful or 606 Broadway. Suite 312 flagrant. Id. IX.21. The purpose of the Act is to "maintain and Lubbock, TX. 79401-3479 promote econzc competition within this State." Id. $15.04. - 806/747-5238 Section 15.21(a)(l) of the Act provides in part: 43~9 N. Tenth, Suite 6 McAlle”, TX. 78501-1685 Any person or governmen tal entity, including 512,882-4547 the State of Texas and any of its political sub-
divisioms or tax-supported institutions, whose 2w Main Plaza, Suite 400 business or property has been injured by reason of sari Antonio, TX. 78205-2797 [51212254191] 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. . . . An Equal OppOrtUnitYI (Emphasis added). Affirmative Action EmploW
The term "person" : Ls defined in section 15.03(3) which provides: The tlerm 'person' means a natural person, pro- prietombip, partnership, corporation, municipal corpora::ion. association, or any other public or private group, however organized, but does not *2 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 (enforce- ment suits against "any person, other than a municipal corporation").
The term %uniciual coruoration'l is not defined in the Act. the general meaning'of the term includes other political However, 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 constitu- tion, 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 consti- tution 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
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 discre- tionary 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 Sanders State Bank v.Jawkins, supra. Texas courts will find him is. liable for mistaken judgmmt or unauthorized acts only when he has acted willfully or malici~msly. Campbell V. Jones, supra; Stein V. Highland Park Independent School District, 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 *4 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 competi- tion to consumers in the state. The provisioas of *5 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 con- sistent with thirrpurpose. (Emphasis added).
The Fifth Circuit has applied the Barlow objective. test in a lawsuit SeeAffiliated Capital Corp. V. City brought under the Sherman Act.
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, *6 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 un- authorized acts wcthin the scope of their official duties unless theg have acted willfully or malici- ously. 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