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Davila v. Flores12/2/1999
This is an interlocutory appeal by Doris Davila and Allen Steen from the trial court's denial of their motion for summary judgment based on official immunity. We reverse and render judgment that Flores take nothing.
Eric Flores was an employee of the Texas Youth Commission, serving as a youth supervisor under the direction and supervision of Davila and Steen, when he was accused by a co-worker of abusing one of the youths under his supervision by refusing to feed him and by urinating in his drink. Davila and Steen investigated the accusation and eventually notified Flores of their intent to terminate his employment as a result of the alleged abuse. Flores successfully fought termination and was ordered reinstated by the Commission. Flores alleges that Davila and Steen changed his work hours and duties in retaliation for his efforts to keep his job and in retaliation for a sexual harassment claim that Flores had earlier brought against a fellow employee.
Flores then sued Davila and Steen for intentional infliction of emotional distress, defamation, and slander based on the accusations of abuse that Davila and Steen had allegedly disseminated to others in the process of their investigation. Davila and Steen moved for summary judgment on the ground that they are officially immune from suit. The trial court denied their motion and they perfected the present interlocutory appeal from that denial. See Tex. Civ. Prac. & Rem. Code Ann. ยง 51.014(a)(5) (Vernon Supp. 1999).
By a single point of error, Davila and Steen claim that they are entitled to official immunity for their actions and that the trial court should have granted their motion for summary judgment.
When reviewing the trial court's action on a summary judgment, we follow the well-established rules set out in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Specifically, summary judgment is proper if the defendant establishes all elements of an affirmative defense to each claim. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). Once an affirmative defense has been established, the non-movant must produce summary judgment proof raising a fact issue in contravention of the affirmative defense. In re Estate of Ayala, 986 S.W.2d 724, 726 (Tex. App.--Corpus Christi 1999, no pet.).
A government employee may assert official immunity as an affirmative defense for the performance of discretionary duties within the scope of the employee's authority, provided the employee acts in good faith. Wadewitz v. Montgomery, 951 S.W.2d 464, 465-66 (Tex. 1997); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
In the present case, Davila and Steen allegedly injured and defamed Flores by publishing the accusations against him to other employees and unspecified persons in their dissemination of lette
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