Title of Presentation Here - texasattorneygeneral.gov

Title of Presentation Here - texasattorneygeneral.gov

Liability of State Officials Benjamin Dower General Litigation Division Views expressed are those of the presenters, do not constitute legal advice, and are not official opinions of the Office of the Texas Attorney General. Roadmap 1. 2. 3. 4. Fundamentals Sovereign / Eleventh Amendment Immunity Qualified Immunity Official Immunity

When does the Office of the Attorney General provide representation? Chapter 104 of Texas Civil Practice and Remedies Code Generally, the State will indemnify and provide OAG representation to current or former State officials when: damages are based on an act or omission by the person in the course and scope of the persons office, employment, or contractual performance for or service on behalf of the [State] agency, institution, or department. TEX. CIV. PRAC. REM. CODE 104.001.002 Indemnification or representation may be denied when the official acts with willful or gross negligence, bad faith, conscious indifference or reckless disregard.

Types of claims There are numerous claims under both State and federal law that someone could bring against a state official. Employment claims (e.g. a current or former employee sues for discrimination or retaliation) Tort claims (e.g. someone is injured in a car accident or claims an injury such as defamation or fraud) Constitutional or ultra vires claims (e.g. someone contends that the State has violated their rights) Individual versus Official Capacity Official in his or her INDIVIDUAL

capacity This claim is against the person individually. Usually the claim seeks money damages and to hold the board member personally liable. Official in his or her OFFICIAL capacity This is another way of suing the office held by the person (the State itself). Usually the claim seeks to compel or

prevent official actions taken in that officials role. Official Capacity Claims Suing the office that the person occupies, often seeking injunctive relief. Claim is often not based on the conduct of the individual sued. The official can sometimes assert: Sovereign / Eleventh Amendment immunity Sovereign / Eleventh Amendment Immunity That the king can do no wrong is a necessary and fundamental

principle of the English constitution. . . . [N]o action will lie against the sovereign (for who shall command the king?) - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 [1753], Book III, Chapter XVII Sovereign / Eleventh Amendment Immunity [T]he States entered the federal system with their sovereignty intact. Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991).

[T]he States immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. . . . Alden v. Maine, 527 U.S. 706, 713 (1999). Sovereign / Eleventh Amendment immunity Who is entitled to it: 1. The State itself. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). 2. A state agency or entity deemed an alter ego or

arm of the State. Vogt v. Bd. of Commrs, 294 F.3d 684, 68889 (5th Cir. 2002). The defendant must be so closely connected to the State that the State itself is the real, substantial party in interest. Id. No bright-line test, but the Fifth Circuit uses six factors. Id. at 679. 3. A state official sued in their official capacity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 10102 (1984). Sovereign / Eleventh Amendment immunity How does the State lose its immunity? The State can lose its immunity either (1) by

consenting to suit or (2) through a valid Congressional abrogation. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). The Ex Parte Young exception is a limited way to overcome immunity for federal claims. The ultra vires doctrine is a limited way to overcome immunity for state claims. Removing the case from state court to federal court

waives immunity from suit, but not liability. Sovereign / Eleventh Amendment immunity States Consent to Suit: If the State is waiving its own immunity by consent[ing] to suit against it in federal court, such consent must be unequivocally expressed. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). Similarly in state court, a statute that waives the States immunity must do so beyond doubt. Sw. Bell Tel., L.P. v. Harris Cty. Toll Rd. Auth., 282 S.W.3d 59, 68 (Tex. 2009).

Receipt of federal funds may also be explicitly conditioned on waiving Eleventh Amendment immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding the Rehab. Act did not contain express intent to abrogate immunity), superseded by statute as stated in Lane v. Pea, 518 U.S. 187, 198 (1996) (noting that Congress subsequently added the express intent previously missing from the statute). Sovereign / Eleventh Amendment immunity Congressional Abrogation: For Congress to validly abrogate the States Eleventh Amendment immunity: (1)

the Congressional intent to abrogate must be unequivocally expressed; and (2) Congress must be acting pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Sovereign / Eleventh Amendment immunity Congressional Abrogation (continued): Section 5 of the Fourteenth Amendment grants Congress authority to abrogate the States immunity when enacting legislation to enforce the Fourteenth Amendment. Kimel

v. Florida Bd. of Regents, 528 U.S. 62, 8081 (2000). Section 5 legislation reaching beyond the scope of 1s actual guarantees must be an appropriate remedy for identified constitutional violations, not an attempt to substantively redefine the States' legal obligations. Nevada Dept of Human Res. V. Hibbs, 538 U.S. 721, 728 (2003) (quoting Kimel, 528 U.S. at 88). There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. City of Boerne v. Flories, 521 U.S. 507, 508 (1997). Sovereign / Eleventh Amendment immunity Congressional Abrogation (continued):

The Age Discrimination in Employment Act (ADEA) does not validly abrogate the States sovereign immunity. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 8081, 9192 (2000). Title I of the Americans with Disabilities Act (ADA) does not validly abrogate the States sovereign immunity. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001). Title II of the ADA validly abrogates the States sovereign immunity in some situations, but not others. See Tennessee v. Lane, 541 U.S. 509, 53334 (2004); United States v. Georgia, 546 U.S. 151, 159 (2006).

The Family Medical Leave Act (FMLA) validly abrogates the States sovereign immunity when the leave requested relates to a family member, but not when the leave requested relates to the employee him or herself. See Nev. Dept of Human Res. v. Hibbs, 538 U.S. 721, 735 (2003); Nelson v. Univ. of Texas at Dallas, 535 F.3d 318, 321 (5th Cir. 2008). Sovereign / Eleventh Amendment immunity Ex parte Young doctrine: In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Verizon Md., Inc. v. Public Serv. Comn of Md., 535 U.S. 635, 645 (2002).

The Ex parte Young exception applies only to official capacity defendants, not to agencies. Bryant v. Tex. Dept of Aging & Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015). Sovereign / Eleventh Amendment immunity Ultra Vires doctrine: Sovereign immunity does not bar an ultra vires suit seeking prospective injunctive relief against a state official in their official capacity. City of El Paso v. Heinrich, 284 S.W.3d 366, 37273 (Tex. 2009). To fall within this ultra vires exception, a suit . . . must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act. Id. at 372.

Sovereign / Eleventh Amendment immunity Effect of Removal: By removing a case from state court to federal court, the State voluntarily invokes the federal courts jurisdiction. Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 620 (2002). Lapides does not address a situation where the States underlying sovereign immunity from suit ha[d] not been waived or abrogated in state court. Id. By removing a case to federal court, a state defendant waives only immunity from suit, and may continue to

assert immunity from liability even after removal. Meyers ex rel. Benzig, 410 F.3d 236, 255 (5th Cir. 2005); Cephus v. Tex. Health & Human Servs. Commn, 146 F. Supp.3d 818, 82728 (S.D. Tex. 2015). Individual Capacity Claims State official held personally liable Claim is based on the conduct of the individual The official can assert: o qualified immunity (to federal claims) o official immunity (to state claims)

Qualified immunity (federal claims) Qualified immunity shields government officials from liability when they are acting within their discretionary authority and their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation omitted). Qualified immunity (federal claims)

A right is clearly established if the law is clear in a particularized sense, such that a reasonable official would be put on notice that her conduct is unlawful and violates the right in question. Wernecke v. Garcia, 591 F.3d 386, 39293 (5th Cir. 2009). [C]learly established law should not be defined at a high level of generality, but must instead be particularized to the facts of the case. White v. Pauly, 137 S. Ct. 548, 552 (2017). Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by

Official immunity (state claims) Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Official immunity is necessary for public servants to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 427 (Tex. 2004).

Official immunity (state claims) Official immunity applies when: The claim arises from the employees discretionary act, which means the act required personal deliberation, decision, or judgment; The act is performed in good faith if a reasonably prudent official under similar circumstances could have believed act was justified; and The act is within the scope of the officials authority, which means she is discharging the duties generally assigned to her; an employees scope of authority extends to job duties to which the official has been assigned even if the official errs or acts unlawfully in completing the task. Other Immunity Defenses

Prosecutorial Immunity Applies to prosecutors and their assistance in the performance of prosecutorial functions Is not overcome by allegations that the prosecutor acted in bad faith Judicial Immunity Is only overcome when a judge performs non-judicial actions or when the actions are taken in a complete absence of all jurisdiction. Is not overcome when the judge is accused of acting corruptly or maliciously Legislative Immunity Attaches to all actions of local officials taken in the sphere of legitimate legislative activity These immunities are absolute and preclude suit and

liability May be quasiis generally based on the nature of the act at issue So youve been served with a lawsuit. . . . Step 1. Bemoan your fate. Step 1. Panic. Step 1. Promptly notify the appropriate person in your office. (E.g. the immediate supervisor or Office of General Counsel.) Questions

Benjamin Dower General Litigation Division (512) 475-4674 [email protected]

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