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Tumlinson v. Barnes

Court of Appeals of Texas, Third District, Austin

May 5, 2017

Travis County Sheriff's Office Senior Certified Peace Officer Dennis Tumlinson, Appellant
Carolyn Barnes, Appellee


          Before Chief Justice Rose, Justices Pemberton and Bourland


          Jeff Rose, Chief Justice.

         This is an interlocutory appeal from the district court's denial of Travis County Sheriff's Office Senior Certified Peace Officer Dennis Tumlinson's assertion of official immunity. Because Tumlinson failed to establish the good-faith element of his official-immunity defense, we will affirm the district court's order.


         In January 2010, Officer Tumlinson arrested Barnes for assaulting Officer Tumlinson at the security-screening area of the Travis County Criminal Justice Center where Tumlinson was employed. Barnes was charged with assault on a public servant.[1]

          While Barnes was out on bond from the assault charge, she was arrested by Williamson County Sheriff's Office deputies for shooting at a United States Census worker. Barnes was charged with and later found guilty of aggravated assault with a deadly weapon and sentenced to three years in connection with this shooting.[2]

         In January 2011, Barnes filed suit against various individuals, including Officer Tumlinson, for various claims purportedly stemming from the above-related events, but her suit was ultimately dismissed for want of prosecution. Thereafter, Barnes filed a federal lawsuit in the Western District of Texas, Austin Division, against many of the same individuals, again including Officer Tumlinson, but the federal district court dismissed the case with prejudice after Barnes failed to comply with a court order to clarify and shorten her pleadings.[3]

         In March 2015, Barnes filed the underlying lawsuit against Officer Tumlinson and approximately 78 other individuals asserting more than 200 causes of action purportedly arising from the events described above, including her 2010 arrest for assaulting Officer Tumlinson. The causes of action asserted in Barnes's 127-page original petition, which Barnes supplemented six times, include various types of conspiracy, malicious prosecution, fraud, violation of civil and constitutional rights, assault, aggravated perjury, gross abuses of power, acts of violence, fraud on the court, obstruction of justice, usurpation of power, global conspiracy, violations of public trust and unwarranted impositions of cruel and unusual punishment. Regarding Officer Tumlinson and his 2010 arrest of her, Barnes asserted in her pleadings that Officer Tumlinson had "attacked B[arnes] from behind as she exited the building in order to knock her phone out of her hand to prevent and interrupt her call to 911 to report his drunken state and abusive behavior." Barnes further alleged that Officer Tumlinson perjured himself when he testified about this incident in the census-worker case against Barnes in Williamson County.

         In response to the suit against him, Officer Tumlinson filed motions to dismiss and a plea to the jurisdiction, asserting that, stated generally, he was entitled to official immunity in connection with the acts that are the basis of Barnes's claims against him because those acts "were conducted within [Officer Tumlinson's] official capacity as [an] employee[] of Travis County" and that Officer Tumlinson was "performing discretionary duties within the course and scope of [his] employment.[4] After a hearing on the matter, the district court denied, without elaboration, Officer Tumlinson's motion to dismiss and his plea to the jurisdiction. It is from this interlocutory order that Tumlinson appeals, raising two issues challenging the district court's order: (1) "Subject matter jurisdiction precludes [Barnes]'s claims against a government official because [Barnes] failed to establish jurisdiction"; and (2) "affirmative defenses of official immunity, statute of limitations, and res judicata are dispositive on the question of the court's jurisdiction, notwithstanding the merits of any potential claim."[5]


         Texas Civil Practice and Remedies Code section 51.014(a)(5) authorizes an appeal from an interlocutory order that "denies a motion for summary judgment that is based on an assertion of official immunity by an individual who is an officer or employee of the state or a political subdivision of the state."[6] Although Officer Tumlinson did not file a motion for summary judgment based on an assertion of official immunity, he did file a motion to dismiss and a plea to the jurisdiction that were both predicated, in part, on his claim of official immunity. The Texas Supreme Court has held that an appeal may be taken from an order denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used.[7] Accordingly, we have jurisdiction over the district court's order here to the extent that it denies Officer Tumlinson's assertion of official immunity.[8]

         Official immunity is an affirmative defense that protects government employees from personal liability.[9] A government employee is entitled to official immunity (1) for the performance of discretionary duties; (2) within the scope of the employee's authority; (3) provided the employee acts in good faith.[10] Official immunity can apply in cases such as this that involve allegations of intentional torts such as assault arising from police activity, including arrests.[11] An act is discretionary if it requires personal deliberation, decision, and judgment.[12] A law-enforcement officer's decision regarding "if, how, and when to arrest a person" is a discretionary function.[13] An officer acts within the scope of his authority if he is discharging the duties generally assigned to him.[14] Even if a specific action is wrong or negligent, the officer still acts within the scope of this authority.[15] A police officer acts in good faith in connection with an arrest if a reasonably prudent police officer, under similar might have reached the same decision.[16]

         Here, Barnes has alleged that Officer Tumlinson assaulted her in January 2010 in the Travis County Criminal Justice complex where Tumlinson was employed.[17] In response, Tumlinson asserts that when he arrested Barnes he was performing discretionary duties within the course and scope of his employment with Travis County and that he acted in good faith in ...

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