William Marsh Rice University and Gary Spears v. Rasheed Rafaey

Reversed and Rendered and Opinion filed May 17, 2016.

In The

Fourteenth Court of Appeals

NO. 14-13-00235-CV

WILLIAM MARSH RICE UNIVERSITY AND GARY SPEARS, Appellants
V.
RASHEED REFAEY, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2010-25730

OPINION
A man arrested by a private-university peace officer sued the officer and the
university asserting various tort claims based on the allegedly unlawful arrest. The
peace officer asserted official immunity. Both the officer and the university moved
for summary judgment on that ground. In this interlocutory appeal from the trial
court’s denial of their motion, we conclude that the peace officer and the university
proved their entitlement to summary judgment based on the peace officer’s
official-immunity defense. Accordingly, we reverse the trial court’s order and
render judgment granting the defendants’ summary-judgment motion and ordering
that the plaintiff take nothing by his claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

At all times material to this case, appellant/defendant Gary Spears was a
peace officer employed and commissioned by appellant/defendant William Marsh
Rice University. On the night in question, Officer Spears was on duty working for
Rice University as a police officer.1 Clad in uniform, he was driving a marked
Rice University Police Department sports-utility vehicle, equipped with emergency
lights and a siren. At about 2:30 a.m., while on patrol checking the Rice
University Bioscience Research Collaborative property near 6500 Main Street,
Officer Spears saw two cars, one behind the other, one block from campus. The
two cars were stopped in the right-hand lane of a public street that crosses Main
Street and part of which is adjacent to Rice University’s Bioscience Research
Collaborative. This part of the street is a two-way road with two lanes in each
direction. There were “No Parking” signs posted along the road. This part of the
street is in the Texas Medical Center, and Officer Spears had seen emergency
vehicles, at all hours of the day and night, proceed through the Texas Medical
Center.

A woman was leaning into the driver’s-side window of the second vehicle.
Appellee/plaintiff Rasheed Refaey was in the driver’s seat of the second vehicle.
Both cars had their headlights on and their engines running. Refaey and the
woman appeared to be kissing. Officer Spears believed that the vehicles were
obstructing the roadway because the lane in which the vehicles were stopped was

1
The facts recited in this section are based on the summary-judgment evidence considered in the
light most favorable to appellee/plaintiff Rasheed Refaey under the applicable legal standard.
See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

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impassable. A motorist would not have been able to turn right onto Main Street
without having to go into a different lane of traffic. Officer Spears considered
Refaey and the woman to be engaging in suspicious activity.

Officer Spears drove around the block and pulled up behind the vehicles.
He thought that by doing so, Refaey and the woman would move along and clear
the roadway. When he first pulled up behind the vehicles, the woman was still
leaning into the driver’s-side window, but after about twenty seconds, she noticed
Officer Spears, returned to her car, and drove off.

The traffic light facing Refaey’s car turned green, but Refaey did not depart.
The light turned red, but Refaey did not move his car. After watching for about
thirty seconds more, Officer Spears pulled closer to Refaey’s car and activated the
emergency lights to initiate a traffic stop. Officer Spears left his vehicle to
approach Refaey’s car, but as Officer Spears began to approach, Refaey drove
away and turned left onto Main Street.

Refaey testified that after the woman left, he checked about sixteen emails
on a hand-held device in his car, and the Rice University police vehicle was still
behind him. According to Refaey, when he drove off, he did not look at the police
vehicle in his rearview mirror, and Refaey did not notice whether the police officer
had activated the emergency lights.

According to Officer Spears, he returned to his vehicle and began following
Refaey using emergency lights and attempting to stop Refaey. Travelling south on
Main Street at approximately thirty miles per hour, Refaey evaded Officer Spears’s
attempts to stop him, continuing to drive for about two miles.

Refaey testified that about three-quarters of a mile into this drive, he knew
that the Rice University police vehicle was behind him on Main Street with its

3
emergency lights activated. According to Refaey, about one mile into this drive,
he realized that the police officer following him was the same Rice University
police officer who had stopped behind him earlier. At that point Refaey noticed
that the Rice University police officer was motioning to him to pull over.
Nonetheless, Refaey did not pull over; instead, he continued to drive with the
police vehicle following behind him. Refaey drove for about one more mile before
he turned right and pulled over. Refaey testified that Rice University is a private
university with which he had no association and that he had not been on Rice
University property, so he did not see how Officer Spears had any reason or right
to stop him.

After Refaey finally pulled over, he left his car on his own initiative and
walked to the back of the vehicle. According to Refaey, Refaey “threw [his] hands
up” and said “What the f*** do you think you’re doing pulling me over?” Refaey
then saw that Officer Spears had his weapon drawn and pointed at Refaey. When
he was confident that Refaey was not armed, Officer Spears holstered his weapon.
Refaey argued with Officer Spears for about five minutes. During this time Refaey
admitted that he had not stopped his vehicle, despite Officer Spears’s attempts to
detain him, and Refaey stated that he did not do so because he did not know of any
reason Officer Spears had to stop Refaey. During this argument, Officer Spears
noticed that Refaey’s eyes were red and watery and that he had a strong odor of
alcohol on his breath. Refaey stated that he told the officer that the officer did not
smell alcohol on his breath and that he said this because, given the amount of
alcohol Refaey had consumed, Officer Spears was not in a position to detect
alcohol on Refaey’s breath.

Officer Spears placed Refaey in handcuffs and arrested him on suspicion of
having committed the offenses of evading arrest and driving while intoxicated.

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Officer Spears contacted the Harris County District Attorney’s Office and relayed
the facts. The Harris County District Attorney’s Office accepted the charges, and
Officer Spears turned Refaey over to the custody of the Harris County Sheriff’s
Department. Later, all charges against Refaey were dismissed.

Refaey filed this lawsuit against Officer Spears and Rice University,
asserting negligence, false-imprisonment, assault, and intentional-infliction-of-
emotional-distress claims based on his allegedly unlawful arrest and detention.
Officer Spears and Rice University (hereinafter the “Rice Parties”) moved for
summary judgment based on their affirmative defense of official immunity. The
trial court denied the summary-judgment motion, and the Rice Parties appealed
under Texas Civil Practice and Remedies Code section 51.014(a)(5). See Tex. Civ.
Prac. & Rem. Code § 51.014(a)(5) (West Supp. 2015).

This court concluded that Officer Spears was not an officer or employee of
the state and that he was not entitled to be treated as if he were such an officer or
employee for the purposes of section 51.014(a)(5) and thus dismissed the appeal
for lack of jurisdiction. See William Marsh Rice Univ. v. Refaey, 417 S.W.3d 667,
670–71 (Tex. App.—Houston [14th Dist.] 2013), rev’d, 459 S.W.3d 590, 594–95
(Tex. 2015) (per curiam). The Supreme Court of Texas, addressing an issue of first
impression in that court, reversed, concluding that private-university peace officers
fall within the common meaning of the phrase “officer . . . of the state” in section
51.014(a)(5). William Marsh Rice Univ. v. Refaey, 459 S.W.3d 590, 594–95 (Tex.
2015) (per curiam). Adopting a broad reading of the statute, the high court
concluded that the common meaning of the word “officer” is “[s]omeone who
holds an office of trust, authority, or command.” Id. at 595 (internal quotations
omitted). The Supreme Court of Texas noted that private-university peace officers
are charged with enforcing state law on private-university campuses and must take

5
an oath of office to “faithfully execute the duties of the office of [peace officer] of
the State of Texas.” Id. at 594–95 (citations omitted). The high court stated that
private-university peace officers have the authority to enforce state law and a duty
to preserve the peace, which benefits a public purpose. Id. at 595. After
concluding that this court had appellate jurisdiction, the high court remanded the
case for this court to consider the merits of the Rice Parties’ appeal.

II. ISSUE AND ANALYSIS

Under their first issue, the Rice Parties assert that the trial court erred in
denying their motion for traditional summary judgment based on Officer Spears’s
official immunity. To dispose of this argument, we must determine whether
Officer Spears may assert the official-immunity defense, and, if so, whether the
summary-judgment evidence conclusively proves that he is entitled to official
immunity.

In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s
summary judgment, we consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

6
 A. Is the private-university peace officer entitled to assert official
immunity?
We first address whether Officer Spears, a private-university peace officer,
may assert the official-immunity defense against claims based on allegedly tortious
conduct that did not occur on property under the private university’s control and
jurisdiction. The parties have not cited, and research has not revealed, any Texas
case addressing this issue.

Private institutions of higher education, such as Rice University, may
employ and commission peace officers for the purpose of enforcing (1) state law
on the campuses of the institution, and (2) state and local law, including applicable
municipal ordinances, at other locations, as permitted by section 51.212(b) or
section 51.2125 of the Texas Education Code.2 See Tex. Educ. Code Ann. §
51.212(a) (West, Westlaw through 2015 R.S.). The applicable version of Texas
Education Code section 51.212(b) provides in pertinent part as follows:

Any officer commissioned under the provisions of this section is
vested with all the powers, privileges, and immunities of peace
officers if the officer:

(1) is on the property under the control and jurisdiction of the
respective private institution of higher education or is
otherwise performing duties assigned to the officer by the
institution, regardless of whether the officer is on property
under the control and jurisdiction of the institution, but
provided these duties are consistent with the educational
mission of the institution and are being performed within a
county in which the institution has land; or

Act of May 28, 2007, 80th Leg., R.S., ch. 258, § 15.01, 2007 Tex. Gen. Laws 367,

2
The summary-judgment evidence does not raise any issue regarding the existence of a mutual
assistance agreement under Texas Education Code section 51.2125, so we do not consider that
statute in our analysis. See Tex. Educ. Code Ann. § 51.2125.

7
389 (amended 2015) (current version at Tex. Educ. Code § 51.212(b)).3 We
review de novo the trial court’s interpretation of applicable statutes. See Johnson
v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). In construing a
statute, our objective is to determine and give effect to the Legislature’s intent. See
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible,
we must ascertain that intent from the language the Legislature used in the statute
and not look to extraneous matters for an intent the statute does not state. Id. If
the meaning of the statutory language is unambiguous, we adopt the interpretation
supported by the plain meaning of the provision’s words. St. Luke’s Episcopal
Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in forced
or strained construction; instead, we must yield to the plain sense of the words the
Legislature chose. See id.

The summary-judgment evidence proves as a matter of law that at all times
relevant to Refaey’s claims, Rice University employed Officer Spears as a
commissioned peace officer in the Rice University Police Department. None of
Officer Spears’s allegedly tortious conduct occurred on property under Rice
University’s control and jurisdiction. Therefore, for Officer Spears to be vested
with all the powers, privileges, and immunities of a peace officer under Texas
Education Code Section 51.212(b), (1) Officer Spears must have been performing
duties assigned to him by Rice University; (2) these duties must have been
consistent with Rice University’s educational mission; and (3) these duties must
have been performed in a county in which Rice University has land. See Act of
3
Effective September 1, 2015, the Legislature amended Texas Education Code section
51.212(b)(1) to delete the requirement that the duties be consistent with the educational mission
of the institution if the officer is not on the property under the control and jurisdiction of the
respective private institution of higher education. See Act of May 19, 2015, 84th Leg., R.S., ch.
300, § 1, 2015 Tex. Sess. Law Serv. 1417, 1417–18 (codified at Tex. Educ. Code § 51.212(b)).
This amendment does not apply to Refaey’s claims, which accrued before the Legislature
amended the statute.

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May 28, 2007, 2007 Tex. Gen. Laws at 389.

The summary-judgment evidence proves as a matter of law that when he
engaged in the allegedly tortious conduct, Officer Spears was performing duties
assigned to him by Rice University and that these duties were performed in Harris
County, Texas, a county in which Rice University has land. Refaey argues that
Officer Spears’s duties were not consistent with Rice University’s educational
mission. The term “educational mission” is not defined in the statute, and it does
not have a technical or particular meaning. Accordingly, we construe this term
based on its ordinary meaning. See City of San Antonio v. Hartman, 201 S.W.3d
667, 672, n.19 (Tex. 2006).

In the summary-judgment evidence, the Rice Parties submitted copies of
Rice University’s mission statement and the Rice University Police Department’s
mission statement. Rice University’s mission statement provides as follows:

As a leading research university with a distinctive commitment to
undergraduate education, Rice University aspires to pathbreaking
research, unsurpassed teaching, and contributions to the betterment of
our world. It seeks to fulfill this mission by cultivating a diverse
community of learning and discovery that produces leaders across the
spectrum of human endeavor.
The Rice Parties rely in part on the Rice University Police Department’s
mission statement. Though this statement may reflect the Rice University Police
Department’s mission, this document does not address Rice University’s
educational mission.

Refaey argues that Rice University’s mission statement says nothing about
patrolling public, off-campus streets, investigating the amorous activities of private
citizens, or otherwise providing police services to the City of Houston. In this
argument, Refaey suggests that the duties of a peace officer employed by a private

9
institution of higher education must be stated in that institution’s mission statement
for those duties to be “consistent with the educational mission of the institution”
under Texas Education Code section 51.212(b)(1). But, this argument conflicts
with the unambiguous language of the statute. The statute requires that the duties
be “consistent with the educational mission of the institution.” Act of May 28,
2007, 2007 Tex. Gen. Laws at 389. The statute does not require that the duties be
“consistent with the mission statement of the institution,” nor does the statute
require that the duties be “listed in the mission statement of the institution.” See id.
Though the institution’s mission statement may be relevant to a determination of
the institution’s educational mission, the mission statement is not a comprehensive
definition of that educational mission. A peace officer’s duties may be consistent
with the institution’s educational mission even if those duties are not mentioned in
the institution’s mission statement.

The Rice Parties submitted a summary-judgment affidavit from their expert
witness, Steven G. McGee, the police chief of Texas Christian University’s Police
Department. McGee reviewed Rice University’s mission statement and attached it
to his affidavit. McGee testified that when an officer with the Rice University
Police Department investigates possible traffic violations the officer is ensuring the
health and welfare of the students, faculty, staff, and visitors on campus, which
furthers Rice University’s educational mission. McGee noted that Refaey’s car
was stopped across the street from part of the Rice University campus. McGee
opined that Officer Spears “acted consistent with the educational mission of Rice
University” when he attempted to stop Refaey one block from campus.

Refaey did not submit any summary-judgment evidence as to whether
Officer Spears’s duties were consistent with Rice University’s educational mission.
Refaey suggests that McGee is biased because a ruling against Rice University in

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this case would have a direct impact on the police department of Texas Christian
University, a private institution of higher learning. But, a summary judgment may
be based on the uncontroverted testimonial evidence of an interested witness if the
evidence is clear, positive and direct, otherwise credible and free from
contradictions and inconsistencies, and readily could have been controverted. Tex.
R. Civ. P. 166a(c). McGee’s testimony was clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and readily could have
been controverted. Refaey offered no controverting testimony. Therefore, even if
McGee was an interested witness, the trial court was entitled to base its summary
judgment on McGee’s testimony. See Tex. R. Civ. P. 166a(c); Coterill-Jenkins v.
Texas Medical Ass’n Health Care Liability Claim Trust, 383 S.W.3d 581, 588–89
(Tex. App.—Houston [14th Dist.] 2012, pet. denied).

Refaey contends on appeal that, arguably, it is contrary to Rice University’s
educational mission for the university to take on the duties of policing the City of
Houston because the Rice University Police Department has limited personnel and
thus cannot protect students on campus if the university’s officers are patrolling off
campus all over Houston. As stated above, Refaey did not submit any summary-
judgment evidence on this issue, and no summary-judgment evidence supports this
argument. And, notably, when Officer Spears first saw Refaey’s car, Officer
Spears was travelling north on Main Street, patrolling a street adjacent to part of
the Rice University campus. Refaey’s car was one block from the campus. Thus,
this case does not present the issue of whether performing duties in a part of Harris
County far from any part of the campus would be consistent with the university’s
educational mission.

To determine whether the summary-judgment evidence proves as a matter of
law that Officer Spears’s duties were consistent with Rice University’s educational

11
mission, we need not and do not delineate specifically Rice University’s
educational mission or the common meaning of the term “educational mission.”
After reviewing the summary-judgment evidence under the applicable standard of
review, we conclude that the evidence conclusively proves that (1) at the time of
his allegedly tortious conduct, Officer Spears was performing duties assigned to
him by Rice University; (2) these duties were consistent with Rice University’s
educational mission; and (3) these duties were performed in a county in which Rice
University has land. See Act of May 28, 2007, 2007 Tex. Gen. Laws at 389.
Therefore, as a matter of law under Texas Education Code Section 51.212(b),
Officer Spears was vested with all the powers, privileges, and immunities of a
peace officer, which includes the ability to assert the affirmative defense of official
immunity.4 See William Marsh Rice Univ. v. Thomas, No. 01-14-00908-CV, 2015
WL 3522915, at *3 (Tex. App.—Houston [1st Dist.] June 4, 2015, no pet.) (mem.
op.).

B. Does the summary-judgment evidence conclusively prove each essential
element of the official-immunity defense?
To be entitled to summary judgment on the official-immunity defense the
summary-judgment evidence must prove conclusively that when Officer Spears
engaged in the allegedly tortious conduct (1) he was performing discretionary
duties (2) in good faith and (3) within the scope of his authority. See Telthorster v.
Tennell, 92 S.W.3d 457, 461 (Tex. 2002); City of Houston v. Newsom, 858 S.W.2d
14, 17 (Tex. App.—Houston [14th Dist.] 1993, no writ); Thomas, WL 3522915, at
*4. To establish good faith, the Rice Parties must show that a reasonably prudent
4
Because we determine that Officer Spears was entitled to assert the affirmative defense of
official immunity based on the applicable version of Texas Education Code section 51.212(b),
we need not and do not address the Rice Parties’ arguments that private-university peace officers
have a direct right to assert this defense under Texas common law and that other statutes allow
Officer Spears to assert this defense.

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officer, under the same or similar circumstances, could have believed that Officer
Spears’s conduct was justified based on the information Officer Spears possessed
when the conduct occurred. See Telthorster, 92 S.W.3d at 465. The Rice Parties
need not prove that it would have been unreasonable not to engage in the conduct,
or that all reasonably prudent officers would have engaged in the same conduct.
See id. Rather, they must prove only that a reasonably prudent officer, under
similar circumstances, might have reached the same decision. See id. That Officer
Spears may have been negligent will not defeat good faith; this test of good faith
does not inquire into “what a reasonable person would have done,” but into “what a
reasonable officer could have believed.” Id. (internal quotations and citations
omitted). If the Rice Parties met this burden, then to raise a fact issue, Refaey must
have done more than show that a reasonably prudent officer could have reached a
different decision. See id. Instead, Refaey must have offered evidence that no
reasonable officer in Spears’s position could have believed that the facts were such
that they justified his conduct. See id. If officers of reasonable competence could
disagree on this issue, then Officer Spears acted in good faith as a matter of law.
See id.
McGee’s affidavit proves that a reasonably prudent officer, under the same
or similar circumstances, could have believed that Officer Spears’s conduct was
justified based on the information Officer Spears had when he engaged in the
allegedly tortious conduct. See id. at 465–67; Thomas, WL 3522915, at *4–6.
Refaey argues that his kissing a woman is not suspicious behavior and did not
warrant investigation by Officer Spears. But, in his affidavit, McGee states that
Refaey was exhibiting suspicious behavior based on the totality of the
circumstances, not just because Refaey was kissing a woman. In any event,
Refaey did not submit evidence that no reasonable officer in the same position
could have believed that the facts were such that they justified the conduct. See
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Telthorster at 465–67; Thomas, WL 3522915, at *4–6. Refaey asserts that Officer
Spears did not act in good faith because his conduct was negligent, but, under the
legal standard, any negligence by the officer does not raise a fact issue as to
whether the officer acted in good faith. See Telthorster at 465–67; Thomas, WL
3522915, at *4–6.
Refaey argues that Officer Spears was acting outside the scope of his
authority because he was not on property under Rice University’s control and
jurisdiction and his duties were not consistent with Rice University’s educational
mission. We already have rejected this argument. An officer acts within the scope
of the officer’s authority if the officer is discharging duties generally assigned to
the officer. See Thomas, WL 3522915, at *4–6. The summary-judgment evidence
conclusively proves that Officer Spears was discharging the duties assigned to him.
Under the applicable standard of review, the summary-judgment evidence,
including the affidavits of Officer Spears and McGee, conclusively proves that
when Officer Spears engaged in the allegedly tortious conduct (1) he was
performing discretionary duties (2) in good faith and (3) within the scope of his
authority. See Telthorster at 465–67; Thomas, WL 3522915, at *4–6. Therefore,
the trial court erred by not granting summary judgment in favor of Officer Spears
as to official immunity. See Telthorster at 465–67; Thomas, WL 3522915, at *4–6.
Refaey’s claims against Rice University are based solely on the university’s
alleged vicarious liability for Officer Spears’s conduct. If Officer Spears is entitled
to summary judgment based on official immunity, then Rice University likewise is
entitled to summary judgment based on official immunity. See DeWitt v. Harris
County, 904 S.W.2d 650, 654 (Tex. 1995); Thomas, 2015 WL 3522915, at *7.
Thus, the trial court also erred by not granting summary judgment in favor of Rice
University. See DeWitt, 904 S.W.2d at 654; Thomas, 2015 WL 3522915, at *7.
Accordingly, we sustain the Rice Parties’ first issue.
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 III. CONCLUSION

As a matter of law, Texas Education Code section 51.212(b) vested Officer
Spears with all the powers, privileges, and immunities of a peace officer, which
includes the ability to assert the affirmative defense of official immunity. The
summary-judgment evidence conclusively proves that when Officer Spears
engaged in the allegedly tortious conduct he was performing discretionary duties,
in good faith, and within the scope of his authority. Therefore, the trial court erred
in denying the Rice Parties’ summary-judgment motion. We reverse the trial
court’s order and render judgment granting the Rice Parties’ motion and ordering
that Refaey take nothing by his claims against the Rice Parties.

/s/ Kem Thompson Frost
Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.

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