University of Incarnate Word and Christopher Carter v. Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus

FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
05/7/2015 12:53:18 AM
KEITH E. HOTTLE
Clerk

APPENDIX
A
 IN THE SUPREME COURT OF TEXAS
444444444444
NO . 14-0048
444444444444

WILLIAM MARSH RICE UNIVERSITY AND GARY SPEARS, PETITIONERS,

v.

RASHEED REFAEY, RESPONDENT

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

PER CURIAM

The primary issue in this case is whether a private university peace officer is an “officer or

employee of the state” that may invoke a court of appeals’ interlocutory jurisdiction under Texas

Civil Practice and Remedies Code section 51.014(a)(5). In addition, we are asked to consider

whether a private university may pursue an interlocutory appeal under section 51.014(a)(5) based

on the assertion of immunity by a private university peace officer.

William Marsh Rice University (Rice University) is a private institution of higher education.

Rice University operates its own police department, which employed Gary Spears (Officer Spears)

as a commissioned peace officer during the relevant time of this case. While on patrol in the early

morning of July 23, 2009, Officer Spears observed Rasheed Refaey engaged in what Officer Spears

determined to be suspicious activity—kissing a woman while sitting in a vehicle parked across the

street from the Rice University campus. Officer Spears approached Refaey’s vehicle to investigate.
Refaey drove away. Officer Spears returned to his vehicle and pursued Refaey’s vehicle for two

miles until Refaey stopped. Officer Spears detained Refaey at gunpoint and arrested him for driving

while intoxicated, obstructing a roadway, and evading arrest. The Harris County District Attorney’s

Office later dismissed all charges against Refaey.

Refaey sued Officer Spears and Rice University (collectively, the defendants) for false

imprisonment, negligence, gross negligence, assault, and intentional infliction of emotional distress,

alleging that the arrest and detention were unlawful. The defendants moved for summary judgment

on the affirmative defense that Officer Spears was entitled to official immunity. The trial court

denied the motion, and the defendants filed an interlocutory appeal pursuant to Civil Practice and

Remedies Code section 51.014(a)(5). Section 51.014(a)(5) allows a person to appeal an

interlocutory order of a district court that “denies a motion for summary judgment that is based on

an assertion of immunity by an individual who is an officer or employee of the state or a political

subdivision of the state.” TEX . CIV . PRAC. & REM . CODE § 51.014(a)(5). The court of appeals

dismissed the appeal and held that it lacked jurisdiction because Officer Spears was not an “officer

or employee of the state,” which foreclosed the defendants’ collective ability to pursue an

interlocutory appeal. See 417 S.W.3d 667, 670–71. The court of appeals did not determine whether

Officer Spears was entitled to official immunity. The defendants petitioned this Court for review.

As a threshold inquiry, we first consider whether the Court has jurisdiction over this

interlocutory appeal, as such appeals are generally final in the courts of appeals. See Klein v.

Hernandez, 315 S.W.3d 1, 3 (Tex. 2010); see also TEX . GOV ’T CODE § 22.225(b)(3). “[W]e always

have jurisdiction to determine whether the court of appeals correctly applied its jurisdiction.” Klein,

2
315 S.W.3d at 3 (citations omitted). We therefore have jurisdiction to consider whether the court

of appeals’ dismissal for lack of jurisdiction was proper. See id.

Although this case turns on a jurisdictional question regarding Civil Practice and Remedies

Code section 51.014(a)(5), the defendants base their argument on Education Code section 51.212.

Section 51.212(a) authorizes private institutions of higher education “to employ and commission

peace officers for the purpose of enforcing: (1) state law on the campuses of private institutions of

higher education; and (2) state and local law, including applicable municipal ordinances, at other

locations, as permitted by Subsection (b) or Section 51.2125.” TEX . EDUC. CODE § 51.212(a).

Without dispute, Rice University is a private institution of higher education (private university) and

its police department employed Officer Spears pursuant to section 51.212. The defendants and amici

place significant emphasis on section 51.212’s next provision, which vests private university peace

officers “with all of the powers, privileges, and immunities of peace officers” in certain

circumstances. Id. § 51.212(b). These circumstances include when the peace officer is on the

private university’s property, is performing duties consistent with the private university’s educational

mission in a county in which the private university owns land, or is assisting with a request from

another law enforcement agency. Id.1 Additionally, private university peace officers are required

1
Section 51.212(b) states in full:

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

3
to “take and file the oath required of peace officers,” and to execute and file a bond that is payable

to the governor and is “conditioned that the officer will fairly, impartially, and faithfully perform the

duties as may be required of the officer by law.” Id. § 51.212(c); see also TEX . CODE CRIM . PROC.

art. 2.13 (providing mandatory duties for every peace officer).

According to the defendants, section 51.212 confers private university peace officers with

the same privileges and immunities as all other peace officers, including the right to pursue an

interlocutory appeal when a trial court denies an assertion of official immunity. They contend that

the term “officer,” as used in section 51.014(a)(5), includes all peace officers that are licensed by the

state and enforce state law for the public’s benefit. The defendants also rely on this Court’s decision

in Klein to support their position that “the relevant inquiry in permitting a party to file an

interlocutory appeal is not whether the actor was actually employed by the state, but instead whether

the Legislature intended to treat the actor the same as a state employee by granting the actor the same

type of immunity.”

Refaey urges a strict reading of section 51.014(a)(5), which applies only to an “officer or

employee” of the state. According to Refaey, Officer Spears was employed by a private university

(2) to the extent authorized by Section 51.2125, is:

(A) requested by another law enforcement agency to provide assistance in enforcing state or
local law, including a municipal ordinance, and is acting in response to that request; or

(B) otherwise assisting another law enforcement agency in enforcing a law described by
Paragraph (A).

T EX . E D U C . C O DE § 51.212(b). Section 51.2125, which is not implicated in this case, authorizes private universities to
enter into mutual assistance agreements to provide law enforcement assistance to the peace officers of a municipality.
See generally id. § 51.2125.

4
and was therefore not an employee of the state, nor can he be considered an officer of the state

because the term “officer” does not include peace officers in this context. Refaey contends that the

Legislature’s use of the term “officer” in a statute almost always refers to an elected or appointed

official, and all other state actors are merely employees. Thus, a peace officer would never be

considered an officer under section 51.014(a)(5) and could only fall within the definition of an

employee. Refaey also argues that Klein does not apply here because that case involved a completely

different statutory scheme that was relevant to determining whether the defendant was an employee

of the state.

Despite the Education Code’s grant of immunity in certain circumstances, the court of

appeals held that “nothing in section 51.212 or any other statute that has been cited to this court

provides that all peace officers are entitled to be treated as if they were officers or employees of the

state for the purposes of section 51.014(a)(5).” 417 S.W.3d at 670. The court of appeals held that

“neither Spears’s status as a ‘peace officer,’ nor his possession of all the powers, privileges, and

immunities of peace officers mandates that he be treated as if he were an officer or employee of the

state for the purposes of section 51.014(a)(5).” Id.

We begin our analysis with Klein and agree with Refaey that its reasoning applies to a

different set of circumstances from those presented in this case. In Klein, a different statutory

scheme enabled a private university teaching hospital to qualify as a state agency, and therefore its

employee, the defendant-doctor, qualified as an employee of a state agency for the purpose of

determining his liability and obtaining indemnity under Civil Practice and Remedies Code Chapter

104. Klein, 315 S.W.3d at 5. Ultimately, Klein held: “As an employee of a state agency,

5
complaining about the denial of his motion for summary judgment based on an assertion of

immunity, [the defendant-doctor] was entitled to bring this interlocutory appeal like any other state

employee . . . .” Id. at 8. This case is distinguishable from Klein because no applicable statute treats

Rice University or its police force like a state agency, and hence, no statutory device can make

Officer Spears qualify as a state employee under section 51.014(a)(5). Therefore, the outcome of

this case depends on whether Officer Spears can be deemed an “officer” under section 51.014(a)(5).

The parties dispute the meaning of the undefined word “officer” in section 51.014(a)(5). We

give undefined words “their common, ordinary meaning unless the statute clearly indicates a

different result.” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (plurality)

(citing Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)). The defendants cite multiple

dictionaries that define an “officer” to include a peace or police officer. Refaey quotes an

unspecified edition of Black’s Law Dictionary that purportedly defines an “officer” as “the

incumbent of an office; one who is lawfully invested with an office. One who is charged by a

superior power (and particularly by government) with the power and duty of exercising certain

functions.” According to Refaey, this Black’s-attributed definition is consistent with how “officer”

is used in section 51.014(a)(5) and clearly excludes peace officers.

Refaey fails to recognize that this purported Black’s definition cuts against his position.

Private university peace officers are “lawfully invested with an office” because they are required to

take the same oath of office to “faithfully execute the duties of the office of [peace officer] of the

State of Texas,” as must all other peace officers. See TEX . CONST . art. XVI, § 1 (providing the oath

of office); TEX . EDUC. CODE § 51.212(c) (requiring private university peace officers to take the

6
oath). Private university peace officers must also post a bond, TEX . EDUC. CODE § 51.212(c), and

be licensed by the same process as all other peace officers, TEX . OCC. CODE § 1701.301. They are

“charged by a superior power . . . with the power and duty of exercising certain functions” because

the Legislature authorized them to enforce Texas laws on private university campuses. TEX . EDUC.

CODE § 51.212(a) (authorizing employment of private university peace officers “for the purpose of

enforcing . . . state law on the campuses of private [universities]”). More importantly, a verifiable

version of Black’s defines an “officer” as “[s]omeone who holds an office of trust, authority, or

command.” BLACK’S LAW DICTIONARY 1257 (10th ed. 2014). This edition of Black’s defines an

“office” as a “position of duty, trust, or authority, [especially] one conferred by a governmental

authority for a public purpose.” Id. at 1254 (emphasis added). These verifiable Black’s definitions

support the conclusion that the common meaning of the phrase “officer . . . of the state” applies to

private university peace officers because the Legislature has conferred on them the authority to

enforce state law on private university campuses, which serves a public purpose. See id. at 1254,

1257.

Further, several statutory definitions bolster the defendants’ contentions as to the

Legislature’s intended meaning of “officer” in section 51.014(a)(5). The Occupations Code defines

an “officer” as a peace officer, and in turn, a “peace officer” “means a person elected, employed, or

appointed as a peace officer under Article 2.12, Code of Criminal Procedure.” TEX . OCC. CODE

§ 1701.001(3), (4). Article 2.12 states that “[t]he following are peace officers” and provides a list

that includes officers commissioned under Chapter 51 of the Education Code. TEX . CODE CRIM .

PROC. art. 2.12(8). Similarly, the Penal Code defines a “peace officer” as “a person elected,

7
employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section

51.212 or 51.214, Education Code, or other law.” TEX . PENAL CODE § 1.07(36). Officer Spears was

commissioned under Chapter 51 of the Education Code and therefore qualifies as an “officer” under

the Occupations Code. While this conclusion does not resolve the issue of whether Officer Spears

is an “officer of the state” under the interlocutory appeal statute, it demonstrates that the Legislature

considers private university peace officers to be “officers” for certain purposes.

We conclude that the “officer . . . of the state” language in section 51.014(a)(5) applies to

private university peace officers. They are charged with enforcing state law on private university

campuses and must take an oath of office to “faithfully execute the duties of the office of [peace

officer] of the State of Texas.” See TEX . CONST . art. XVI, § 1; TEX . EDUC. CODE § 51.212(a), (c).

The Legislature conferred upon private university peace officers the authority to enforce state law

and a duty to preserve the peace, which benefits a public purpose. See generally TEX . EDUC. CODE

§ 51.212 (authorizing private universities to employ peace officers to enforce state law); TEX . CODE

CRIM . PROC. art. 2.13 (providing mandatory duties for every peace officer). The common meaning

of the word “officer” as “[s]omeone who holds an office of trust, authority, or command”

encompasses the Legislature’s act of conferring this authority and duty upon private university peace

officers for a public purpose. See BLACK’S LAW DICTIONARY 1254, 1257 (10th ed. 2014). The

Legislature also provided that private university peace officers are “vested with all the powers,

privileges, and immunities of peace officers.” TEX . EDUC. CODE § 51.212(b). This includes the

ability to pursue an interlocutory appeal under section 51.014(a)(5). The court of appeals erred in

concluding that it lacked jurisdiction to consider Officer Spears’s interlocutory appeal.

8
 Further, the defendants contend that the court of appeals erred in concluding that it lacked

interlocutory appellate jurisdiction over Rice University’s appeal pursuant to section 51.014(a)(5).

Again, section 51.014(a)(5) authorizes interlocutory appeals for denials of summary judgment that

are “based on an assertion of immunity by an individual.” TEX . CIV . PRAC . & REM . CODE

§ 51.014(a)(5). Rice University’s assertion of immunity is based on an assertion of immunity by

Officer Spears, an individual. We have held that an employer may rely on its employee’s assertion

of immunity for purposes of invoking interlocutory appellate jurisdiction under section 51.014(a)(5).

City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex. 1995) (per curiam) (relying on the

reasoning of DeWitt v. Harris Cnty., 904 S.W.2d 650, 654 (Tex. 1995)). Because the court of

appeals should have considered the merits of Officer Spears’s appeal, including whether he was

entitled to official immunity, the court of appeals should have decided the merits of Rice

University’s appeal as well.

The court of appeals had jurisdiction under section 51.014(a)(5) to consider the appeals of

both Officer Spears and Rice University. It erred in concluding otherwise. Accordingly, we grant

the petition for review, and without hearing oral argument, TEX . R. APP . P. 59.1, we reverse the court

of appeals’ judgment and remand this case to the court of appeals for further proceedings consistent

with this opinion.

OPINION DELIVERED: April 24, 2015

9