dissenting.
The only issue in this case is whether Harris County, as an employer, may be held hable under the Texas Tort Claims Act for the neghgence of its employee who personally enjoys official immunity under the Act. Although Officer Huckeba is entitled to immunity from liability, the language of the Texas Tort Claims Act section 101.021(2) does not provide an exception to Harris County’s waiver of sovereign immunity. I dissent.
Section 101.021 of the Texas Tort Claims Act has two subsections. Tex.Civ.PRAC. & Rem.Code § 101.021. The first subsection estabhshes the requirements for holding a governmental unit hable for the neghgent use or operation of a motor vehicle. Id. § 101.021(1). Under this subsection, a governmental unit can be hable only when the governmental employee would be personally hable to the claimant. Id. § 101.021(1)(B). By the express terms of this subsection, if the employee is immune from suit, the employer is also granted immunity. Id.; City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993).
The second subsection, however, estab-hshes a different standard for imposing liability on a governmental unit, and provides:
A governmental unit of this state is hable for:
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private •person, be hable to the claimant according to Texas law.
TEX.Crv.PRAC. & Rem.Code § 101.021(2). Conspicuously absent in this subsection is any language conditioning a sovereign’s liability on that of its employee. Subsection two unambiguously states that a governmental unit is hable to a claimant if it would be *655liable as a “private person” under the same circumstances. Accordingly, if Harris County were a private entity, its responsibility for Officer Huckeba’s negligent use of tangible personal or real property would be conditioned on the theory of respondeat superior. Recently, this Court wrote that “[i]f a plaintiff has a right of action against the government due to the state’s waiver of sovereign immunity, this right is not affected by whether a governmental employee has official immunity.” Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). The legislature purposefully placed the government on equal footing with any private person, corporation or entity which would otherwise be liable.
Subsection two, by its own clear terms, compels the conclusion that the employee’s official immunity does not preclude liability of the governmental entity. The government’s sovereign immunity and the employee’s official immunity are distinct and serve different purposes. Official immunity protects individual officers from liability and allows them professional discretion in performing their duties without incurring personal liability. Id. The purpose of the waiver of sovereign immunity is to assure that society as a whole, rather than the injured individual, bears the risk of loss of injuries caused by negligence of public employees performing services for the entire community. Joe R. Greenhill, Should Governmental Immunity for Torts be Re-Examined, and, If So, By Whom?, 31 TexJB.J. 1036, 1068 (1968).
The majority’s creation of a “derivative” immunity for the sovereign premised exclusively on the employee’s official immunity will have the practical effect of leaving many injured parties without redress. This is contrary to the legislative intent and purpose of the Tort Claims Act, which was promulgated to provide a limited and “capped” remedy to injured persons precisely because previously the governmental unit as well as the individual tortfeasor were immune from suit. The legislature intended that the Texas Tort Claims Act be “liberally construed to achieve the purposes hereof.” Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 n. 2 (Tex.1989). The majority’s holding is nothing less than judicial legislation amending the Act and extending immunity where it was not intended. See Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988) (“We are not free to rewrite the statutes to reach a result we might consider more desirable, in the name of statutory construction.”).
I dissent.