Driskill v. State

KELTNER, Justice,

dissenting.

I respectfully dissent, because I do not believe that Cearnal’s negligence pertains to the “assessment or collection of taxes” *949exception exemption as contemplated by the Texas Tort Claims Act. TEX.CIV. PRAC. & REM.CODE ANN. sec. 101.001, et seq., (Vernon 1986 and Vernon Supp. 1989).

Prior to the accident, Cearnal was at a local business discussing payment of delinquent taxes. She was driving her vehicle to another taxpayer in an attempt to collect taxes when the accident occurred. At the time of the accident, however, Cearnal was not performing duties “in connection with the assessment or collection of taxes" within the meaning of the statutory exception, TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.055(1), nor did the accident have anything to do with taxes. Cearnal was, instead, negligently operating a motor vehicle when the accident occurred. Such conduct, I believe, falls outside the scope of the section 101.055(1) exemption, and governmental immunity was waived under section 101.021. TEX.CIV.PRAC. & REM. CODE ANN. sec. 101.001, et seq.

The majority suggests that section 101.-055(1) creates an exception to the State’s waiver of immunity found in section 101.-021. The State is liable for personal injuries resulting from its employee’s negligent use of a motor vehicle if the employee would be liable under Texas law. TEX. CIV.PRAC. & REM.CODE ANN. sec. 101.-021(1). Under section 101.055(1), this immunity is not waived, however, if the claim arises “in connection with the assessment or collection of taxes by a governmental unit.” TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.055(1). If these two sections are construed together in the manner, suggested by the majority, Cearnal is not liable because the Driskills’ “claim arose in connection with the assessment or collection of taxes.” TEX.CIV.PRAC. & REM. CODE ANN. sec. 101.055(1). In my opinion a narrower interpretation of section 101.055 is more consistent with the legislative intent behind the Texas Tort Claims Act.

Texas case law provides little guidance in the interpretation of section 101.055. We must then ascertain, if possible, the intent of the Legislature as expressed in the language of the entire statute rather than merely isolated portions. Calvert v. Texas Pipe Une Co., 517 S.W.2d 777, 781 (Tex.1974). Once this legislative intent is clear, we must enforce such intent even if inconsistent with the plain meaning of the statute. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 815 (1947).

The Federal Tort Claims Act has a similar provision. It was passed in 1946 as a remedy for injuries to persons and property caused by the tortious conduct of government agents or employees. Although the facts differ from those in the case before us, legislative history of the Federal Tort Claims Act was examined by the Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). It concluded that while the Federal Tort Claims Act focused on ordinary common-law torts, “the example which is reiterated in the course of the repeated proposals for submitting the United States to tort liability is ‘negligence in the operation of motor vehicles.’ ” 1 Id. 346 U.S. at 28, 73 S.Ct. at 964.

Both Acts provide for exemptions from this general waiver of immunity. Congress excluded liability for torts arising from the negligent performance of discretionary governmental functions or regulatory acts in order to “protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963); United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). “Congress [sought] to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Varig, 467 U.S. at 814, 104 S.Ct. at 2764. Moreover, House Committee reports explaining the *950exemption section of the Federal Tort Claims Act state that:

[The] section ... exempting claims arising from the administration of ... the fiscal operations of the Treasury [is ] not intended to exclude such common-law torts as an automobile collision caused by the negligence of an employee of the Treasury Department or other federal agency administering those functions.

Dalehite, 346 U.S. at 30 n. 21, 73 S.Ct. at 964-65 n. 21 (emphasis added). Thus, draftsmen of the Federal Tort Claims Act did not intend to keep the government immune from liability in tort for its employees’ negligence in automobile accidents.

It is interesting to note that a similar provision of the Federal Tort Claims Act has been construed to limit the United States’ governmental immunity to those situations where the injuries resulted directly from the assessment or collection of taxes. 28 U.S.C.A. 2680 (Cum.Supp.1989); Pugh v. Internal Revenue Service, 472 F.Supp. 350 (D.C.Pa.1979) (no cause of action for tor-tious conduct and threats by I.R.S. during audit); Scott v. Internal Revenue Service, 622 F.Supp. 537 (E.D.Tenn.1985) (no cause of action for various tortious acts by the I.R.S. nor in claim of monies as due and owing from the I.R.S.); United States v. Banner, 226 F.Supp. 904 (N.D.N.Y.1963) (no cause of action for tortious conduct when the government levies on taxpayer’s accounts receivable and then subsequently fails to collect the accounts); Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299 (5th Cir.1985), cert. denied, 475 U.S. 1081, 106 S.Ct. 1458, 89 L.Ed.2d 716 (no cause of action for tortious conduct when the I.R.S., in collecting delinquent taxes, wrongfully levies upon property); Paige v. Dillon, 217 F.Supp. 18 (S.D.N.Y.1963) (no cause of action for the tortious conduct of an I.R.S. agent in visiting taxpayer’s home, notifying taxpayer’s bank, employer, and tenant of delinquent taxes, and refusing to amortize such taxes); Morris v. United States, 521 F.2d 872 (9th Cir.1975) (no cause of action for tortious conduct when I.R.S. agent informs taxpayer’s creditors of purported tax liability, taxpayer subsequently loses credit and business including harassment by agent during audit); Capozzoli v. Tracey, 663 F.2d 654 (5th Cir.1981) (no cause of action for tor-tious conduct when I.R.S. agent photographs taxpayer’s residence).

We find no Texas cases construing sections 101.021 and 101.055 together. The Supreme Court, however, in examining a similar exclusion provision of the Texas Tort Claims Act pertaining to police and fire protection held that:

[I]f the negligence causing an injury lies in the formulating of policy — i.e., the determining of the method of police protection to provide — the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the Act. The instant case provides a good example of the distinction between these two forms of negligence. Here, the Texas Highway Department, pursuant to a statute fixing maximum speeds, has a policy of detecting and apprehending individuals who exceed the speed limit by use of radar and motor vehicles. Such a policy decision is not subject to an attack of negligence under this Act. This policy, however, obviously does not include directing the officer to strike any vehicle in his path in apprehending a speeder. The accident which occurred in this case was not a part of the formulated policy. Therefore, the State is subject to liability for injuries resulting from the negligence, if any, of the highway patrolman in colliding with mr. Terrell’s vehicle.

State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979).

The Comptroller’s office has a policy of visiting taxpayers at their place of business in an effort to collect delinquent sales taxes. Under Terrell, such policy decisions do not fall within the Texas Tort Claims Act and thus provide no basis for a negligence cause of action. Nor does such a policy allow employees of the Comptroller’s office to negligently collide with other motorists and escape liability merely because they are en route from business to business collecting these taxes. Cearnal’s collision *951with Driskill had nothing to do with the assessment or collection of taxes. Therefore, under the Supreme Court’s reasoning in Terrell, the State remains liable for Cearnal’s negligence. Id.

Only one other court has construed section 101.055(1). Harris County v. Dowlearn, 489 S.W.2d 140, 146-47 (Tex.Civ.App. —Houston [14th Dist.] 1973, writ ref d n.r. e.). The majority suggests that it is not on point because a motor vehicle was not used. I disagree. In Dowlearn, plaintiff filed suit under the Texas Tort Claims Act for bodily injuries she sustained when an unattached wall panel fell in the Harris County courthouse while she was obtaining license plates. The Houston court affirmed the judgment for plaintiff because “the suit has nothing to do with the assessment or collection of taxes as contemplated by the statute [and] appellee’s injuries had nothing directly to do with taxes.” Id. at 146.

Based on Dalehite and Terrell, I believe the majority’s suggested interpretation of section 101.055(1) is too broad. For example, this reasoning would make the State liable for motor vehicle accidents caused by the negligence of a park ranger travel-traveling from park to park while retaining immunity for motor vehicle accidents caused by the negligence of a Comptroller’s employee traveling from taxpayer to taxpayer. In my opinion, case law and legislative intent indicate Cearnal’s conduct falls outside the scope of the exemption and governmental immunity is waived. As a result, I would sustain the Driskills’ tenth and eleventh points of error.

Accordingly, I dissent.

. In its brief, the United States also states that the dominant legislative purpose of the Federal Tort Claims Act was to provide relief for common-law torts, "primarily of the type of automobile accidents." Dalehite, 346 U.S. at 15-18, 73 S.Ct. at 956-959, 97 L.Ed. at 1427-30.