977 831 32 953 21 180 273 74 934 169 70 180 274 977 832 953 24 934 169 70 51 014 233 843 51 014 233 843 42 43 III v. << (2011)

Court of Appeals of Texas, Waco.

a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.  Id. § 101.001(2) (Vernon 2011) (emphasis added).  Cen–Tex's contract with the Department clearly defines Cen–Tex as an independent contractor.3  Thus, because the definition of employee expressly excludes an independent contractor, Cen–Tex is not an employee of the state.  See id.  In Koseoglu, the Texas Supreme Court interpreted section 51.014(a) in the context of an appeal by a government official from an interlocutory order denying a plea to the jurisdiction based on sovereign immunity.  See 233 S.W.3d at 837, 840–46.  The court specifically decided that the appellate court had jurisdiction over the interlocutory appeal pursuant to section 51.014(a)(8), but in doing so the court also analyzed section 51.014(a)(5).  Id. at 837, 842, 843.  Discussing section 51.014(a)(5), the court stated that “there is no other way to read section 51.014(a)(5) than to conclude that only ‘an individual who is an officer or employee of the state or a political subdivision of the state’ may appeal an interlocutory order denying a motion for summary judgment” based on official immunity.  Id. at 843.  Cen–Tex does not address Koseoglu but instead argues that it is entitled to seek interlocutory review of the trial court's summary judgment order because this and other Texas courts have held that official immunity extends to private parties under contract to perform governmental duties.  See Titus Reg'l Med. Ctr. v. Tretta, 180 S.W.3d 271, 274 (Tex.App.—Texarkana 2005, no pet.);  Guerrero v. Tarrant Cnty. Mortician Servs., 977 S.W.2d 829, 832 (Tex.App.—Fort Worth 1998, pet. denied);  Knowles v. City of Granbury, 953 S.W.2d 19, 24 (Tex.App.—Fort Worth 1997, pet. denied);  Putthoff, 934 S.W.2d at 169–70 & n.7. However, Cen–Tex confuses its potential entitlement to official immunity after a final adjudication of the case with its entitlement to immediate appellate review of an interlocutory order denying a motion for summary judgment.  The issue presented by Appellees' motion to dismiss is not whether Cen–Tex may ultimately be entitled to official immunity but is instead whether Cen–Tex is “an individual who is an officer or employee of the state.”  See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5). None of the cases that Cen–Tex cites resolves the issue presented.  Guerrero and Knowles are distinguishable because they were not interlocutory appeals.4  See Guerrero, 977 S.W.2d at 831–32;  Knowles, 953 S.W.2d at 21.  Moreover, although they were both interlocutory appeals, neither Tretta nor Putthoff undertook any analysis of whether the individual or entity seeking immediate appellate review of the interlocutory orders was an individual who is an officer or employee of the state.  See Tretta, 180 S.W.3d at 273–74;  Putthoff, 934 S.W.2d at 169–70 & n.7. Further, both Tretta and Putthoff were decided before Koseoglu.  Regardless of whether Cen–Tex may ultimately be entitled to official immunity because of its contract with the Department, see Tretta, 180 S.W.3d at 274;  Guerrero, 977 S.W.2d at 832;  Knowles, 953 S.W.2d at 24;  Putthoff, 934 S.W.2d at 169–70 & n.7, Cen–Tex cannot seek immediate appellate review of the trial court's interlocutory order denying its motion for summary judgment because it is not “an individual who is an officer or employee of the state.”  See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5);  Koseoglu, 233 S.W.3d at 843.  We hold that we do not have jurisdiction to review the trial court's interlocutory order denying Cen–Tex's motion for summary judgment based on official immunity because Cen–Tex is not an officer or employee of the state.  See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5);  Koseoglu, 233 S.W.3d at 843.  We therefore dismiss this appeal for lack of subject matter jurisdiction.  See Tex.R.App. P. 42.3(a), 43.2(f).  III. Conclusion In light of the foregoing, we grant Appellees' motion and dismiss this appeal for lack of subject matter jurisdiction.

NO. 02–10–00308–CV

Decided: April 04, 2011