IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0515

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Stephen F. Austin = State=20 University, Petitioner,

Diane Flynn,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Twelfth = District of=20 Texas

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Argued October 19,=20 2006

Justice Hecht, joined by Justice Wainwright and Justice Willett, concurring.

Having=20 decided that Stephen F. Austin State University is immune from Diana = Flynn=92s=20 lawsuit because it was not grossly negligent in irrigating its campus = the way it=20 did, which is a prerequisite for liability under the Recreational Use = Statute,[1] the Court need not consider = whether the=20 University was also immune from suit because = its=20 conduct fell within the discretionary function exception to the Texas = Tort=20 Claims Act=92s waiver of immunity.[2] The Court nevertheless = volunteers that=20 the exception does not apply because =93when and where the water was to = spray,=20 were operational- or maintenance-level decisions, rather than policy=20 formulation.=94 [3] But suppose the University, for = some=20 reason, had made when and where water was to spray a policy matter, and = grounds=20 workers had faithfully carried out that policy. The Court=92s analysis = would then=20 except the University=92s actions from the = Act=92s waiver=20 of immunity because it had exercised its discretion, as a policy matter, = to=20 water the way it did. If the government is immune from liability for all = policy=20 decisions, it could minimize its liability by making everything policy. = The=20 government would be encouraged to make policy on every silly subject = imaginable,=20 and the Act=92s discretionary function exception would swallow most of = the waiver.=20 As difficult as it has been =93to meaningfully construe and consistently = apply=94=20 the Act,[4] I would not make matters = worse.

=20 The discretionary function exception, like other exceptions in = the Act,=20 was taken from the Federal Tort Claims Act.[5] This Court has referred to the = exception=20 several times but has never had occasion to analyze it carefully.[6] Texas courts should be guided by the = United=20 States Supreme Court=92s thorough, repeated analysis of the = discretionary function=20 exception to the federal statute,[7] but that analysis has been = entirely=20 ignored. In this case, the federal exception would not cover the = University=92s=20 actions, but not because they were taken at an operational or = maintenance level.=20 The Supreme Court has construed the discretionary function exception to = the=20 federal waiver of immunity to cover only =93decisions grounded in = social,=20 economic, and political policy=94.[8] I would apply the exception in = the Texas=20 Act the same way. Even if the University had made watering the campus a = policy=20 issue, the policy would not be one protected by the exception. I concur = in the=20 Court=92s opinion except as to Part III.

=20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20

__________________________

Nathan L.=20 Hecht

Justice

Opinion delivered: June = 29,=20 2007

^[1]=20 Tex. Civ. Prac. &=20 Rem. Code =A7=A7=20 75.001-.004.

^[2]=20 Id. =A7 101.056 (=93[The Tort Claims Act] does not apply to a = claim based on:=20 (1) the failure of a governmental unit to perform an act that the unit = is not=20 required by law to perform; or (2) a governmental unit's decision not to = perform=20 an act or on its failure to make a decision on the performance or = nonperformance=20 of an act if the law leaves the performance or nonperformance of the act = to the=20 discretion of the governmental unit.=94).

^[3]=20 Ante at ___.

^[4]=20 Texas Dep=92t of Criminal = Justice v.=20 Miller, 51 S.W.3d 583, 591 (Tex. 2001) (Hecht, J., = concurring).

^[5]=20 Driskill v. State, 787 S.W.2d = 369, 370=20 (Tex. 1990)=20 (=93The exceptions to the waiver of sovereign immunity contained in the = Texas Tort=20 Claims Act are patterned after those contained in the Federal Tort = Claims Act,=20 28 U.S.C. =A7=A7 2671-2680 (1982 & Supp.1989). Tex. House Interim Comm. to Study = Doctrine of=20 Sovereign Immunity, Report to the 61st Leg., 7 (1969) . . . .=94). = Compare=20 28 U.S.C. =A7 2680 (=93The provisions of [the Federal Tort Claims Act] = shall not=20 apply to =96 (a) Any claim based upon an act or omission of an employee = of the=20 Government, exercising due care, in the execution of a statute or = regulation,=20 whether or not such statute or regulation be valid, or based upon the = exercise=20 or performance or the failure to exercise or perform a discretionary = function or=20 duty on the part of a federal agency or an employee of the Government, = whether=20 or not the discretion involved be abused. . . . .=94), with Act = of May 14,=20 1969, 61st Leg., R.S., ch. 292, =A7 14, 1969 = Tex. Gen.=20 Laws 874, 877-878 (codified as Tex.=20 Rev. Civ. Stat. Ann=20 art. 6252-19, =A7 14), repealed and recodified by Act of May 17, 1985, 69th Leg., = R.S.,=20 ch. 959, sec. 9(1), 1985 Tex. Gen. Laws = 3242, 3322=20 (=93The provisions of [the Texas Tort Claims Act] shall not apply to: . = . . (7)=20 Any claim based upon the failure of a unit of government to perform any = act=20 which said unit of government is not required by law to perform. If the = law=20 leaves the performance or nonperformance of an act to the discretion of = the unit=20 of government, its decision not to do the act, or its failure to make a = decision=20 thereon, shall not form the basis for a claim under this Act. . . = .=94).

^[6]=20 See, e.g., State ex rel. = State Dep=92t of Highways and = Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 = (Tex. 2002) = (=93Section=20 101.056 excepts claims based on the State=92s = discretionary policy decisions. For instance, the Act does not waive = immunity=20 for decisions about highway design or what types of safety features to = install,=20 because these decisions involve the exercise of discretion.=94 (citation = omitted)); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. = 2002)=20 (=93But the Act does not waive immunity for discretionary decisions, = such as=20 whether and what type of safety features to provide.=94); Texas = Dep=92t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. = 2002) (per=20 curiam) (=93However, the median=92s slope = and the lack of=20 safety features, such as barriers or guardrails, reflect discretionary = decisions=20 for which TxDOT retains immunity under the = Act's=20 discretionary-function exception.=94); Texas Dep=92t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. = 2002) (=93In=20 other words, the State remains immune from suits arising from its = discretionary=20 acts and omissions.=94); State v. Miguel, 2 S.W.3d 249, 250-251 = (Tex. 1999)=20 (per curiam) (=93Under section 101.056, the = State=20 retains its immunity for claims based on its =91decision not to perform = an act or=20 on its failure to make a decision on the performance or nonperformance = of an act=20 if the law leaves the performance or nonperformance of the act to the = discretion=20 of the governmental unit.=92 Whether a governmental activity is = discretionary is a=20 question of law. The State preserves its immunity for formulating policy = because=20 it is a discretionary act. Decisions about highway design and about what = type of=20 safety features to install are discretionary policy decisions. A court = should=20 not second-guess a governmental unit's decision about the type of marker = or=20 safety device that is the most appropriate.=94 (citations=20 omitted)); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) = (per curiam) (=93First, under section 101.056, the = State preserves=20 its immunity for an act =91if the law leaves the performance or = nonperformance of=20 the act to the discretion of the governmental unit.=92 Thus, if the = State's action=20 is discretionary, it does not waive its immunity. An act is = discretionary if it=20 requires exercising judgment and the law does not mandate performing the = act=20 with such precision that nothing is left to discretion or judgment. = See City of Lancaster v. Chambers, 883 = S.W.2d 650, 654=20 (Tex. 1994) [a=20 case dealing with official immunity]. Design of any public work, = such as=20 a roadway, is a discretionary function involving many policy decisions, = and the=20 governmental entity responsible may not be sued for such decisions.=94 = (citations omitted)); City of Brownsville v. = Alvarado,=20 897 S.W.2d 750, 754 (Tex. 1995) (=93In State v. = Terrell, this=20 Court elaborated on a distinction necessary to analyze governmental = liability=20 for policy decisions. 588 S.W.2d 784 (Tex. = 1979).=20 Discussing both the police protection and the discretionary powers = exemptions to=20 the Tort Claims Act, the Court distinguished between the negligent=20 formulation of policy, for which sovereign immunity is preserved, = and the=20 negligent implementation of policy, for which immunity is waived = . . .=20 .=94); Harris County v. Dillard, 883 S.W.2d 166, 170 (Tex. 1994) = (Spector,=20 J., dissenting) (=93Prior case law, however, suggests that training and=20 supervision may be discretionary duties for which the County cannot be = held=20 liable.=94); State v. Hynes, 865 S.W.2d 943, 944 (Tex. 1993) (per = curiam) (=93Discretionary acts by the State are = not subject to=20 liability.=94); State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979) = (=93Section=20 14(7) excludes liability for all claims based on a government=92s = failure to=20 perform an act when the law leaves performance of the act to the = discretion=20 of the government. Section 14(7) appears to be broad enough to = encompass the=20 exclusion for failure to provide police or fire protection. As we = understand the=20 two provisions, the purpose of both is the same: to avoid a judicial = review that=20 would question the wisdom of a government's exercise of its discretion = in making=20 policy decisions. The interests to be served by these provisions are = several =96=20 e.g., effective, unfettered performance of officials in making policy = decisions=20 and the maintenance of the separation of powers between the executive,=20 legislative, and judicial branches of government.=94).

^[7]=20 See, e.g., United States v. Gaubert, 499=20 U.S. 315 (1991); Berkovitz v. = United=20 States, 486 U.S. 531 (1988); United States v. Varig Airlines, 467 U.S. 797 (1984); Dalehite v. United States, 346 U.S. = 15=20 (1953).

^[8]=20 Gaubert, 499 U.S. = at 323;=20 see also id. at 335 (Scalia, J., = concurring).