Harris County cites two cases for the proposition that failing to activate emergency lights is not action covered by the Tort Claims Act. See City of Houston v. Rushing, 7 S.W.3d 909, 915 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Cameron County v. Carillo, 7 S.W.3d 706, 710 (Tex.App.-Corpus Christi 1999, no pet.). To recover under the theory of use or misuse of non-defective tangible personal property, a plaintiff must allege: (1) the property was used or misused by a governmental employee acting within the scope of his employment; and (2) the use or misuse of the property was a contributing factor to the alleged harm. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31 (Tex. 1983).
This Court has jurisdiction to hear an appeal from the denial of a motion for summary judgment based on an assertion of official immunity. Tex. Civ. Prac. Rem. Code Ann. § 51.014(5) (Vernon Supp. 2001); University of Tex. Southwestern Med. Ctr. v. Margulis, 11 S.W.3d 186, 187-88 (Tex. 2000); Cameron Co. v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.). A. Traditional Summary Judgment
Initially, May contends that we lack jurisdiction over this appeal. He argues that the issues asserted in appellants' third motion for summary judgment were considered and rejected by the trial court on January 20, 1998. Because they did not take a timely appeal from that denial, he posits that this appeal is untimely and we have no jurisdiction to consider it. In advancing that argument, May places primary reliance upon the court's decision in Cameron County v. Carrillo, 7 S.W.3d 706, 708-09 (Tex.App.-Corpus Christi 1999, no pet.). However, Texas Rule of Civil Procedure 166a does not limit the number of times a motion for summary judgment may be filed. Tex.R.Civ.P. 166a. The general rule is that denial of a summary judgment is interlocutory and is in no way final.
Official immunity frees government officials to exercise their duties without fear of damage suits which would consume their time and energy and might appreciably inhibit their fearless, vigorous, and effective execution of their duties. Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.). Governmental employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.
The doctrines of sovereign and official immunity protect both the driver and owner of the car. SeeCameron County v. Carrillo , 7 S.W.3d 706, 709 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.).
City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). A defendant asserting sovereign or governmental immunity must prove conclusively that they are eligible to take advantage of that affirmative defense as well. Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.) and Herrera v. Spencer, No. 13-02-386-CV, 2003 WL 22349599, at *1 (Tex.App.-Corpus Christi Oct. 16, 2003, no pet.) (citing Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001)). A. Official Immunity
Nixon, 690 S.W.2d at 548-49.Cameron County v. Carrillo, 7 S.W.3d 706, 711 (Tex.App.-Corpus Christi 1999, no pet.).Johnson, 48 S.W.3d at 893.
In such an interlocutory appeal, however, the appellate court is strictly limited to determining the question of official immunity and the governmental entity's sovereign immunity to the extent that it is based on such official immunity. Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.). As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here.
. . . Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.) (citations omitted). Perry relies on several cases for the proposition that, to be entitled to official immunity, Greanias must first establish that the City of Houston was not acting in a proprietary capacity.
The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials; the public would suffer if government officers, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.). When official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability.