J. Brett Busby Justice

On Appeal from the County Court No. 3 Galveston County, Texas
Trial Court Cause No. 12-FD-3216-A

MEMORANDUM OPINION

Appellant Mary Iverson brings an interlocutory appeal from the trial court's partial denial of her traditional motion for summary judgment asserting the affirmative defense of qualified immunity. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West 2015). Because Iverson did not meet her burden of proving qualified immunity, we affirm. We do not reach Iverson's other arguments, which relate to claims not before us on appeal.

BACKGROUND

Appellee Leif Putnam and Christine Hays divorced in 2008. The divorce decree designated Putnam as the non-custodial parent of their daughter, and he was ordered to pay $500 per month in child support. Putnam's daughter has resided with him continuously since May 2010. Hays voluntarily relinquished care, custody, and control of the child to Putnam.

Putnam filed a petition to modify the parent-child relationship in January 2012. In February 2012, Putnam and Hays signed an agreed final order in which Putnam became the custodial parent. Putnam did not make child support payments in January or February 2012. The final order did not address or resolve the amount, if any, of child support that may have accrued under the previous divorce decree.

In August 2012, the Special Collections Unit of the Office of the Attorney General (SCU) sent a notice of lien to Putnam's bank stating that he owed $4,037.50 in unpaid child support. Iverson was the manager of the SCU, and the notice of lien bears her signature. The SCU also mailed Putnam a notice of lien and administrative writ of withholding.

After receiving the notice, Putnam went to the local unit of the Office of the Attorney General's Child Support Division and provided the February 2012 agreed final order to demonstrate that he now had legal custody of his daughter. The SCU determined that Putnam still might owe $1,000 for payments that accrued in January and February 2012. The SCU authorized the bank to release all but $1,000 of the $4,037.50 that had been frozen. The local unit tried to contact Hays to ask if she wanted to seek the $1,000 in unpaid child support. In October 2012, Hays confirmed that she would not seek unpaid child support, and the lien was released in full.

Putnam was also given notice that the Office of the Attorney General would provide monthly information to credit bureaus concerning his child support account. The September 2012 report to the credit bureaus showed that Putnam owed a balance of unpaid child support before he became the custodial parent.

Putnam sued then-Attorney General Greg Abbott and Iverson in their official capacities and Iverson in her individual capacity. Defendants filed a plea to the jurisdiction, and the trial court dismissed all claims. In a previous appeal, we held that most of Putnam's claims were either moot or precluded by sovereign immunity, but we reversed and remanded Putnam's claim against Iverson in her individual capacity. Putnam v. Iverson, No. 14-13-00369-CV, 2014 WL 3955110 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, pet. denied) (mem. op.).

Putnam brought his claim against Iverson individually under section 1983, alleging that she deprived him of his Fifth Amendment, Fourteenth Amendment, and statutory rights to procedural due process. See 42 U.S.C. § 1983 (2014). He alleged in his petition that he had a right to a hearing before his bank account was subjected to a lien and before he was reported to the credit bureaus as owing unpaid child support. Putnam sought actual damages, including $2,500 in interest paid on borrowed funds as well as compensation for mental anguish, damage to his credit reputation, and time lost from work.

Iverson filed a traditional motion for summary judgment arguing that she was entitled to qualified immunity and that she had conclusively shown Putnam could not prevail on his procedural due process claim. The trial court granted her motion in part, but it denied the motion as to Putnam's section 1983 claim against Iverson in her individual capacity because "material fact issues exist regarding whether any grounds existed for [Iverson] to have signed and issued a Notice of Lien on [Putnam's] personal bank account." Iverson now brings this interlocutory appeal.

ANALYSIS

According to Iverson, Putnam alleged his due process rights were violated when, without first having a hearing, (1) a notice of lien was sent to his bank, (2) a report was sent to the credit bureaus showing he owed unpaid child support, and (3) an administrative writ of withholding was sent to Putnam. Iverson argues the trial court erred in denying her motion for summary judgment because she is entitled to qualified immunity regarding these claims. We affirm the trial court's denial of qualified immunity as to Putnam's section 1983 claim regarding the notice of lien. We do not address arguments regarding the second and third claims because those are not before us in this interlocutory appeal.

I. Scope of jurisdiction

We begin by addressing the scope of our jurisdiction. Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The denial of a motion for summary judgment is not a final judgment and ordinarily is not appealable. Reule v. M & T Mortg., 483 S.W.3d 600, 612 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

Interlocutory orders are appealable only if permitted by statute. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). The Legislature has authorized an appeal from an interlocutory order denying a motion for summary judgment "based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West 2015). This authorization includes an assertion of qualified immunity. Tex. Dept. of Criminal Justice v. Thomas, 263 S.W.3d 212, 214 & n.1 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); see also Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (noting that "immunity" under section 51.014(a)(5) refers to "official immunity," which is the state-law analogue to the federal-law defense of qualified immunity).

Iverson was an employee of the State and her summary judgment motion was based in part on an assertion of qualified immunity. Therefore, we have jurisdiction over this interlocutory appeal. The scope of our jurisdiction is limited, however, to whether Iverson is entitled to immunity; it does not include whether Iverson is entitled to summary judgment on other grounds. Brooks v. Scherler, 859 S.W.2d 586, 588 (Tex. App.—Houston [14th Dist.] 1993, no writ.); Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex. App.—Houston [1st Dist.] 1993, no writ).

II. Standard of review

In a traditional motion for summary judgment, the movant bears the burden of proving that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). When the movant is a defendant, a trial court should grant summary judgment if the defendant conclusively establishes each element of an affirmative defense. Clark v. ConocoPhillips Co., 465 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We review the denial of motion for summary judgment de novo. Mussemann v. Villarreal, 178 S.W.3d 319, 323 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). We take all evidence favorable to the nonmovant as true and resolve any doubts in the nonmovant's favor. Id.

III. Iverson did not meet her burden of proving qualified immunity because she did not prove that she was performing a discretionary function in signing the notice of lien.

Section 1983 provides a private right of action against persons acting under color of state law who violate rights secured by the United States Constitution or federal law. See 42 U.S.C. § 1983; Haver v. Coats, 491 S.W.3d 877, 881 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The rights at issue in this case are alleged to be protected by the Fifth Amendment, Fourteenth Amendment, and statutory rights to procedural due process. Qualified immunity is an affirmative defense to a section 1983 claim. Haver, 491 S.W.3d at 881.

Qualified immunity shields government officials performing discretionary functions within the scope of their authority from individual liability for civil damages under section 1983, provided their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Haver, 491 S.W.3d at 881. The affirmative defense of qualified immunity is intended to permit "resolution of many insubstantial claims on summary judgment." Harlow, 457 U.S. at 818. It is not merely a defense to liability, but an immunity from suit that should be resolved "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); see Harlow, 457 U.S. at 818.

To invoke the defense of qualified immunity, the burden is on the state actor alleging qualified immunity to establish (among other things) that she was acting within the scope of her discretionary authority. Haver, 491 S.W.3d at 882 (citing Escobar v. Harris Cty., 442 S.W.3d 621, 630 (Tex. App.—Houston [1st Dist.] 2014, no pet.)). Qualified immunity protects only officials performing discretionary functions. Harlow, 457 U.S. at 818; see City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex. 1994) ("Under federal law, the act in question must be discretionary as a prerequisite to an extension of qualified immunity."); Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229, 237 (Tex. App.—Dallas 1995, no writ). A discretionary function requires personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654; Bartlett, 908 S.W.2d at 238. Ministerial acts, on the other hand, are actions that "require obedience to orders or the performance of a duty to which the actor has no choice." Chambers, 883 S.W.2d at 654.

Here, Putnam claims he was deprived of his right to due process when the notice of lien bearing Iverson's signature was sent to his bank. We have reviewed the summary judgment evidence in this case and have found nothing to suggest that Iverson was performing a discretionary function in signing and sending the notice of lien to Putnam's bank. To the contrary, she states in her affidavit that although the notice of lien bears her signature, she personally was not involved in the decision to send the notice of lien. According to Iverson, a Child Support Officer at the SCU reviews the case and makes the final decision to send a notice of lien.

In reviewing the evidence in light most favorable to the nonmovant, we conclude Iverson did not demonstrate her entitlement to qualified immunity. Iverson did not establish that she was acting within the scope of her discretionary authority in sending the notice of lien. See Bartlett, 908 S.W.2d at 238 (holding that because defendants did not establish they were performing discretionary function, they did not establish their right to qualified immunity as a matter of law).

Accordingly, she did not meet her burden to prove she was entitled to qualified immunity as a matter of law. See id. We affirm the trial court's denial of her motion for summary judgment as to her qualified immunity defense to Iverson's claim regarding the notice of lien.

IV. Iverson's other arguments concerning the notice sent to the credit bureaus and the administrative writ of withholding are not before us on appeal.

A. Notice to credit bureaus

Iverson argues she cannot be liable for reporting to the credit bureaus that Putnam owed unpaid child support because she did not personally send the report. She states in her affidavit that another unit is responsible for sending the reports to the credit bureaus, and that she does not have the authority or ability to report information regarding any individual to credit bureaus. Iverson argues that she cannot be liable for other employees who reported Putnam to the credit bureaus.

After this case was remanded, Putnam supplemented his petition, adding allegations that Iverson was jointly and severally liable with other employees or, in the alternative, vicariously liable for other employees who denied Putnam a right to a hearing before a lien was placed on his bank account and before a report that showed he owed unpaid child support was sent to the credit bureaus. The evidence is undisputed that Iverson did not personally send the report to the credit bureaus. Putnam's claim that Iverson was liable for sending the notice to the credit bureaus, therefore, was based on joint and several liability or vicarious liability. The trial court granted Iverson's motion for summary judgment as to the claims in Putnam's supplemental petition—i.e., the claims based on joint and several liability and vicarious liability.

As explained above, our jurisdiction is limited to reviewing the denial of a motion for summary judgment based on immunity. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5). The trial court granted Iverson's motion for summary judgment on Putnam's claim that Iverson was jointly and severally liable or vicariously liable for sending the report to the credit bureaus without giving him an opportunity to be heard. We therefore lack jurisdiction to review the trial court's ruling regarding this claim.

B. Administrative writ of withholding

Finally, according to Iverson, Putnam also claims his due process rights were violated when he was sent an administrative writ of withholding. In Putnam's original petition, he sought an injunction requiring compliance with section 158.501(a) of the Texas Family Code, which addresses administrative writs of withholding. He also sought a declaratory judgment that defendants did not comply with section 158.501(a). After defendants' plea to the jurisdiction, the trial court concluded Putnam did not have standing with respect to any claim regarding the administrative writ of withholding because he was not injured by it. We held on appeal that the injunction was barred by sovereign immunity, and his declaratory judgment claims were moot. See Putnam, 2014 WL 3955110 at *3-5.

The only claims left on remand were Putnam's section 1983 claims for damages against Iverson in her individual capacity for the notice of lien and the notice sent to the credit bureaus. Id. at *6. Putnam's claim regarding the administrative writ of withholding is no longer part of this case. Therefore, we do not address Iverson's arguments relating to the administrative writ of withholding.

CONCLUSION

Because Iverson did not meet her burden of proving she was entitled to qualified immunity, we affirm the trial court's denial of her summary judgment motion based on qualified immunity. We do not reach arguments raised by Iverson relating to other claims that are not before us on appeal.

/s/ J. Brett Busby

Justice Panel consists of Justices Busby, Donovan, and Jewell.