Police officer of private university not permitted interlocutory appeal for official immunity.


William Marsh Rice University and Gary Spears v. Rasheed Rafaey, 14-13-00235-CV (Tex. App. – Houston [14th Dist.] November 7, 2013).

This case is of interest to litigators since it deals with the ability of a police officer to file an interlocutory appeal for the denial of official immunity. In this case a police officer working for a private university detained and arrested Rafaey who filed suit for unlawful arrest. The officer and Rice University filed a summary judgment asserting the affirmative defense of official immunity, which the trial court denied. The officer and Rice filed an interlocutory appeal under Texas Civil Practice and Remedies Code §51.014(a)(5).  The Houston court determined it did not have interlocutory jurisdiction.

While the Texas Education Code permits private institutions to commission and employ peace officers (with the same powers as all peace officers in the state), §51.014(a)(5) only permits  interlocutory appeals if the officer is employed by the state or a political subdivision.  The court was careful in its language to avoid holding that he was not entitled to official immunity, but limited the opinion only to the fact he is not entitled to an interlocutory appeal to decide if he was entitled to official immunity.

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