No waiver-by-conduct recognized, but Austin Court of Appeals does not elaborate on the type of case


Kevin Ficke v. Tommy Ratliff; Hays County Sheriff’s Department, 03-13-00136-CV (Tex. App. – Austin, February 27, 2014)

This is an appeal by a former employee from the granting  the County’s plea to the jurisdiction which the Austin Court of Appeals affirmed.

Ficke was an employee of Hays County but was told that his past expunged and sealed criminal history would not be used against him. The court does not go into any detail regarding the underlying facts but merely asserts that the parties are familiar with them. Apparently Ficke was terminated at one point due to this past criminal history and a Hays County employee allegedly revealed his expunged criminal history to a former employer. The exact cause of action brought by Ficke is not mentioned.

The court notes that Ficke was an employee-at-will and was paid for work performed. No specific statute authorizes the suit so the County is entitled to immunity.  Ficke argued the County waived its immunity by conduct. However, the Austin Court of Appeals noted such a waiver has never been endorsed by Texas courts. While not foreclosing that some set of facts may qualify in some hypothetical situation, the Texas Supreme Court “has yet to find a set of circumstances supporting the waiver-by-conduct exception…”  As a result, the trial court properly granted the plea.  Given the sparse factual description in the opinion, this case can only possibly be cited for the premise that the waiver-by-conduct exception has not been recognized.

If you would like to read this opinion click here.  Panel: Chief Justice Jones, Justices Pemberton and Field. Opinion by Chief Justice Jones. The attorneys listed for Hays County are Michael A. Shaunessy and. Eric A. Johnston.  The attorney’s listed for Fiche are Chad W. Dunn,  Charles E. Soechting, and  K. Scott Brazil

Leave a Comment