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Click here for the full text of this decision FACTS:Champion Builders Inc. sued the individual members of the city of Terrell Hills Board of Adjustment for negligence, gross negligence and intentional interference with contract arising from the BOA’s revocation of Champion’s permit to construct an apartment building. The jury returned a verdict in favor of Champion and rejected the members’ assertion of official immunity. The trial court granted the BOA members’ motion for judgment non obstante veredicto on official immunity. A divided court of appeals, sitting en banc, relying on subjective evidence of the asserted motivation of the members, reversed the judgment and held that more than a scintilla of evidence supported the jury’s failure to find that the good faith prong of the affirmative defense of official immunity had been proven. HOLDING:The court reverses the court of appeals’ judgment in part and renders judgment that Champion take nothing. Texas courts have long recognized official immunity, in substance if not by name, for a variety of public officials. Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation. Denying the affirmative defense of official immunity to public officials in such circumstances “would contribute not to principled and fearless decision-making but to intimidation.” Wood v. Strickland, 420 U.S. 308 (1975) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). Certainly, public officials may err in the performance of their duties. The existence of immunity acknowledges this fact, but recognizes that the risk of some error is preferable to intimidation from action at all. In addition, some of the most capable candidates would be deterred from entering public service if heavy burdens on their private resources from monetary liability were a likely prospect for errors in judgment. The court concludes that official immunity is a bar to state law claims against individual members of a board of adjustment. The ordinance and statutes plainly authorize the BOA to revoke a building permit, and Champion presents no compelling arguments to rebut this conclusion. The relevant sections of the Texas Local Government Code and the ordinance, which are the source of the BOA’s legal authority, conclusively establish that hearing and deciding appeals of the issuance of building permits based on zoning regulations is within the authority of the BOA and its members. The BOA has the power to hear and decide appeals from any decision or determination by a city administrative official pertaining to the enforcement of the city’s zoning ordinance. The BOA may reverse or affirm, in whole or in part, or modify any decision or determination and make such determination as ought to be made. The BOA members deliberated and exercised discretion in making their decision. Accordingly, the court agrees with the court of appeals. In interpreting the applicable ordinances and deciding as an appellate body to revoke the building permit, the BOA members performed a discretionary function, as a matter of law. The court rejects reliance on subjective evidence in considering the good faith prong of the official immunity doctrine. It is not germane to the official immunity analysis. OPINION:Wainwright, J.; Hecht, Owen, O’Neill, Jefferson, Schneider, Smith and Brister, JJ., join. O’Neill, J., filed a concurring opinion, in which Hecht and Jefferson, JJ., join. Phillips, C.J., did not participate in the decision.

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