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Click here for the full text of this decision FACTS:The appellant, Los Fresnos Consolidated ISD, brings this interlocutory appeal of the trial court’s denial of its plea to the jurisdiction in a case arising from injuries sustained by April Clark and Veronica Contreras when a school bus driven by Raquel Fortuna, an employee of the school district, rolled off the road. The school district complains that the trial court erred in denying its plea to the jurisdiction, because its immunity from suit as a governmental entity has not been waived. HOLDING:Affirmed. The appellees pleaded and proffered evidence that 1. the school district is a governmental unit as described in Texas Civil Practice & Remedies Code 101.001(3); 2. Fortuna was acting in the course and scope of her employment with the school district at the time of the accident; 3. the personal injuries sustained by appellees arose from Fortuna’s operation or use of a motor-driven vehicle, namely, the school bus owned by the school district; 4. the resulting injuries were proximately caused by the negligence of Fortuna; and 5. Fortuna could be personally liable to the appellees according to Texas law. The court concludes that the appellees pleaded facts sufficient to invoke the TTCA waiver of the school district’s immunity under 101.021. The school district claims that it is entitled to rely on Fortuna’s official immunity defense, because the basis of its liability is respondeat superior. The school district relies on the Texas Supreme Court’s interpretation of the TTCA: “In Texas, a governmental entity’s limited liability is derivative of the employee’s official immunity.” K.D.F. v. Rex, 878 S.W.2d 589 (Tex. 1994). The school district argues that if Fortuna is protected from liability by official immunity, then she is not personally liable to appellees, and therefore, the school district retains its sovereign immunity under 101.021(1). Governmental employees are entitled to official immunity from suit arising from their 1. performance of a discretionary function; 2. in good faith; 3. within the scope of the employee’s authority. It is undisputed that Fortuna was a governmental employee acting within the scope of her authority. However, the school district did not address whether Fortuna was performing a discretionary function, nor did the school district provide evidence that Fortuna’s acts were performed in good faith. The first element is important because official immunity protects “discretionary” acts performed by a state employee but does not protect ministerial functions performed by an employee. Thus, if the position held by the public servant is classified as a mere ministerial post, he is liable for his tortious conduct to the same extent as a person who holds no government position. Garza v. Salvatierra, 846 S.W.2d 17 (Tex. App. San Antonio 1992, writ dism’d w.o.j.) (citing Baker v. Story, 621 S.W.2d 639 (Tex. Civ. App. San Antonio 1981, writ ref’d n.r.e.)). In determining whether the school district can rely on Fortuna’s official immunity in order to retain its sovereign immunity, the court decides whether Fortuna’s acts were discretionary or ministerial. Fortuna was not under any duty to make any decision other than driving the bus. The accident which caused appellees’ injuries allegedly resulted from the manner in which the bus was being driven and not from any discretionary decision or election made by Fortuna. The school district offered no evidence to the contrary. The court concludes that Fortuna’s duties were ministerial; therefore, she is not protected by official immunity. The school district argues that, since its liability is vicarious and derivative in nature it cannot be liable for more than Fortuna, which makes it immune. The school district relies on City of Houston v. Kilburn, 849 S.W.2d 810 (Tex. 1993) (per curiam), for its argument that because Fortuna is immune from liability for any amount over $100,000, it too is immune. However, Kilburn does not stand for the proposition that an employee who is not otherwise entitled to official immunity may nonetheless assert it once the statutory cap in 108.002 has been exhausted; instead, it states that if an employee is protected from liability under the doctrine of official immunity, then the governmental entity’s sovereign immunity remains intact “based on” the employee’s assertion of official immunity. Any personal immunity that Fortuna may enjoy is by application of 108.002, but such immunity does not equate to official immunity. Therefore, the School District’s application of Kilburn to the present case is misplaced because the court already determined that Fortuna is not entitled to official immunity. OPINION:Emilio M. Garza, J.; Yanez, Castillo and Garza, JJ.

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