About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

51 Tex. Tech L. Rev. 693 (2018-2019)
Understanding the Texas Tort Claims Act

handle is hein.journals/text51 and id is 735 raw text is: 




   UNDERSTANDING THE TEXAS TORT CLAIMS
                                  ACT

                      Patrick Luff  and Jay Harvey

I.  SOVEREIGN   IMMUNITY,   GOVERNMENTAL IMMUNITY, AND THE
    TEXAS  TORT  CLAIMS   ACT          ..................................... 694
    A.  Distinctions in Immunity       ........................     .... 695
    B.  Waivers  ofImmunity  Under  the Act        ...............  ......697
II. CASES  INTERPRETING   THE  TEXAS  TORT  CLAIMS  ACT....................... 698
    A.  Condition  or Use of Tangible Property   ............    ....... 698
    B.  The Texas  Supreme  Court and  Franka v. Velasquez .....    ..... 700
III. STATUTORY   LIMITATIONS   ON ECONOMIC   DAMAGES AGAINST
    INDEPENDENT-CONTRACTOR PHYSICIANS VIOLATE TEXAS
    CONSTITUTION ARTICLE III, §   66 ............         ................. 702
    A.  Interpreting Article III, § 66 of the Texas Constitution ............... 703
    B.  Texas  Constitution Article III, § 66 Restricts Legislative
        Power  to Limit Economic  Damages.........          .... ........ 704
IV. DAMAGES CAPS AND THE COST OF LIVING.             ........   ............ 706
V.  CONCLUSION             .............................................. 708

     In 1969, the Texas Legislature passed the Texas Tort Claims Act (Act).'
In doing  so, the legislature joined a national judicial and legislative trend
moving  away  from  absolute immunity  of the government  for liability in tort
that had been growing  over the previous two decades2 and waived  sovereign




     * Patrick Luff is an associate at Winckler & Harvey, L.L.P. and a former professor of law at
Washington & Lee University School of Law, Sandra Day O'Connor College of Law - Arizona State
University, and the University of Oklahoma College of Law.
     ** Jay Harvey is a partner at Winckler & Harvey, L.L.P. He was the 2007 President of the Texas
Trial Lawyers Association, is board certified in personal injury law by the Texas Board of Legal
Certification, and is a fellow of the American College of Trial Lawyers.
    1. Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 1, 1969 Tex. Gen. Laws 874, 874, repealed by
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, sec. 1, 1985 Tex. Gen. Laws 3242, 3322. Efforts to
pass an act limiting sovereign immunity in Texas go back to, at least, 1953. Joe R. Greenhill & Thomas
V. Murto 1II, Governmental Immunity, 49 TEX. L. REv. 462,467 (1971) (citing S. Interim Comm., Report
on Study of Governmental Immunity, TEX. S. REP. No. 733, at 6 (1969)). Greenhill and Murto's article
contains a useful but brief history of the 1969 Act's passage. Id.; see Tex. Dep't of Mental Health &
Mental Retardation v. Kauffman ex rel. Petty, 848 S.W.2d 680, 685-87 (Tex. 1992) (Cornyn, J.,
dissenting) (discussing the 1969 Act). The federal government had abandoned absolute immunity in tort
in 1948 with the passage of the Federal Tort Claims Act. Federal Tort Claims Act, 28 U.S.C.A. § 1346
(West 2019).
    2. See Greenhill & Murto, supra note 1, at 465-67 nn.26-42.


693

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most