When the vehicle that hurt someone belonged to a government, the way into a Texas courtroom is not the usual one. There is one door. It is called the Tort Claims Act, and it opens only for an injury that arises from the use of the vehicle, only on its own clock, only up to a cap, and only against the government itself, never the driver.
Texas counted 2,358 collisions involving school buses last year, in the same year that crashes in school zones rose 12 percent to 877 (TxDOT). The Docket has looked at the bus from the road, in The Yellow Bus, and from the inside, in The Egg Carton. This dispatch is about the other side of the crash, the side that begins the next morning, when a family learns that a government owned the vehicle or employed the driver and that the usual road into court is closed. No single crash is behind this page. The pattern is, and it is the same whether the vehicle was a school bus, a city dump truck, a county patrol car or a transit bus.
The door. A Texas government cannot be sued for an injury unless the Legislature has said it can, and the Tort Claims Act says so in a narrow sentence. A governmental unit “is liable for” “property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if” the injury “arises from the operation or use of a motor-driven vehicle or motor-driven equipment” and “the employee would be personally liable to the claimant according to Texas law” (Civil Practice and Remedies Code Section 101.021). “Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter” (Section 101.025), and not an inch further. For a school district the door is narrower still: “Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district” (Section 101.051). Under the Act, the motor vehicle is the only way a school district answers in tort.
Operation or use. Those four words do most of the work, and a Houston court showed how much in a case about a bus that never hit anything. An eight-year-old special-education student freed himself from the harness in his seat, opened the rear emergency exit of a moving school bus and fell out. His family sued the district and the bus driver, and later dropped the driver. The First Court of Appeals held that the Act did not reach the claim, because the bus “merely provided the setting” for the injury. Drawing on the Texas Supreme Court, the court read “use” as “to put or bring into action or service; to employ for or apply to a given purpose” and “operation” as “a doing or performing of a practical work,” and held that the required connection “requires more than mere involvement of property”: the operation or use of a vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.” The claims that the driver failed to stop and failed to keep a lookout were, in the court’s reading, claims about supervising the child, not driving the bus (Montoya v. Houston ISD). The older case the court followed involved a school bus that was parked and empty, with the driver not aboard, facts the dissent noted the Supreme Court had treated as significant in holding that the district’s immunity stood. One justice dissented in part. The line that comes out of those cases runs between the driving and everything else. A bus that strikes a child at the stop, a driver who pulls away before the child is clear, a transit bus that runs the light, a county truck that backs into a car: those injuries arise from operation or use. A child hurt because no one on the bus was watching him is, in the court’s analysis, a claim about supervision, and for a school district supervision is outside the Act. The difference is not a technicality. It is the difference between a case and no case, and it is decided by how the facts are pleaded and proved from the first day.
Whose hand was on the wheel. The Act waives immunity for the negligence of an employee, and it defines the word. An employee is “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority,” and the term “does not include an independent contractor, an agent or employee of an independent contractor,” “or a person who performs tasks the details of which the governmental unit does not have the legal right to control” (Section 101.001). Many districts and agencies contract their buses, their drivers or both to private companies. When the driver works for a contractor, the Act’s door is not the only one, and may not be the right one: the contractor is a private defendant, with no cap and no six-month notice, sued the way any carrier is, the way the trucking company page describes. The first question in the file is therefore the name on the driver’s paycheck.
The driver. Texas gives a school district’s professional employees a personal immunity of their own, and the Education Code counts among them “a school bus driver certified in accordance with standards and qualifications adopted by the Department of Public Safety of the State of Texas” (Education Code Section 22.051). Such an employee “is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee,” with exceptions for excessive force in discipline and “negligence resulting in bodily injury to students.” Then the statute closes that shield for the one thing a bus driver does: “This section does not apply to the operation, use, or maintenance of any motor vehicle” (Section 22.0511). A bus driver has no immunity under the Education Code for his driving. That does not mean he is the defendant. The Tort Claims Act decides who is.
The one door. The Act makes the plaintiff choose, and the choice cannot be taken back. “The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.” The reverse is also true: a suit against the employee “immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.” Sue both, and “the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Sue the driver alone for conduct “within the general scope of that employee’s employment,” in a suit that “could have been brought under this chapter against the governmental unit,” and the suit “is considered to be against the employee in the employee’s official capacity only”; on the driver’s motion it is dismissed unless the plaintiff substitutes the government as defendant “on or before the 30th day after the date the motion is filed” (Section 101.106). Read together, the subsections say one thing: when a government’s employee hurts someone with a government vehicle on the job, the defendant is the government, the driver is a witness, and a lawyer who names the wrong one has thirty days to fix it before the Act closes the door behind him.
The clock and the cap. A government “is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred,” and the notice must reasonably describe “the damage or injury claimed,” “the time and place of the incident” and “the incident” itself. A city charter can set a shorter period, and the statute ratifies it. The notice is excused only “if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged” (Section 101.101), which is a fact to be proved, not assumed; Notice and Limitations explain why the letter goes out the first week. The recovery is capped. For a unit of local government, which is how a school district is treated, the Act allows one hundred thousand dollars for each person and three hundred thousand for each single occurrence of bodily injury or death, and one hundred thousand for property; for the state, and for a municipality, two hundred fifty thousand a person and five hundred thousand an occurrence; for an emergency service organization, one hundred thousand and three hundred thousand (Section 101.023). Per person and per occurrence are both words with teeth on a bus: forty children share one occurrence.
What is left. The Act governs the government’s share, not the whole crash. In a collision between a bus and a car, the car’s driver is sued the ordinary way, and a Texas jury assigns a percentage of responsibility to “each claimant,” “each defendant,” “each settling person” and “each responsible third party who has been designated under Section 33.004” (Section 33.003), the arithmetic Comparative Fault lays out. A government defendant can ask the court to designate the other driver, and the other driver’s insurer can ask it to designate the bus, which is the maneuver Responsible Third Party describes. The Act also steps aside, on conditions of its own, for an employee’s reaction to an emergency, and draws its own lines around barricades and signs, the ground Barricade and The Siren cover. And it is a Texas statute for Texas governments: a federal officer is reached, when he is reached at all, by the road Federal describes, and a tribe by the one in Sovereign.
No one from any current crash is named here, and nothing on this page decides one. A dispatch keeps the record of what the law asks when the vehicle belonged to a government: whether the injury arose from the driving, whose employee the driver was, whether notice went out within six months, and which door the lawyer walked through, because the Act allows one.
Dispatch is the Night Docket’s news strand: what happened on Texas roads and in Texas courts, reported from credible outlets and agency releases, with no names and no conclusions about open investigations, then connected to the entries that explain the science and the law. General information, not legal advice.
