¶1concurring.
¶2I agree that the affidavit of officer Baeza does not support the defense of qualified immunity. The majority opinion is concerned only with a summary judgment which is based on the alleged qualified immunity. However, it is noteworthy that .the pleadings in the case and the motion for summary judgment touch on another defense: the ministerial duty of Baeza. Therefore, there is also a question whether the affidavit can be said to support the defense of official immunity based on performance of a ministerial duty. It is clear that Tex.Civ.Prac. & Rem.Code Ann. § 51.014(5) (Vernon Supp. 1993) does not limit the immunity defense in a summary judgment interlocutory appeal to “qualified” immunity only; it includes any official immunity.
¶3Although the general rule is that a public officer may not be liable for damages in the performance of a purely ministerial duty, a recognized exception is when there is negligent performance of a ministerial duty. Under the facts of this case, while the defense of ministerial duty may have been presented, the trial judge properly could have rejected *59this immunity defense in the face of a negligence question. Those matters may be determined at trial.
¶4In addition, since this interlocutory appeal is permitted only by a statute which strictly curtails jurisdiction, the “notice” question raised by the pleadings cannot be considered by the appellate court. Therefore, I concur in the affirmance.