References in medical records were insufficient to provide Texas Tort Claims Act notice of claim says Fort Worth Court of Appeals

University of North Texas Health Science Center v. Jessica Jimenez, Jennifer Galo, Catherine Frank, in Their Individual Capacities, and William Tyler II, as Independent Administrator of the Estate of Pamela J. Knight, Deceased, 02-16-00368-CV (Tex.App— Fort Worth, August 3, 2017)

In this Texas Tort Claims Act (“TTCA”) notice case, the Fort Worth Court of Appeals held information within medical records was insufficient to qualify as §101.101 actual notice to the entity of its fault.

Pamela Knight was treated at the University of North Texas Health Science Center (“UNT”) by Dr. Yurvati. Knight previously underwent weight-loss surgery but developed complications. Dr. Yurvati performed corrective surgery. Within one week of the corrective surgery Knight experienced a severe decline. Tests revealed a leak in her esophagus that, according to Appellees, resulted from an esophageal perforation which occurred during Dr. Yurvati’s corrective procedure. Ultimately Knight died. The family sued UNT for medical negligence. UNT filed a plea to the jurisdiction asserting, among other things, the Appellees failed to provide timely notice under the Texas Tort Claims Act. The trial court denied the plea and UNT appealed.

It is undisputed the Appellees did not give any formal written notice to UNT regarding the claim prior to the 6 month deadline, so the analysis focused on the “actual notice” prong under the TTCA. The Appellees contend Dr. Yurvati’s postoperative report written 4 days after surgery contains entries which satisfy Tex. Civ. Prac. & Rem. Code §101.101(c) for notice. Specifically, Dr. Yurvati notes a “tear” did occur but was corrected during surgery. It also notes the tear appeared to already be present and did not occur due to any actions performed during the surgery. The court notes a “tear” and a “perforation” do not appear to be medically identical but held the distinction was one which did not need to be examined in order to rule. For actual notice to be present, the entity must have a subjective awareness of its fault in causing the injury. After reviewing the medical records, the court stated it could not find any references or indications which rose to the level of providing UNT actual notice of its own subjective fault in causing the injuries. [Comment: I personally liked footnote 6 where the court noted “The medical records might imply, at least to laymen like us, that esophageal perforations do not occur without human agency, but that is not the same as the kind of evidence from which actual notice can be fairly assumed…”].  The court went on to analyze whether the knowledge of individual employees can be imputed to the entity. In some situations, such individual knowledge can qualify. However, physicians, by their very nature, do not have a duty to gather facts and investigate incidents, which is a requirement to impute knowledge. As a result, the plea should have been granted.

If you would like to read this opinion click here. The panel includes Justices Walker, Gabriel, and Kerr. Justice Kerr delivered the opinion of the court. Attorney listed for the University is Nichelle A. Cobb. Attorneys for Ms. Jimenez et al., are Stephen C. Maxwell and Daniel P. Sullivan.

San Antonio Court of Appeals holds river authority can be compelled to attend contract arbitration

San Antonio River Authority v. Austin Bridge & Road, L.P. and Hayward Baker Inc. 04-16-00535-CV ( Tex.App— San Antonio, August 9, 2017)

This is an interesting case where the issue of sovereign immunity impacts whether an entity is a “party’ to a contract and bound by an arbitration clause.

The Bexar-Medina-Atascosa Counties Water Control and Improvement District No. 1 (“BMA”) sought state funding to repair the Medina Lake Dam.  As part of the funding provided by the Legislature, the San Antonio River Authority (“River Authority)” and several other water district entities/authorities entered into a cooperative interlocal agreement to assist with the repair project. This arrangement was dictated by H.B. 1741, which designated the River Authority as the project manager and contract administrator for the project. After bidding was complete, Austin Bridge became the contractor. The bid agreement provided the River Authority would be responsible for paying Austin Bridge in accordance with a project management schedule. The Agreement contained an arbitration clause. Austin Bridge subcontracted with Hayward Baker to perform cement portions of the repair work. Costs ran over and the River Authority declined to pay for some additional work and costs incurred by Hayward Baker. The subcontractor initiated arbitration proceedings against Austin Bridge for the lack of payment. Thereafter, Austin Bridge initiated arbitration proceedings against the River Authority for breach of contract. The River Authority responded with a motion to dismiss noting its immunity from suit was not waived under Tex. Loc. Gov’t Code Ann. § 271.152 (West 2016) because its involvement did not include entering into a contract, it was simply designated as the project manager. If it is not a party to the contract, it is not bound by the arbitration procedures. It also asserted the immunity issue could only be decided by a court of law, not an arbitrator. After cross-motions for summary judgment, the trial court ruled in favor of Austin Bridge and Hayward Baker.  The River Authority appealed.

The San Antonio Court of Appeals first held the determination of whether a valid arbitration agreement exists is a legal question subject to de novo review. One of the universally accepted principles of law is that an individual must be a party to a contract in order to be bound by it. After analyzing the situation the court held the question of immunity was properly addressed by the trial court. Courts must have jurisdiction in order to stay arbitration and if immunity is not waived, the trial court has no power to compel arbitration. Turning to whether the River Authority retains immunity, the court noted all parties argued around §271.152 as to waiver. In this case, the River Authority, along with BMA and other governmental entities, entered into an interlocal agreement in order to work together and plan, fund, and implement the Medina Lake Dam Project.  The River Authority’s Agreement with Austin Bridge allowed River Authority to fulfill its duties and responsibilities under both House Bill 1741 and the interlocal agreement. Therefore, the Agreement qualified as “services to a local governmental entity” under the plain meaning of section 271.152’s limitations. However, Chapter 271 does not waive immunity from suit on a claim for damages not recoverable under § 271.153. Section 271.153(b) precludes recovery of consequential damages, “except as expressly allowed under Subsection (a)(1).” The court agreed with Austin Bridge that the damages they sought are amounts due and owed under the Agreement.  Whether they are correct that those amounts are required to be paid under the Agreement is a question for the arbitrator and such is not a question that pertains to a waiver of immunity. The River Authority next argued §2009.005(c) of the Texas Government Code prohibits it from entering into any form of binding arbitration. The Governmental Dispute Resolution Act (“the Act”), which includes Chapter 2009 of the Government Code,  was enacted to encourage the peaceable resolution of lawsuits involving governmental bodies in a fair and expeditious manner. The purpose of §2009.005 is to ensure the Act is not interpreted as a waiver of sovereign immunity or as having any effect on the waiver of sovereign immunity under other laws.  It is not a prohibition on arbitration by state agencies. As a result, the River Authority must be compelled to participate in arbitration.

If you would like to read this opinion click here. The panel includes Justices Angelini, Barnard and Chapa. Justice Barnard delivered the opinion of the court. Attorney listed for San Antonio River Authority is David W. Ross. Attorneys listed for Austin Bridge & Road, L.P. are Matthew Waterman and Gregory Alan Harwell. Attorneys listed for Hayward Baker Inc. are Thomas W. Fee and Timothy R. George.


U.S. 5th Circuit holds utility district’s federal loan could prevent City from expanding its CCN.

Green Valley Special Utility District v. City of Cibolo, TX, No. 16-5182 ( 5th Cir. August 2,2017)

In this case the United States Fifth Circuit Court of Appeals held the Green Valley Special Utility District (“Green Valley”) is entitled to go forward on it injunction to prohibit the City from encroaching on its system.

The Public Utility Commission of Texas (“PUC”) issues certificates of convenience and necessity (“CCNs”), which give holders the exclusive right to provide water or sewer service within particular service areas. Green Valley holds a CCN for water and a CCN for sewer services within a defined area. In 2003, Green Valley obtained a $584,000 loan from the United States to fund its water service. The loan was secured by the property within both Green Valley’s water and sewer systems.   In 2016 the City of Cibolo applied to the PUC for a CCN to provide sewer services to its citizens, which encompasses part of Green Valley’s CCN. To grant it, the PUC would have to strip Green Valley of part of its CCN.  Green Valley opposed the application and sued arguing federal law prohibited an alteration to its CCN due to its loan, specifically 7 U.S.C. § 1926(b). The federal trial court dismissed Green Valley’s suit holding §1926(b) applied only to the system for which the loan was made (water), not the property used to secure the loan (water and sewer system).  Green Valley appealed.

The 5th Circuit noted this “is a tight question of statutory interpretation.”  Section 1926(b) prohibits the curtailment or limitation of “[t]he service provided or made available …” § 1926(b).   The dispute is over the meaning of “service,” which the statute does not define. Green Valley asserts it should apply to its “integrated” water-and-sewer service.  The City argued through the use of grammar aides that service applies only to the service funded. The 5th Circuit disagreed with the City’s arguments. Section 1926(b) has two purposes: “(1) to encourage rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost, and (2) to safeguard the viability and financial security of such associations . . . by protecting them from the expansion of nearby cities and towns.” Green Valley’s interpretation is consistent with those purposes and not inconsistent with the wording of the statute. The order granting the City’s Rule 12(b)(6) motion is reversed and the case is remanded.

If you would like to read this opinion click here. The panel includes Circuit Judges Higginbotham, Smith, and Haynes. Circuit Judge Smith delivered the opinion of the court. Attorney listed for Green Valley is Mr. Paul M. Terrill, III. Attorney listed for the City of Cibolo is Mr. Lowell Frank Denton.



14th Court of Appeals holds taxpayers have standing to challenge ballot propositions and bring ultra vires claims

Slvester Turner,  in his official capacity as mayor of the City of Houston, and the City of Houston v. Carroll G. Robinson, Bruce R. Hotze and Jefferey N. Daily, No.14-16-00393-CV ( Houston [ 14th Dist.] August 17, 2017)

The Fourteenth Court of Appeals in Houston determined the Plaintiffs had taxpayer standing to challenge two propositions filed in the 2004 elections and for ultra vires claims against the Mayor’s office.

This opinion is one in a long series of opinions and cases involving the same or similar parties. Plaintiffs sued the City of Houston and the Mayor, in his official capacity, for declaratory and injunctive relief (including ultra vires claims) involving Prop 1 (limiting annual increases in property taxes and utility rates) and Prop 1 (amending the City Charter and requiring voter approval for increase which go beyond inflation and population rates).  In the 2004 election, both propositions passed. After the election, for two independent reasons, the City determined Prop. 1 is legally binding and Prop. 2 would not be enforced. Prop. 1 had a supremecy clause over any other propositions if it received more popular votes.  Further, the Charter stated any proposition which receives the higher votes prevails. Various suits followed resulting in several appellate opinions already. In this matter, the Plaintiffs filed actions regarding the validity of Prop. 2 and the City’s future compliance with both Prop. 1 and Prop. 2.   The City filed a plea to the jurisdiction which was denied. The City appealed.

Standing is a constitutional prerequisite to maintaining suit.  Taxpayer standing requires (1) that the plaintiff is a taxpayer; and (2) that public funds are being expended on the allegedly illegal activity. Plaintiffs did not sue to recoup funds but to prevent future expenditures on alleged unauthorized activities. As a result, they have taxpayer standing. The Plaintiffs do not allege the Mayor failed to perform a ministerial act, but instead assert he acted without legal authority. Such is a proper ultra vires claim. And while the Plaintiffs focus on the legal authority of the propositions, their pleadings also seek a declaration as to their validity. As a result, they are proper for declaratory judgment.

Justice Busby’s concurrence focused on  “a clash among fundamental principles of government.” Specifically, he notes immunity/standing vs requiring officials to follow the rule of law.  He writes separately to “to explain how the structural principles of government at stake” intertwine because immunity and standing are notoriously complex.  He does a good job of explaining the competing interests and ultimately agrees that the taxpayers have standing in order to require a governmental official follow the law.

If you would like to read this opinion click here. The panel includes Justice Busby, Justice Donovan, and Justice Brown. Justice Donovan delivered the opinion of the court. To see Justice Busby’s concurring opinion click here. Attorney listed for the City is Ms. Kathleen Hopkins Alsina. Attorneys listed for Ms. Robinson, Mr. Hotze and Mr. Daily are Andy Taylor and Amanda Eileen Staine Peterson.


13th Court of Appeals affirms take nothing judgment in favor of TxDOT for premise liability/flooding death case


Geoffrey Lucker v. Texas Department of Transportation 13-16-00380-CV( Tex.App—Corpus Christi, August 3, 2017)

This is a premise liability case where the 13th Court of Appeals affirmed the granting of jury verdict in favor of TxDOT

TxDOT received information water was likely to flood a number of roads in Lee County and dispatched employees to assist. Throughout the day, the aassistantmaintenance supervisor, Meinke, put out a number of signs at different locations. One sign was a large temporary “Watch For Water On Road” sign, which also displayed two flags on FM 1624 near a culvert referred to as the “bridge.” The sign was placed next to a smaller, permanent sign, with the same message. These signs were located about 2,500 feet from the bridge. Meinke testified that a car traveling at 60 miles per hour would reach the water in about thirty seconds after passing the two signs on that day.  Because the water was rising rapidly, at 7:15 p.m. Meinke ordered that barricades and road closed signs be brought to both sides of the bridge after a visual inspection. However, these did not arrive until after the incident. Meinke left the site to warn nearby oil workers of the danger and rising water. Upon returning to the bridge a short time later, he viewed Sally Lucker’s vehicle floating in the water. She died. Lucker’s husband sued TxDOT and the case went to a jury trial. The jury returned a verdict for TxDOT and Lucker appealed.

Over the objection of Lucker, the trial court submitted to the jury a charge containing two questions concerning the emergency exception in the Texas Tort Claims Act. Essentially, the first question asked the jury if TxDOT was reacting to a flooding emergency and the second was whether the death was proximately caused by the conscious indifference or reckless disregard of the safety of others on the part.  The jury answered in favor of TxDOT for these questions. The jury did fine TxDOT 51% responsible for the accident and Lucker 49% responsible. TxDOT moved for entry of a take nothing judgment which the trial court granted. The 13th Court of Appeals notes the language within the judgment clearly indicates the trial court considered not only the findings of the jury, but arguments of counsel and filings with the court. TxDOT submitted arguments regarding premise liability which were not substantiated with evidence during trial to which Lucker’s attorney did not respond. However, the trial court did not specify its grounds for granting the motion. The Court of Appeals specifically noted it could not tell if the trial court found the emergency exception to apply or if the trial court found that there was no evidence on one or more of the elements of Lucker’s premise liability claim. Because Lucker briefed only the emergency exception arguments and not the lack of evidence on premise defects, he waived such argument. As a result, the judgment of the trial court must be affirmed.

If you would like to read this opinion click here. The panel includes Justice Benavides, Justice Longoria, and Justice Hinojosa. Justice Longoria delivered the opinion of the court. The attorneys listed for Mr. Lucker are Chris Jackson and James Rodman. The attorneys listed for Texas Department Transportation are David B. Strain and Randall K. Hill.


14th Court of Appeals holds administering drug is the “use” of tangible personal property for immunity purposes

University of Texas M.D. Anderson Cancer Center v. Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), Deborah Diver, Individually and As Next Friend of Jensen O’Hara, a Minor 14-16-00681-CV (Tex.App—Houston [14th District] August 3, 2017)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a medical malpractice/Texas Tort Claims Act (“TTCA”) matter against a university. The 14th Court of Appeals affirmed the denial and remanded the case for trial.

McKenzie-Thue suffered from cancer and sought treatment at the University of Texas M.D. Anderson Cancer Center (“MDACC”).  MDACC utilized two clinical trials of the Wake Forest Protocol for treatment, which included (in oversimplified terms) surgical removal of cancer, sealing of cavities, and flushing of the cavities along with chemical treatments.  A total of 9 liters of fluid was perfused into McKenzie-Thue’s abdominal cavity. The procedure was performed at MDACC using MDACC personnel and equipment. However, a medical technician called a “perfusionist” perfused—under her surgeon’s direction— the chemotherapeutic agent. The procedure and mixing of the agent and drug (D5W) resulted in a drop in sodium levels and swelling of Mckenzie-Thue’s cells. She died two days later. The family sued alleging negligence and the specific negligent use of tangible personal property (i.e. the drug solutions utilized in the cavity). The family’s expert report noted the use of the D5W drug along with the specific chemical agents used deviated from the standard of care, resulting in the patient’s death. MDACC filed a plea to the jurisdiction, which the trial court denied. MDACC appealed.

MDACC asserts the drugs and fluids used were administered by an independent contractor (i.e. the perfusionist) as his specific area of expertise, so no MDACC employee negligently used the tangible property. Further, the death was not a foreseeable use of the fluids/drugs so no proximate cause can be shown. The perfusionist testified he was an independent contractor, but the MDACC surgeon, Dr. Mansfield, specified the use of the D5W, the flow rate for the perfusion, and the temperature for the perfusing fluid during the IPHC procedure.  Further, after the initial procedure, Dr. Mansfield washed out McKenzie-Thue’s cavity using the D5W. Dr. Mansfield acknowledged the perfusionist made no decisions about the volume or type of fluid used during the perfusion process. He also testified MDACC was aware D5W and mixtures of fluids could cause a drop in sodium which is why the surgical team used an insulin drip and hypertonic saline drip during the surgery.  After analyzing the facts the court held under the TTCA a governmental unit’s immunity is not waived “when it merely allows someone else to use” the property. “Use” in the context of §101.102(2) means “to put or bring into action or service; to employ for or apply to a given purpose.” Since Dr. Mansfield utilized D5W to flush the cavity, and MDACC provided the D5W drug, it constitutes legally sufficient evidence of “use.”  Further, the “use” by MDACC employees was during the part of the procedure when other chemicals were in the body and could cause the deadly mix leading to a drop in sodium.  The court agreed with MDACC that allegations involving the misuse of information, negligent training, or medical judgment, without more, are insufficient to waive immunity. However, the evidence supports more than mere medical judgment was involved since MDACC personnel arguably distributed D5W at a time during the procedure it should not have been distributed under the protocol. Further, no one disputes it was the mixture of drugs and fluids which caused her death and which was a known risk.  From a pleadings standpoint, such is sufficient to survive a plea to the jurisdiction both for the “use” and the “causation” elements.

If you would like to read this opinion click here. The panel includes Justice Christopher, Justice Busby and Justice Jewell. Justice Jewell delivered the opinion of the court. The attorney listed for the University is Kevin D. Molina. The attorneys  for McKenzie are Susan Leigh VanOstrand Fuller and Allan R. Brain.


Sheriff and jail administrator were not deliberately indifferent to rights of detainee who was sexually assaulted by jailor

Rivera v. Bonner No. 16-10675 (5th Cir. July 6, 2017)

This is a §1983 case against jail officials alleging a sexual assault in a jail where the U.S. Fifth Circuit Court of Appeals affirmed the granting of the County officials’ motion for summary judgment.

Fierros was a jailor in the Hale County Jail when Rivera was placed into custody. Prior to any incident involving Rivera, when Sheriff Mull and Jail Administrator Bonner discovered Fierros may have previously been convicted of indecency with  a child when he was fifteen, they investigated to determine if the assertions were true. They were unable to confirm the convictions.  After the jail had an incident with a different jailor sexually assaulting an inmate, jail officials purportedly reminded jail staff that sexual exploitation of detainees was prohibited, but they did not implement any additional training. They did post notifications and a poster noting sex with an inmate is a felony. Approximately six months later,  Rivera arrived at the jail. During booking Fierros allegedly groped Rivera’s breasts and forced her to perform oral sex on him. Rivera was released from the jail the following day. After filing a complaint with state law enforcement, Fierros admitted to the contact. Rivera sued the Sheriff and Jail Administrator for being deliberately indifferent in hiring and failing to properly train. The trial court granted the officials’ motion for summary judgment based on qualified immunity and Rivera appealed.

In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiffs must show that the supervisor acted, or failed to act, with deliberate indifference to violations of others’ constitutional rights.  When a plaintiff alleges that a supervisor inadequately considered an applicant’s background, deliberate indifference exists only when adequate scrutiny would lead a reasonable supervisor to conclude that the plainly obvious consequences of the decision to hire would be the deprivation of a third party’s constitutional rights.  There must be a strong connection between the background and the likelihood the hired employee would inflict the particular type of injury suffered. After analyzing the facts known to the Sheriff and Administrator at the time, the court held they were not deliberately indifferent. Fierros’s juvenile record provided no detail regarding the alleged offenses, and there was no evidence that Fierros was ever charged or convicted. As to the failure to train, while inadequate in retrospect, the training provided was not due to deliberate indifference. Officers at the jail received at least some state-sanctioned training aimed at sexual assault prevention and jail officials took some limited responsive action following the prior incident of sexual abuse. And while the panel notes the law in the Circuit has been updated, at least one case applicable at the time, may have indicated such minimal responses were permissible.  So, the law was not clearly established as to what level of response to prior assaults was necessary. As a result, the jail officials were entitled to qualified immunity.

If you would like to read this opinion click here. The panel consists of   Circuit Judges Prado, Higginson, and Costa. Judge Prado delivered the opinion of the court. The attorney listed for Rivera is  Robert Smead Hogan. The attorney listed for Bonner is Mark Whitney McBrayer.


U.S. 5th Circuit holds henceforth, a clearly established constitutional right exists to video tape police and their facilities

Turner v. Driver, No. 16-10312 (5th Cir., February 27, 2017)

This is a §1983 case where the U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part an order dismissing three officers from a suit alleging First and Fourth Amendment violations.

Turner was seen videotaping the Fort Worth Police Station from a public sidewalk across the street. He was unarmed and posed no apparent signs of immediate threat. Police Officers Grinalds and Dyess approached him and requested ID. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera.  However, neither officer could respond when ask the crime under investigation. When Turner refused to provide ID, he was handcuffed and the video camera was taken. Lieutenant Driver approached Grinalds and Dyess. Driver requested ID and Turner responded he did not have to provide it since no crime was committed. Driver responded that Turner was correct, ordered his release and return of the camera. Turner sued Driver, Grinalds, and Dyess in their individual capacities. The officers moved to dismissed based on qualified immunity which the trial court granted. Turner appealed.

The 5th Circuit first analyzed qualified immunity under the First Amendment. The U.S. Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality.”  At the time, no case had determined a First Amendment right exists to videotape a police station. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. However, no precedent places the constitutional question “beyond debate.”  As a result, there was no clearly established First Amendment right at the time which prevents the granting of the officers’ qualified immunity on that claim. However, the court did hold from henceforth, a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.  News-gathering and other methods of receiving and collecting information and ideas is an undoubted right under the First Amendment. Film creation is also protected. And, when combining the two, filming the police “contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy.”

Under the Fourth Amendment detention claim, because Lt. Driver did not arrive on scene until after the arrest, he was entitled to dismissal. As to Grinalds and Dyess, an initial detention and inquiry is valid if the officers had reasonable suspicion. The initial inquiry with Turner was not objectively unreasonable. The Fourth Amendment is concerned with ensuring that the scope of a given detention is reasonable under the totality of the circumstances.  Nothing in the amended complaint suggests that Turner was videotaping an arrest, a traffic stop, or any other action or activity. On the contrary, Turner’s complaint states that he was filming only “the routine activities at the Fort Worth Police Department building.”  Grinalds and Dyess reference several attacks on police officers and police stations in Dallas and Austin in recent history resulting in an increase of security.  Turner’s filming in front of the police station “potentially threatened security procedures at a location where order was paramount.” An objectively reasonable person in Grinalds’s or Dyess’s position could have suspected  Turner was casing the station for an attack, stalking an officer, or otherwise preparing for criminal activity, and thus was sufficiently suspicious to warrant questioning and a brief detention.  As a result, they were entitled to qualified immunity for the wrongful detention claim. The parties dispute whether Turner’s detention amounted to an arrest. When determining whether an investigative stop amounts to an arrest, “[t]he relevant inquiry is always one of reasonableness under the circumstances,” which must be considered on a case-by-case basis.  After analyzing the facts alleged the court held Grinalds’s and Dyess’s actions—handcuffing Turner and placing him in the patrol car—were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers.  As a result, it was an arrest. Based on the allegations of Turner’s amended complaint, the officers lacked probable cause to arrest him. The police cannot arrest an individual solely for refusing to provide ID. As a result, at this stage of the litigation, Grinald and Dyess are not entitled to qualified immunity. Finally, Lt. Driver is not liable for the actions of Grinald and Dyess. Personal involvement of supervising personnel generally includes giving a “command, signal, or any other form of direction to the officers that prompted” the detention or arrest.  Turner’s complaint alleges Driver investigated the situation and promptly ordered Turner’s release. As a result, Driver was properly dismissed.

If you would like to read this opinion click here. The Panel includes Circuit Judge Wiener, Circuit Judge Clement, and Circuit Judge Higginson. Circuit Judge Wiener delivered the opinion of the court. Attorney for the Appellant: Kervyn Bryce Altaffer, Jr.. Attorneys for the Appellee:  Kenneth E. East and Luis Alfredo Galindo.


Deputies entitled to dismissal for false arrest where property owner failed to remove his truck after being instructed


Childers v. Iglesias, No. 16-10442, (5th Cir. February 9, 2017)

This is a false arrest/§1983 case where the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of claims against the arresting officers.

Childers owns a ranch and was at the gate preparing to leave. He had attempted to evict an individual he asserts was living at the ranch. Sheriff’s deputies were called and deputies Hollis and Iglesias arrived. Childers truck was parked in front of the gate blocking access. While Childers was attempting to provide an explanation of the situation to Hollis, Deputy Iglesias ordered him to remove his truck so they could access the property. Childers asserts he was attempting to complete his conversation with Hollis before complying, but Iglesias arrested him for interfering with an officer’s duties. The charges were eventually dropped. Childers sued Hollis and Iglesias for false arrest and violating his freedom of speech. The deputies filed a motion to dismiss which was granted. Childers appealed.

Childers asserts interference consisting of speech only, is a complete defense to Texas Penal Code §38.15 (interfering with a police officer’s official duties) pursuant to Carney v. State, 31 S.W.3d 392, 396 (Tex. App.—Austin 2000, no pet.).  Therefore no probable cause existed for the arrest.   However, Childers was not simply expressing his version of events, he failed to remove his truck which was blocking access. This instruction was made within the scope of the official duty Deputy Iglesias was performing: trying to access the ranch through the gate. In making the arrest, the deputies were concerned more with the moving of Childers’s truck rather than the content of his speech. Texas courts have found that failure to comply with an officer’s instructions under similar circumstances violates Texas Penal Code § 38.15 and is not protected speech. Based on this precedent, a reasonable officer could have believed there was a fair probability Childers violated Texas Penal Code §38.15 by failing to comply with Iglesias’s instruction. Probably cause therefore existed for a possible crime committed in the officer’s presence. As a result, the motion to dismiss was properly granted.

If you would like to read this opinion click here. The Panel includes Circuit Judge Prado, Circuit Judge Higginson, and Circuit Judge Costa. Judge Prado delivered the opinion of the court.  Attorney for the Appellant: Franklin W. Cram.  Attorney for the Appellee: Stephen Robert Marsh.


Officer and Police Chief entitled to dismissal under sec. 101.106(f) of Texas Tort Claims Act after alleged assault during arrest

John M. Donohue v. City of Boerne Chief of Police James Koehler, Officer Pablo Morales, and Martha L. Donohue, 04-16-00190-CV ( Tex.App—San Antonio, March 8,2017)

This is a Texas Tort Claims Act case where the San Antonio Court of Appeals affirmed the granting of a plea to the jurisdiction to a police officer and chief of police after an arrest.

John Donohue was arrested by Officer Morales for abuse of 9-1-1 services when he called police to help drive him to get food. Donohue alleges that during the arrest, Officer Morales grabbed his forearms and wrists and while forcefully placing the handcuffs on his wrists, caused his skin to tear and bleed. Donohue sued Officer Morales and the Chief of Police, James Koehler. He also sued his ex-wife Martha asserting she made false accusations and obtained a protective order improperly asserting he has violent tendencies. He asserts Officer Morales was aware of the alleged falsity behind the protective order, which is why Officer Morales responded during the arrest the way Donohue claims. Morales and Koehler filed pleas to the jurisdiction which were granted. Martha Donohue also filed a plea to the jurisdiction. Through a series of orders, Donohue asserts the plea was granted as to Martha. He appealed the dismissal of all three.

Donohue’s assertion that his claims are brought under the Texas Penal Code for assault, not the Texas Tort Claims Act are not supportable. The Penal Code does not provide for citizens to file civil suits, but authorizes the state to seek defined punishments for criminal violations. To the extent Donohue intended to assert a civil assault claim, such a claim is an intentional tort. The TTCA does not waive governmental immunity for intentional torts. Further, even though the TTCA does not waive immunity for any intentional tort claims brought by Donohue, those claims are still subject to Section 101.106(f) of the Act.  After a rather dizzying walkthrough of subsection (f), the court ultimately held Morales and Koehler were entitled to dismissal. Their alleged actions occurred in their official capacities as law enforcement officials and the claims could have been brought against the City even though the City would be entitled to immunity.  Further, the Texas Constitutional claims seek monetary damages, which are not allowed. There is no private cause of action against a governmental entity or its officials for money damages relating to alleged violations of Texas constitutional rights.   As a result, the trial court properly granted their plea. The court then held the dismissal of Martha Donohue was in error, but notes the explanation is contained in a separate lawsuit between the same parties and possessed the same plea arguments. Such arguments were not adopted by the court of appeals so the claims against Martha Donohue were revived and remanded.

If you would like to read this opinion click here. The Panel includes Justice Barnard, Justice Alvarez, and Justice Rios.  Justice Rios delivered the opinion of the court. To see the Representatives for the Appellant and Appellee click here.