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MUNICIPAL LAW UPDATE by Amos D. Pettis, Associate

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1. Britton v. Texas Department of Criminal Justice, ___ S.W.3d ___, 2002 WL 31941485 (Tex. App.--Houston [1st Dist.] 2002, no pet. h.)

TDCJ immune from suit by family of deceased inmate.

In the summer of 1995, the Texas Department of Criminal Justice (TDCJ) was transporting forty-six psychiatric inmates in Southeast Texas via bus to a hospital. The unairconditioned bus broke down in 100-degree weather. During the 2-hour wait, no inmate was allowed off the bus, and all remained restrained. Britton was an inmate on the bus, and at the time, he was taking medication that predisposed him to heat stroke. Britton suffered a heat stroke and died. Britton's family sued the TDCJ and correctional officers for state-law claims of negligence, wrongful death, and survival actions and federal civil rights claims under section 1983 for alleged violations of his Due Process and Eighth Amendment rights. The officers were dismissed on the basis of official and qualified immunity. The district court also sustained TDCJ's plea to the jurisdiction without specifying the basis, and the plea was based on 6 grounds. Because the Plaintiffs only challenged two of the six grounds for the plea to the jurisdiction, the Houston Court of Appeals affirmed the trial court’s judgment.

2. Heimlich v. State of Texas, ___ S.W.3d ___, 2003WL192100 (Tex. App.--Austin 2003, no pet. h.)

Person wrongfully convicted of crime had viable claims against the State.

Plaintiff was convicted of theft of a check and sentenced to 4 years in prison, which was later commuted to shock probation after serving 5 months of the sentence in prison. Plaintiff's conviction was later reversed. The court of appeals found the plaintiff could not have committed the crime he had been charged with because he was the owner of the check he had been convicted of stealing. Plaintiff filed suit against the State for a constitutional takings claim and a statutory claim for compensation for wrongful imprisonment. The trial court granted summary judgment in favor of the State. The Austin Court of Appeals reversed, holding that the Plaintiff had stated viable claims.

3. McKinney v. Irving Independent School District, 309 F.3d 308 (5th Cir. 2002).

Bus driver had no claims against School District after being attacked by special education student.

Plaintiff worked as a teacher at a school within the Irving ISD. He taught students with severe behavioral problems, emotional disturbances, and learning disabilities. He also volunteered to drive a bus that brought the special education children to and from the school. Plaintiff had filed several reports with the Irving ISD about disciplinary problems on the bus, including students fighting, throwing objects at other motorists, and leaping from the emergency exit in the rear of the bus into traffic, and requested a monitor be assigned to help control the students. Later, a student later sprayed the Plaintiff in the eyes with a fire extinguisher, causing serious personal injuries. Plaintiff sued the School District, alleging state law torts and section 1983 Due Process violations for creating a dangerous environment and violating his rights to "liberty, bodily integrity, and a safe environment." The district court dismissed his claim because the state agency did not create the dangerous environment. The Fifth Circuit affirmed the dismissal.

4. Morin v. Moore, 309 F.3d 316 (5th Cir. 2002)

Plaintiff had only limited claims based on officer improperly storing weapon.

A City of Harlingen, Texas police office came into possession of an AK-47 automatic weapon after it was seized and slated for destruction. The Officer then loaned the weapon to another Officer who stored the gun in his son's bedroom closet. The son was a psychologically unstable drug user who revered the Nazi ideology. The son used the AK-47 to shoot several people. The victims, or their family members, sued the two police officers, the Police Chief, and the City for numerous state-law torts, violations of the Texas Tort Claims Act for misuse of property, and section 1983 constitutional Due Process violations. The district court dismissed all claims. The Fifth Circuit affirmed the dismissal of the constitutional claims and several state-law tort claims, but reversed the dismissal of the claims against the officers for negligence and negligent entrustment.

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If you have any questions about any of these cases or would like copies of specific cases, please contact Amos Pettis (APettis@fhmlaw.com).

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© Fanning, Harper & Martinson, P.C., March 4, 2003.

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