ACCEPTED 04-15-00120-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/21/2015 5:57:21 PM KEITH HOTTLE CLERK
NO. 04-15-00120-CV
FILED IN IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS AT SAN ANTONIO, TEXAS 4/21/2015 5:57:21 PM KEITH E. HOTTLE Clerk UNIVERSITY OF THE INCARNATE WORD, Defendant--Appellant v.
VALERIE REDUS, Individually, and ROBERT M. REDUS, Individually and as Administrator of the Estate of Cameron M. Redus Plaintiffs—Appellees _________________________________________________
On appeal from the 150th Judicial District Court of Bexar County, Texas
APPELLEES’ MOTION TO DISMISS FOR WANT OF JURISDICTION
Appellees Valerie and Robert M. (“Mickey”) Redus move this Court to
dismiss this interlocutory appeal for want of jurisdiction. Tex. R. Civ. P. 42.3(a).
Defendant and appellant University of the Incarnate Word (“UIW”) filed this
interlocutory appeal after the trial court signed an order denying UIW’s Plea to the
Jurisdiction. This Court lacks subject-matter jurisdiction because UIW is not a
“governmental unit” as defined in Tex. Civ. Prac. & Rem. Code § 101.001(3).
Interlocutory orders are not appealable unless expressly authorized by statute, and
UIW, as a private, non-profit institution of higher education, lacks a statutory basis
for invoking this Court’s appellate jurisdiction. INTRODUCTION
Appellees Valerie and Mickey Redus are the parents of Robert Cameron
Redus. Trial court defendant Christopher Carter shot Cameron Redus five times,
killing him in the parking lot at Cameron’s off-campus apartment in Alamo Heights
on December 6, 2013. Appellant UIW employed Carter as an on-duty Campus
Police Officer when he shot Cameron.
Valerie and Mickey Redus sued UIW and Carter on May 6, 2014 for claims
arising from Cameron’s death. C.R. 1. UIW filed its Original Answer on June 2,
2014 and removed the case to federal court. C.R. 22. UIW did not originally raise
a Texas Tort Claims Act affirmative defense but did claim immunity as a
“charitable institution.” C.R. 34. See Tex. Civ. Prac. & Rem Code § 84.003. The
federal court remanded this action to state court on November 25, 2014. C.R. 381.
UIW filed its First Amended Answer on February 13, 2015, adding the Texas
Tort Claims Act as an affirmative defense. C.R. 109. UIW also filed its Plea to the
Jurisdiction, claiming that plaintiffs’ claims are limited by the Texas Tort Claims
Act because UIW—or at least its police department—is a “governmental unit.” C.R.
125. See Tex. Civ. Prac. & Rem. Code § 101.001(3).
The trial court heard UIW’s plea to the jurisdiction on February 26, 2015 and
signed an order denying it on March 2, 2015. C.R. 418. UIW initiated this
interlocutory appeal of the denial on March 3, citing Tex. Civ. Prac. & Rem. Code §
51.014(a)(8) as this Court’s jurisdictional basis. C.R. 419. The trial court has not
made findings of fact despite appellees’ timely requests. Exhibits 1 and 2. 2 MOTION TO DISMISS
I. An appellate court must consider whether it has jurisdiction of an interlocutory appeal before proceeding to determine the merits.
“[T]he general rule, with a few mostly statutory exceptions, is that an appeal
may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code § 51.012 (“a person may
take an appeal…from a final judgment of the district or county court.”) An
interlocutory order is appealable “only if a statute explicitly provides appellate
jurisdiction.” Stary v. DeBord, 967 S.W.2d 352, 352-353 (Tex. 1998).
An appellate court has no basis to issue an opinion about the merits of an
interlocutory appeal if it lacks jurisdiction. Id. at 354. See also, Herrera v. Texas
Department of Family and Protective Services, 2007 WL 2044580 (Tex.App.—
San Antonio 2007, no pet.)(per curiam). An appellate court should determine its
jurisdiction to consider the interlocutory appeal before reaching the merits.
Minton v. Gunn, 355 S.W.3d 634, 639 (Tex. 2011).
Courts narrowly construe statutes authorizing interlocutory appeals because
they are a “narrow exception to the general rule that only final judgments are
appealable.” City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex.
2012)(per curiam). UIW appears to present an issue no other private institution of
higher education has raised: Can a private university can claim both “charitable
immunity” and “governmental unit” status?
3 Two appellate courts held they lacked jurisdiction over interlocutory appeals
by police officers employed by private institutions like UIW because the officers
were are not “an officer or employee of the state or a political subdivision of the
state” under § 51.014(a)(5). Rice Univ. v. Rafaey, 413 S.W.3d 667, 661 (Tex.App.—
Houston [14th Dist.] 2013, pet. filed); and Methodist Hosp. v. Miller, 405 S.W.3d
101 112 (Tex.App.-Dallas 2012, no pet.). The Rice court noted that Rice University
did not claim any other jurisdictional basis for the interlocutory appeal. Id. at 671.
In its attempt to avoid these decisions, UIW attempts to claim “governmental unit”
status for itself. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
II. This Court lacks subject matter jurisdiction of the denial of UIW’s plea to the jurisdiction because UIW is not a “governmental unit” as defined by Tex. Civ. Prac. & Rem. Code § 101.001(3).
An interlocutory appeal is not allowed following the grant or denial of a plea
to the jurisdiction unless the plea is made by a “governmental unit.” See Critical
Air Medicine, Inc. v. Shepard, 2005 WL 3533130 (Tex.App.—San Antonio 2005,
no pet.)(dismissing interlocutory appeal filed under § 51.014(a)(8) by private
corporation); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex.App.-Fort Worth
2004, no pet.) (same); Cantu Services, v. United Freedom Associates, Inc. 329
S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.).
This Court noted in Critical Air:
It is undisputed that Critical Air is a private corporation and not an agency of state government, a political subdivision of the state, or an institution, agency or organ of government whose status and authority is derived from state law.
4 Id. at *2. Similarly, it is undisputed that UIW is a private university and not a state
government agency. This Court should dismiss this appeal.
III. Neither UIW nor its Campus Police is not a “governmental unit” under the Texas Tort Claims Act.
UIW expressly seeks the protections of the Texas Tort Claims Act as a
“governmental unit.” C.R. at 120 (UIW’s First Amended Answer at ¶ 63-64). UIW
argues that its police department draws its right to exist from a statute (Tex. Educ.
Code § 51.212) and that the department and its officers are licensed by the Texas
Commission on Law Enforcement, a “regulatory state agency.” Id. UIW, in its
appellate brief, cites no case law holding that any part of a private university is a
“governmental unit.”
A. No Texas court has ever held that a private institution is a “governmental unit” in the absence of a specific statute and government funding of the service at issue.
No Texas court has ever held that a private, non-profit institution of higher
education is a “governmental unit” in the absence of a statute defining the
institution and its actions as such. In Klein v. Hernandez, 315, S.W.2d 1, 2 (Tex.
2010), the plaintiff sued Baylor College of Medicine for malpractice by its
physicians at Ben Taub Hospital, a public hospital. The Supreme Court noted that:
Baylor [College of Medicine] is a private, non-profit medical school, but is also a ‘supported medical school,’ which means that it has contracts with the Texas Higher Education Coordinating Board and receives state funding specifically allocated for training physicians who provide medical care at public hospitals such as Ben Taub.
5 The Court noted that private medical school derived its status as a “governmental
unit” from Tex. Health & Safety Code § 312.006(a), which defines Baylor as a
“governmental unit” when its doctors are working at public hospitals. Id. at 8.
In contrast to the Baylor College of Medicine, UIW has no claim to a contract
with a state agency, to receiving state funding, or to a statute defining any part of
the university as a “governmental unit.” UIW does not even address the
implications of the Texas Supreme Court’s Klein holding, choosing instead to rely
almost completely on LTTS Charter School, Inc. v. C2 Construction, Inc., 342
S.W.3d 73 (Tex. 2011). See Appellant’s Brief at 24-26.
The Supreme Court, in LTTS Charter School, held that an open-enrollment
charter school operated as part of the public school system is a “governmental
unit.” Id. at 76. The Supreme Court’s opinion drew a vigorous dissent (id. at 82),
and the case is easily distinguishable from UIW’s claims. Charter schools by statute
are “part of the public school system” which bears “the primary responsibility for
implementing the state's system of public education.” Id. at 82. Charter schools
receive government funding and operate within the Texas public school testing
system. Id. at 74.
UIW, by contrast, has specifically and purposely chosen to operate outside
Texas’ system of public higher education. See Tex. Educ. Code § 61.003, with
definitions of “public senior college or university” and “private or independent
institution of higher education.” UIW identifies itself as:
6 an incorporated charitable institution created and sponsored by the Sisters of Charity of the Incarnate Word, a Catholic order of nuns. The Sisters established the school in 1881, devoted to providing education without private gain. The UIW is a charitable institution under both Texas and Federal law.
C.R. 109. State and private institutions of higher education have different enabling
statutes for establishing campus police departments. Compare Tex. Educ. Code
§ 51.203 (state) and § 51.212 (private).
UIW also cites Zacharie v. City of San Antonio by and through San Antonio
Water System Board of Trustees, 952 S.W.2d 56, 59 (Tex.App.—San Antonio 1997,
no writ) and City of Leon Valley Economic Development Corporation v. Little, 422
S.W.3d S.W.3d 37, 40 (Tex.App.—San Antonio 2013, no pet.) as supporting its
argument. Both cases are distinguishable. In Zacharie, this Court held that San
Antonio’s Water System was a city agent and thus entitled to immunity.
In Leon Valley, this Court held that an economic development corporation’s
(“EDC”) statutory designation as a “governmental unit” under Tex. Loc. Gov. Code
§ 505.106(b) did not protect it from contractual liability, although the status did
authorized the EDC to file an interlocutory appeal. In allowing the interlocutory
appeal to proceed, this Court followed the EDC’s enabling statute: “For purposes
of Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a
governmental unit and the corporation’s actions are governmental functions.”
Tex. Loc. Gov. Code § 505.106(b). Neither this Court nor any other Texas court has
held that that a private institution is a governmental unit in the absence of a
specific statute and government funding of the services at issue. 7 B. That a statute authorizes UIW to establish a Campus Police Department does not make the UIW Campus Police a “governmental unit.”
Section 101.001(3)(D) of the Civil Practices and Remedies Code defines a
“governmental unit” as
any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.
UIW argues that a Texas statute—Tex. Educ. Code § 51.212—authorizes the
creation of UIW’s police department, that its officers are licensed by a state agency,
and that they enforce state law. Appellant’s Brief at 17-24.
So, UIW’s argument goes, the UIW Campus Police Department is an
“institution, agency, or organ of government the…authority of which [is] derived
from…laws passed by the legislature.” The argument proves too much ignoring the
fact that UIW as private university is not an “institution, agency, or organ of
government.”
The only case applying this statute to any extent is LTTS Charter School,
Inc., 342 S.W.3d at 80. The Supreme Court held only that § 101.001(3)(D) does not
require a statute specifically establishing the government agency. The Court’s
holding, however, is primarily based on Tex. Educ. Code § 12.105: “An open-
enrollment charter school is part of the public school system” and the public
schools are governmental units. See §101.001(3)(B).
UIW’s argument misinterprets §101.001(3)(D). According to the Supreme
Court, an “open-enrollment charter school” is an “institution, agency, or organ of 8 government” because it is “part of the public school system.” Id. at 82. Unlike open
enrollment public charter schools, UIW has no claim to being part of a “state
institution of higher education” or part of the “field of public higher education.”
See Tex. Educ. Code § 51.203 (enabling statute for police departments at state
universities) and § 61.002 (enabling statute for the Texas Higher Education
Coordinating Board). UIW has specifically chosen to avoid the extensive state
regulation of higher education, such as tuition regulation and degree offerings. See
Tex. Educ. Code Title 3 generally.
Textually—as the statute requires—UIW cannot establish that it is a
governmental “institution, agency, or organ.” See Tex. Civ. Prac. & Rem. Code
§ 101.001(3)(D). Merely being an “institution, agency, or organ” whose existence is
enabled by a statute and governed by a state agency does make the “institution,
agency, or organ” a “governmental unit.”
For example, Texas lawyers draw their right to practice law in Texas courts
and to form law firms from the State Bar of Texas, “a public corporation and an
administrative agency of the judicial department of government.” See Tex. Govt.
Code § 81.011. Only persons licensed by the State Bar of Texas can be employed as
lawyers in law firms.
Texas barbers draw their authority to “perform any act of barbering” from
Tex. Occ. Code § 1601.251 and Texas barbershops draw their authority to exist from
Tex. Occ. Code § 1601.301. Barbers and barbershops are governed by a state
licensing agency, the Texas Department of Licensing and Regulation (“TDLR”), a 9 “regulatory state agency,” pursuant to administrative rules. See Tex. Admin. Code
§ 82.1, et seq. Neither barbers nor barbershops are turned into a “governmental
unit” by these statutes.
The same could be said for numerous other respectable occupations. But
neither barbershops nor law firms are entitled to call themselves “governmental
units” and claim the immunities of the TTCA when sued in tort.
C. Allowing UIW’s campus police to enforce state and municipal law in limited circumstances does not turn UIW or its police department into a “governmental unit.”
UIW argues that the authority of its Campus Police and the individually
licensed officer to enforce state law bolsters its claim to be a “governmental unit.”
See Appellant’s Brief at 19-23. The truth, however, is that any person can enforce
a good portion of Texas criminal law without a TCOLE license.
Article 14.01(a) of the Code of Criminal Procedure allows:
A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
The statute grants both peace officers and private citizens the same rights of
warrantless arrest for the two broadly defined categories of crimes. See Office of
the Attorney General, Texas, Opinion No. MW-537, Dec. 22, 1987 (citing
Alexander v. United States, 390 F.2d 101 (5th Cir. 1968); Romo v. State, 577
S.W.2d 251 (Tex. Crim. App. 1979); Woods v. State, 213 S.W.2d 685 (Tex. Crim.
10 App. 1948) (“Any individual may make a ‘citizen’s arrest’ under that provision,
provided that all applicable legal requirements are met.”)
No Texas court has ever held that a statute authorizing a private entity to
enforce state law makes that entity an “institution, agency, or organ of
government” for purposes of the Texas Tort Claims Act. See Tex. Code of Crim.
Proc. § 2.12 for an extended list of 36 types of peace officers and § 14.03 for the
authority given to the officers. UIW Campus Police are “officers commissioned
under… Subchapter E, Chapter 51, Education Code.” Tex. Code. Crim. Proc.
§ 2.12(8). The officers’ authority is defined by § 14.03.
In its application for a “law enforcement agency number,” UIW identifies its
“Requesting Governmental Body” as “University of the Incarnate Word.” C.R. 206.
UIW’s Board of Trustees approved a resolution supporting the formation of the
police department. C.R. 350. As noted above, Texas law gives “governing boards of
private institutions of higher education” the authority “to employ and commission
police officers.” Tex. Educ. Code § 51.212. Nothing about this process turns UIW
into a “governmental unit.” UIW’s Campus Police Department receives no
government funding and has no contract with any government agency.
The cases UIW cites in the appellate brief do not support its argument; they
instead hold that private entities subject themselves to Constitutional violations by
their involvement with governmental functions. Appellant’s Brief at 19-20.
11 For example, in Evans v. Newton, 382 U.S. 296 (1966), the Supreme Court
held that private managers of a public park could not enforce racial segregation in
the park. In Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th
Cir. 2003), the Fifth Circuit found that “private prison-management corporations
and their employees may be sued under § 1983 by a prisoner who has suffered a
constitutional injury.” In other words, the cases cited by UIW hold that a private
entity subjects itself to greater, not less, liability by taking on a government
function. This is consistent with the statute providing limited immunity for peace
officers employed by private universities. See Tex. Educ. Code § 51.212(b)(1).
FOR THESE REASONS, appellees Valerie and Mickey Redus move and
respectfully pray that this Court dismiss with ten days’ notice this interlocutory
appeal for want of jurisdiction under Tex. R. App. P. 42.3(a) and grant all other
and further relief to which appellees are entitled.
12 Respectfully submitted,
LAW OFFICE OF BRENT C. PERRY, PC
____________________ BRENT C. PERRY STATE BAR NO. 15799650 800 COMMERCE STREET HOUSTON, TX 77002 TEL: (713) 334-6628 FAX: (713)237-0415 BRENTPERRY@BRENTPERRYLAW.COM
HERRING LAW FIRM
S/MASON W. HERRING MASON W. HERRING STATE BAR NO. 24071746 2727 ALLEN PARKWAY SUITE 1150 HOUSTON, TEXAS 77019 (832) 500-3170 – TELEPHONE (832) 500-3172 – FACSIMILE MHERRING@HERRINGLAWFIRM.COM
THE HERRERA LAW FIRM
S/JORGE A. HERRERA FRANK HERRERA, JR. STATE BAR NO. 09531000 FHERRERA@HERRERALAW.COM JORGE A. HERRERA STATE BAR NO. 24044242 JHERRERA@HERRERALAW.COM 111 SOLEDAD, SUITE 1900 SAN ANTONIO, TEXAS 78205 TEL: 210.224.1054 FAX: 210.228.0887
ATTORNEYS FOR APPELLEES 13 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion has been served on the following counsel of record by electronic service in accordance with Tex. R. App. P. 9.5(e), on April 21, 2015.
Laurence S. Kurth Matthew Wymer Beirne, Maynard & Parsons, LLP 112 East Pecan St., Suite 2750 San Antonio, TX 78205 Counsel for Defendant UIW
Robert A. Valadez Shelton & Valadez 600 Navarro St., Suite 500 San Antonio, TX 78205 Counsel for Defendant Christopher Carter
____________________ BRENT C. PERRY
14 Certificate of Conference
As required by Tex. R. App. P. 10.1(a)(5), I conferred with Matthew Wymer, counsel for appellant University of the Incarnate Word, about the merits of this motion, and University of the Incarnate Word opposes this motion.
_________________________ Brent C. Perry