ACCEPTED 01-14-00908-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 2/2/2015 11:59:42 AM CHRISTOPHER PRINE CLERK
01-14-00908-CV _______________________________________ FILED IN 1st COURT OF APPEALS IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 2/2/2015 11:59:42 AM ________________________________________ CHRISTOPHER A. PRINE Clerk WILLIAM MARSH RFICE UNIVERSITY, RICE UNIVERISTY POLICE DEPARTMENT, AND OFFICER HENRY CASH Defendants / Appellants
V.
MICHAEL CLAYTON THOMAS Plaintiff / Appellee _________________________________________
APPEAL FROM THE 80TH JUDICIAL DISTRICT HARRIS COUNTY, TEXAS _________________________________________
APPELLEE’S BRIEF __________________
To the Honorable First Court of Appeals:
Michael Clayton Thomas, Appellee, files his response to the appeal of
William Marsh Rice University, The Rice University Police Department and
Officer Henry Cash.
Mr. Thomas, Appellee, requests this Court find that the Appellants are
precluded from filing an interlocutory appeal in this case.
In the alternative, Mr. Thomas, Appellee, requests this Court affirm the
denial of summary judgment rendered by the lower court in its entirety.
1 MOTION TO ABATE
The first dispositive issue before the Court is whether William Marsh Rice
University (RICE), The Rice University Police Department (RUPD) and Officer
Henry Cash (CASH) have standing to bring an interlocutory appeal. In summary,
both this Court and the Fourteenth Court of Appeals have previously ruled on this
issue and denied such appeal, infra.
The issue of whether Appellants and similarly situated entities and persons
have standing pursuant to Texas Civil Practice and Remedies Code §51.014 to file
an interlocutory appeal of denial of summary judgment is currently pending before
the Supreme Court of the State of Texas in another case, William Marsh Rice
University v. Rafaey, 417 S.W.3d 667 (Tex. App.-Houston [14th Dist.] 2013, pet.
filed). Therefore, Appellant’s position is that the issue is moot until such time as
the Supreme Court rules.
In the interest of both judicial and practical economy, Appellee urges this
Court to abate this matter until the Supreme Court rules. Appellee avers that this
matter attempts to litigate at the appellate level an issue that is currently before the
highest court in this state. Appellants likewise request abatement. See Appellants’
brief at page 12, ¶ 1.
Notwithstanding, Appellee’s response to Appellants’ argument on this issue
of standing to appeal is set forth herein, infra.
2 SUMMARY OF APPELLE’S RESPONSE
1. Extant case law precludes interlocutory appeal by Rice University, RUPD
and/or Officer Cash.
2. There was no probable cause upon which to base the arrest of THOMAS.
3. CASH did not act in good faith and, therefore, cannot meet that element of
his affirmative defense of Official Immunity.
4. CASH was required to perform a ministerial act as a condition precedent
before he could perform the act of arrest made the basis of this lawsuit, which he
claims is discretionary. He did not do so. Therefore, he was not performing a
discretionary function and he cannot meet the discretionary act element of his
affirmative defense of Official Immunity.
5. CASH was not within the scope of his authority when he arrested
THOMAS.
6. CASH cannot support the elements of the affirmative defense of Official
Immunity. Therefore, he is not eligible for relief based on that defense.
7. Because CASH is not eligible, RICE UNIVERSITY POLICE
DEPARTMENT and RICE UNIVERSITY are also not eligible for the affirmative
defense.
8. Genuine issues of material fact exist that preclude summary judgment.
3 STANDARD OF REVIEW
Summary Judgment
Review of summary judgments is de novo. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family L.P. v. Porter,
Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App. — Corpus
Christi 2013, pet. denied). The Court must take as true all evidence favorable to the
nonmovant and indulge every reasonable inference and resolve any doubts in the
nonmovant's favor. Joe, 145 S.W.3d at 157.
On appeal, the movant for traditional summary judgment still bears the
burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. See Rhône-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999). Courts review the judgment by considering all the
evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
Probable Cause
Probable Cause is described in The Texas Penal Code, Article Fourteen.
The first prong of article 14.04 requires that the officer have "satisfactory proof"
that a felony has been committed by an offender. Probable cause to arrest a person
4 is present when there are facts and circumstances within the officer's knowledge
and of which he has reasonable trustworthy information that would warrant a
reasonable man in believing that a particular person has committed or is
committing a crime.” Webb v. State, 760 S.W.2d 263, 274 (Tex.Crim.App. 1988),
cert. denied, ___ U.S. ___, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989).
Official Immunity
Because the doctrine of official immunity is an affirmative defense, to
prevail on summary judgment, a movant must establish conclusively each element
of this affirmative defense. (Emphasis added) See Kassen v. Hatley, 887 S.W.2d 4,
8 (Tex.1994). A "matter is conclusively established if ordinary minds could not
differ as to the conclusion to be drawn from the evidence." McCartney, M.D. v.
May, M.D., 50 S.W.3d 599, 604 (Tex.App.-Amarillo 2001, no pet.); see also
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1965) (defendant "who conclusively
establishes all of the elements of an affirmative defense is entitled to summary
judgment").
Thus, the burden is on Appellants to establish conclusively that CASH was
(1) a government officer or employee (2) sued in his individual capacity, entitled to
official immunity from a suit arising from (3) performing a discretionary duty (4)
in good faith (5) within the scope of his authority. See Telthorster v. Tennell, 92
5 S.W.3d 457, 461 (Tex.2002); Methodist Hospitals of Dallas v. Miller, 405 S.W.3d
101, 106 (Tex.App.-Dallas 2012)
A governmental employee is entitled to official immunity for the good faith
performance of discretionary duties within the scope of the employee's authority.
Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A discretionary act is
one involving "personal deliberation, decision and judgment;" in contrast, actions
requiring obedience to orders "or the performance of a duty to which the actor has
no choice" are ministerial. City of Houston v. Jenkins, 363 S.W.3d 808, 814
(Tex.App.-Houston [14th Dist.] 2012) citing City of Lancaster v. Chambers, 883
S.W.2d 650, 654 (Tex. 1994). Thus, if the duty is mandated by law, directive or
policy, then the performance of the duty is a ministerial act, and there is no official
immunity for the failure to act.
Good faith is established when it is proved that a reasonably prudent
government official, under the same or similar circumstances, could have believed
that his actions were justified. City of Lancaster v. Chambers, 883 S.W.2d at 656.
A government employee acts in bad faith only if he could not have reasonably
reached the decision in question. University of Houston v. Clark, 22 S.W.3d at
918. Good faith can be established as a matter of law when the employee's factual
recitation is otherwise supported by the evidence. Alamo Workforce Development,
6 Inc. v. Vann, 21 S.W.3d 428,435 (Tex.App.-San Antonio 2000, rhrg overruled).
Examination of Cash’s recitation is not supported by the evidence.
BRIEF FACTUAL SUMMARY 1
1. On November 9, 2011, THOMAS arrived peacefully at the Rice University
Campus. He parked in the Rice Parking Garage, obtained a payment voucher, and
walked into the building where his wife works. He was there to see his wife.
Catherine Higgins. The parties were in the process of a divorce at the time.
THOMAS had just received a copy of a Mutual Temporary Restraining Order
(MTRO) dated November 8, 2011. He desired to speak with his wife about the
effect on the children.
2. THOMAS entered the men’s restroom, used the facility, exited and went to
the Security Desk. When THOMAS entered the building, THOMAS saw a guard
at the security desk. When THOMAS exited the restroom, the desk was
unmanned.
3. At all times while on Defendants’ property, THOMAS behaved in a peaceful
and non-threatening manner.
_______________________________________________________________
1 References to the Record in support of these facts appear in the body of the brief at the appropriate places. The facts set forth herein are undisputed.
7 4. THOMAS waited at the security desk for five to ten minutes. Then, Officer
CASH, an African American officer of Rice University Police Department
approached THOMAS. CASH asked THOMAS if he could help him.
5. THOMAS responded that he was waiting for the security officer to come in
order to summon someone for him. CASH asked THOMAS who that person was.
THOMAS responded that it was his wife, Dr. Catherine Higgins.
6. CASH asked THOMAS who he was. THOMAS identified himself. CASH
immediately told THOMAS to place his hands behind his back. CASH stated,
“You’re under arrest,” and placed THOMAS in handcuffs at 12:08 PM.
7. CASH left, went to Higgins office and returned, holding a document. He
held it out to THOMAS and told THOMAS that he was “in violation of this
Order.” CASH told THOMAS he was “being arrested for violating a protective
order.”
8. The document was not a Protective Order. It was a Mutual TRO dated
November 8, 2011 and signed by the Judge, 310th Judicial District Court. CR 187.
There was no injunctive language therein that would warrant an arrest or detention
at that time. There was no Protective Order.
9. There was no finding of family violence, which is mandatory in order for a
family court to issue a Protective Order. THOMAS exhibited no threatening
behavior. CASH did not otherwise explain his stated reason for the arrest.
8 10. THOMAS was transported in handcuffs to a booking station. His
fingerprints and picture were taken.
11. He was transferred to the Harris County jail where he was stripped to his
underwear and searched. His possessions were taken. He was put into a holding
cell.
12. Charges were rejected. Three hours later, he was transported back to the
Rice University Police Station. There, he was released without explanation.
RELEVANT TIME LINE
The relevant events took place on November 9, 2011 as follows. 2 Times
are taken from Exhibits 4 and 9, CR 179 and 205 depositions and other documents
as noted.
11:54 AM THOMAS walked from the parking garage to the Biosciences
Building. He was seen by Higgins or her coworkers. THOMAS
went to the first floor men’s’ room. Exhibit 2, 35/9-19. CR 169.
Then, THOMAS went to the first floor security desk and waited for
approximately five minutes. Exhibit 2, 36/1-10 and 38/2-5. CR
169.
_________________________________________________________________ 2 Times not definitively stated are reasonably estimated as cumulative minimum and maximum. Deposition excerpts are noted as page/line; i.e 12/2 is page 12, line 2. CR indicates the Court’s Record.
9 11:58 According to the Exhibit 4, CR 179, prepared by RICE, Catherine
Higgins called Rice University Police Department (RUPD) advising
that her husband is on the property and that she has a “restraining
order.” She did not use the words protective order.3 Exhibits 3, 4.
CR 176 and 179.
11:58 The RUPD dispatcher then issued a call for assistance and expressly
stated that there was a “restraining order” at issue.3 The words
“protective order” were not spoken. Exhibits 3, 4. CR 176 and 179.
11:58-12:03 According to THOMAS, he went to the first floor security desk and
waited for approximately five minutes. Exhibit 2, 36/1-10 and 38/2-
5. CR 169. THOMAS saw CASH approaching from outside the
building and CASH entered the building. Exhibit 2, 39/1-17. CR
11:56 According to Exhibit 9, CR 205, prepared by RICE, CASH reported
that he was in the building with THOMAS. This would place CASH
there before the dispatch notice was issued.
_________________________________________________________________ 3. The words “protective order” were falsely written in the reports by CASH, himself. See infra.
10 12:03-13 CASH went to the desk, confronted THOMAS, questioned him and
arrested him. Exhibit 2, 40/14-25 and 44/12-16. CR 169. At that
time, THOMAS was told he was being arrested for violating a
protective order. Exhibit 2, 42/12-24 and 45/15-25. CR 169. This
took about 10 minutes. Exhibit 2, CR 169.
12:08 PM Time of arrest according to DA report and RUPD reports. Exhibits
4, 8 and 9. CR 179, 199, 205. This time is undisputed.
12:08-13 There were now three officers. Exhibit 2, 47/11-20, CR 169. They
talked with THOMAS. Then, CASH left to go to Higgin’s office.
Exhibit 2, 49/12-19, CR 169.
12:13-26 CASH walked to Higgin’s office where, he testified, he waited five
to seven minutes, then talked to her. Exhibit 7, #14. CR 194.
Assume one minute walking, five to seven waiting and five talking.
12:26 CASH left Higgins’ office and stated that he called the DA. Exhibit
7, #15. CR 194.
12:26-31 Assume five minute conversation with DA.
12:26 According to Exhibit 9, CR 205, THOMAS was transported to the
West University Police Department at 12:26, at the time that it
appears CASH would have been talking to the DA. This time
undisputed.
11 12:31-41 According to CASH, subsequent to the conversation with the DA, he
decided to arrest THOMAS. Exhibit 7, #16. CR 194. This means
he had to return to the area where THOMAS was being held and
make the arrest.
This is contrary to the testimony of THOMAS (Exhibit 2, 40;14-25
and 44/12-16. CR 169) and the written reports of DA and RUPD
(Exhibits 4 and 8) which indicate the arrest was at 12:08.
Moreover, THOMAS was in transit at the time CASH states he
returned and arrested THOMAS.
RESPONSIVE EXHIBITS
1. Deposition excerpts of Henry Cash, CR 155.
2. Deposition excerpts of Clay Thomas, CR 169.
3 Recordings “1, 2, 3 and Radios” of the Rice University Police Dispatcher,
CR 176.
4. Rice University Incident Report RUPD1106804 which was created solely
by Officer CASH, CR179.
5. Rice University Police Department General Directive: 08, CR 184.
6. Mutual Temporary Restraining Order, Cause No. 2011-65679, CR 187.
_______________________________________________________________________ 4 The words “protective order” were falsely written in the reports by CASH, see infra.
12 7. Affidavit of Henry Cash, CR 194.
8. DA Intake Management System Report DIM601, CR 199.
9. Rice University Police Department Detailed Report #11002139. CR 205.
RELEVANT QUESTIONS OF FACT
There exists a significant disparity of material facts that will be discussed in
this motion. Appellee avers that the facts differ enough to warrant denial of
summary judgment on that issue alone. Significant questions of fact are:
1. Did CASH know, or should he have reasonably known, that the alleged
protective order was only a mutual temporary restraining and/or did he ignore the
fact that no protective order existed at the time of the arrest?
2. Did CASH knowingly make a false statement to DA Keagle that a protective
order existed?
3. A protective order normally contains a distance prohibition. Thomas never
reached the area in which Higgins worked and was never close enough to speak
with her or be a physical threat to Higgins that day. Thomas was passive.
Technically speaking, even if there had been a protective order, THOMAS could
not have been arrested for violation of the order until he breached the specified
distance or appeared threatening. Therefore, what exactly is the violation that
13 THOMAS committed that would warrant arrest for “violating the protective order”
– which was the sole reason stated by CASH for the arrest?
4. If CASH made a knowing false statement to DA Keagle, did DA Keagle
advise CASH to arrest THOMAS based solely on the misrepresentation of CASH?
Did DA Keagle advise CASH to make the arrest before Keagle attempted to verify
the alleged protective order?
5. Did CASH, in fact, arrest THOMAS before speaking with DA Keagle?
6. Did CASH act as a reasonable officer under the same or similar
circumstances would have acted?
7. Did CASH act in good faith?
8. Because CASH did not actually verify the existence of a protective order,
could he truly have been performing a discretionary function since the verification
was a ministerial and specific function and a mandatory condition precedent to the
discretionary function?
8. Does the course and scope of CASH’s employment encompass ignoring
written policy mandate, ignoring a written order of a sitting judge, making false
statements to the District Attorney’s representative, and/or making false statements
in his official report?
14 ARGUMENT AND AUTHORITY
1. Extant case law precludes interlocutory appeal by Rice University and/or Officer Cash.
Appellee avers that Rice University and/or Officer Cash do not have
standing pursuant to Texas Civil Practice and Remedies Code §51.014(5) to file an
interlocutory appeal of denial of summary judgment because Cash is not an officer
or employee or the state.
Appellant argues that the Supreme Court decision in Klein v. Hernandez,
315 S.W.3d 1, 5 (Tex. 2010) is dispositive. Ironically, this Court held in its review
of Klein that “Klein was not entitled to the same rights as an `actual’ employee of a
state agency,” and more particularly “that the Legislature did not intent to extend
sovereign or official immunity … to a resident of supported medical school by
merely casting the resident as `an employee of a state agency’ for the purposes of
determining liability.” Id citing Klein v. Hernandez, 260 S.W.2d 1, 9-11 (Tex.
App. - Houston [1st Dist.] 2008).
With respect to the instant case, the decision in Klein, 315 S.W.3d at 1 is
distinguished because Klein was a “resident physician at a private medical school
in a residency program coordinated through a supported medical school at a public
hospital,” Klein, 315 S.W.3d at 2, and as such was an employee of a state agency,
Klein, 315 S.W.3d at 2. It is that nexus and only that nexus – the supported
program - that gave Klein standing to appeal. 15 In the instant case, Rice University is not a public university and Officer
Cash is not performing duties within any semblance of a “supported” program with
a public agency or institution. In their brief at 14, Appellants ignore the critical
factor of Klein’s participation in a supported program at a public hospital when
they argue that Klein is dispositive of the issue of standing to appeal in this case.
Moreover, the Texas Supreme Court has held that "the words of Section
51.014(a)(5) offer no indication or suggestion that it applies to any entity other
than a state official, the only entity which it describes." William Marsh Rice Univ.
v. Coleman, 291 S.W.3d 43, 46 (Tex.App. – Houston [14th Dist.] 2009) citing
Texas A & M University Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007).
“Section 51.014(a)(5) does not permit an institution to bring an interlocutory
appeal as a "proxy for a state or local agency." Coleman, 291 S.W.3d at 46.
“Because Rice is asserting the affirmative defense of official immunity on behalf
of its employees who are not employees of the state or a political subdivision of the
state, the legislature has not provided an avenue for Rice to bring an interlocutory
appeal of the trial court's order.” Id.
Therefore, at this time, operative case law holds that Rice University and
Cash do not have standing to file their interlocutory appeal. See Klein v.
Hernandez, 260 S.W.2d at 9-11; William Marsh Rice Univ. v. Coleman, 291
S.W.3d at 46; William Marsh Rice University v. Rafaey, 417 S.W.3d 667.
16 It seems improvident to assume that the Supreme Court will argue against its
holding in Koseoglu based upon the unique “supported program” status of Dr.
Klein.
2. There was no probable cause.
Probable cause to arrest a person is present when there are facts and
circumstances within the officer's knowledge and of which he has reasonable
trustworthy information that would warrant a reasonable man in believing that a
particular person has committed or is committing a crime. Webb v. State, 760
S.W.2d 263, 274 (Tex.Cr.App. 1988).
Appellants overuse the word “detain” in their brief in order to draw attention
away from the actual arrest of THOMAS. Appellee did not sue because he was
detained. He sued because he was arrested for violation of a protective order that
never existed. This is undisputed.
THOMAS has raised and raises below numerous questions of the
reasonableness of CASH’s actions. Appellants frequently hide behind the words
“reasonable” and “reasonableness” in their brief. What one must remember at this
juncture is that reasonableness and what is reasonable is a question of fact.
Appellants aver that CASH acted reasonably; Appellee avers that he did not
act reasonably. When there are two interpretations, the issue must be determined
by the trier of fact. Gale v. Lucio, 445 S.W.3d 849 (Tex.App.-Houston [1st Dist.]
17 2014); Intntl Realty, Inc. v. 2005 RP West Ltd., 01-12-00258-CV (Tex.App.-
Houston [1st Dist.] 10-7-2014); Mindi M. v. The Flagship Hotel, Ltd., 14-13-
00515-CV (Tex.App.-Houston [14th Dist.] 6-26-2014).
According to Exhibit 5, CR 184, the express written procedure of Rice
University that governs the circumstances of the arrest, RUPD General
Directive: 08B2: “When probable cause exits [sic] to believe a person has
committed an action which violates the terms of a valid Protective Order, prior to
arrest, verification of existence of Protective Order will be made.” (Emphasis
added.)
Appellants have never presented evidence other than the self-serving
statement of CASH in support of their specious allegation of Probable Cause.
It is undisputed that THOMAS was peaceful and did not exhibit aggressive
tendencies.
It is undisputed that the Order CASH alleged THOMAS violated was a
Mutual Restraining Order, not a Protective Order. Exhibit 6, CR 187.
It is undisputed that the Restraining Order makes absolutely no mention of a
finding of family violence. Id.
It is undisputed that the Restraining Order in no way prevents THOMAS
from peacefully going to his wife’s place of employment with the purpose of
meeting with his wife to discuss the children. Id.
18 It is undisputed that THOMAS did not violate the Restraining Order on the
date and time relevant herein.
It is undisputed that Catherine Higgins advised the RUPD dispatcher that a
“Restraining Order,” not a Protective Order, was at issue. Exhibits 3, CR 176.
It is undisputed that the RUPD dispatcher used the words “restraining
order” and not protective order in her dispatch. Id.
It is undisputed and unrefuted that CASH did not, prior to arrest, verify the
existence of the alleged Protective Order.
Appellants have tried to spin the truth, to make argument out of whole cloth
and to otherwise obscure the truth of the matter, but the simple truth is that
Appellants offer no actual hard evidence that the existence of the alleged
Protective Order – which never existed in the first place – was verified prior to the
arrest of Mr. Thomas. It was not, and could not be, verified prior to the arrest.
CASH testified that Catherine Higgins did not tell him that she was a victim
of family violence. Exhibit 1, 41/20-22, CR 155. Nor is it reasonable to believe
CASH’s contention that she said she had a protective order when she had already
used the words “restraining order” to report the incident and stated that there was
no family violence. It is undisputed that a protective order in a family matter
cannot be issued without a finding of family violence. Tx.Fam.Code §81.001.
19 CASH has offered no evidence other than his own self-serving statement
that Higgins told him she had a protective order to support his contention. He has
not offered a statement in support of his contention or other evidence from Higgins
or an observer at the time he spoke with Higgins. There is no independent
evidence to support his contention.
It is a significant question of fact whether CASH did or did not verify the
existence of the alleged Protective Order – as he was required by written Directive
of his employer to do -- prior to arresting THOMAS. At the very least, CASH
cannot claim he did so prior to arrest because:
a. the timeline, supra, clearly shows that the arrest was made before
CASH called the DA;
b. CASH offers nothing but his self-serving affidavit to support the
allegation that Higgins told him she had a protective order.
c. Moreover, CASH’s allegation is refuted by the clear language used by
Higgins in her call to the University Police and in the dispatcher’s call – both of
which expressly stated “Restraining Order;” and
d. CASH’s allegation is suspect because the only place the words
protective order appear – other that CASH’s self- serving affidavit – is in the report
that was drafted after the fact by Cash himself. Exhibit 4, CR 179 and Exhibit 1
35/20-24, CR 155. CASH offers no supporting evidence of any kind that supports
20 any allegation that a protective order was alleged by any person or existed at the
time.
e. CASH’s allegation is suspect because THOMAS testified that the three
officers involved had the order in hand when CASH returned from Higgin’s office
and that the express statement was made by one officer, “You violated this order,
that’s why you’re being under arrest.” Exhibit 2 at 45/22-24, CR 169. The order
clearly states that it is a restraining order and clearly is devoid of any prohibition
against Thomas meeting with his wife at her place of employment. CR 187.
f. In his deposition, CASH testified that he was in the company of
officers David Anders and Derek McClinton when he “told Mr. Thomas he was
going to be arrested for violation of a protective order.” Exhibit 1 at 29/22-25.
This coincides with the testimony of THOMAS that CASH had the order in his
hand when he returned from Higgin’s office and told THOMAS in the presence of
two other officers that he was being arrested for violating ”a protective order.”
Exhibit 2, 45/22-24, CR 169.
g. CASH did not verify the existence of the alleged protective order as
required by his employer, infra, because CASH testified that he told the DA that
THOMAS had violated a protective order and the DA allegedly told him that “she”
would verify the alleged fact of the existence of a protective order. “She” did not
verify that fact to CASH. Nevertheless, THOMAS was arrested.
21 h. The charges were rejected. Exhibit 8, CR 199.
In point of fact, THOMAS was released after his arrest because the DA
discovered that there was no protective order – this is undisputed. Exhibit 8, CR
199.
Therefore, ab initio, CASH did not have probable cause or the authority to
make the arrest of THOMAS for the reason he stated – for violating a protective
order.
It is noteworthy to distinguish the urgency of this situation. Had THOMAS
pulled a gun and pointed it at CASH, immediate response would have been
warranted. Had THOMAS exhibited threatening or erratic behavior, then
appropriate response would have been warranted and probable cause may have
existed according the Tx.Crim.Code §14. In this case, THOMAS offered no threat,
there were no exigent circumstances. CASH knew, or should have known, that he
was required by written department mandate to verify the existence of a protective
order before arresting THOMAS. Yet, he did not.
Correlating the time line and the testimonies and information above, either
CASH arrested THOMAS at 12:08 as stated in the Rice Incident Report, Exhibit 4,
CR 179, or when he returned from Higgin’s office at approximately 12:32-42.
Either way, at approximately the time CASH testified that he arrested THOMAS,
CASH had a copy of the restraining order in hand and knew, or reasonably should
22 have known, that there was no violation of a protective order, supra, therefore, no
crime as stated by CASH.
Moreover, even giving CASH the benefit of a doubt vis a vis the order, he
arrested THOMAS before verification of the alleged protective order. How do we
know that? Because there was never a Protective Order to be verified. Rice
University Police Department General Directive: 08 (CR184) is not discretionary
and CASH was not authorized to treat it as discretionary. It is a mandate.
CASH did not have a reasonable basis for probable cause or arrest.
The policy stipulated a ministerial act which must be followed in order to
protect the civil rights of persons like THOMAS. CASH blatantly and
unreasonably violated a strict policy of his employer in a situation that bore no
indication of life threatening acts or harm to any individual or of civil
disobedience, the only exigent circumstances that could have excused his failure to
follow policy and procedure.
In the alternative, a genuine issue of material fact exists whether CASH had
any evidence that supports his contention of the existence of a protective order or
his version of the facts. Further, a genuine issue of material fact exists which
regard to the reasonableness of his failure to follow strict procedure, as he was
required to do.
23 3. CASH did not act in good faith and, therefore, cannot meet that element of his affirmative defense of Official Immunity.
Re-urging the foregoing argument as evidence of lack of good faith,
THOMAS argues further that good faith is established when it is proved that a
reasonably prudent government official, under the same or similar circumstances,
could have believed that his actions were justified. City of Lancaster v. Chambers,
883 S.W.2d at 656. A government employee acts in bad faith if he could not have
reasonably reached the decision in question. University of Houston v. Clark, 22
S.W.3d at 918. Good faith can be established as a matter of law when the
employee's factual recitation is otherwise supported by the evidence (emphasis
added). Alamo Workforce Development, Inc. v. Vann, 21 S.W.3d at 435.
Thomas testified that CASH had the order in his hand when he returned
from Higgin’s office and told THOMAS that he was being arrested for violating
the protective order, supra. Exhibit 2, 45/22-24, CR 169. The order clearly states
that it is a restraining order and clearly is devoid of any prohibition against Thomas
meeting with his wife at her place of employment. CR 187.
Regardless, CASH was required to verify the existence of a protective order
before making the arrest. He attempts to profess that he made the arrest because
the DA said “she” would verify the protective order, but the fact remains that no
protective order existed and CASH made an arrest for violation of a nonexistent
protective order before the existence or nonexistence of the order was verified. 24 Appellants have offered no evidence that the DA has no authority to override the
written mandate of Rice University. There were no exigent circumstances that
excuse CASH from acting contrary to policy.
Thinking practically for a moment, had CASH simply detained THOMAS
until he heard back from DA Keagle – the reasonable thing to do, especially in
light of the written mandate – there would be no lawsuit. CASH would have
followed procedure, there would have been no arrest based upon a nonexistent
protective order, and these parties would not be taking up the time of this
honorable court.
THOMAS avers it is impossible for an intelligent, competent reasonable
person in this situation who has allegedly been trained to deal with such issues to
read an order signed by a judge that clearly states it is a “Restraining Order” and
mistake it for a “Protective Order.” It is undisputed that CASH was required to
know the difference between a restraining order and a protective order. Exhibit 1
at 16/19-20, CR 155. CASH he admitted in his deposition he did not know the
difference. Exhibit 1 at 16/14-22, CR 155.
As argued above, CASH has offered nothing except his self-serving affidavit
and a report prepared by himself as his basis for believing that the order at issue
was a protective order. His factual recitation is not otherwise supported by any
25 third party evidence, contrary to Alamo Workforce Development, Inc. v. Vann, 21
S.W.3d at 435.
There is no evidence of his claim that Higgins told him she had a protective
order, which is contrary to the actual evidence.
The dispatcher advised of a restraining order, not a protective order.
CASH had the actual order in hand and apparently did not read it, supra.
Appellants state that CASH called the DA and told the DA that Thomas had
violated a protective order. CASH states that the DA said “she”5 would verify the
existence of the alleged protective order. The DA, therefore, acted on a fraudulent
and bad faith misrepresentation by CASH, who had no reasonable evidence upon
which to base his allegation to the DA of a protective order.
4. CASH clearly did not act in good faith when he ignored the true nature of the order upon which he allegedly based the arrest of THOMAS.
It is undisputed that the Order CASH alleged THOMAS violated was a
Mutual Temporary Restraining Order, not a Protective Order. Exhibit 6, CR 187.
It is undisputed that the Restraining Order makes absolutely no mention of
family violence. Id.
_________________________________________________________________ 5 It is undisputed that the DA on duty that day was Todd Keagle, a male, infra. Cash testified that the DA was a female. While this isn’t dispositive of anything, it does reinforce the fact of other discrepancies in CASH’s testimony and the false statements he made in his report regarding family violence and a protective order.
26 It is undisputed that the Restraining Order in no way prevents THOMAS
from going to his wife’s place of employment of meeting with his wife. Id.
It is unrefuted that CASH had a copy of the restraining order and apparently
did not read it or did not comprehend what he read. THOMAS testified to this
fact. Exhibit 2, 42/12-24 and 45/15-25, 169
It is undisputed that the words “Protective Order” were not asserted or used
by Higgins or the Dispatcher, Exhibit 3, CR 176, or any other person except CASH
that day.
It is undisputed that THOMAS did not violate the Restraining Order on the
It is undisputed that THOMAS behaved calmly and in a nonthreatening
manner at all times.
It is undisputed that Catherine Higgins advised the RUPD dispatcher that a
Restraining Order, not a Protective Order, was at issue. Exhibits 3, CR 176.
It is undisputed that the RUPD dispatcher used the words “restraining order”
and not “protective order” in her dispatch. Exhibits 3, CR 176.
CASH testified that Catherine Higgins did not tell him that she was a victim
of family violence. Exhibit 1, 41/20-22, CR179.
It is undisputed that CASH completed his report of the incident by stating
that THOMAS was in “violation of a court order” and by noting “Y” for yes under
27 the heading “Domestic Violence,” despite the foregoing facts. Exhibit 4, CR 179
and Exhibit 1 35/15-24, 41/8-9, 41/20-22, CR 155.
It is undisputed that CASH falsely wrote on his report that the dispatcher
“made a general broadcast in reference to a subject with a [sic] active protective
order,” Exhibit 4 at page 3, CR 179 – notwithstanding the undisputed fact that
both Higgins and the dispatcher used the words “restraining order.”
It is undisputed that CASH stated that he advised Assistant District Attorney
Keagle that THOMAS was in violation of a protective Order. Exhibit 8, CR199.
It is undisputed that the charges were rejected by the DA. Exhibit 8, CR
Therefore, CASH cannot establish good faith.
It seems impossible to believe that a reasonably prudent official, under the
same or similar circumstances, could believe that the actions of CASH were
justified or would have acted as CASH did, see City of Lancaster v. Chambers, 883
S.W.2d at 656; University of Houston v. Clark, 22 S.W.3d at 918, when one
considers:
(a) his blatant and repeated disregard for the title and language of the actual
document he was allegedly enforcing, and
(b) the words of the dispatcher, and
28 (c) his failure to follow the mandate to verify the alleged protective order prior
to arrest – all he had to do was read the document itself, which he had in his
possession.
This fact is compounded by the actual written policy and procedure of
RUPD with regard to situations such as this. According to RUPD General
Directive: 08B2, CR 184: “When probable cause exits [sic] to believe a person has
committed an action which violates the terms of a valid Protective Order, prior to
arrest, verification of existence of Protective Order will be made.” (Emphasis
added.) The policy is very clear – it requires actual verification, not inquiry, not
alleged reasonable belief. That requirement was a mandated ministerial act, not a
discretionary act.
It is undisputed that CASH did not verify the existence of the alleged
Protective Order prior to arresting THOMAS. As stated, all he had to do was read
the title of the order at the very top of the first page, printed in capital letters and
bold type. Exhibit 6, CR 187.
So, not only did CASH blatantly and wantonly ignore the rights of
THOMAS, he blatantly and wantonly ignored the written mandated prerequisites
of his employer, Rice University, before he arrested THOMAS. There was no
probable cause, no reason to believe THOMAS had committed an act that violated
a protective order that did not exist.
29 Every basis for CASH’s alleged belief there was probable cause and for the
arrest of THOMAS was a fiction made up in CASH’s mind. Why? Who knows;
perhaps for self-aggrandizement. Regardless, there is no supporting evidence for
probable cause, no threatening actions by THOMAS, no protective order – only the
imagination of CASH. There is no evidence to support his claims.
Good faith can be established as a matter of law when the employee's factual
recitation is otherwise supported by the evidence. Alamo Workforce Development,
Inc. v. Vann, 21 S.W.3d at 435. In this case, a careful review of the timeline,
supra, clearly indicates that CASH appears to have falsely stated the facts of his
conversation with the DA that he alleges occurred prior to the arrest.
Based upon CASH’s testimony, it does not appear possible for him to have
made a phone call to the DA until long after the arrest was made. The arrest was
made at 12:08 PM. Exhibits 4 and 8, CR 179 and 199.
According to the time line, the alleged call to the DA could not have
occurred until sometime between 12:27 and 12:32 PM or later. CASH stated that
he made the decision to arrest after the phone call to the DA. Exhibit 7 at 15 and
16, CR 194. However, the actual reports (Exhibits 4 and 8, CR 179 and 199)
indicate that THOMAS was arrested at 12:08 PM and that he was transported to
the West University Police Department at 12:26 PM.
30 THOMAS argues to this Court that CASH never made the alleged phone
call until after the arrest, if he made it at all. In support of this allegation, and in
addition to the contradictions shown in the time line, please note that the District
Attorney to whom the case was presented was Todd Keagle. Exhibit 8, page 1, CR
199. It is undisputed that DA Todd Keagle handled the matter and it is undisputed
that Todd Keagle is a male. Exhibit 8, CR 199.
CASH testified under oath that the DA to whom he spoke was a female
named Keagle. Exhibit 1, 28/510, 29, 8-16, CR 155. It seems obvious that, after
THOMAS was taken to the jail and before CASH’s deposition, CASH got the
name of the DA who handled the matter from someone, but he didn’t get the
correct gender.
It is more likely than not that CASH never called the DA prior to the arrest,
but made the decision sua sponte to arrest at 12:08 as shown on the reports. It
seems more probable he made the arrest before he ever talked to Higgins or
allegedly to the DA, and that he never attempted to verify the alleged Protective
Order as directed by Exhibit 5, RUPD General Directive: 08 until after the arrest –
which is why the DA refused to accept the charges.
Appellants cite Gidvani v. Aldrich 99 S.W.3d 760,764 (Tex.App.-Houston
[1st Dist] 2003, no pet.) at page 35 of their brief for the proposition that the
measure of “good faith in official immunity cases [is] a standard of objective
31 reasonableness without regard to the official’s subjective state of mind.” This is
specious logic. Whether an official such as CASH were mentally deranged or just
simply incompetent, he must be judged by a standard of reasonableness and not
given carte blanche to act against the public interest simply because of his
“subjective state of mind.”
With all due respect to this Court, Appellee submits that one cannot derive a
”standard of objective reasonableness” upon which to base evaluation of the acts of
another without taking into consideration the subjective state of mind of the other
person(s). If we gave a walk to everyone whose defense is either a lie or “I made
a mistake” without regard to his subjective state of mind (i.e., Why did he lie?
Was the mistake intentional or foreseeable?), we would not need courts and a
system of law.
CASH is asking for a walk in this case simply because he ignored the facts
in front of him, contrary to Alamo, 21 S.W.3d at 435. The facts and the evidence
do not support CASH’s version of the events that took place or his contention of
good faith.
CASH’s factual recitation is not supported by credible evidence. At the very
least, a genuine question of material fact exists with regard to the testimony of
CASH with regard to his basis for the arrest, notwithstanding the undisputed fact
that there was never a Protective Order at issue.
32 5. CASH was not performing a discretionary function.
Arguably, the decision to arrest THOMAS could have been discretionary,
except for at least three problems.
a. As argued above, there was no probable cause because there was no
Protective Order to be violated, and no threatening behavior by THOMAS, so there
were no justifiable legal grounds to believe that THOMAS had “committed or
[was] committing a crime,” and therefore, no probable cause for arrest.
It is undisputed that CASH stated that he advised Assistant District Attorney
Keagle that THOMAS was in violation of a protective Order. Exhibit 8. It is
undisputed that this was a false statement.
It is unrefuted by actual evidence that CASH was never actually advised, or
otherwise had knowledge, of the existence of any actual Protective Order before
making the arrest.
It is unrefuted that CASH had a copy of the restraining order. THOMAS
testified to this fact. (Exhibit 2, 42/12-24 and 45/15-25, CR 169.)
b. Prior to making the arrest, CASH was required by General Directive: 08B to
verify the existence of a valid protective order. The policy is very clear – it
requires actual verification, not inquiry, not reasonable belief. That requirement
was a mandate, a ministerial act, not a discretionary act. It was a ministerial act
that was a condition precedent to the discretionary act of arrest.
33 Therefore, CASH cannot claim that he is entitled to Official Immunity
because he did not meet all necessary elements. Because he did not perform the
condition precedent for his actions to rise to the level of discretionary, his action
was not discretionary. It was precluded by the express written mandate of his
employer from becoming discretionary.
His authority to arrest for violation of a protective order could not become
operative until after the alleged protective order was verified. And it is undisputed
that it was never verified because it never existed.
THOMAS was peaceful. Had CASH verified that there was, in fact, no
protective order prior to his arrest of THOMAS, he would have known that he had
no probable cause and no basis to arrest, or at least any reasonable person in those
circumstances would have known that.
c. Cash’s defense that he acted because the DA told him the DA would verify
the protective order is suspect for the following reasons:
(1) It is undisputed that CASH stated that he advised Assistant District
Attorney Keagle that THOMAS was in violation of a “Protective Order.” Exhibit
8, CR 199.
(2) It is undisputed that CASH made the arrest before Keagle verified –
actually disproved – the nonexistence of the alleged protective order.
34 (3) It is unrefuted that CASH had a copy of the restraining order (Exhibit 6, CR
187 which clearly states that it is a “Restraining Order, and not a “Protective
Order.” THOMAS testified to this fact. Exhibit 2, 42/12-24 and 45/15-25, CR
(4) It is undisputed that CASH testified that he did not know the
difference between a Restraining Order and a Protective Order. Exhibit 1 at 16/14-
22, CR 155.
(5) It is undisputed that CASH testified that did not know what Rice
General Directive: 08 (Exhibit 5, CR 184) is. Exhibit 1, 12-2-4, CR 155.
(6) CASH expressly testified that he did not recall what he was taught by
RICE about making an arrest with regard to family violence. Exhibit 1, 15/15-18,
CR 155.
(7) It is unrefuted that the DA did not have the authority in this situation
to override the written mandate of the RICE UNIVERSITY POLICE
DEPARTMENT.
Therefore, CASH gave the DA false and fraudulent information, which is
clearly not good faith or reasonable. In point of fact, CASH testified that the DA
stated that the DA would verify the information. CASH did not testify that the DA
authorized or approved the act of arrest at that time. CASH did not wait for the
result of that verification inquiry by the DA, as he was required to do.
35 6. CASH was not performing in the course and scope of his authority.
It is undisputed that CASH’s authority and duties did not include the
authority to disregard the written mandated policies of his employer, did not
include the authority to disregard the express written order of a district judge, did
not include the authority to make a false statement to the DA’s representative.
Therefore, CASH was outside the course and scope of his authority when he
arrested THOMAS.
7. RICE UNIVERSITY and the RICE UNIVERSITY POLICE DEPARTMENT have no immunity.
Although official immunity applies only to individuals, an agency or
institution may be shielded from respondeat superior liability for its employee's
negligence if the employee has official immunity. DeWitt v. Harris County, 904
S.W.2d 650, 654 (Tex. 1995). In this case, THOMAS believes that he has shown
that CASH cannot prove the elements of his affirmative defense and, therefore, is
not eligible for Official Immunity. If CASH cannot claim official immunity,
neither can RICE UNIVERSITY and RICE UNIVERSITY POLICE
8. RICE UNIVERSITY and the RICE UNIVERSITY POLICE DEPARTMENT did not properly train CASH.
CASH was not properly trained by RICE and RUPD. In his deposition,
CASH was questioned about his training. See Exhibit 1, 6/22 -8/3, CR 155.
36 a. CASH expressly testified that he did not receive instruction in
probable cause, Exhibit 1, 7/23-25, CR 155.
b. CASH expressly testified that he did not receive instruction in the
making of an arrest on Rice property, Exhibit 1, 8/1-3, CR 155.
c. CASH testified that did not know what Rice General Directive: 08
(Exhibit 5) is. CR 184. See Exhibit 1, 12-2-4, CR 155. The Court will recall that
this is the directive that mandates verification of an actual protective order before
an arrest for alleged violation of such an order can be made.
d. CASH also expressly testified that he did not recall what he was
taught by RICE about making an arrest with regard to family violence. Exhibit 1,
15/15-18, CR 155.
Based upon the testimony of CASH and his demeanor during deposition, he
was poorly trained and lacked the knowledge and intelligence to properly perform
his duties.
RICE and RUPD either knew or should reasonably have known this. Yet
RICE and RUPD gave CASH a badge and a job that allowed him arrest privileges
over citizens and residents of Houston, which he abused gravely in this instance.
RICE and RUPD had an obligation to properly train CASH and to ensure
that he was properly trained before allowing him to act in an official capacity.
RICE and RUPD breached this duty which breach is the proximate cause of
37 economic and emotional damage to THOMAS for which he is entitled to recover
his actual and consequential damages.
CONCLUSION AND PRAYER
We were all taught in law school that it is sometimes necessary to go from
the ridiculous to the sublime to make a point. Hypothetically, using the facts and
parties herein:
a. if, instead of arrest, execution were the proper action to take upon a person
for violating a valid protective order, and
b. if RUPD 8 read “When probable cause exists to believe a person has
committed an action which violates the terms of a valid Protective Order, prior to
execution, verification of existence of Protective Order will be made;” and
c. if CASH had taken the same course of action, then
d. THOMAS would be dead and would have been dead long before Keagle
determined there was no protective order.
Given the time line and the sequence of events in this case, reasonableness
and good faith on the part of CASH don’t seem nearly as believable considering
the hypothetical as Appellants want us to believe.
38 Notwithstanding the hypothetical, extant governing case law holds that
Appellants do not, at this time, have standing to bring an interlocutory appeal. For
this reason, Appellee requests this Court deny Appellants’ appeal.
Moreover, because official immunity is an affirmative defense, in order to
obtain summary judgment on official immunity, the governmental employee must
conclusively prove each element of the defense. Gray County v. Shouse, 201
S.W.3d 784 (Tex.App.-Amarillo 2006, no pet.). A "matter is conclusively
established if ordinary minds could not differ as to the conclusion to be drawn
from the evidence." McCartney, M.D. v. May, M.D., 50 S.W.3d 599, 604
(Tex.App.-Amarillo 2001, no pet.).
When all evidence is considered in the light most favorable to the
nonmovant, Appellee believes he has successfully demonstrated sufficient material
questions of fact that show that ordinary minds could differ on the conclusions to
be drawn from the circumstances and facts giving rise to this cause of action.
Appellee believes that Appellants cannot conclusively prove that CASH
acted in good faith, acted reasonably, was performing a discretionary function,
and/or was performing within the scope of his authority.
More expressly, Appellee does not believe that the evidence presented by
Appellants proves “conclusively” that Appellants are entitled to summary
judgment on the affirmative defense of official immunity.
39 Therefore, Appellee requests this Court deny Appellants’ appeal and
Appellants’ appeal of summary judgment and remand this matter to the lower court
for disposition.
Respectfully submitted,
/s/ Larry M. Champion Larry M. Champion State Bar No. 04086478 4420 FM 1960 West, Suite 101 Houston, Texas 77068 Ph 287-583-0280 Fx 281-583-8200 lchampion@sbcglobal.net Attorney for Appellee
40 Certificate of Service
I certify that a true and correct copy of the foregoing was served on February 2, 2015, by electronic transmission e-service according to the Texas Rules of Appellate Procedure 9.5 addressed to: Rusty Hardin/Andy Drumheller, Rusty Hardin & Assoc. PC, 1401 McKinney, Suite 2250, Houston, Texas 77010, ph 713 652 9000, fx 713 652 9800.
/s/ Larry M. Champion Larry M. Champion
Certificate of Compliance
I certify that Appellee’s Brief is 8,500 words in accordance with Texas Rule of Appellate Procedure 9.4(i)(2)(B).