                                                                                         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

                169.

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

date and time relevant herein.

      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

199.

       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

169.

       (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

DEPARTMENT.

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).

                                                   /s/ Larry M. Champion
                                                   Larry M. Champion




                                        41
