     OFFICE   OF THE   ATTORNEY   GENERAL.   STATE   OF TEXAS

     JOHN       CORNYN




                                                         October 3.2000



The Honorable Florence Shapiro                                  Opinion No. JC-0289
Chair, State Affairs Committee
Texas State Senate                                              Re: Whether a protective order may permit a
P.O. Box 12068                                                  perpetrator of family violence to collect his
Austin, Texas 7871 l-2068                                       personal property from the residence he shared
                                                                with his victim: Clarification ofAttorney General
                                                                Opinion X-01 12 (1999) (RQ-0231-JC)

Dear Senator Shapiro:

         You have asked this office two questions relating to the statutes considered in Attorney
General Opinion X-01 12. That opinion considered whether article 5.045 of the Code of Criminal
Procedure protected law enforcement personnel who accompanied victims of domestic violence to
their residences to obtain personal property t?om liability for claims arising from this so-called “civil
standby.” It concluded that article 5.045 did provide such protection from liability, and that it was
specifically intended to do so. See Tex. Att’y Gen. Gp. No. JC-0112 (1999) at 1. On the other hand,
however, it concluded that article 5.045 would not provide immunity to a police officer who brought
a perpetrator of family violence back to the family residence: “An escort of a perpetrator of family
violence to the residence shared with the victim, whether or not it violates the terms of aprotective
order, is not the provision of standby assistance contemplated by article 5.045 of the Code of
Criminal Procedure.” Id. at 6 (emphasis added).

         In light of Attorney General Opinion JC-0112, you ask first whether a judge may include in
a domestic violence protective order a provision permitting the perpetrator to go to the family
residence accompanied by a police officer to pick up personal property, and ordering the police to
provide the perpetrator with such an escort; and second, “if so, whether Article 5.045 of the Texas
Code of Criminal Procedure will protect the peace officer l?om civil liability in connection with such
assistance.“’

        As to your tirst question, we note, as do you, that “Article 17.292 of the Texas Code of
Criminal Procedure and Chapter 85 of the Family Code are silent as to whether the [c]ourt may
include [such] a provision” as you enquire about. Request Letter, note 1, at 2. These provisions
neither explicitly permit, nor specifically prohibit, the inclusion of such a provision. We note further



        ‘Letter from Honorable Florence Shapiro, Chair, State Affairs Committee, to Elizabeth Robinson, Chair,
Opinion Committee (May 9,200O) (on tile with Opinion Committee) [hereinafter Request Letter].
The Honorable Florence Shapiro          - Page 2        (K-0289)




that it is possible, as in the sample protective order you provided with your request, for the court to
award the perpetrator his or her “personal effects, personal papers, driver’s license, prescription
medication, tools of trade, and vehicle which Respondent customarily drives,” and to order “the
protected person          to deliver these items or make same available to a neutral third party for
retrieval by Respondent.” See id. (Attachment:        Court Order for Emergency Protection). Such a
provision would seem to obviate the necessity for the supervised appearance ofthe perpetrator at the
victim’s home. Howeyer, particularly given that the statutes are silent, we think that this decision
is committed to the discretion of the judge, which has been defined as “[t]he option a judge has in
deciding between the doing or not doing of a thing which cannot be demanded as an absolute right.”
 Tuck v. State, 231 S.W.2d 436,442 (Crim. App. 1950). Moreover, this office does not find facts in
the opinion process, and cannot therefore determine the wisdom or the necessity of such a provision
as that about which you inquire in any particular instance.’

         However, article 5.045 does not apply in the situation you describe. As Attorney General
Opinion JC-0112 pointed out, the concern that statute was intended to address was the apparent fear
of certain law enforcement officers and agencies that, should the officers accompany victims of
domestic violence to the family home, they might expose themselves to liability. Tex. Att’y Gen.
Op. JC-0112 (1999) at 2, citing Report of Senate Interim Committee on Domestic Violence. The
specific language of the statute immunizes a police officer who “stay[s] with a victim offamily
violence to protect the victim and allow the victim to take the personal property of the victim or of
a child in the care of the victim to a place of safety in an orderly manner.” TEX. CODE GRIM. PROC.
ANN. art. 5045 (Vernon Supp. 2000) (emphasis added). Neither the language nor the legislative
history of the statute, which Attorney General Opinion JC-0112 details at some length, see Tex.
Att’y Gen. Op. No. JC-0112 (1999) at 2-4, suggests that the statute would protect a police officer
bringing a batterer to the family home. Indeed, this office there concluded that, “An escort of a
perpetrator of family violence to the residence shared with the victim, whether or not it violates the
terms of a protective order, is not the provision of standby assistance contemplated by article 5.045
of the Code of Criminal Procedure.” Id. at 6. Accordingly, police officers who engage in such an
escort may not rely upon the protection of article 5.045.

         You suggest that, even so, “peace officers in defense of any claims [based on an escort of a
perpetrator ordered by a judge as a term of a protective order] could still reasonably rely upon the
defense of official immunity for state law claims and qualified immunity for any federal claims.”
Request Letter, supra note 1, at 2. The doctrine of official immunity under Texas law has been
described as follows: “When a government employee carries out the discretionary duties of his job
in good faith and acts within the scope ofhis authority, the employee is entitled to official immunity
from suit.” Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992) (Comyn, J., concurring).
Similarly, the United States Court of Appeals for the Fifth Circuit has written of the federal defense



         2See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M-187 (1968) at 3 (“[Tlhis office is without authority to make factual
determinations.“); O-291 1 (1940) at 2 (“[Tlhis   presents a fact question which we are unable to answer.“).
The Honorable Florence Shapiro       - Page 3      (X-0289)




of qualified immunity, “Qualified immunity cloaks a police          officer from personal liability for
discretionary acts which do not violate well-established law.”     Streetman v. Jordan, 918 F.2d 555,
556 (5th Cir. 1990) quoted in City ofLancaster v. Chambers,         883 S.W.2d 650, 654 (Tex. 1994).
Whether particular acts were taken in good faith is a question     of fact, and accordingly this office
cannot determine the applicability of these immunity doctrines      in any given instance.

          We note, however, that the act for which the defenses may be plead must be characterizable
 as discretionary.     “Ordinarily, official immunity extends to any action or decision by a [public]
 employee that is ‘discretionary.’ Discretionary functions receive protection, but ministerial duties
 do not.” Kassen v. Hatley, 887 S.W.2d 4,9 (Tex. 1994). “Under federal law, the act in question
must be discretionary as a prerequisite to an extension of qualified immunity.”              Chambers,
 883 S.W.2d at 654. A discretionary function “involves personal deliberation, decision and
judgment         ; actions which require obedience to orders, or the performance of a duty to which the
actor has no choice, are ministerial.” Id.

         One court of appeals has held that the execution of an arrest warrant, for instance, is a
ministerial act for which a deputy sheriff is not entitled to the defense of official immunity.
Copelandv. Boone, 866 S.W.2d 55,57 (Tex. App.-San Antonio 1993, writ dism’d w.0.j.); see also
City of San Antonio v. Duncan, 936 S.W.2d 63, 66 (Tex. App.-San Antonio 1996, writ dism’d
w.0.j.). On the other hand, another court of appeals has taken the view that the manner in which an
arrest warrant is executed may involve sufficient discretion on the officer’s part for the defense to
be available. See Davis v. Klevenhagen, 971 S.W.2d 111, 116-18 n.10 (Tex. App.-Houston              [14th
Dist.] 1998, no pet.) (distinguishing Copeland). “The distinction between these two categories is
often one of degree, since any official act that is ministerial will still require the actor to use some
discretion in its performance.” Id. at 117. Moreover, it would appear unlikely that the injury to be
plead in any tort action based upon such an escort would be the mere following by the officer of the
court’s directive. Rather, the injury would presumably be some allegedly negligent or intentionally
tortious act or omission by the officer that was somehow connected with the carrying out of the
order.

        To recapitulate, ifthe acts of a law enforcement officer complained of in a civil action cannot
be characterized as discretionary, the officer will not be entitled to the immunity defense. See
Kassen, 887 S.W.2d at 9. However, if such acts can be so characterized, and in addition were within
the scope of his authority and performed in good faith, he will be so entitled. See Travis, 830
S.W.2d at 102-03 (detailing elements of official immunity defense). We note again that judging
whether the defense is available in any particular instance would require factual determinations we
cannot make. See note 2, supra.
The Honorable Florence Shapiro     - Page 4      (JC-0289)




                                       SUMMARY

                        Neither the domestic violence protective order sections ofthe
               Family Code or of the Code of Criminal Procedure explicitly permit,
               or specifically prohibit, a judge to include in such an order a
               provision requiring a police officer to escort a perpetrator ofdomestic
               violence to the family home to retrieve personal property. Article
               5.045 of the Code of Criminal Procedure is not by its terms
               applicable in such a situation, and accordingly does not provide
               immunity from liability for a police officer providing such an escort.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVW
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
