                              REVISED
                   United States Court of Appeals,

                           Fifth Circuit.

                            No. 94-60449.

  Jose GRACIA, et al., Plaintiffs-Appellants, Cross-Appellees,

                                 and

 Healthsouth Rehabilitation Center, Intervenor-Appellant, Cross-
Appellee,

                                 v.

       BROWNSVILLE HOUSING, et al., Defendants-Appellees,
Cross-Appellants.

                           Feb. 14, 1997.

Appeal from the United States District Court for the Southern
District of Texas.

Before KING, JOLLY and DENNIS, Circuit Judges.

     PER CURIAM:

     This appeal arises from a terrible accident.    In the summer of

1988, the Jose Gracia family was visiting Ezequiel Gracia, a

relative, who was a resident of the Victoria Gardens Housing

Project, a public housing project in Brownsville, Texas.      During
the visit, four children were playing in Mr. Gracia's hammock,

which was strung between two trees near his apartment.    One of the

trees, a decayed avocado tree over twenty feet high, collapsed and

fell on the children.   One of Jose Gracia's children was killed and

another suffered paralysis and permanent brain damage.     This case

presents the primary question, as it relates to jury instructions,

whether the Brownsville Housing Authority ("BHA") was covered under


                                  1
the Texas Tort Claims Act at the time of the accident.                     The answer

to this question determines the standard of care the BHA owed to

the Gracia children.

                                               I

       Jose Gracia ("Gracia") initially filed this action in state

court seeking damages under Texas landlord/tenant principles.                       The

case was removed to federal court when Gracia added a claim under

42 U.S.C. § 1983.            Gracia named the following defendants:          the BHA;

the City of Brownsville1;                Raul Trevino ("Trevino"), individually

and as Executive Director of the BHA;                     and Genovevo Rubalcaba

("Rubalcaba"), individually and as Superintendent of Maintenance of

the BHA.

       The BHA moved for summary judgment but the district court

denied the motion.             The case then went to trial and was submitted

to    the       jury   on    special     interrogatories.     The   jury    found    no

liability.         The court then granted a directed verdict in favor of

the    individual           defendants    in   their   individual   capacities      and

entered judgment dismissing the complaint.                  Gracia's motion for a

new trial was denied.

       On appeal, Gracia argues first, that, with respect to the

state law claims, the jury charge did not state the correct

standard of care;             second that, with respect to the section 1983

claim, the jury instructions incorrectly conditioned consideration

of the claim upon a finding of state law negligence;                 and, finally,


            1
       The City of Brownsville settled prior to trial and was
dismissed from this action.

                                               2
that, with respect to the individual defendants, the directed

verdict    was    error.      The       BHA    filed     a    cross-notice     of    appeal

asserting that the district judge erred in denying the BHA summary

judgment on Gracia's section 1983 claim.                       These appeals are now

before the court.

                                              II

                                              A

          The    initial    point       we     address        is     whether   the    first

interrogatory submitted to the jury correctly stated the applicable

standard    of    care     owed    by    the       BHA   to    the    Gracia   children.2

Specifically, we ask:             Did the defendants' duty of care to the

visiting Gracias arise only if the defendants had actual knowledge

of the danger posed by the tree or did the duty of care arise if

the defendants had constructive knowledge of the danger, i.e., if

the defendants, by the exercise of reasonable care, should have

known of the danger.         The district court instructed the jury that

the   defendants     must     have      possessed        actual       knowledge      of   the

dangerous tree in order to be held liable.                         Whether the district


      2
       The first interrogatory read:

                 Do you find from a preponderance of the evidence
            that any of the named Defendants were negligent?

                 You are instructed that any of the individuals named
            were negligent if:

            A) The tree posed an unreasonable risk of harm;                          and

            B) The Defendants knew of the danger;                       and

            C) The Defendants failed to exercise ordinary care to
            eliminate the danger.

                                              3
court erred in its actual knowledge instruction depends upon

whether the Texas Tort Claims Act applied to the BHA at the time of

the accident.3

         The plaintiffs argue that the BHA, at the time of this


     3
      The Texas Tort Claims Act provides:

                 § 101.022. Duty Owed:   Premise and Special Defects

                 a) If a claim arises from a premise defect, the
                 governmental unit owes to the claimant only the
                 duty that a private person owes to a licensee on
                 private property, unless the claimant pays for the
                 use of the premises.

     Tex. Civ. Prac. & Rem.Code Ann. § 101.022 (West 1986).       A
     private person owes a licensee only the duty to refrain from
     "injur[ing] a licensee by willful, wanton or grossly negligent
     conduct, and [to] use ordinary care either to warn a licensee
     of, or to make reasonably safe, a dangerous condition of which
     the owner is aware and the licensee is not." See State Dep't
     of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237
     (Tex.1992) (emphasis added).

          If the Act does not apply, the BHA stands in the shoes of
     a private litigant. The standard of care for private persons
     in the landlord/tenant context is stated in Parker v. Highland
     Park, Inc., 565 S.W.2d 512, 515 (Tex.1978). In Parker, the
     court held that a landlord owed the following duty with
     respect to areas of leased premises that lessees were entitled
     to use even though they remained in the landlord's control:

                 A possessor of land who leases a part thereof and
                 retains in his own control any other part which the
                 lessee is entitled to use as appurtenant to the
                 part leased to him, is subject to liability to his
                 lessee and others lawfully upon the land with the
                 consent of the lessee or a sublessee for physical
                 harm caused by a dangerous condition upon that part
                 of the land retained in the lessor's control, if
                 the lessor by the exercise of reasonable care could
                 have discovered the condition and the unreasonable
                 risk involved therein and could have made the
                 condition safe.

     Parker, 565 S.W.2d at 515 (quoting Restatement (Second) of
     Torts § 360) (emphasis added).

                                  4
accident, did not come within the scope of the Texas Tort Claims

Act because the BHA was not a unit of government under the terms of

the statute;   instead, the BHA was only a subdivision of the city,

and it performed only a proprietary—not a governmental—function.4

We do not agree.5

     We first turn to examine the applicable law at the time the

accident occurred in the summer of 1988.     Under the Texas Tort

Claims Act, then and now, an "institution, agency, or organ of

government the status and authority of which [is] derived from the

Constitution of Texas or from laws passed by the legislature under

the constitution" is considered a unit of government.     Tex. Civ.

Prac. & Rem.Code Ann. § 101.001(2)(D) (West 1986).      The statute

creating housing authorities reads, in relevant part,

     (a) A housing authority is created in each municipality in the
     state.


     4
      Under the Texas Tort Claims Act, a city is protected by the
statute only with respect to the performance of governmental
functions, not the performance of proprietary functions. Tex. Civ.
Prac. & Rem.Code Ann. § 101.0215(a) (West 1996).
     5
       Under current Texas law, there is no question but that the
BHA is covered under the Texas Tort Claims Act. In August 1989, a
statute was enacted specifically providing that "[f]or all
purposes, including the application of the Texas Tort Claims Act
..., a housing authority is a unit of government and the functions
of a housing authority are essential governmental functions and not
proprietary functions." Tex. Local Gov't Code Ann. § 392.006 (West
Supp.1997).    Gracia argues that this statute is inapplicable
because this cause of action accrued prior to its effective date.
The BHA counters that the statute is merely a codification of
preexisting law and that the BHA has always been a unit of
government   for   purposes   of  the   Texas  Tort   Claims   Act.
Alternatively, the BHA argues that the statute applies to all
actions filed after its effective date and, therefore, applies to
this action. We find it unnecessary to address the applicability
of this statute to the present action.

                                 5
     (b) A municipal housing authority is a public body corporate
     and politic.

     (c) A municipal housing authority may not transact business or
     exercise its powers until the governing body of the
     municipality declares by resolution that there is a need for
     the authority.

Tex. Local Gov't Code Ann. § 392.011 (West 1988).6                  Thus, a housing

authority     is   created    by    the   Texas       legislature    as   an    entity

independent of the city and thereafter, the respective city, also

through   a   legislative     grant       of   power,      activates    the    housing

authority.         Applying   this      statute       to   the   definition      of    a

governmental unit in the Act, it seems quite clear that the BHA is

an agency that derives its status and authority from an act of the

Texas legislature.       It is true, of course, that this status and

authority lies dormant until the city acts.                 This power of the city

that activates the housing authority, however, derives from a grant

from the legislature.         Thus, in every sense, it can be said that

all status and authority enjoyed by the housing authority is

derived from the Texas legislature.                   Consequently, the BHA is

covered under the Act.

     Indeed, this appeal presents a case that is closely analogous

to Huckabay v. Irving Hosp. Auth., 879 S.W.2d 64 (Tex.App.1993).

There, the court held that the hospital authority was a unit of

government    for    purposes      of   the    Tort    Claims    Act,   because       the

authority fell within the definition of "governmental unit" under

the Act. Id. at 66. See also Edinburg Hospital Authority v.

     6
      This statute was enacted as Acts 1987, 70th Leg. Ch. 149, §
1 and took effect on September 1, 1987. Thus, the statute was in
effect at the time of the accident at issue.

                                           6
Trevino, No. 95-0939, 1997 Westlaw 47912 (Tex. 1997). Specifically,

the court found that the City of Irving had created the Authority

pursuant    to   a   statute   authorizing   such   entities    and   that,

therefore, the Authority was an "institution, agency or organ of

government the status and authority of which [was] derived from the

constitution of Texas or from laws passed by the legislature under

the constitution."      Id. The BHA occupies a position which, in its

essence, is the same as the Hospital Authority in Huckabay.

       It therefore seems indisputable that the BHA falls within the

express terms of the Texas Tort Claims Act. Because we conclude

that the BHA is entitled to the protection of the Texas Tort Claims

Act, we find that the jury interrogatory correctly stated the

standard of care owed by the BHA to the visiting Gracias.

                                     B

       As we have noted, the case was submitted to the jury on

special interrogatories. The first interrogatory, discussed above,

asked the jury whether any of the defendants were negligent.            The

jury   instructions    then    conditioned   consideration     of   Gracia's

section 1983 claim upon a finding of negligence. Specifically, the

jury was instructed not to consider or answer any additional

interrogatories unless the first interrogatory on negligence was

answered in the affirmative.

       Gracia contends that the interrogatory conditioning the jury's

consideration of the section 1983 federal claim upon a finding of

negligence under state law was erroneous.       We will assume, without

deciding, that the instruction was erroneous.           We nevertheless


                                     7
conclude that, because Gracia failed to establish a prima facie

case under section 1983, any error was harmless under Federal Rule

of Civil Procedure 61.7

         Gracia's section 1983 claim, in its essence, alleges that the

defendants deprived his children of a right under federal law to

have the housing project maintained in a safe condition.                  We reject

this basis as being insufficient to state a claim under section

1983.      Indeed,    we    find   that   the    Fair   Housing     Act    and   its

implementing regulations, relied upon by Gracia, do not confer on

the visiting Gracia children any enforceable rights.

         We first look to the relevant portion of section 1983, which

provides:

     Every person who, under color of any statute, ordinance,
     regulation, custom, or usage, of any State or Territory or the
     District of Columbia, subjects or causes to be subjected, any
     citizen of the United States ... to the deprivation of any
     rights ... secured by the Constitution and laws shall be
     liable to the party injured in an action at law....

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555

(1980), the Court recognized that section 1983 provided a cause of

action to redress violations of federal statutes and not solely

violations     of   the    Constitution.        No   cause   of   action   exists,


     7
        Federal Rule of Civil Procedure 61 reads,

             No error ... or defect ... in anything done or omitted by
             the court ... is ground for granting a new trial or for
             setting aside a verdict or for vacating, modifying, or
             otherwise disturbing a judgment or order, unless refusal
             to take such action appears to the court inconsistent
             with substantial justice. The court at every stage of
             the proceeding must disregard any error or defect in the
             proceeding which does not affect the substantial rights
             of the parties.

                                          8
however,   "where   the   statute   in   question   does   not   "create

enforceable rights, privileges, or immunities within the meaning of

section 1983.' "    Suter v. Artist M., 503 U.S. 347, 365, 112 S.Ct.

1360, 1371, 118 L.Ed.2d 1 (1992) (quoting Wright v. Roanoke Redev.

& Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d

781 (1987)).

     Gracia alleged a right, or rights, derived from federal

regulations enacted pursuant to the Fair Housing Act. Gracia's

argument is defective in several respects.

     First, it is not clear that regulations can be considered

"laws" for purposes of creating a right actionable under section

1983.   See, e.g., Wright v. Roanoke Redevelopment and Housing

Auth., 479 U.S. 418, 437-39, 107 S.Ct. 766, 778, 93 L.Ed.2d 781

(1987) (O'Connor, J., dissenting).

     Second, even if regulations may create actionable rights,

there is no evidence that any of the cited regulations have been

violated by the BHA or its employees.      Gracia specifically relies

upon 24 C.F.R. § 966.4. This regulation, however, only requires

that certain provisions be contained in leases entered into under

the Act. See 24 C.F.R. § 966.4 (stating "[a] lease shall be entered

into between the [public housing agency] and each tenant ... which

shall contain the provisions described hereinafter").       Although it

is true that the regulation requires that a provision be included

in the lease requiring the housing agency to maintain common areas

in a safe condition, there is no evidence that the BHA failed to

include the provision in the subject lease.          See 24 C.F.R. §


                                    9
966.4(e)(4).       In fact, the lease between Ezequiel Gracia and the

BHA contained a provision that stated,

     [t]he authority agrees to keep the building facilities, common
     areas and grounds not otherwise assigned to the Tenant for
     maintenance and upkeep, in a clean and safe condition and to
     make necessary repairs to the premises.

It appears that the failure to comply with this term of the lease

may give rise to a breach of contract action in favor of Ezequiel

Gracia.       This provision, however, does not give rise to a section

1983 action in favor of persons who are not even parties to the

lease.

     This point brings us to a third problem with Gracia's claim

under the regulations:       His children are not within the scope of

the regulations that allegedly create the federal right upon which

he relies.      The Gracia children were not residents of the housing

project and so the obligations of the BHA do not run to them.

Gracia attempts to rely upon 24 C.F.R. § 966.4(d)8 to support his

claim, but that provision only requires that, with respect to use

and occupancy rights, the lease recognize the tenant's right to

make "reasonable accommodations" for his guests and does not confer

any enforceable rights upon the Gracia children.

     In sum, we conclude that Gracia failed to state a prima facie

          8
        This regulation is titled "Tenant's right to use and
occupancy" and reads, in relevant part:

              The lease shall provide that the tenant shall have the
              right to exclusive use and occupancy of the leased unit
              by the members of the household authorized to reside in
              the unit in accordance with the lease, including
              reasonable accommodation of their guests.

     24 C.F.R. 966.4(d)(1).

                                    10
case under section 1983 because he failed to demonstrate that any

act or failure to act by the BHA deprived his children of any

rights to which they were entitled under federal law.           Thus, any

error that occurred as a result of the trial court's structuring of

the jury interrogatories on the section 1983 claim was harmless.

                                    III

     In conclusion, we hold that the jury was properly instructed

with respect to Gracia's state law negligence claim because the

Texas Tort Claims Act encompasses the BHA and, thus, the applicable

standard   of    care   was   set   out   in   the   jury   interrogatory.

Additionally, we conclude that any error in connection with the

instructions regarding Gracia's section 1983 claim was harmless

because Gracia failed to state a viable claim under the section.9

The judgment of the district court is therefore

     AFFIRMED.

     DENNIS, Circuit Judge, concurring:

     While I concur in the result reached by the majority, I am

troubled by the disposition of the § 1983 claim against the

authority in Section II(B) of the majority opinion.           In Wright v.

City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418,

107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the Supreme Court held that


      9
       Our holdings as to the first two issues on appeal moot
Gracia's third point of error—that the trial judge erred in
granting directed verdicts in favor of the individual defendants in
their individual capacities. Gracia failed to state a claim under
section 1983, thus, there could be no individual liability as to
that claim. The state law claims were premises liability claims,
and because neither Trevino nor Rubalcaba were possessors of the
property they owed no individual duty to the Gracia children.

                                     11
tenants living in low-income housing projects owned by a public

housing     authority,   who    alleged       that   the   housing      authority

overbilled them for their utilities and thereby violated a rent

ceiling imposed by the Brooke Amendment to the Housing Act of 1937

(42 U.S.C. § 1437(a)) and the implementing regulations of the

federal Department of Housing and Urban Development (HUD), have a

private cause of action under 42 U.S.C. § 1983.             The Court stated:

"In our view, the benefits Congress intended to confer on tenants

are sufficiently specific and definite to qualify as enforceable

rights    under   Pennhurst    and   §    1983,   rights   that   are    not,   as

respondent suggests, beyond the competence of the judiciary to

enforce."    Id. at 432, 107 S.Ct. at 774-75 (footnote omitted).

     I understand that we are dealing here with a different section

of the Housing Act of 1937 and a different implementing regulation,

but the Wright majority held, however, that nothing in the Housing

Act or the Brooke Amendment evidences that Congress intended to

preclude the tenants' § 1983 claims against the authority, and that

the provision in the HUD regulations for a "reasonable" allowance

for utilities was sufficiently specific and definite to qualify as

enforceable rights under Pennhurst and § 1983.             I am uncomfortable

in relying partially on the Wright dissent, as the majority opinion

does, in a case under the same Act and in not closely following or

applying by analogy the Wright majority's analysis to the Act's

provisions and the HUD regulation at issue in our case.                 I realize

that the Supreme Court now follows a different approach and does

not easily recognize implied private causes of action under federal


                                         12
statutes, but I do not believe we should apply the new approach to

a provision of the Housing Act and a regulation thereunder in view

of Wright.

     Instead, we should hold simply that the Gracias failed to

establish a prima facie case under § 1983 because under Canton v.

Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), and

Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978), no reasonable juror could have

found that the housing authority's policy makers were "deliberately

indifferent" to the safety needs of the tenants with respect to the

condition    of trees on the premises.         In light of the above

observations, the judgments in favor of Trevino and Rubalcaba

should be affirmed on the basis of the Texas Tort Claims Act §

101.106,    lack   of   personal   participation,   and   their   qualified

immunity.




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