                                                                                    ACCEPTED
                                                                                04-15-00120-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                            6/4/2015 2:39:35 PM
                                                                                 KEITH HOTTLE
                                                                                         CLERK

                         NO. 04-15-00120-CV
       ______________________________________________________
                                                             FILED IN
                 IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
                      OF THE STATE OF TEXAS
                                                   6/4/2015 2:39:35 PM
       ______________________________________________________
                                                         KEITH E. HOTTLE
                                                              Clerk
                UNIVERSITY OF THE INCARNATE WORD,
                                        Defendant – Appellant,

                                  V.

                      VALERIE REDUS, ET AL.,
                                          Plaintiffs – Appellees.
       ______________________________________________________

           APPEAL FROM 150TH JUDICIAL DISTRICT COURT
                     OF BEXAR COUNTY, TEXAS
       ______________________________________________________

         APPELLANT’S OPPOSED MOTION FOR LEAVE TO FILE
                     SUPPLEMENTAL BRIEF AND
         SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS
       ______________________________________________________


Laurence S. Kurth                   BEIRNE, MAYNARD & PARSONS, L.L.P.
State Bar No. 11768450              112 East Pecan Street, Suite 2750
                                    San Antonio, TX 78205
Matthew F. Wymer                    (210) 582-0220 - Telephone
State Bar No. 24005234              (210) 582-0231 – Facsimile
                                    E-mail – lkurth@bmpllp.com
                                    E-mail – mwymer@bmpllp.com

                                    Attorneys for Defendant/Appellant
                                    University of the Incarnate Word
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellant the University of the Incarnate Word (“UIW”)

and files this Motion for Leave to File Supplemental Brief and Supplemental

Response to Motion to Dismiss. In support thereof, UIW would show the Court

the following:

                            FACTS AND ARGUMENT

      On June 1, 2015, Texas Governor Greg Abbott signed into law changes to

the provisions of Education Code which are at issue in the instant case.

Specifically, effective September 1, 2015, Section 51.212 of the Education Code

will be amended to expressly state, “A Campus Police Department of a private

institution of higher education is a law enforcement agency and a

governmental body” for purposes of the Texas Public Information Act (Chapter

552 of the Government Code).          See Tex. S.B. 308, 84th Leg., R.S. (2015)

(emphasis added); see attachment to Supplement.

      The legislature further removed the caveat to campus police immunity that

their actions must be “consistent with the educational mission of the institution.”

See Tex. S.B. 308, 84th Leg., R.S. (2015); see attachment to Supplement.

      These changes have a direct impact on this case, and lend substantial support

to UIW’s position in the instant litigation.

      The supplemental briefing is six (6) pages long.



                                           1
      Accordingly, UIW respectfully moves the Court to Grant this Motion for

Leave and file the attached (Exhibit A) Supplemental Brief and Supplamental

Response to Motion to Dismiss.

      The undersigned conferred with opposing counsel on June 4, 2015, wherein

opposing counsel stated that he was OPPOSED to any supplemental briefing.

                                        PRAYER

      WHEREFORE, PREMISES CONSIDERED, for these reasons, UIW

respectfully moves the Honorable Court of Appeals to Grant this Motion for Leave

and allow the filing of the attached Supplemental Brief and Supplemental

Response to Motion to Dismiss, and further prays for such other legal and

equitable relief to which Appellant may be entitled.




                                         2
Respectfully submitted,

BEIRNE, MAYNARD & PARSONS, L.L.P.
The Weston Centre
112 East Pecan Street, Suite 2750
San Antonio, TX 78205
(210) 582-0220 - Telephone
(210) 582-0231 – Facsimile


By:   /s/ Matthew F. Wymer
      Laurence S. Kurth
      State Bar No. 11768450
      E-mail – lkurth@bmpllp.com
      Matthew F. Wymer
      State Bar No. 24005234
      E-mail – mwymer@bmpllp.com

ATTORNEYS FOR RELATOR THE
UNIVERSITY OF THE INCARNATE WORD




        3
                    CERTIFICATE OF CONFERENCE

      The undersigned conferred with opposing counsel on June 4, 2015, wherein

opposing counsel stated that he was OPPOSED to any supplemental briefing.



                                          /s/ Matthew F. Wymer
                                          Matthew F. Wymer

                                    Dated: June 4, 2015




                                      4
                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been
forwarded to the following counsel of record in accordance with the Texas Rules
of Civil Procedure this 4th day of June, 2015:

        Brent C. Perry
        Law Office of Brent C. Perry, PC
        800 Commerce Street
        Houston, Texas 77002
        brentperry@brentperrylaw.com

        Mason W. Herring
        Herring Law Firm
        4640 Banning Drive
        Houston, Texas 77027
        mherring@herringlawfirm.com

        Jorge Herrera
        Herrera Law Firm
        111 Soledad, Suite 1900
        San Antonio, Texas 78205
        jherrera@herreralaw.com

        Robert A. Valadez
        Javier T. Duran
        Shelton & Valadez
        600 Navarro Street, Suite 500
        San Antonio, Texas 78205
        rvaladez@shelton-valadez.com and jduran@shelton-valadez.com


                                               /s/ Matthew F. Wymer
                                               Matthew F. Wymer




2182610v.1 005538/107036
                                           5
EXHIBIT A
                         NO. 04-15-00120-CV
       ______________________________________________________

                 IN THE FOURTH COURT OF APPEALS
                      OF THE STATE OF TEXAS
       ______________________________________________________

                UNIVERSITY OF THE INCARNATE WORD,
                                        Defendant – Appellant,

                                  V.

                      VALERIE REDUS, ET AL.,
                                          Plaintiffs – Appellees.
       ______________________________________________________

           APPEAL FROM 150TH JUDICIAL DISTRICT COURT
                     OF BEXAR COUNTY, TEXAS
       ______________________________________________________

                APPELLANT’S SUPPLEMENTAL BRIEF
       AND SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS
       ______________________________________________________


Laurence S. Kurth                   BEIRNE, MAYNARD & PARSONS, L.L.P.
State Bar No. 11768450              112 East Pecan Street, Suite 2750
                                    San Antonio, TX 78205
Matthew F. Wymer                    (210) 582-0220 - Telephone
State Bar No. 24005234              (210) 582-0231 – Facsimile
                                    E-mail – lkurth@bmpllp.com
                                    E-mail – mwymer@bmpllp.com

                                    Attorneys for Defendant/Appellant
                                    University of the Incarnate Word



                     ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................... ii

SUPPLEMENTAL ARGUMENT .............................................................................2

         A.        The Education Code now expressly states, “A Campus Police Department
                   of a private institution of higher education is a law enforcement agency
                   and a governmental body” for purposes of the TPIA; the legislature
                   removed the caveat to campus police immunity that their actions must be
                   “consistent with the educational mission of the institution.”.................2

PRAYER ....................................................................................................................6

CERTIFICATE OF SERVICE ..................................................................................8




                                                             i
                                    INDEX OF AUTHORITIES

CASES

LTTS Charter Sch., Inc. v. C2 Constr., Inc.,
  342 S.W.3d 73, 78 (Tex. 2011) ..........................................................................4, 5



STATUTES

TEX. CIV. PRAC. & REM. CODE § 101.001-.109..........................................................6

TEX. CRIM. PROC. CODE ART. 2.13(A) ........................................................................3

TEX. CRIM. PROC. CODE ART. 14.03 ...........................................................................3

TEX. EDUC. CODE § 51.212 ........................................................................................2

TEX. GOV’T CODE § 552.002......................................................................................4

TEX. GOV’T CODE § 552.108......................................................................................4

TEX. S.B. 308, 84TH LEG., R.S. (2015)...................................................................... 3

TORT CLAIMS ACT SECTION 101.001(3)(D)................................................................4




                                                        ii
                          NO. 04-15-00120-CV
        ______________________________________________________

                  IN THE FOURTH COURT OF APPEALS
                       OF THE STATE OF TEXAS
        ______________________________________________________

                   UNIVERSITY OF THE INCARNATE WORD,
                                           Defendant – Appellant,

                                          V.

                       VALERIE REDUS, ET AL.,
                                           Plaintiffs – Appellees.
        ______________________________________________________

            APPEAL FROM 150TH JUDICIAL DISTRICT COURT
                      OF BEXAR COUNTY, TEXAS
        ______________________________________________________

                 APPELLANT’S SUPPLEMENTAL BRIEF
        AND SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS
        ______________________________________________________


TO THE HONORABLE COURT OF APPEALS:

      Appellant, University of the Incarnate Word (“UIW”), Defendant in the

underlying cause of action, respectfully files this supplemental briefing to advise the

Court of a change in Texas law that is highly relevant to Appellant’s Interlocutory

Appeal and the Motion to Dismiss filed by Appellee. In support thereof, UIW would

show this Court:




                                          1
                         SUPPLEMENTAL ARGUMENT

A.    The Education Code now expressly states, “A Campus Police Department
      of a private institution of higher education is a law enforcement agency and
      a governmental body” for purposes of the TPIA; the legislature removed
      the caveat to campus police immunity that their actions must be “consistent
      with the educational mission of the institution.”

      On June 1, 2015, Texas Governor Greg Abbott signed into law changes to the

provisions of Education Code which are at issue in the instant case. Specifically,

effective September 1, 2015, Section 51.212 of the Education Code will be amended as

follows:

            (b)    Any officer commissioned under the provisions of this
                   section is vested with all the powers, privileges, and
                   immunities of peace officers if the officer:
                   (1)    is on the property under the control and jurisdiction
                          of the respective private institution of higher
                          education or is otherwise performing duties assigned
                          to the officer by the institution, regardless of whether
                          the officer is on property under the control and
                          jurisdiction of the institution, but provided these
                          duties are consistent with the educational mission
                          of the institution and are being performed within a
                          county in which the institution has land; or
                   (2)    to the extent authorized by Section 51.2125, is:
                          (A)   requested by another law enforcement agency
                                to provide assistance in enforcing state or local
                                law, including a municipal ordinance, and is
                                acting in response to that request; or
                          (B)   otherwise assisting another law enforcement
                                agency in enforcing a law described by
                                Paragraph (A).



                                          2
               [(F) A CAMPUS POLICE DEPARTMENT OF A PRIVATE
                    INSTITUTION OF HIGHER EDUCATION IS A LAW
                    ENFORCEMENT       AGENCY      AND      A
                    GOVERNMENTAL BODY FOR PURPOSES OF
                    CHAPTER 552, GOVERNMENT CODE, ONLY WITH
                    RESPECT TO INFORMATION RELATING SOLELY
                    TO LAW ENFORCEMENT ACTIVITIES.]

See attached Tex. S.B. 308, 84th Leg., R.S. (2015) (emphasis added).

         While it is instructive that the Legislature removed the requirement to the private

univerity Peace Officer’s immunity that their duties be “consistent with the educational

mission of the institution,” this provision raises no issues in this case because Cpl.

Carter, a licensed and commissioned Texas Peace Officer at the time of the incident

that is the basis of this suit observed a highly intoxicated Redus operating a motor

vehicle on a public road between UIW campus buildings. It is well briefed in UIW’s

filings before this Court that Carter acted within his authority and obligations under

Texas law. See TEX. CRIM. PROC. CODE ART. 2.13(a); TEX. CRIM. PROC. CODE ART.

14.03.

         Chapter 552 of the Government Code is the Texas Public Information Act

(“TPIA”).       The statute clearly establishes the UIW Police Department as a

“Governmental Body” relating to its law enforcement activities:

               In this chapter, “public information” means information that is
               written, produced, collected, assembled, or maintained under a law
               or ordinance or in connection with the transaction of official
               business:



                                              3
                    (1)   by a governmental body;

                    (2)   for a governmental body and the governmental body:

                          (A)    owns the information;
                          (B)    has a right of access to the information; or
                          (C)    spends or contributes public money for the
                                 purpose of writing, producing, collecting,
                                 assembling, or maintaining the information; or

                    (3)   by an individual officer or employee of a
                          governmental body in the officer’s or employee’s
                          official capacity and the information pertains to
                          official business of the governmental body.

TEX. GOV’T CODE § 552.002(emphasis added).

      The added Section F to Section 51.212 of the Education Code is highly

germaine to the instant case. The Texas Supreme Court in LTTS Charter Sch., Inc. v.

C2 Constr., Inc., 342 S.W.3d 73, 78 (Tex. 2011) expressly relied on similar provisions

in the Education Code which applied to private open-enrollment charter schools to find

they were a “governmental unit” as defined in Section 101.001(3)(D) of the Tort

Claims Act:

              Chapter 12 further subjects open-enrollment charter schools to a
              host of statutes that govern governmental entities outside the
              Education Code …. for purposes of the Government Code’s
              and Local Government Code’s regulation of government
              records, “an open-enrollment charter school is considered to
              be a local government” and its records “are government
              records for all purposes under state law.”37 And lastly, under
              Section 12.1053, as noted above, an open-enrollment charter
              school is considered to be: (1) a “governmental entity” for
              purposes of Government Code and Local Government Code


                                          4
             provisions relating to property held in trust and competitive
             bidding; (2) a “political [12] subdivision” for purposes of
             Government Code provisions on procurement of professional
             services; and (3) a “local government” for purposes of
             Government Code provisions on authorized investments.38

             In sum, numerous provisions of Texas law confer “status” upon
             and grant “authority” to open-enrollment charter schools. Their
             status as “part of the public school system of this state”39 —and
             their authority to wield “the powers granted to [traditional public]
             schools”40 and to receive and spend state tax dollars41 (and in many
             ways to function as a governmental entity42 )—derive wholly from
             the comprehensive statutory regime described above. With this
             legislative backdrop in mind, we are confident that the Legislature
             considers Universal Academy to be an “institution, agency, or
             organ of government” under the Tort Claims Act43 and thus
             entitled to take an interlocutory appeal here.44

LTTS Charter Sch., Inc., 342 S.W.3d at 78(emphasis added).

      As a “law enforcement agency” under the TPIA, the UIW Police Department

will be “excepted” from disclosure of certain documents under specific circumstances,

including, but not limited to instances where the “release of the information would

interfere with the detection, investigation, or prosecution of crime.” TEX. GOV’T CODE

§ 552.108.

      UIW’s Police Department is a “law enforcement agency” which is part of the

law enforcement network of the State of Texas, with the same authority, obligations,

duties, responsibilities and immunities as any other law enforcement agency or police

department in the State. Accordingly, the Legislature has now clarified this issue and

expressly stated campus police departments like the UIW Police Department are a “law


                                           5
enforcement agency and a governmental body,” and therefore, this Court should find

UIW is a “Governmental Unit” under the Texas Tort Claims Act, entitled to

governmental immunity.       See TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109

(“‘Governmental unit’ means … any other institution, agency, or organ of government

the status and authority of which are derived from … laws passed by the legislature

under the constitution.”).

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant UIW respectfully asks

the Court to Grant its Plea to the Jurisdiction and Motion to Dismiss, and dismiss all

claims and causes of action pleaded by Plaintiffs against UIW and Cpl. Carter and for

such other legal and equitable relief to which Appellant may be entitled.




                                          6
Respectfully submitted,

BEIRNE, MAYNARD & PARSONS, L.L.P.
The Weston Centre
112 East Pecan Street, Suite 2750
San Antonio, TX 78205
(210) 582-0220 - Telephone
210) 582-0231 – Facsimile


By:   /s/ Laurence S. Kurth
      Laurence S. Kurth
      State Bar No. 11768450
      E-mail – lkurth@bmpllp.com
      Matthew F. Wymer
      State Bar No. 24005234
      E-mail – mwymer@bmpllp.com

ATTORNEYS FOR DEFENDANT THE
UNIVERSITY OF THE INCARNATE WORD




        7
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been forwarded
to the following counsel of record in accordance with the Texas Rules of Civil
Procedure this 4th day of June, 2015:

      Brent C. Perry
      Law Office of Brent C. Perry, PC
      800 Commerce Street
      Houston, TX 77002
      brentperry@brentperrylaw.com

      Mason W. Herring
      Herring Law Firm
      4640 Banning Drive
      Houston, TX 77027
      mherring@herringlawfirm.com

      Jorge Herrera
      Herrera Law Firm
      111 Soledad, Suite 1900
      San Antonio, TX 78205
      jherrera@herreralaw.com

      Robert A. Valadez
      Javier T. Duran
      Shelton & Valadez
      600 Navarro Street, Suite 500
      San Antonio, TX 78205
      rvaladez@shelton-valadez.com
      jduran@shelton-valadez.com


                                              /s/ Laurence S. Kurth
                                              Laurence S. Kurth




                                          8
TEX. S.B. 308, 84TH LEG., R.S. (2015)




                  9
                             2015 Bill Text TX S.B. 308
                                  Enacted, June 1, 2015

Reporter
2015 Bill Text TX S.B. 308

Notice

Added: Text highlighted in green
Deleted: Red text with a strikethrough

THE STATE OF TEXAS BILL TEXT > TEXAS 84TH LEGISLATURE > SENATE BILL
308

Synopsis
AN ACT
relating to the powers and duties of campus police departments at private institutions of
higher education.

Text
  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  SECTION 1. Section 51.212, Education Code, is amended by amending Subsection
    (b) and adding Subsection (f) to read as follows:
       (b) Any officer commissioned under the provisions of this section is vested with all
           the powers, privileges, and immunities of peace officers if the officer:
          (1) is on the property under the control and jurisdiction of the respective
              private institution of higher education or is otherwise performing duties
              assigned to the officer by the institution, regardless of whether the officer is
              on property under the control and jurisdiction of the institution, but provided
              these duties are consistent with the educational mission of the institution
              and are being performed within a county in which the institution has land; or
          (2) to the extent authorized by Section 51.2125, is:
              (A) requested by another law enforcement agency to provide assistance in
                 enforcing state or local law, including a municipal ordinance, and is
                 acting in response to that request; or
              (B) otherwise assisting another law enforcement agency in enforcing a law
                 described by Paragraph (A).
              (F) A CAMPUS POLICE DEPARTMENT OF A PRIVATE INSTITUTION
                 OF HIGHER EDUCATION IS A LAW ENFORCEMENT AGENCY AND
                                                                   Page 2 of 2
                                      2015 Bill Text TX S.B. 308


                  A GOVERNMENTAL BODY FOR PURPOSES OF CHAPTER 552,
                  GOVERNMENT CODE, ONLY WITH RESPECT TO INFORMATION
                  RELATING SOLELY TO LAW ENFORCEMENT ACTIVITIES.
  SECTION 2. This Act takes effect September 1, 2015.

History

S.B. NO. 308

Sponsor(s)

Whitmire

Classification

Subject: COLLEGES & UNIVERSITIES (92%); SCHOOL SAFETY & SECURITY (92%);
POLICE FORCES (92%); LEGISLATORS (92%); LAW ENFORCEMENT (91%);
EDUCATION SYSTEMS & INSTITUTIONS (90%); LEGISLATION (78%);
ORDINANCES (73%)

Load-Date: June 3, 2015
THE STATE OF TEXAS BILL TEXT
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