
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00302-CV



Bill L. Burkett, Appellant

v.


William W. Goodwin, Jackie L. Taliaferro and Archie M. Meador, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. GN000159, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING 





	Bill Burkett, a retired Lieutenant Colonel in the Texas Army National Guard, brought
a personal injury action against appellees, William Goodwin, Jackie Taliaferro, and Archie Meador,
all of whom were his superior officers. (1)  Burkett appeals from the trial court's order dismissing his
lawsuit.  While Burkett sets out his appellate issue as "whether the court below erred in granting
summary judgment to the defendants-appellees," he raises the following contention in the argument
portion of his brief: Because he commenced his claims against the appellees in their individual
capacities only, (1) his claims were justiciable in a civilian court and (2) the appellees were not
entitled to statutory immunity under Texas Government Code section 431.085; therefore, the court
erred in dismissing his lawsuit.  See Tex. Gov't Code Ann. § 431.085(a) (West 1998).  We will
liberally construe Burkett's brief and will focus our review on this contention.  See Tex. R. App. P.
38.9.  We will affirm the trial court's order of dismissal.

Background

	Burkett alleged that on January 17, 1998, he collapsed at the Abilene airport on his
return home from an active duty assignment in Panama with the United States Army.  He alleged that
his collapse was caused by a tropical disease he contracted while on active duty in Panama.  After
several days of illness, Burkett went to Dyess Air Force Base in Abilene seeking medical care.
Individuals at the medical facility's admissions office told Burkett that they needed clearance or
confirmation of Burkett's active duty status from the Texas Army National Guard before he could
be admitted for medical care.  Burkett alleged that pursuant to Texas Army National Guard
regulation 7-3, had any of the appellees, who were in command positions with the Texas Army
National Guard, provided the admissions office at Dyess with clearance or confirmation, he could
have received prompt medical attention at Dyess.  He asserted that based on Guard regulations, it
was Goodwin's, Taliaferro's and Meador's ministerial duty to provide clearance or confirmation of
his active duty status to Dyess and that they were without discretion or authority to refuse to provide
the clearance or confirmation of his status to Dyess.  
	Burkett alleged that over the next four months Goodwin, Taliaferro and Meador
willfully and maliciously refused to provide Dyess with clearance or confirmation of his duty status
thereby denying him access to military medical care.  Burkett alleged that these three individuals'
conduct was "so completely beyond and outside any military authority or discretion as to have been
outside the scope of military duty, outside any military duty, outside any military capacity, and not
incident to military duty."  Burkett alleged that they "acted purely as individuals, not as military
officers, albeit pretending to have military authority and abusing their offices through such pretense
in order to willfully and maliciously wreak havoc upon [Burkett's] life."  As a result of their refusal
to provide clearance and confirmation of Burkett's active duty status, he was unable to obtain a
medical diagnosis or military medical care for his debilitating illness.  Burkett finally received access
to military health care due to the intervention of a United States Congressman.  By the time he
received military health care, the disease had ravaged his body, and left him disabled and unable to
return to either military duty or gainful civilian employment.  Burkett alleged that as a direct and
proximate result of Goodwin's, Taliaferro's and Meador's tortious conduct, he suffered various
personal injuries.  Further, he alleged that because their actions were willful and malicious, he was
entitled to exemplary damages.  
	Goodwin, Taliaferro and Meador moved to dismiss the case for want of jurisdiction
and moved for summary judgment.  They contended that the trial court was without subject matter
jurisdiction over the case because the military personnel matter at issue was not justiciable in civilian
courts.  See Feres v. United States, 340 U.S. 135, 146 (1950); Newth v. Adjutant Gen.'s Dep't, 883
S.W.2d 356, 358 (Tex. App.--Austin 1994, writ denied).  Additionally, they moved for summary
judgment on the grounds that they were statutorily immune for their alleged actions.  Tex. Gov't
Code Ann. § 431.085 (West 1998).  Burkett responded to the appellees' motions contending that
indeed the court had subject matter jurisdiction because he was suing Goodwin, Taliaferro and
Meador in their individual capacities and not as military personnel.  Burkett contended that due to
the appellees' intentional failure to discharge a mandatory, non-discretionary duty under Texas Army
National Guard regulation procedure 7-3 to confirm Burkett's duty status to the medical facility at
Dyess, he suffered damages for which he could recover at common law.  The trial court dismissed
Burkett's case.  

Discussion

	We first address whether the trial court erred in dismissing Burkett's case on the
ground that his claims were not justiciable in a civilian court.  

Standard of Review
	In examining whether a dismissal for want of jurisdiction is appropriate, we "construe
the pleadings in favor of the plaintiff and look to the pleader's intent."  See Texas Ass'n of Bus. v.
Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  We are obliged to take as true the
allegations in Burkett's petition and construe them favorably to his position.  See id.  We must
reverse the dismissal unless the petition affirmatively demonstrates that no cause of action exists or
that the plaintiff's recovery is barred.  See Dorchester Master Ltd. P'ship v. Dorchester, 914 S.W.2d
696, 703 (Tex. App.--Corpus Christi 1996, writ granted w.r.m.); Ramirez v. Lyford Consol. I. S. D.,
900 S.W.2d 902, 906 (Tex. App.--Corpus Christi 1995, no writ).  A court is without jurisdiction
only when the court can determine from the allegations of a pleading that, even by amendment, no
cause of action can be stated consistent with the facts alleged.  Ramirez, 900 S.W.2d at 906 (citing
Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960)).  

Justiciability of National Guard Disputes
	Burkett's petition alleged that the appellees failed to abide by National Guard
regulations, that is, they failed to confirm Burkett's duty status to the Dyess military medical facility,
and, as a result, Burkett suffered damages.  Burkett alleged that despite the fact that at all times
appellees were National Guard officers and the act about which he complains is governed solely by
National Guard regulations, the appellees' alleged actions or failure to act regarding particular
regulations took them outside their status as National Guard officers making appellees subject to the
jurisdiction of civilian courts.  We disagree.
	Because National Guard members serve in a branch of the federal military service,
decisions regarding the regular military service are relevant in determining the proper scope of
judicial inquiry into claims brought by Guard members.  Holdiness v. Stroud, 808 F.2d 417, 422 (5th
Cir. 1987).  We are mindful of the well-established principle announced in Feres v. United States,
that claims brought by military personnel for injuries arising from or in the course of activity incident
to military service are nonjusticiable. 340 U.S. at 136; see also United States v. Stanley, 483 U.S.
669, 683-84 (1987); Chappell v. Wallace, 462 U.S. 296, 305 (1983); Holdiness, 808 F.2d at 423;
Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034, 1035 (5th Cir. 1986); Texas Adjutant Gen.'s
Dep't v. Amos, 54 S.W.3d 74, 79 (Tex. App.--Austin 2001, pet. denied); Newth, 883 S.W.2d at 357. 
While the Supreme Court has not held that military personnel are barred from all redress in civilian
courts for wrongs suffered in the course of military service, the "special relationships that define
military life have 'supported the military establishment's broad power to deal with its own
personnel'" instead of involving civilian courts in such decisions.  Chappell, 462 U.S. at 305.  "The
permissible range of lawsuits by present or former servicemen against their superior officers is, at
the very least, narrowly circumscribed."  Crawford, 794 F.2d at 1035.  "Civilian courts must, at the
very least, hesitate long before entertaining a suit which asks the court to tamper with the established
relationship between enlisted military personnel and their superior officers; that relationship is at the
heart of the necessarily unique structure of the Military Establishment."  Chappell, 462 U.S. at 300. 
	Burkett contends that these cases do not apply because here the appellees were not
operating in an area where they could exercise discretion and there was nothing to second-guess.
Burkett contends that based upon the Texas Army National Guard regulation procedure 7-3, the
appellees were under a mandatory duty to confirm his duty status to the medical facility at Dyess and
they deliberately failed to discharge that nondiscretionary duty.  
	Burkett suggests that the facts here are analogous to those in Brown v. United States,
739 F.2d 362 (8th Cir. 1984), Day v. Massachusetts Air National Guard, 167 F.3d 678 (1st Cir.
1999), and Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1999).  In Brown, the plaintiff
serviceman alleged he suffered injuries from a mock lynching; in Day, the plaintiff serviceman
alleged he suffered injuries from a hazing incident described by the trial court as "despicable"; in
Lutz, the plaintiff servicewoman alleged she suffered injuries when the defendants broke into her
office, took personal papers and disseminated them to other military personnel with the intent to
injure her reputation and career.  Brown, 739 F.2d at 364; Day, 167 F.3d at 680; Lutz, 944 F.2d at
1478.  In these three cases, the courts reviewed the plaintiffs' allegations under Feres and concluded
that the plaintiffs' claims for injuries arose from situations that were not within the course of activity
incident to military service.  Due to the "extreme nature of the alleged conduct and its total antipathy
to any conceivable military purpose," there was no relevant relationship among the activity, injury
and military service.  Brown, 739 F.2d at 368.
	Conversely, here the issue is whether Burkett's superior officers properly followed
a Texas Army National Guard regulation related to a request for medical care at a military medical
facility.  Despite the fact that Burkett sued appellees in their individual capacities only, his pleadings
complain about his superior officers' conduct in relation to a military personnel action pursuant to
military regulations which can only arise when Texas Army National Guard officers are on active
duty.  Burkett's pleadings alleged wrongdoing that was within the course of activity incident to
military service.  We hold that Burkett failed to allege an adequate basis for civilian court
jurisdiction and his claims are not justiciable in a civilian court.  

Conclusion

	We overrule Burkett's contention and affirm the trial court's order of dismissal. (2) 


  
					David Puryear, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear
Affirmed
Filed:   August 8, 2002
Do Not Publish
1.         Goodwin was chief of staff for the Adjutant General for the State of Texas, Taliaferro was
director of military personnel responsible to the Adjutant General for all matters pertaining to the
overall management and supervision of the Directorate of Military Personnel, and Meador, Burkett's
immediate supervising officer, served as director of plans, operations and training, and military
support. 
2.        Having determined that the trial court did not err in dismissing the case, we need not address
Burkett's contention relating to statutory immunity as that issue is not necessary to the disposition
of this appeal.  See Tex. R. App. P.  47.1.  

