                                                                                     ACCEPTED
                                                                                 04-15-00120-CV
                                                                     FOURTH COURT OF APPEALS
                                                                          SAN ANTONIO, TEXAS
                                                                           4/22/2015 10:54:56 PM
                                                                                  KEITH HOTTLE
                                                                                          CLERK


                        NO.04-15-00120-CV
                                                   FILED IN
  _______________________________________________________
                                             4th COURT OF APPEALS
                                                          SAN ANTONIO, TEXAS
               IN THE FOURTH COURT OF APPEALS            4/22/2015 10:54:56 PM
                    AT SAN ANTONIO, TEXAS                   KEITH E. HOTTLE
                                                                  Clerk
   ______________________________________________

                 UNIVERSITY OF THE INCARNATE WORD,
                       DEFENDANT-APPELLANT,
                                 V.
       VALERIE REDUS AND ROBERT M, REDUS, INDIVIDUALLY AND AS
         EXECUTOR OF THE ESTATE OF ROBERT CAMERON REDUS,
                       PLAINTIFFS-APPELLEES.
     ____________________________________________

    On Appeal from the 15oth District Court of Bexar County, Texas
                Trial Court Cause No. 2014-CI-07249
   ______________________________________________

                            APPELLEES’ BRIEF

   ______________________________________________


Brent C. Perry                       Jorge A. Herrera
State Bar No. 15799650               State Bar No. 24044242
Law Office of Brent C. Perry, P.C.   The Herrera Law Firm
800 Commerce Street, Suite 102       100 Soledad, Suite 1900
Houston, Texas 77002                 San Antonio, Texas 78205
Telephone: (713) 334-6628            Telephone: (210) 224-1054
Facsimile: (713) 237-0415            Facsimile: (210) 228-0887
brentperry@brentperrylaw.com         jherrera@herreralaw.com

                         ATTORNEYS FOR APPELLEES




                                       i
                                           TABLE OF CONTENTS

Table of Contents .......................................................................................... ii
Index of Authorities ..................................................................................... iv
Statement of the Case ................................................................................. viii
Issues Presented ........................................................................................... ix
Introduction and Standard of Review ........................................................... 1
Statement of Facts ......................................................................................... 3
        A.       Plea to the Jurisdiction Evidence.. ............................................. 3

        B.       Facts of the Underlying Case. ..................................................... 3

        C.       UIW's Authority to Form a Police Department.. ........................ 4

        D.       Procedural Status of the Case.. ................................................... 4

Argument. ..................................................................................................... 5

        I.       This Court lacks subject matter jurisdiction of the denial of
                 UIW’s plea to the jurisdiction because UIW is not a
                 “governmental unit” as defined by Tex. Civ. Prac. & Rem. Code
                 § 101.001(3)... ...................................................................................... 5

        II.      Neither UIW nor its Campus Police is a “governmental unit”
                 under the Texas Tort Claims Act ...................................................... 7

                 A.       No Texas court has ever held that a private institution is a
                          “governmental unit” in the absence of a specific statute and
                          government funding of the service at issue .......................... 7

                 B.       That a statute authorizes UIW to establish a Campus Police
                          Department does not make the UIW Campus Police a
                          “governmental unit.”.............................................................. 10




                                                          ii
                  C.       Allowing UIW’s campus police to enforce state and
                           municipal law in limited circumstances does not turn UIW
                           or its police department into a “governmental unit.” ....... 13


         III.     Even if UIW is a governmental entity, the Texas Tort Claims Act
                  does not bar the Reduses negligence claims because they arise
                  from a death caused by tangible use of tangible personal
                  property. ....................................................................................16

         IV.      UIW’s argument regarding respondeat superior is not properly
                  part of a plea to the jurisdiction and should be dismissed for
                  insufficient notice under Tex. R. Civ. P. 166a.... .......................... 18

         V.       UIW’s argument regarding dismissal of Officer Carter fails
                  because the UIW Campus Police is not a “governmental unit” and
                  the TTCA election of remedies does not apply.............................22

Conclusion and Prayer ........................................................................................... 20

Certificate of Service ............................................................................................... 22




                                                           iii
                                        INDEX OF AUTHORITIES

Attorney General, Texas, Opinion No. MW-537, Dec. 22, 1987 .................... 21

Cantu Services, v. United Freedom Associates, Inc.,
329 S.W.3d 58, (Tex. App.—El Paso 2010, no pet.) ...........................................6

Cherqui v. Westheimer St. Festival Corp.,
116 S.W.3d 337 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ............... 20

City of Leon Valley Economic Development Corporation v. Little,
422 S.W.3d S.W.3d 37 (Tex.App.—San Antonio 2013, no pet.) .................. 10

City of San Augustine, v. Parrish, 10 S.W.3d 734
(Tex.App.-Tyler 1999, pet. dism'd w.o.j.) ............................................... 18, 19

Critical Air Medicine, Inc. v. Shepard, 2005 WL 3533130
(Tex.App.—San Antonio 2005, no pet.) ..............................................................6

Evans v. Newton, 382 U.S. 296 (1966).............................................................. 16

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997).........................19

Harris County v. Cabazos, 177 S.W. 3d 105
(Tex. App. – Houston [1st Dist.] 2005) .................................................. 17, 18

Harris County. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) ............................ 1

Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540 (Tex.1971) ............... 11

Klein v. Hernandez, 315, S.W.2d 1 (Tex. 2010) ................................................ 8

Laidlaw Waste Systems v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.
1995) .........................................................................................................................3

LTTS Charter School, Inc. v. C2 Construction, Inc.,
342 S.W.3d 73 (Tex. 2011)........................................................................ 9, 11

Mobil Oil Corp. v. Shores, 128 S.W.3d 718
(Tex.App.-Fort Worth 2004, no pet.) ..................................................................6

                                                              iv
Morin v. Moore, 309 F.3d 316 (5th Cir.2002).................................................. 17

Rosborough v. Management & Training Corp.,
350 F.3d 459 (5th Cir. 2003) ............................................................................... 16

Sci. Spectrum v. Martinez, 941 S.W.2d 910 (Tex. 1997) ................................ 11

Tex. Bus. & Comm. Code § 3.420 .................................................................. 23-24

Tex. Bus. & Comm. Code § 24.002 ............................................................... 15-16

Tex. Code of Crim. Proc. § 2.12 .................................................................... 15

Tex. Code of Crim. Proc. § 14.01 ............................................................. 14, 15

Tex. Civ. Prac. & Rem. Code § 51.014(c) ............................................................. 5

Tex. Civ. Prac. & Rem. Code § 101.001(3)(D) ...................................... 7, 11, 12

Tex. Civ. Prac. & Rem. Code § 101.021(2) .................................................... 17

Tex. Civ. Prac. & Rem. Code § 101.057 ......................................................... 17

Tex. Civ. Prac. & Rem. Code § 101.106 ........................................................ 20

Tex. Educ. Code § 12.105 ..............................................................................12

Tex. Educ. Code § 51.203 ....................................................................... 4, 7, 10, 12

Tex. Educ. Code § 51.212 ................................................................ 2, 3, 7, 10, 12, 16

Tex. Educ. Code § 61.003 .............................................................................. 9

Tex. Govt. Code § 81.011 ...............................................................................13

Tex. Health & Safety Code § 312.006(a) ....................................................... 8

Tex. Loc. Gov. Code § 505.106(b)................................................................. 11

Tex. Occ. Code § 1601 ...................................................................................13

                                                      v
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004) ...... 2

Texas Dept. of Public Safety v. Petta, 44 S.W. 3d 575 (Tex. 2001) ............. 18

Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, (Tex.1999) ...................... 2, 19

Texas Parks & Wildlife Dep’t v. Sawyer Trust,
354 S.W.3d 384 (Tex.2011) ................................................................................ 1, 2

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006) ............................19

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex.2003) ........... 2, 19

Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990) ........................... 17
Zacharie v. City of San Antonio by and through
San Antonio Water System Board of Trustees,
952 S.W.2d 56 (Tex.App.—San Antonio 1997, no writ) .............................. 10




                                                      vi
                       NO.15-04-00120-CV
____________________________________________________________

                IN THE FOURTH COURT OF APPEALS
                     AT SAN ANTONIO, TEXAS
    ______________________________________________

                 UNIVERSITY OF THE INCARNATE WORD,
                       DEFENDANT-APPELLANT,
                                 V.
       VALERIE REDUS AND ROBERT M, REDUS, INDIVIDUALLY AND AS
         EXECUTOR OF THE ESTATE OF ROBERT CAMERON REDUS,
                       PLAINTIFFS-APPELLEES.
     ____________________________________________

     On Appeal from the 15oth District Court of Bexar County, Texas
                 Trial Court Cause No. 2014-CI-07249
    ______________________________________________

                    APPELLEES’ BRIEF
    ______________________________________________
     Appellees Valerie Redus and Robert M. (“Mickey”) Redus, Individually

and as Executor of the Estate of Robert Cameron Redus, would show the

Honorable Fourth Court of Appeals as follows:




                                   vii
                          STATEMENT OF THE CASE

      Valerie and Mickey Redus sued University of the Incarnate Word

(“UIW”) and Christopher Carter for claims arising from their son Cameron’s

death on December 6, 2013. Carter, a UIW Campus Police Officer, shot

Cameron Redus five times, killing him in the parking lot at Cameron’s off-

campus apartment in Alamo Heights.

      The Reduses filed suit on May 6, 2014. CR (Clerk’s Record) at 1. UIW,

on February 13, 2015, pleaded a Texas Tort Claims Act affirmative defense

and filed a plea to the jurisdiction. CR at 109 and 125. The trial court denied

the plea to the jurisdiction on March 2, 2014 (CR at 418) and UIW initiated

this interlocutory appeal.

      UIW’s claimed statutory basis for this interlocutory appeal is Tex. Civ.

Prac. & Rem. Code § 51.014(a)(8). The central—and likely the only—issue in

the appeal is whether UIW, a private Catholic institution of higher education,

is a “governmental unit” under the Texas Tort Claims Act. See Tex. Civ. Prac.

& Rem. Code § 101.001(3)(D). The Reduses, on April 21, 2015, filed a motion

to dismiss this appeal for want of jurisdiction.




                                      viii
                     ISSUES PRESENTED

1.   Whether this Court has jurisdiction of an interlocutory appeal
     brought by a private institution of higher education claiming to
     be a “governmental unit”?
2.   Whether the UIW Campus Police Department is a “governmental
     unit” by virtue of the license issued to UIW and the fact that
     UIW’s officers are licensed by the state?
3.   Whether the Texas Tort Claims Act precludes the Reduses’
     negligence claims against UIW, a private institution of higher
     education?
4.   Whether UIW’s appellate issue regarding respondeat superior—
     effectively a motion for summary judgment as to liability—is
     properly part of a plea to the jurisdiction?
5.   Whether the Reduses claims against Carter should be dismissed,
     given that UIW is a private institution of higher education?




                              ix
                        INTRODUCTION AND STANDARD OF REVIEW

          UIW asks this Court to do something that no other Texas court has

done: find that a private university’s police department is a “governmental

unit” even though it does not receive government funding, does not act at the

direction of a state agency, and is wholly controlled by UIW.

          UIW’s application to establish a law enforcement agency states that

UIW, a private university, is the “requesting governmental body” for the

police department. CR at 206. The statutory authority for the UIW police

department, Tex. Educ. Code § 51.212, allows “private institutions of higher

education…to employ and commission peace officers” for limited purposes.

Nothing in the statutory authority or licensing requirements that apply to

UIW turn it into the “governmental unit” that it now claims to be. 1

          A plea to the jurisdiction seeks dismissal of a case for lack of subject

matter jurisdiction. Harris County. v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004). Sovereign immunity deprives a trial court of subject matter

jurisdiction if a plaintiff sues the state or a state agency, unless the

Legislature has consented to suit. Texas Parks & Wildlife Dep’t v. Sawyer

Trust, 354 S.W.3d 384, 388 (Tex.2011).



1
    UIW waited over seven months after filing its original answer—from June 2, 2014 to February 13, 2015—
      to discover and allege its status as a “governmental unit” under the Texas Tort Claims Act. The trial
      court held a hearing on the plea to the jurisdiction 269 days after UIW filed its original answer.
      Immunity from suit prohibits suits against the State unless the State

expressly consents to the suit. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 696 (Tex.2003). Unlike immunity from suit, immunity from

liability does not affect a court’s jurisdiction to hear a case and cannot be

raised in a plea to the jurisdiction. Id.; Texas Dep’t of Transp. v. Jones, 8

S.W.3d 636, 638–39 (Tex.1999).

      Even if UIW is somehow a “governmental unit,” the Legislature has

waived immunity for UIW’s officers in defined circumstances. See Tex. Educ.

Code § 51.212(b). Additionally, the Reduses’ negligence claims against UIW

are not barred by the Texas Tort Claims Act.

      Whether a court has subject matter jurisdiction is a question of law.

Sawyer Trust, 354 S.W.3d at 388. Whether a pleading alleges facts that

affirmatively demonstrate a trial court’s subject matter jurisdiction is also a

question of law reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex.2004). If the relevant evidence is undisputed or

fails to raise a fact question on the jurisdictional issue, the trial court rules

on the plea to the jurisdiction as a matter of law. Id.




                                       2
                           STATEMENT OF FACTS

A.    Plea to the Jurisdiction Evidence

      The Reduses do not dispute that UIW applied for and received a license

to establish a law enforcement agency under Tex. Educ. Code § 51.212, which

allows “governing boards of private institutions of higher education…to

employ and commission peace officers.” CR at 206. The Reduses do not

dispute that Carter is a licensed Texas peace officer. CR at 197-204.

B.    Facts of the Underlying Case

      UIW offers a three-page recitation of facts largely based on the

Reduses’ Original Petition, which has been superseded by their First

Amended Petition (attached as Exhibit 1). See Appellant’s Brief at 4-7.

      As this Court knows, pleadings are not competent evidence, even if

sworn or verified. Laidlaw Waste Systems v. City of Wilmer, 904 S.W.2d

656, 660 (Tex. 1995); Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540,

545 (Tex.1971). Nonetheless, the Reduses removed the factual allegation

upon which UIW relies for its argument that plaintiffs allege intentional

rather than negligent torts. See Appellant’s Brief at 6 (“Cameron was in a

submissive position when Carter discharged his weapon for the last time.”)

      The Reduses do not dispute that UIW Campus Police Officer Carter

shot and killed Cameron Redus in the parking lot of his off-campus
                                      3
apartment in Alamo Heights. The Reduses do not dispute that Carter was on

duty at UIW on December 6, 2013.

C.    UIW’s Authority to form a Police Department

      Again, the Reduses do not dispute that UIW applied for and received a

license to establish a law enforcement agency under Tex. Educ. Code § 51.212

and that Carter is a licensed Texas peace officer. CR at 197-204, 206.

      UIW wrongly states that its authority to establish the police

department comes from Tex. Educ. Code § 51.203, which authorizes a “state

institution of higher education” to employ and commission peace officers.

Appellant’s Brief at 8. UIW’s application (CR at 206), however, accurately

identifies the applicable statute as Tex. Educ. Code § 51.212, which

authorizes “private institutions of higher education” to employ and

commission peace officers. No Texas court has held that the authority to

employ and commission somehow transforms a private university into a

governmental unit.

D.    Procedural Status of the Case

      The “procedural status” that UIW provides (Appellant’s Brief at 9-13)

is rife with argument and mischaracterization of documents that are not

relevant to this Court’s jurisdiction. The timeline is simple:



                                       4
               •   The Reduses filed this action on May 6, 2014.
               •   UIW answered and removed the action on June 2.
               •   The federal court remanded the action on November 25.
               •   UIW filed its amended answer on February 13, 2015.
               •   The trial court heard the plea to the jurisdiction on February 26.
               •   The trial court denied the plea on March 2.
               •   UIW appealed the denial on March 3.
               •   The Reduses filed their amended petition on March 16. 2

Contrary to UIW’s statement regarding the federal court’s “stark warning” in

about TTCA immunity in a footnote (Appellant’s Brief at 10), the court stated

in its conclutson that “Plaintiffs’ claims do not create federal jurisdiction”

and “are valid causes of action under state law.” CR at 399.

          The trial court declined to issue findings and conclusions, presumably

because the denial of the plea to the jurisdiction does not constitute a

judgment. See Tex. R. Civ. P. 296. The Reduses did request that the trial court

issue a finding that UIW is not a “governmental unit.”




2
    UIW argues that Plaintiffs’ First Amended Petition was improperly filed as an “unabashed contempt of
      court,” but has not moved to strike it or hold counsel in contempt. Appellant’s Brief at 12. UIW also
      argues that plaintiffs improperly filed a motion to compel. Id. at 13. The trial court granted Plaintiff’s
      Motion to Compel, leading UIW to file a separate mandamus yesterday. UIW conveniently fails to
      inform the Court that it waited almost 260 days after filing its original answer to assert its TTCA
      immunity and almost 270 days for a hearing. See Tex. Civ. Prac. & Rem. Code § 51.014(c).
                                                        5
                                 ARGUMENT

I.    This Court lacks subject matter jurisdiction of the denial of
      UIW’s plea to the jurisdiction because UIW is not a
      “governmental unit” as defined by Tex. Civ. Prac. & Rem.
      Code § 101.001(3).

      An interlocutory appeal is only allowed following the grant or denial of

a plea to the jurisdiction if the plea is made by a “governmental

unit.” See Critical Air Medicine, Inc. v. Shepard, 2005 WL 3533130

(Tex.App.—San Antonio 2005, no pet.)(dismissing interlocutory appeal filed

under § 51.014(a)(8) by private corporation); Mobil Oil Corp. v. Shores, 128

S.W.3d 718, 721 (Tex.App.-Fort Worth 2004, no pet.) (same); Cantu

Services, v. United Freedom Associates, Inc., 329 S.W.3d 58, 64 (Tex. App.—

El Paso 2010, no pet.).

      This Court noted in Critical Air:

      It is undisputed that Critical Air is a private corporation and not
      an agency of state government, a political subdivision of the
      state, or an institution, agency or organ of government whose
      status and authority is derived from state law.

Id. at *2.

      Similarly, it is undisputed that UIW is a private university and not a

state government agency. UIW’s argument is that the authority to hire and

commission peace officers somehow transforms it into an “institution,



                                      6
agency, or organ of government.” See Tex. Civ. Prac. & Rem. Code

§ 101.001(3)(D). The authorizing statute does not justify this interpretation.

           Parallel statutes in the Education Code authorize “the governing

boards” of the universities to “employ and commission peace officers.” See

Tex. Educ. Code § 51.203 (for “state institutions of higher education”) and

§ 51.212 (for “private institutions of higher education”). There is no

precedent for the argument that granting this authority transforms a private

institution into a government institution, agency or organ. As argued in

Appellees’ Motion to Dismiss, this Court should dismiss this appeal for want

of jurisdiction.

II.        Neither UIW nor its Campus Police is a “governmental unit”
           under the Texas Tort Claims Act.3

           UIW expressly seeks the protections of the Texas Tort Claims Act as a

“governmental unit.” CR at 120 (UIW’s First Amended Answer at ¶ 63-64).

UIW argues that its police department draws its right to exist from a statute

(Tex. Educ. Code § 51.212) and that the department and its officers are

licensed by the Texas Commission on Law Enforcement, a “regulatory state

agency.” Id. UIW, in its appellate brief, cites no case law holding that any part

of a private university is a “governmental unit.”

3   Section II, with the exception of footnote 3, is copied verbatim from Appellees’ Motion to Dismiss for Want
      of Jurisdiction.
                                                        7
      A.      No Texas court has ever held that a private institution is
              a “governmental unit” in the absence of a specific
              statute and government funding of the service at issue.

      No Texas court has ever held that a private, non-profit institution of

higher education is a “governmental unit” in the absence of a statute defining

the institution and its actions as such. In Klein v. Hernandez, 315, S.W.2d 1,

2 (Tex. 2010), the plaintiff sued Baylor College of Medicine for malpractice

by its physicians at Ben Taub Hospital, a public hospital. The Supreme Court

noted that:

      Baylor [College of Medicine] is a private, non-profit medical
      school, but is also a ‘supported medical school,’ which means that
      it has contracts with the Texas Higher Education Coordinating
      Board and receives state funding specifically allocated for
      training physicians who provide medical care at public hospitals
      such as Ben Taub.

The Court noted that private medical school derived its status as a

“governmental unit” from Tex. Health & Safety Code § 312.006(a), which

defines Baylor as a “governmental unit” when its doctors are working at

public hospitals. Id. at 8.

      In contrast to the Baylor College of Medicine, UIW has no claim to a

contract with a state agency, to receiving state funding, or to a statute

defining any part of the university as a “governmental unit.” UIW does not

even address the implications of the Texas Supreme Court’s Klein holding,


                                      8
choosing instead to rely almost completely on LTTS Charter School, Inc. v.

C2 Construction, Inc., 342 S.W.3d 73 (Tex. 2011). See Appellant’s Brief at 24-

26.

      The Supreme Court, in LTTS Charter School, held that an open-

enrollment charter school operated as part of the public school system is a

“governmental unit.” Id. at 76. The Supreme Court’s opinion drew a vigorous

dissent (id. at 82), and the case is easily distinguishable from UIW’s claims.

Charter schools by statute are “part of the public school system” which bears

“the primary responsibility for implementing the state's system of public

education.” Id. at 82. Charter schools receive government funding and

operate within the Texas public school testing system. Id. at 74.

      UIW, by contrast, has specifically and purposely chosen to operate

outside Texas’ system of public higher education. See Tex. Educ. Code

§ 61.003, with definitions of “public senior college or university” and “private

or independent institution of higher education.” UIW identifies itself as:

      an incorporated charitable institution created and sponsored by
      the Sisters of Charity of the Incarnate Word, a Catholic order of
      nuns. The Sisters established the school in 1881, devoted to
      providing education without private gain. The UIW is a
      charitable institution under both Texas and Federal law.




                                       9
CR at 109. State and private institutions of higher education have different

enabling statutes for establishing campus police departments. Compare Tex.

Educ. Code § 51.203 (state) and § 51.212 (private).

      UIW also cites Zacharie v. City of San Antonio by and through San

Antonio Water System Board of Trustees, 952 S.W.2d 56, 59 (Tex.App.—San

Antonio 1997, no writ) and City of Leon Valley Economic Development

Corporation v. Little, 422 S.W.3d S.W.3d 37, 40 (Tex.App.—San Antonio

2013, no pet.) as supporting its argument. Both cases are distinguishable. In

Zacharie, this Court held that San Antonio’s Water System was a city agent

and thus entitled to immunity.

      In Leon Valley, this Court held that an economic development

corporation’s (“EDC”) statutory designation as a “governmental unit” under

Tex. Loc. Gov. Code § 505.106(b) did not protect it from contractual liability,

although the status did authorized the EDC to file an interlocutory appeal. In

allowing the interlocutory appeal to proceed, this Court followed the EDC’s

enabling statute: “For purposes of Chapter 101, Civil Practice and Remedies

Code, a Type B corporation is a governmental unit and the corporation’s

actions are governmental functions.” Tex. Loc. Gov. Code § 505.106(b).

Neither this Court nor any other Texas court has held that that a private



                                      10
institution is a governmental unit in the absence of a specific statute and

government funding of the services at issue.

      B.    That a statute authorizes UIW to establish a Campus
            Police Department does not make the UIW Campus
            Police a “governmental unit.”

      Section 101.001(3)(D) of the Civil Practices and Remedies Code defines

a “governmental unit” as

      any other institution, agency, or organ of government the status
      and authority of which are derived from the Constitution of
      Texas or from laws passed by the legislature under the
      constitution.

UIW argues that a Texas statute—Tex. Educ. Code § 51.212—authorizes the

creation of UIW’s police department, that its officers are licensed by a state

agency, and that they enforce state law. Appellant’s Brief at 17-24.

      So, UIW’s argument goes, the UIW Campus Police Department is an

“institution, agency, or organ of government the…authority of which [is]

derived from…laws passed by the legislature.” The argument proves too

much ignoring the fact that UIW as private university is not an “institution,

agency, or organ of government.”

      The only case applying this statute to any extent is LTTS Charter

School, 342 S.W.3d at 80. The Supreme Court held only that § 101.001(3)(D)

does not require a statute specifically establishing the government agency.


                                      11
The Court’s holding, however, is primarily based on Tex. Educ. Code

§ 12.105: “An open-enrollment charter school is part of the public school

system” and the public schools are governmental units. See §101.001(3)(B).

      UIW’s argument misinterprets §101.001(3)(D). According to the

Supreme Court, an “open-enrollment charter school” is an “institution,

agency, or organ of government” because it is “part of the public school

system.” LTTS Charter School 342 S.W.3d at 82. Unlike open enrollment

public charter schools, UIW has no claim to being part of a “state institution

of higher education” or part of the “field of public higher education.” See Tex.

Educ. Code § 51.203 (enabling statute for police departments at state

universities) and § 61.002 (enabling statute for the Texas Higher Education

Coordinating Board). UIW has specifically chosen to avoid the extensive

state regulation of higher education, such as tuition regulation and degree

offerings. See Tex. Educ. Code Title 3 generally.

      Textually—as the statute requires—UIW cannot establish that it is a

governmental “institution, agency, or organ.” See Tex. Civ. Prac. & Rem.

Code § 101.001(3)(D). Merely being an “institution, agency, or organ” whose

existence is enabled by a statute and governed by a state agency does make

the “institution, agency, or organ” a “governmental unit.”



                                      12
        For example, Texas lawyers draw their right to practice law in Texas

courts and to form law firms from the State Bar of Texas, “a public

corporation and an administrative agency of the judicial department of

government.” See Tex. Govt. Code § 81.011. Only persons licensed by the

State Bar of Texas can be employed as lawyers in law firms.

        Texas barbers draw their authority to “perform any act of barbering”

from Tex. Occ. Code § 1601.251 and Texas barbershops draw their authority

to exist from Tex. Occ. Code § 1601.301. Barbers and barbershops are

governed by a state licensing agency, the Texas Department of Licensing and

Regulation (“TDLR”), a “regulatory state agency,” pursuant to administrative

rules. See Tex. Admin. Code § 82.1, et seq. Neither barbers nor barbershops

are turned into a “governmental unit” by these statutes.

        The same could be said for numerous other respectable occupations.

But neither barbershops nor law firms are entitled to call themselves

“governmental units” and claim the immunities of the TTCA when sued in

tort.




                                      13
          C.      Allowing UIW’s campus police to enforce state and
                  municipal law in limited circumstances does not turn
                  UIW or its police department into a “governmental
                  unit.”

           UIW argues that the authority of its Campus Police and the

individually licensed officer to enforce state law bolsters its claim to be a

“governmental unit.” See Appellant’s Brief at 19-23. The truth, however, is

that any person can enforce a good portion of Texas criminal law without a

TCOLE license.

          Article 14.01(a) of the Code of Criminal Procedure allows:

          A peace officer or any other person, may, without a warrant,
          arrest an offender when the offense is committed in his presence
          or within his view, if the offense is one classed as a felony or as
          an offense against the public peace.

The statute grants both peace officers and private citizens the same rights of

warrantless arrest for the two broadly defined categories of crimes. See Ofﬁce

of the Attorney General, Texas, Opinion No. MW-537, Dec. 22, 1987 (citing

Alexander v. United States, 390 F.2d 101 (5th Cir. 1968); Romo v. State, 577

S.W.2d 251 (Tex. Crim. App. 1979); Woods v. State, 213 S.W.2d 685 (Tex.

Crim. App. 1948) (“Any individual may make a ‘citizen’s arrest’ under that

provision, provided that all applicable legal requirements are met.”)4


4
    The best that UIW can argue is that the officers that UIW employs or commissions have a broader
      authority to enforce state law than private citizens have. There is nothing about this grant that somehow
      transforms UIW into an “institution, agency, or organ of government.”
                                                       14
      No Texas court has ever held that a statute authorizing a private entity

to enforce state law makes that entity an “institution, agency, or organ of

government” for purposes of the Texas Tort Claims Act. See Tex. Code of

Crim. Proc. § 2.12 for an extended list of 36 types of peace officers and § 14.03

for the authority given to the officers. UIW Campus Police are “officers

commissioned under… Subchapter E, Chapter 51, Education Code.” Tex.

Code. Crim. Proc. § 2.12(8). The officers’ authority is defined by § 14.03.

      In its application for a “law enforcement agency number,” UIW

identifies its “Requesting Governmental Body” as “University of the

Incarnate Word.” C.R. 206. UIW’s Board of Trustees approved a resolution

supporting the formation of the police department. C.R. 350. As noted above,

Texas law gives “governing boards of private institutions of higher

education” the authority “to employ and commission police officers.” Tex.

Educ. Code § 51.212. Nothing about this process turns UIW into a

“governmental unit.” UIW’s Campus Police Department receives no

government funding and has no contract with any government agency.

      The cases UIW cites in the appellate brief do not support its argument;

they instead hold that private entities subject themselves to Constitutional

violations by their involvement with governmental functions. Appellant’s

Brief at 19-20.
                                       15
      For example, in Evans v. Newton, 382 U.S. 296 (1966), the Supreme

Court held that private managers of a public park could not enforce racial

segregation in the park. In Rosborough v. Management & Training Corp.,

350 F.3d 459, 461 (5th Cir. 2003), the Fifth Circuit found that “private prison-

management corporations and their employees may be sued under § 1983 by

a prisoner who has suffered a constitutional injury.” In other words, the cases

cited by UIW hold that a private entity subjects itself to greater, not less,

liability by taking on a government function. This is consistent with the

statute providing limited immunity for peace officers employed by private

universities. See Tex. Educ. Code § 51.212(b)(1).

III. Even if UIW is a governmental entity, the Texas Tort Claims
     Act does not bar the Reduses negligence claims because they
     arise from a death caused by tangible use of tangible
     personal property.

      UIW argues that the Reduses claims are barred by the TTCA because

they are “negligence claims that arise from an intentional tort.” See

Appellant’s Brief at 27-33. As noted above, the Reduses filed an amended

petition following the denial of the plea to the jurisdiction. Exhibit 1. The

Reduses have not made any intentional tort claims against either defendant,

and there is no evidence in the record of the circumstances of the shooting.




                                      16
      As this Court knows, the TTCA does not waive sovereign immunity for

intentional torts. Tex. Civ. Prac. & Rem. Code § 101.057. The federal court,

in its remand order, held that “Plaintiffs’ claims—negligence, gross

negligence, respondeat superior liability, and wrongful death—arise from

state law and are valid causes of action under state law.” CR at 399.

      Although a governmental unit is immune from intentional tort claims,

an injured party may still pursue a separate negligence claim arising out of

the same facts. Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990). A

governmental unit is liable for personal injury and death caused by a

condition or use of tangible personal or real property if the governmental

unit would, were it a private person, be liable to the claimant according to

Texas law. See Tex. Civ. Prac. & Rem. Code § 101.021(2). Firearms are

tangible personal property under the TTCA. See Morin v. Moore, 309 F.3d

316 (5th Cir.2002) (recognizing Texas law).

      UIW represents that Harris County v. Cabazos, 177 S.W. 3d 105 (Tex.

App. – Houston [1st Dist.] 2005) involves facts similar to this matter.

Appellants’ Brief at 31-32. This is misleading. Cabazos pleaded guilty to

evading arrest in a separate criminal action and then filed a civil lawsuit

against Harris County and a Sherriff’s Deputy whom he never served and

who never appeared in the case. Id. at 108. The undisputed evidence before
                                      17
the Court was that the deputy intentionally shot the plaintiff. Id. at 112.

      UIW’s reliance upon Texas Dept. of Public Safety v. Petta, 44 S.W. 3d

575 (Tex. 2001) is wholly unfounded. Petta was convicted of fleeing or

attempting to elude a police officer in her criminal case, which arose out of

the same facts as her civil action against a State Trooper employed by the

Texas Department of Public Safety. Id at 576. The basis of the summary

judgment dismissal, which was upheld by the Supreme Court, was that Petta

was collaterally estopped from re-litigating the underlying facts after her

guilty conviction. Id at 577.

      In both Petta and Cabazos, plaintiffs specifically pleaded claims not

waived by the TTCA. As discussed above, the TTCA does not bar the Reduses’

negligence claims and, in any case, UIW is not a “governmental unit.” Officer

Carter was simply an employee of a private educational institution.

      In City of San Augustine, v. Parrish, 10 S.W.3d 734 (Tex.App.-Tyler

1999, pet. dism'd w.o.j.), plaintiffs sued for wrongful death arising from a

police shooting. The city appealed both the trial court’s denial of its plea to

the jurisdiction on sovereign immunity and its motion for summary

judgment on official immunity. In upholding the trial court's denial of the

plea, the court considered only the plaintiffs' pleadings; it rejected the city's

reliance on the summary judgment evidence. Id. at 739-40.
                                       18
      The plaintiffs alleged that a police officer “negligently shot and killed”

the decedent, and that the police officer negligently used his pistol when

“such use was not reasonable or reasonably necessary to control or subdue a

citizen and negligently endangered those in the vicinity.” Id. Relying solely

on the pleadings, the court held that the intentional tort exclusion did not

bar the suit. Id. The Court should deny UIW’s Plea to the Jurisdiction.

IV.   UIW’s argument regarding respondeat superior is not
      properly part of a plea to the jurisdiction and should be
      dismissed for insufficient notice under Tex. R. Civ. P. 166a.

      UIW argues that, as a matter of law, it cannot be held liable in

respondeat superior because Carter is a licensed Texas peace officer whose

immunity is governed by Tex. Educ. Code § 51.212(b) and other statutes

defining the authority of licensed peace officers. Appellant’s Brief at 33-38.

UIW made the same argument in its Plea to the Jurisdiction. CR at 144-148.

      Sovereign immunity has two components: immunity from suit and

immunity from liability. See Tooke v. City of Mexia, 197 S.W.3d 325, 332

(Tex.2006); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The

law is well-settled that immunity from liability does not affect a court’s

jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction.

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d at 696; TXDOT v. Jones, 8

S.W.3d at 638–39.
                                      19
      The trial court did not and could not rule on UIW’s respondeat

superior liability; the trial court denied the plea to the jurisdiction. CR at

418. This Court has nothing to review regarding immunity from liability,

because the argument cannot be raised in a plea to the jurisdiction. The case

UIW cites, Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337 (Tex.

App.—Houston [14th Dist.] 2003, no pet.), demonstrates this standard: The

case involves an appeal following a verdict, not an interlocutory appeal of a

plea to the jurisdiction. Id. at 341.

      Because UIW’s liability for the acts of its employee cannot be raised in

a plea to the jurisdiction, this Court should dismiss this appeal as to UIW’s

claimed immunity from liability for the acts of its employee.

V.    UIW’s argument regarding dismissal of Officer Carter fails
      because the UIW Campus Police is not a “governmental
      unit” and the TTCA election of remedies does not apply.
      UIW finally argues that this Court must dismiss defendant

Christopher Carter under the TTCA’s election of remedies provision. See

Tex. Civ. Prac. & Rem. Code § 101.106 and Appellant’s Brief at 38-39. As

explained above, UIW is not a “governmental unit” and is not entitled to the

benefits of the TTCA. This Court should dismiss the appeal.




                                        20
                          CONCLUSION AND PRAYER

      For these reasons, appellees Valerie Redus and Robert M. Redus,

Individually and as Executor of the Estate of Robert Cameron Redus, asks

this Court to dismiss this appeal for want of jurisdiction or, in the alternative,

deny the plea to the jurisdiction, remand this action to the trial court for

further proceedings, and grant appellees all other and further relief to which

they are entitled.




                                       21
Respectfully submitted,

LAW OFFICE OF BRENT C. PERRY, PC



____________________
BRENT C. PERRY
STATE BAR NO. 15799650
800 COMMERCE STREET
HOUSTON, TX 77002
TEL: (713) 334-6628
FAX: (713)237-0415
BRENTPERRY@BRENTPERRYLAW.COM

HERRING LAW FIRM

S/MASON W. HERRING
MASON W. HERRING
STATE BAR NO. 24071746
2727 ALLEN PARKWAY
SUITE 1150
HOUSTON, TEXAS 77019
(832) 500-3170 – TELEPHONE
(832) 500-3172 – FACSIMILE
MHERRING@HERRINGLAWFIRM.COM

THE HERRERA LAW FIRM

S/JORGE A. HERRERA
FRANK HERRERA, JR.
STATE BAR NO. 09531000
FHERRERA@HERRERALAW.COM
JORGE A. HERRERA
STATE BAR NO. 24044242
JHERRERA@HERRERALAW.COM
111 SOLEDAD, SUITE 1900
SAN ANTONIO, TEXAS 78205
TEL: 210.224.1054
FAX: 210.228.0887

ATTORNEYS FOR APPELLEES
  22
                            CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the foregoing Appellees’ Brief
has been served on the following counsel of record by electronic service in
accordance with Tex. R. App. P. 9.5(e), on April 22, 2015.

Laurence S. Kurth
Matthew Wymer
Beirne, Maynard & Parsons, LLP
112 East Pecan St., Suite 2750
San Antonio, TX 78205
Counsel for Defendant UIW

Robert A. Valadez
Shelton & Valadez
600 Navarro St., Suite 500
San Antonio, TX 78205
Counsel for Defendant Christopher Carter




                                       ____________________
                                       BRENT C. PERRY




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