       UNITED STATES COURT OF APPEALS
            FOR THE FIFTH CIRCUIT



                No. 00-21053



              SHERRY MONSANTO,

                                               Plaintiff,


                   versus


           HARRIS COUNTY; ET AL.,

                                            Defendants,


               HARRIS COUNTY;
           DICK MOORE, Constable,

                                             Defendants-
                                 Third Party Plaintiffs-
                                             Appellants,


                   versus


             STATE FARM MUTUAL
       AUTOMOBILE INSURANCE COMPANY,

                                  Third Party Defendant-
                                               Appellee.


Appeal from the United States District Court
     for the Southern District of Texas
             (No. H-98-CV-3700)

               June 14, 2002
Before JOLLY and PARKER, Circuit Judges, and MILLS,* District
Judge.

PER CURIAM:**

       On State Farm’s petition for declaratory relief, the

judgment of the district court is AFFIRMED.    Judges Jolly and

Parker affirm on the ground that neither State Farm nor its

employee Sherry Monsanto violated § 38.16 of the Texas Penal

Code.    Judge Mills would affirm on the ground that § 38.16 is

unconstitutional.

       The district court’s finding that the county’s motion for

summary judgment was frivolous is REVERSED, this court having

determined that the motion was a proper vehicle for resolution of

State Farm’s claims.    Consequently, the district court’s award of

attorney’s fees for State Farm’s having to contest the motion is

VACATED.

       AFFIRMED in part, REVERSED and VACATED in part.




  *
    District Judge of the Central District of Illinois, sitting
by designation.
  **
     Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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