 ..            .




                                          The Attorney             General of Texas
                                                                January 6, 1983
JIM MATTOX
Attorney General

                                        Mr. Gail Shannon, President
Supreme      Court Building             West Texas State University
P. 0. Box 12548                         Canyon, Texas   79016
Austin.   TX. 78711. 2548
5121475-2501
Telex    9101874.1367
                                                                                  Re: Clarification of Attorney
Telecopier     5121475.0266                                                       General Opinion MW-537 (1982)

                                        Dear   Mr. Shannon:
1607 Main St.. Suite 1400
Dallas.   TX. 75201.4709
2141742.8944
                                             This office issued Attorney General Opinion MU-537 to you on
                                        December 22, 1982. Since issuing this opinion, this office has
                                        discovered some significant legal authority which is relevant to the
4824 Alberta       Ave., Suite    160   answer to the second question. The purpose of this letter is to
El Paso. TX.       79905-2793
                                        clarify Attorney General Opinion MW-537 in light of this authority.
9151533.3484

                                               Your second question was as follows:
1220 Dallas Ave.. Suite          202
Houston.   TX. 77002.6986                          Would the university be liable if an individual
7131850-0666
                                                   being arrested [by a West Texas State University
                                                   police officer at a WTSU basketball game conducted
806 Broadway.        Suite 312                     in the Amarillo Civil Center] is injured by a WTSU
Lubbock.     TX.    79401-3479                     police officer?
8061747.5238
                                        The opinion discussed section 14(9) of article 6252-19a. V.T.C.S., the
4309 N. Tenth. Suite 6
                                        Texas Tort Claims Act. This section provides as follows:
McAllen.     TX. 78501-1685
5121682.4547                                          sec. 14.    The provisions of this Act shall not
                                                   apply to:
200 Main Plaza. Suite 400
San Antonio.  TX. 78205.2797
                                                       . . ..
5121225-4191
                                                       (9) Any claim based on an injury or death
                                                   connected with any act or omission arising out of
                                                   CiVil   disobedience,   riot,   insurrection   or
                                                   rebellion or arising out of the failure to
                                                   provide, or the method of providing, police or
                                                   fire protection.

                                        The opinion concluded that:

                                                   If an arrest made by a WTSU police officer
                                                   constitutes a  'method of providing police
Mr. Gail Shannon - Page 2
                                                                         ..




          protection,' which is a fact question, the
          university will not be liable for an injury
          suffered by the party being arrested during the
          course of that arrest.

In reaching this conclusion, the opinion relied upon Lloyd V.
University of Texas, 524 S.W.2d 958 (Tex. Civ. App. - Beaumont 1975,
writ ref'd n.r.e.), and Davis v. County of Lubbock, 486 S.W.Zd 109
(Tex. Cl". App. - Amarillo 1972, no writ).

     The Lloyd and Davis cases were disapproved to the extent of
conflict in State v. Terrell, 588 S.W.2d 784 (Tex. 1979). In that
case, the Texas Supreme Court construed the section 14(9) exemption as
follo"s:

         We think, therefore, that the Legislature intended
         to exclude from the Act only those acts or
         omissions which constitute the execution of or the
         actual making of those policy decisions.... Thus,
         if the negligence causing an injury lies in the
         formulating of policy -- &,     the determining of
         the method of police protection to provide -- the
         government remains immune from liability. If,
         however, an officer or employee acts negligently
         in carrying out that policy, government liability
         may exist under the Act. (Emphasis in original).

588 S.W.2d at 788.

     Thus, the Terre11 case states the proper standard to rely upon in
answering your second question.       If the negligence causing an
arrestee's injury lies in formulation of policy regarding police
protection, the university remains illllll"ne   from liability.    If,
however, a university peace officer injures someone through his
negligent act in carrying out policy, the university may be liable
under the Tort Cfaims Act.         Whether any particular set of
circumstances will give rise to                  liability is a fact
question which cannot be resolved                           /




                                      JIM     MATTOX
                                      Attorney General of Texas
