William Marsh Rice University and Rice University Police Department and Officer Henry Cash v. Michael Clayton Thomas
01-14-00908-CV
| Tex. App. | Feb 2, 2015Background
- On Nov. 9, 2011 Michael Clayton Thomas went to Rice University to see his wife; he was peaceful and waited at a security desk.
- Officer Henry Cash (Rice Univ. Police) detained and arrested Thomas, stating Thomas had violated a "protective order," then presented a document later shown to be a Mutual Temporary Restraining Order (no finding of family violence and no injunctive language prohibiting contact).
- Rice U. policy (RUPD General Directive: 08B2) required verification of a valid Protective Order before arrest for its violation; Cash did not verify such an order prior to arrest and the DA later rejected charges when no Protective Order was found.
- Thomas challenges the arrest and seeks denial of the defendants’ interlocutory appeal and summary judgment (official immunity), arguing lack of probable cause, lack of good faith, performance of a ministerial prerequisite (verification) not performed, action outside scope of authority, and inadequate training of Cash.
- Procedurally, Appellee urges the 1st Court of Appeals to find Rice/RUPD/Cash lack standing under Tex. Civ. Prac. & Rem. Code §51.014 to bring an interlocutory appeal (citing controlling Texas authority) or to abate pending the Texas Supreme Court’s decision in a related Rice case.
Issues
| Issue | Plaintiff's Argument (Thomas) | Defendant's Argument (Rice/Cash) | Held (as presented in appellee brief) |
|---|---|---|---|
| Standing to bring interlocutory appeal under §51.014(5) | Rice/Cash are private/non-state actors and lack statutory standing to appeal denial of summary judgment on official immunity | Klein and related authorities allow interlocutory appeals for some officers with nexus to state institutions | Appellee: extant case law (Coleman, Koseoglu, Rafaey line) precludes Rice/Cash from interlocutory appeal; Court should deny/abate |
| Probable cause for arrest | No probable cause: arrest premised on nonexistent Protective Order; Thomas peaceful and did not violate the restraining order | (Defendants argue) arrest/detention was reasonable under the circumstances | Appellee: no probable cause; genuine fact issues exist whether verification occurred and whether conduct justified arrest |
| Official immunity (elements: discretionary duty, good faith, within scope) | Cash cannot conclusively prove discretionary duty, good faith, or scope—he failed to perform the ministerial verification prerequisite and made false/misleading statements | (Defendants argue) Cash performed discretionary duties in good faith and is entitled to official immunity | Appellee: immunity not established as a matter of law; factual disputes preclude summary judgment on immunity |
| Training/scope and respondeat superior | Rice/RUPD failed to train Cash adequately; Cash acted outside scope (ignored policy, misrepresented facts to DA) so Rice/RUPD not shielded by immunity | (Defendants argue) training/supervision adequate and employee acts within scope | Appellee: raises genuine issues about inadequate training and that employer cannot claim immunity if Cash lacks it |
Key Cases Cited
- Klein v. Hernandez, 315 S.W.3d 1 (Tex. 2010) (discusses who qualifies to appeal under §51.014 when employee has nexus to state-supported program)
- William Marsh Rice Univ. v. Coleman, 291 S.W.3d 43 (Tex. App.-Houston [14th Dist.] 2009) (§51.014(a)(5) applies to state officials; private institutions may lack standing to appeal as proxy)
- Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) (statutory interpretation of interlocutory appeal provision and limited scope)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (summary judgment review is de novo; view evidence in light most favorable to nonmovant)
- Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988) (definition of probable cause to arrest)
- Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002) (elements of official immunity for governmental employee)
- University of Houston v. Clark, 38 S.W.3d 578 (Tex. 2000) (official immunity for discretionary acts performed in good faith)
- City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) (distinguishing discretionary vs. ministerial acts)
- Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) (movant bears burden on summary judgment)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (credit evidence favorable to nonmovant where reasonable factfinder could)
- DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (agency liability under respondeat superior tied to employee immunity)
- Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994) (affirmative defenses must be conclusively established for summary judgment)