December 22, 1982. Since issuing this opinion, this office has This office issued Attorney General Opinion MU-537 to you on

discovered some significant legal authority which is relevant to the answer to the second question. The purpose of this letter is to 4824 Alberta Ave., Suite 160 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 in the Amarillo Civil Center] is injured by a WTSU 806 Broadway. Suite 312 police officer? Lubbock. TX. 79401-3479 8061747.5238 The opinion discussed section 14(9) of article 6252-19a. V.T.C.S., the Texas Tort Claims Act. This section provides as follows: 4309 N. Tenth. Suite 6 McAllen. TX. 78501-1685 sec. 14. The provisions of this Act shall not 5121682.4547 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 disobedience, riot, insurrection or CiVil 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 *2 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