Bruce Miller v. N. S. Smith, Individually and in His Capacity as Member of Dallas Police Department ( 1980 )

625 F.2d 43

Bruce MILLER, Plaintiff-Appellant,
v.
N. S. SMITH, Individually and in his capacity as member of
Dallas Police Department, et al., Defendants-Appellees.

No. 77-2610.

United States Court of Appeals,
Fifth Circuit.

Aug. 28, 1980.

Ronald G. Franklin, Hill & Parker, Houston, Tex. (Court-appointed), for plaintiff-appellant.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants-appellees.

Renea Hicks, Asst. Atty. Gen., Austin, Tex., amicus curiae.

Appeal from the United States District Court for the Northern District of Texas.

ON PETITION FOR REHEARING

Before COLEMAN, Chief Judge, and KRAVITCH and HENDERSON, Circuit Judges.

PER CURIAM:

1

In our opinion in this case, 615 F.2d 1037 (1980), the majority held that the plaintiff was entitled to invoke the tolling provisions of the Texas state statutes, Vernon's Ann.Tex.Civ.St. arts. 5526, 5535, with reference to the time which elapsed while he was in prison only as to such part of that time as access to the federal courts was not freely available to state prisoners. We remanded the case to the District Court for findings in that regard.

2

Since this opinion was rendered on April 21, 1980, the Supreme Court, on May 19, 1980, decided Board of Regents of the University of the State of New York, Et Al. v. Tomanio, --- U.S. ----, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).

3

We are now of the opinion that under the teachings of Tomanio the prisoner was entitled to the benefit of a Texas tolling statute according to its express terms.

4

Accordingly, the petition for rehearing is GRANTED and the decision of the District Court dismissing the petition is reversed.

5

The case is remanded for further proceedings.

6

REVERSED AND REMANDED.