Breen v. TEXAS A&M UNIVERSITY , 494 F.3d 516 ( 2007 )

494 F.3d 516 (2007)

Sean BREEN, as Administrator of the Estate of Christopher Breen; Christopher Breen; John E. Breen; Marian K. Breen, Plaintiffs-Appellants,
v.
TEXAS A&M UNIVERSITY; et al., Defendants,
Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, Defendants-Appellees.
James Kimmel, as representative of the Estate of Lucas Kimmel (deceased); James Kimmel; Walieta Kimmel, Plaintiffs-Appellants,
v.
Texas A&M University; et al., Defendants,
Texas A&M University; J. Malon Southerland, in his individual capacity; Russell J. Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity, John J. Koldus, III, in his individual capacity, Defendants-Appellees.
Bill Davis, Plaintiff-Appellant,
v.
Texas A&M University; et al., Defendants,
Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity, John J. Koldus, III, in his individual capacity, Defendants-Appellees.
Howard Scanlan; Denise Scanlan; Lauren N.T. Scanlan, Plaintiffs-Appellants,
v.
Texas A&M University; et al., Defendants,
Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity, John J. Koldus, III, in his individual capacity, Defendants-Appellees.
John Andrew Comstock; Dixie Ann Zinneker, Plaintiffs-Appellants,
v.
Texas A&M University; et al., Defendants,
Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen; William L. Kibler, in his individual capacity, John J. Koldus, III, in his individual capacity, Defendants-Appellees.
Jaquelynn Kay Self, Individually and as Administratrix of the Estate of Jerry Don Self, Deceased; Kathy McClain Escamilla, Individually and as Administratrix of the Estate of Bryan A. McClain, Deceased; Phillip McClain, Andrea Heard, Individually and as Administratrix of the Estate of Christopher Lee Heard, Deceased; Leslie G. Heard; Gregory Anthony Powell, Individually and as Administrator of the Estate of Chad A. Powell, Deceased; Beverly Jill Powell, Matthew Lynn Robbins; Dominic M.V. Braus; Nancy Braus, Plaintiffs-Appellants,
v.
Ray M. Bowen; J. Malon Southerland; William Kibler; Russell W. Thompson; John J. Koldus, III; M.T. Hopgood, Jr., Major General; Donald J. Johnson; Zack Coapland; Kevin Jackson; James R. Reynolds; Robert Harry Stiteler, Jr.; Michael David Krenz, Defendants-Appellees.

Nos. 04-40712, 04-40713, 04-40714, 04-40715, 04-40780 and 04-40812.

United States Court of Appeals, Fifth Circuit.

July 26, 2007.

Steven K. DeWolf (argued), Staci C. Pirnar, Haakon Thomas Donnelly, Bellinger, McManemin, DeWolf, Dallas, TX, for Sean Breen, Christopher Breen, John E. Breen and Marian K. Breen.

James C. Todd, Asst. Atty. Gen., General Litigation Div., Bill L. Davis, Rance Lamar Craft, Ryan D. Clinton, Austin, TX, for Texas A&M University, M. Malon Southerland, Russell Thompson, Ray Bowen, William Kibler, John J. Koldus, III, M.T. Hopgood, Jr., Donald Johnson, Zack Coapland, Kevin Jackson, James R. Reynolds, Robert Harry Stiteler, Jr. and Michael David Krenz.

R. Ted Cruz (argued), Austin, TX, for M. Malon Southerland, Russell Thompson, Ray Bowen, William Kibler, John J. Koldus, III, M.T. Hopgood, Jr., Donald Johnson, Zack Coapland, Kevin Jackson, James R. Reynolds, Robert Harry Stiteler, Jr. and Michael David Krenz.

George E. Hyde, Denton, Navarro, Rocha & Bernal, San Antonio, TX, for Texas Ass'n of Counties, Amicus Curiae.

Darrell L. Keith, Fort Worth, TX, Jeffrey H. Kobs (argued), Kobs & Haney, Fort Worth, TX, for Jacquelynn Kay Self, Kathy McClain Escamilla, Phillip McClain, Andrea Heard, Leslie G. Heard, Matthew Lynn Robbins and Dominic Braus.

Eugene Borchardt, McGartland & Borchardt, Fort Worth, TX, for Gregory Anthony Powell and Beverly Jill Powell.

Nancy Braus, Hallettsville, TX, pro se.

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

A majority of the panel having voted sua sponte to grant rehearing, in part, the opinion of the court in disposing of this appeal is as follows:

Section III. A, including its subsections 1 through 3, of the panel opinion, found at 485 F.3d 325, 332-38 (5th Cir.2007), along with footnote 14, is hereby withdrawn and deleted from the opinion. Other than these withdrawals and deletions, the original panel opinion is reinstated.

DENNIS, Circuit Judge, concurs in the result for the reasons assigned by him in the original panel opinion.