Untitled Texas Attorney General Opinion

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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
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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