CAUSE NO.

2014-CI-07249
VALERIE REDUS, INDIVIDUALLY, AND
AND ROBERT M. REDUS, INDIVIDUALLY
AND AS ADMINISTRATOR OF THE ESTATE
OF ROBERT CAMERON REDUS
V.

UNIVERSITY OF INCARNATE WORD

AND CHRISTOPHER CARTER

IN THE DISTRICT COURT

OF BEXAR COUNTY, TEXAS

150TH JUDICIAL DISTRICT

PLAINTIFFS RESPONSE TO UIWS PLEA TO THE JURISDICTION

AND MOTION TO DISMISS OFFICER CARTER
Plaintiffs Valerie Redus and Mickey Redus, individually and as
administrator of the Estate of Robert Cameron Redus, file their response to
defendant University of the Incarnate Words Plea to the Jurisdiction and Motion
to Dismiss the Suit against [defendant] Cpl. Carter.
I.
1.

INTRODUCTION

University of the Incarnate Word (UIW) asks this Court to do

something that no other Texas court has done: find that a private educational
institutions police department is a governmental unit even though it does not
receive government funding and does not act at the direction of a state agency. In
making its argument, UIW fundamentally misconstrues Tex. Civ. Prac. & Rem.
Code 101.006(3)(D) in arguing that the UIW Campus Police (to use the term UIW
uses on its website) is an institution, agency, or organ of government. To use
common grammar, the UIW Campus Police Department is not an institution of
government, an agency of government, or an organ of government.

2.

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a

case for lack of subject matter jurisdiction. Harris County. v. Sykes, 136 S.W.3d
635, 638 (Tex.2004). Generally, sovereign immunity deprives a trial court of
subject matter jurisdiction over a lawsuit in which a party has sued the State or a
state agency, unless the Legislature has consented to suit. Texas Parks & Wildlife
Dept v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.2011). Whether a court has
subject matter jurisdiction is a question of law. Id.
3.

Immunity from suit prohibits suits against the State unless the State

expressly consents to the suit. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 696 (Tex.2003). Unlike immunity from suit, immunity from liability does not
affect a courts jurisdiction to hear a case and cannot be raised in a plea to the
jurisdiction. Id.; Texas Dept of Transp. v. Jones, 8 S.W.3d 636, 63839
(Tex.1999). The only proper issue in UIWs plea to the jurisdiction is whether it is
a governmental unit as claimed and immune from suit. The scope of its liability
is not properly raised by the plea.
4.

Even though the UIW Police Department is not a governmental unit,

UIW asks the Court to determine the scope of UIWs liability under the Texas Tort
Claims Act (TTCA). Whether the Reduses have pleaded intentional torts and
other causes of action not waived by the TTCA is not the proper subject of a plea to
the jurisdiction. The scope of the TTCA waiver is a matter of statute. UIWs
arguments regarding respondeat superior liability and the dismissal of Officer
Carter, likewise are not the proper subjects of a plea to the jurisdiction.
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II.
A.

LEGAL ARGUMENT

UIWs Campus Police is not a governmental unit under the

Texas Tort Claims Act and cannot claim the benefits of sovereign
immunity.
5.

UIWs argument in support of its plea to the jurisdiction is that its

Campus Police Department is a governmental unit as defined in the Texas Tort

Claims Act (TTCA). UIW argues that the department draws its right to exist from
a statute (Tex. Educ. Code 51.212) and that the department and its officers are
licensed by the Texas Commission on Law Enforcement, a regulatory state
agency. See UIW Plea to the Jurisdiction at 2 ( 4) and 9-14 ( 26-46). UIW cites
no case law finding that any part of a private university is a governmental unit.
6.

No Texas court has ever held that a private, non-profit institution of

higher education is a governmental unit in the absence of a statute defining the

institution as such. In Klein v. Hernandez, 315, S.W.2d 1, 2 (Tex. 2010), the
plaintiff sued Baylor College of Medicine for malpractice by its physicians at Ben
Taub Hospital, a public hospital. The Supreme Court noted that:
Baylor [College of Medicine] is a private, non-profit medical school,
but is also a supported medical school, which means that it has
contracts with the Texas Higher Education Coordinating Board and
receives state funding specifically allocated for training physicians
who provide medical care at public hospitals such as Ben Taub.
The Court noted that private medical school derived its status as a governmental
unit from Tex. Health & Safety Code 312.006(a), which defines Baylor as a
governmental unit when its doctors are working at public hospitals. In contrast

to the Baylor College of Medicine, UIW has no claim to a contract with a state
agency or to receiving state funding. See UIW Plea at 2 ( 3).
7.

Texas barbers draw their authority to perform any act of barbering

from Tex. Occ. Code 1601.251; Texas barbershops draw their authority to exist
from Tex. Occ. Code 1601.301. Barbers and barbershops are licensed by the Texas
Department of Licensing and Regulation (TDLR), a regulatory state agency,
pursuant to administrative rules. See Tex. Admin. Code 82.1, et seq.
8.

The same could be said for numerous other respectable occupations,

from air conditioning contractors to water well drillers. See www.tdlr.texas.gov for
a list of licensed professions and the enabling statutes and administrative rules
governing their existence. In footnote 3, UIW notes that the TDLR sets the
standards for licensing police officers. UIW Plea at 7. See also, Tex. Occ. Code
1701.001, et seq. Lawyers draw their right to practice law in Texas courts and to
form law firms from the State Bar of Texas, a public corporation and an
administrative agency of the judicial department of government. See Tex. Govt.
Code 81.011.
9.

Neither barbershops nor law firms are entitled to call themselves

governmental units and claim the benefits of the TTCA when sued in tort. A
review of Texas case law suggests that no private institution has ever claimed
governmental immunity in the absence of a specific statute, government funding,
or a government contract. The TTCA does not encompass private institutions

simply because their existence is allowed by an enabling statute and their

employees licenses are issued and regulated by a state agency.
10.

UIW also argues that the authority of its Campus Police and the

individually licensed officer to enforce state law somehow bolsters its argument.
See UIW Plea at 11-13 ( 33-42) (claiming wrongly that policing is solely a
government function). Article 14.01(a) of the Code of Criminal Procedure allows:
A peace officer or any other person, may, without a warrant, arrest
an offender when the offense is committed in his presence or within
his view, if the offense is one classed as a felony or as an offense
against the public peace.
The statute grants both peace officers and private citizens the same rights of
warrantless arrest for the two defined categories of crimes. See Ofce of the
Attorney General, Texas, Opinion No. MW-537, Dec. 22, 1987 (citing Alexander v.
United States, 390 F.2d 101 (5th Cir. 1968); Romo v. State, 577 S.W.2d 251 (Tex.
Crim. App. 1979); Woods v. State, 213 S.W.2d 685 (Tex. Crim. App. 1948)) (Any
individual may make a citizens arrest under that provision, provided that all
applicable legal requirements are met.)
11.

The simple truth is any person can enforce a good portion of Texas

criminal law without a TCOLE license. That a statute delegates policing power to a
person or an entity does not make that person or entity an institution, agency, or
organ of government under the Texas Tort Claims Act. See Tex. Code of Crim.
Proc. 14.03 for an extended list of the authority granted to peace officers.

12.

There is no document where UIW identifies all or part of the

university as an institution, agency, or organ of government. UIW does claim to

be a Catholic institution. See http://www.uiw.edu/missionOLD/index.html.
Exhibit 1 (UIW Web Pages). The Campus Police Department is committed to the
University Mission Statement that was derived from the history of its founders
and is a is a multi-service organization. http://www.uiw.edu/police/index.html
(Exhibit 1). UIW also claims that it is a charitable institution and charitable
organization. See UIWs First Amended Answer at 1 ( 2) and 14 ( 76).
13.

The primary purpose of UIWs Plea to the Jurisdiction is to enable

UIW to file an interlocutory appeal and stay all proceedings in the trial court
pending resolution of that appeal. Tex. Civ. Prac. & Rem. Code 51.014(b). By
claiming to be a governmental unit and filing a plea to the jurisdiction, UIW
may be able to delay discovery, depositions, and other proceedings in this action.
In order have this right, UIW must offer something more than an enabling statute
and the right of its employees put their state licenses to use as campus police.
14.

Other private institutions have tried and failed in arguing that their

employees who are licensed peace officers are entitled to an interlocutory appeal.
See Rice University v. Rafaey, 417 S.w.3d 667, 671 (Tex.App.Houston [14th Dist.]
2013, pet. filed) (appellate court lacks jurisdiction over interlocutory appeal filed
by a private university and its police); Methodist Hospitals of Dallas v. Miller, 405
S.W.3d 101, 112 (Tex.App.Dallas 2012, no pet.)(police employed by private
hospital not entitled to bring an interlocutory appeal); and Rice University v.
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Coleman, 291 S.W.3d 43, 46 (Tex.App.Houston [14th Dist.] 2009, pet. dismd)
(appellate court lacks jurisdiction of interlocutory appeal filed by private university
on behalf of its police).
15.

UIW primarily relies on a Texas Supreme Court case holding that an

open-enrollment charter school operated as part of the public school system is a

governmental unit. See LTTS Charter School, Inc. v. C2 Construction, Inc., 342
S.W.3d 73, 76 (Tex. 2011). The Supreme Courts opinion drew a vigorous dissent
(id. at 82), and the case is easily distinguishable. Charter schools, by statute are
part of the public school system which bears the primary responsibility for
implementing the state's system of public education. Id. at 82. They receive
government funding and operate within the states testing system. Id. at 74.
16.

UIW, by contrast, has specifically and purposely chosen to operate

outside Texas system of public higher education. See Tex. Educ. Code 61.003,
with definitions of public senior college or university and private or independent
institution of higher education. There is a different enabling statute for
establishing campus police at a state institution of higher education and private
institutions of higher education. Compare Tex. Educ. Code 51.203 (state) and
212 (private).
17.

UIW also cites City of Leon Valley Economic Development

Corporation v. Little, 422 S.W.3d S.W.3d 37, 40 (Tex.App.San Antonio 2013, no

pet.), in support of its argument. The opinion does not, however, favor UIWs
position. The Fourth Court of Appeals held that an economic development
7

corporation, as a non-profit corporation, had no common law governmental

immunity (id. at 42) and that its statutory designation as a governmental unit
under Tex. Loc. Gov. Code 505.106(b) did not protect it from contractual liability.
In allowing the interlocutory appeal to proceed, the appeals court did nothing more
than read the enabling statute (For purposes of Chapter 101, Civil Practice and
Remedies Code, a Type B corporation is a governmental unit and the corporation's
actions are governmental functions.). Contrary to UIWs representations, the
appeals court did not find that a non-profit corporation is a government unit.
See UIWs Plea at 15 ( 49).
18.

UIW also cites Zacharie v. City of San Antonio by and through San

Antonio Water System Board of Trustees, 952 S.W.2d 56, 59 (Tex.App.San

Antonio 1997, no writ), which held that the Water System, as an agent of the City,
was entitled to governmental immunity under the Texas Tort Claims Act. UIW
has no basis for claiming that it is operating as an agent of either the City of San
Antonio or of Alamo Heights. See Tex. Educ. Code 51.2125, authorizing certain
private institutions to enter into written mutual assistance agreements.
19.

UIWs plea to the jurisdiction is an empty plea, and this Court should

pay no attention to it. UIW has not cited to this Court any case law holding that a
private institution of higher education is a governmental unit for any purpose.
This Court should, in its order, enter a fact-finding that UIW is not governmental
unit and thereby hinder its ability pursue an interlocutory appeal with the sole
purpose of delaying justice in this action.
8

B.

UIWs wrongly argues that it is entitled to immunity from

plaintiffs claims because plaintiffs have pleaded valid negligence
claims that are waived under the TTCA.
20.

UIW correctly informs the Court that plaintiffs have not pleaded any

cause of action for any intentional tort. See UIWs Plea at 15 ( 51). UIW then
attempts to reinterpret plaintiffs petition and discovery responses to suit its
argument that plaintiffs are pleading intentional torts. As this Court knows, the
TTCA does not waive sovereign immunity for intentional torts. Tex. Civ. Prac. &
Rem. Code 101.057. This issue has already been litigated in federal court. Judge
Ezra, in his opinion remanding this case to state court, held that Plaintiffs
claimsnegligence, gross negligence, respondeat superior liability, and wrongful
deatharise from state law and are valid causes of action under state law. Exhibit
2 at 19 (Order Granting Plaintiffs Motion to Remand).
21.

UIW lost in the federal court and has no right to tell plaintiffs what

claims they are making. Although a governmental unit is immune from intentional
tort claims, an injured party may still pursue a separate negligence claim arising
out of the same facts. Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990).
22.

A governmental unit is liable for personal injury and death caused by

a condition or use of tangible personal or real property if the governmental unit

would, were it a private person, be liable to the claimant according to Texas law.
See Tex. Civ. Prac. & Rem. Code 101.021(2). Firearms are held to be tangible
property under the TTCA. See Morin v. Moore, 309 F.3d 316 (5th Cir.2002)
(recognizing Texas law).
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23.

UIW represents to this Court that Harris County v. Cabazos, 177 S.W.

3d 105 (Tex. App. Houston [1st Dist.] 2005) is a case on point similar to the
facts in this matter. See UIW Plea at 18 ( 59). This is misleading. Cabazos pleaded
guilty to evading arrest in a separate criminal action and then filed a civil lawsuit
against Harris County and a Sherriffs Deputy whom he never served and who
never appeared in the case. Id. at 108. The undisputed evidence before the Court
was that the deputy intentionally shot the plaintiff. Id. at 112.
24.

UIWs reliance upon Texas Dept. of Public Safety v. Petta, 44 S.W. 3d

575 (Tex. 2001) is wholly unfounded. Petta was convicted of fleeing or attempting
to elude a police officer in her criminal case, which arose out of the same facts as
her civil action against a State Trooper employed by the Texas Department of
Public Safety. Id at 576. The basis of the summary judgment dismissal, which was
upheld by the Supreme Court, was that Petta was collaterally estopped from relitigating the underlying facts after her guilty conviction. Id at 577.
25.

In both Petta and Cabazos, plaintiffs specifically pleaded claims not

waived by the TTCA. As discussed above, the TTCA does not bar the Reduses
negligence claims and, in any case, UIW is not a governmental unit. Officer
Carter was simply an employee of a private educational institution.
26.

The Court should base its ruling, if any, on City of San Augustine, v.

Parrish, 10 S.W.3d 734 (Tex.App.-Tyler 1999, pet. dism'd w.o.j.), a wrongful-death

case arising from a police shooting. The city appealed both the trial courts denial
of its plea to the jurisdiction on sovereign immunity and its motion for summary
10

judgment on official immunity. In upholding the trial court's denial of the plea, the
court considered only the plaintiffs' pleadings; it rejected the city's reliance on the
summary judgment evidence. Id. at 739-40.
27.

The plaintiffs alleged that a police officer negligently shot and killed

the decedent, and that the police officer negligently used his pistol when such use
was not reasonable or reasonably necessary to control or subdue a citizen and
negligently endangered those in the vicinity. Id. Relying solely on the pleadings,
the court held that the intentional tort exclusion did not bar the suit. Id. Just like
the Parrish plaintiffs, the Reduses have pleaded that that Cameron Redus was
negligently shot and killed by Christopher Carter. See Exhibit 3 (Plaintiffs Original
Petition). The Court should deny UIWs Plea to the Jurisdiction.
C.

UIWs argument regarding respondeat superior is not properly

part of a plea to the jurisdiction and should be dismissed for
insufficient notice under Tex. R. Civ. P. 166a.
28.

UIW next argues that it is immune from respondeat superior liability

because UIW employed a licensed Texas peace officer. See UIW Plea at 20-24
( 64-76). Immunity from liability does not affect a courts jurisdiction to hear a
case and cannot be raised in a plea to the jurisdiction. Wichita Falls State Hosp.
v. Taylor, 106 S.W.3d at 696; TXDOT v. Jones, 8 S.W.3d at 63839.
29. UIW filed this motion on February 13, 2015, and the hearing is being
held on February 26, 2015. Pursuant to Tex. R. Civ. P. 166a(c), plaintiffs objects to
a lack of 21-day notice regarding these issues raised by UIW. An officers immunity
is properly raised by motion for summary judgment. See Tex. Civ. Prac. & Rem
11

Code 51.014(a)(5) and 14 above (citing cases holding that peace officers
employed by private institutions are not entitled to interlocutory appeals of orders
denying summary judgment based on immunity claims).
30.

Additionally, UIWs argument fails because it is based on evidence

that is not in the summary judgment record. See plaintiffs objections to the facts
below, as well as Plaintiffs Objections to UIWs Evidence filed with this response.
Pleadings are not competent evidence, even if sworn or verified. Laidlaw Waste
Systems v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety
Savings & Loan Ass'n, 462 S.W.2d 540, 545 (Tex.1971).
31.

In the alternative, plaintiffs move for a continuance pursuant to Tex.

R. Civ. P. 252 so that they can conduct discovery on the immunity issues raised by
UIW. Plaintiffs cannot respond to this motion until they have deposed defendant
Christopher Carter, on whose actions this immunity claim is based. His testimony
is material to determining his actions on December 6, 2013 and his common law
immunity, if any, under the relevant statutes.
32.

Plaintiffs are diligently pursuing discovery, including the deposition

of Christopher Carter (on whose statement UIWs First Amended Answer must be
based), but have not been able to procure his testimony because of a pending
criminal investigation of him by the Bexar County District Attorney. Plaintiffs also
require the depositions of corporate representatives of defendant UIW to respond
to this motion. Plaintiffs seek a continuance consistent with the Agreed Scheduling
Order filed with this Court, which sets this case for trial in October 2015.
12

D.

UIWs argument regarding dismissal of Officer Carter fails

because the UIW Campus Police is not a governmental unit and
the TTCA election of remedies does not apply.
33.

UIW finally argues that this Court must dismiss defendant

Christopher Carter under the TTCAs election of remedies provision. See Tex. Civ.
Prac. & Rem. Code 101.106 and UIWs Plea at 24-25 ( 77-81). As explained
above, UIW is not a governmental unit and is not entitled to the benefits of the
TTCA nor entitled to bring this plea to the jurisdiction.
III.
34.

OBJECTIONS TO THE FACTS

UIW bases its plea on facts that are not in evidence before this Court.

There is no evidence in the Courts record to support the following self-serving

facts as asserted by UIW in their motion:
1. UIW asserts this case arises from a DWI traffic stop. See UIWs Plea at 1
and 9.
2. UIW asserts this case arises from a physical altercation between Cameron
Redus a Carter. Id.
3. UIW asserts they are afforded governmental immunity for the actions of
their police officers. Id at 5.
4. UIW asserts Carter observed a highly intoxicated Redus driving dangerously
on Broadway. Id at 10.
5. UIW asserts Carter observed a highly intoxicated Redus driving erratically
on Broadway. Id at 10.
6. UIW asserts that Redus refused to stop his vehicle on Broadway. Id at 11.
7. UIW asserts that Cpl. Carter activated his police lights on Broadway. Id at
11.
13

8. UIW asserts that Cpl. Carter attempted to effectuate a stop on Broadway. Id

at 11.
9. UIW asserts Redus was immediately verbally confrontational. Id at 12.
10. UIW asserts Redus resisted arrest. Id at 12.
11. UIW asserts Redus initiated a physical altercation. Id at 12.
12. UIW asserts Cpl. Carter identified himself as a peace officer. Id at 12.
13. UIW asserts Cpl. Carter ignored his directions. Id at 12.
14. UIW asserts that Redus forcibly took Cpl. Carters service baton away from
him and attacked him with it. Id at 12.
15. UIW asserts Cpl. Carter gave dozens of commands to stop resisting. Id at
12.
All of these facts are based on unsworn pleadings. Pleadings are not competent
evidence, even if sworn. Laidlaw Waste Systems, 904 S.W.2d at 660; Hidalgo v.
Surety Savings, 462 S.W.2d at 545. Even if the pleadings have some validity in
reviewing the plaintiffs causes of action, the hearsay within them is not admissible
as evidence. Tex. R. Evid. 805.
FOR THESE REASONS, plaintiffs Valerie Redus and Mickey Redus,
individually and as administrator of the Estate of Robert Cameron Redus, move
this Court to find that defendant University of the Incarnate Word is not a
governmental unit under the TTCA, to dismiss or deny UIWs Plea to the
Jurisdiction, to continue this action with regard to defendant Christopher Carters
immunity and UIWs defense to plaintiffs respondeat superior claims, and to grant
plaintiffs all other and further relief to which they are entitled.
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Respectfully submitted,
LAW OFFICE OF BRENT C. PERRY, PC
/s/ BRENT C. PERRY
BRENT C. PERRY
STATE BAR NO. 15799650
800 COMMERCE STREET
HOUSTON, TX 77002

ATTORNEY IN CHARGE
HERRING LAW FIRM
MASON W. HERRING
STATE BAR NO. 24071746
4640 BANNING DRIVE
HOUSTON, TEXAS 77027

THE HERRERA LAW FIRM

/S/ JORGE A. HERRERA
FRANK HERRERA, JR.
STATE BAR NO. 09531000
FHERRERA@HERRERALAW.COM
JORGE A. HERRERA
STATE BAR NO. 24044242
111 SOLEDAD, SUITE 1900
SAN ANTONIO, TEXAS 78205

ATTORNEYS FOR PLAINTIFFS

15

CERTIFICATE OF SERVICE
I certify that Plaintiffs Response to UIWs Plea to the Jurisdiction and Motion to
Dismiss Officer Carter was sent to the below-listed counsel by electronic service in
compliance with Tex. R. Civ. P. 21 and 21a on February 25, 2015.
Laurence S. Kurth
Matthew Wymer
Beirne, Maynard & Parsons, LLP
112 East Pecan St., Suite 2750
San Antonio, TX 78205
Counsel for Defendant UIW
Robert A. Valadez
Shelton & Valadez
600 Navarro St., Suite 500
San Antonio, TX 78205
Counsel for Defendant Christopher Carter
/S/ BRENT C. PERRY
Brent C. Perry

16