C. Joseph Salazar II v. James A. Collins and Jack M. Garner

IN THE

TENTH COURT OF APPEALS

No. 10-06-00377-CV

C. Joseph Salazar, II ,

Appellant

v.

JAMES A. COLLINS

AND JACK M. GARNER ,

Appellees

From the 52nd District Court

Coryell County , Texas

Trial Court No. COT-94-29032

Opinion

Prison inmate C. Joseph Salazar, II

appeals from a summary granted in favor of prison administrators James A.

Collins and Jack M. Garner. Salazar contends in three issues that: (1) the

court erred by granting Collins’s and Garner’s summary-judgment motion and

denying Salazar’s motion for partial summary judgment because the evidence

conclusively establishes that they had a legal duty to protect him from another

inmate who assaulted him (two issues); and (2) the court abused its discretion

by permitting the withdrawal of deemed admissions. We will reverse and remand.

Background

Salazar’s suit is based on an

allegation that he was attacked with a weapon by fellow inmate Mark Basden in

December 1992, [1]

“which resulted in a prominent scar and permanent disfigurement.” At the time

of the alleged assault, Collins was the Executive Director of the Texas

Department of Criminal Justice, and Garner was the warden of the Hughes Unit

where Salazar was imprisoned. Salazar alleged in his Sixth Amended Complaint [2]

that Collins and Garner (collectively, “Appellees”) were liable for various

theories of negligence and gross negligence because TDCJ “agents, employees,

and servants” housed Salazar in the administrative segregation unit with Basden

even though they knew that both were associated with competing “disruptive

groups” and because of the manner in which TDCJ “agents, employees, and

servants” implemented or failed to implement administrative policies

promulgated by TDCJ for security in administrative segregation units.

Salazar filed a motion for partial

summary judgment in which he alleged that Appellees owed him a duty as a matter

of law to control Basden’s conduct and that section 501.019 of the Government

Code does not apply. [3]

Salazar argued in particular that they owed him a duty to control Basden’s

conduct because a “special relationship” existed between Appellees and Basden and

because they “had specific control over the security of the premises.”

Appellees filed a traditional

summary-judgment motion [4] in

which they argued that: (1) they owed no legal duty to Salazar because his

injuries were not foreseeable, the imposition of such a duty in the prison

context would be contrary to public policy, and there was no “special

relationship” between Basden and them merely because of their status as prison

administrators; and (2) they have official immunity because inmate housing

assignments are discretionary matters, they were acting in their official

capacity, and Salazar did not allege that they acted in bad faith.

In Salazar’s First Amended Motion for

Partial Summary Judgment and Responses to Defendants Motion for Summary

Judgment, he abandoned his claim regarding section 501.019 of the Government

Code but reiterated his duty contention on the same grounds. In response to Appellees’

summary-judgment claims, he argued that:

(1) they owed him a duty of reasonable care

because of their “special relationship” with him;

(2) they are not entitled to official immunity

because:

(A) prison guards admittedly failed to follow TDCJ

policy AD-03.50 (governing prisoners in administrative segregation) which

requires among other things that guards thoroughly search dayrooms and

recreational areas “prior to and after each use” and thoroughly strip-search

inmates “before and after recreation or leaving the assigned cellblock,” and

(B) policy AD-03.50 imposes ministerial rather

than discretionary duties; and

(3) they are not entitled to official immunity

because the allegations of his petition that they acted with “gross

negligence,” “reckless disregard,” and “conscious indifference” should be

construed as allegations of bad faith.

In support of his amended

motion/response, Salazar offered his own affidavit, Appellees’ responses to his

first and fourth requests for admissions, his second request for admissions and

production of documents, which Appellees had failed to answer, and his third

request for admissions, which Appellees had also failed to answer.

Appellees filed a response in which

they argued primarily that they had no legal duty because they had no

“day-to-day control and supervision” over Basden. However, they did not

provide additional summary-judgment evidence to support this contention.

During a telephonic hearing on the

summary-judgment motions, the court asked Salazar to provide copies of the

signed return receipts accompanying his unanswered discovery requests, which Salazar

did by filing a “Supplemental Record” about one week after the hearing. These

receipts demonstrate that the Attorney General’s office received Salazar’s

discovery requests as he alleged.

Appellees then filed a motion to

strike their deemed admissions. They admitted that the discovery requests were

received by the Attorney General’s office but argued that their failure to

answer was accidental and not the result of conscious indifference because the

documents were never received by the attorney-in-charge of their case. They

also argued that Salazar would not be prejudiced if their deemed admissions

were withdrawn.

In a subsequent hearing, the court

granted Appellees’ motion to strike the deemed admissions, denied Salazar’s

amended motion for partial summary judgment, took Appellees’ summary-judgment

motion under advisement, and set the case for jury trial.

Salazar then filed his Eighth Amended

Complaint, alleging only two claims against Appellees, namely, that they are

liable for ordinary negligence and gross negligence because their “agents, employees

and/or servants failed to take reasonable steps to control the conduct of

Basden” (the inmate who assaulted Salazar). In connection with these claims, Salazar

alleges that prison employees at the Hughes Unit failed to follow TDCJ policy

AD-03.50, complaining in particular that prison guards failed to thoroughly

search dayrooms and recreational areas “prior to and after each use” or

thoroughly strip-search inmates “before and after recreation or leaving the

assigned cellblock.” [5]

The trial court granted Appellees’

summary-judgment motion, holding in particular that neither Appellee “owed a

legal duty to Plaintiff Salazar” and that both Appellees “are entitled to

official immunity.”

Deemed Admissions

Salazar contends in his third issue

that the court abused its discretion by permitting Appellees to withdraw their

deemed admissions.

A trial court has broad discretion to

grant or deny a request to withdraw deemed admissions. Wheeler v. Green ,

157 S.W.3d 439, 443 (Tex. 2005) (per curiam). No abuse of discretion occurs in

this regard if there is a showing of (1) good cause and (2) no undue

prejudice. Id. at 442 (citing Tex.

R. Civ . P. 166a(c), 198.3). Good cause is established by a showing that

the failure to respond to the request for admissions “was an accident or

mistake, not intentional or the result of conscious indifference.” Id. “Even a slight excuse will suffice, especially when delay or prejudice to the opposing

party will not result.” Boulet v. State , 189 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Spiecker v. Petroff , 971

S.W.2d 536, 538 (Tex. App.—Dallas 1997, no pet.)). Undue prejudice occurs when

permitting the withdrawal and allowing a late response will delay the trial or

significantly hamper the opposing party’s ability to prepare for trial. Wheeler ,

157 S.W.3d at 443 .

Salazar served his second and third

requests for admissions in August and September of 2003 respectively.

Appellees apparently did not become aware of their failure to respond until

June 2004 when Salazar filed his amended motion for partial summary judgment

and response to Appellees’ summary-judgment motion. In Appellees’ motion to

strike the deemed admissions, they stated that their failure to answer the

requests for admissions happened because these documents were inadvertently

misplaced after they were received by the Office of the Attorney General and

were never routed to the particular attorney assigned to the Salazar case.

Appellees’ motion indicates that there

was no conscious indifference on their part and that the failure to timely

respond was due to a clerical error within the Office of the Attorney General.

Thus, the court did not abuse its discretion by finding good cause for the

withdrawal of the deemed admissions. See Spiecker , 971 S.W.2d at

541-42 .

Regarding undue prejudice, there is

nothing in the record to indicate that trial was delayed or Salazar’s ability

to prepare for trial was hindered by the trial court’s decision. See

Wheeler , 157 S.W.3d at 443 . In fact, as will be seen hereinbelow, some of

Appellees’ late-filed responses actually support Salazar’s contentions. We

hold that the court did not abuse its discretion by permitting the withdrawal

of the deemed admissions. Accordingly, we overrule Salazar’s third issue.

Contentions Which Will Not Be Addressed

Appellees address issues of vicarious

liability and res judicata in their brief. For the reasons which follow,

however, we find that these issues were not properly raised in the

summary-judgment pleadings. Therefore, we shall not further address them on

appeal.

A trial court cannot grant summary

judgment on a ground not expressly presented in the summary judgment motion or

a response thereto. See Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d

623, 625 (Tex. 1996); Watson v. Dallas Indep. Sch. Dist. , 135 S.W.3d 208,

219 (Tex. App.—Waco 2004, no pet.). We may consider only those grounds “the

movant actually presented to the trial court” in the motion. Id. Grounds

raised in a brief filed in support of the motion or response, but not in the

motion or response itself, may not be considered by the trial court or by this

Court. McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 340-41,

343 (Tex. 1993); Fletcher v. Edwards , 26 S.W.3d 66, 74 (Tex. App.—Waco 2000, pet. denied).

Appellees stated in their

summary-judgment motion that the motion presented two “Questions of Law”:

A. Whether Defendants have a duty as

described by Plaintiff (which forms the basis of his suit).

B. Whether Defendants are entitled to

official immunity.

Collins made passing reference in the

summary-judgment motion to his status as Executive Director of TDCJ and argued

generally that he “has no duty for which he can be held liable” and that he

“never had any personal interaction with Plaintiff or with Basden." However,

he did not assert his administrative position with TDCJ as an independent

ground for relief, he did not cite any legal authority to support the

proposition that a TDCJ administrator cannot be liable for the negligence of

prison employees, and he offered no summary-judgment evidence pertinent to

these issues.

Garner similarly alleged that he was

the prison warden during the relevant time period, that he “never had any

personal involvement with Plaintiff or Basden,” and that the “law doesn’t

intend for [him] to be liable for every incident that occurs at the prison.”

As with Collins, however, Garner did not rely on his administrative position as

an independent ground for relief, he did not cite any legal authority to

support the proposition that a prison warden cannot be liable for the

negligence of prison employees, and he offered no summary-judgment evidence

pertinent to these issues.

Appellees likewise refer to their

administrative positions in their brief, but again they cite no legal authority

to support the proposition that a TDCJ administrator cannot be liable for the

negligence of prison employees.

Appellees do clarify these contentions

somewhat in their appellate brief by claiming that “Salazar is basically suing

Garner and Collins under a theory of respondeat superior ,” but again

they offer no argument or authority to support any contention that Salazar

cannot recover under a theory of vicarious liability. Therefore, because

Appellees did not present the issue of vicarious liability as an independent

ground for relief in their summary-judgment motion, we may not consider it in

this appeal. See Cincinnati Life Ins. , 927 S.W.2d at 625 ; Fletcher ,

26 S.W.3d at 74 .

Appellees also raised the affirmative

defense of res judicata in a trial brief and refer to it again in their

appellate brief. They claim that res judicata bars Salazar’s suit because he

was within the class of inmates involved in the Ruiz litigation. See

Ruiz v. Estelle , 503 F. Supp. 1265 (S.D. Tex. 1980), aff’d in part and

vacated in part , 679 F.2d 1115 (5th Cir. 1982). However, because Appellees

did not address res judicata in their summary judgment motion, we may not

consider it in this appeal. See Cincinnati Life Ins. , 927 S.W.2d at 625 ;

Fletcher , 26 S.W.3d at 74 .

Special Relationship

Salazar contends in his first two

issues respectively that the court erred by granting Appellees’

summary-judgment motion and denying Salazar’s motion for partial summary

judgment because the evidence conclusively establishes that they had a legal

duty to protect him from Basden.

Appellees contend in their

summary-judgment motion that, as a matter of law, prison officials owe no duty

to inmates to protect them from other inmates. They argue in particular that:

(1) the mere fact that TDCJ houses violent inmates is not enough to establish

the foreseeability necessary to impose a duty in this circumstance; (2) public

policy dictates against the imposition of such a duty in the prison context;

and (3) no “special relationship” exists between prison officials and prisoners

warranting the imposition of such a duty.

Salazar contends in his amended motion

for partial summary judgment/response to Appellees’ motion that the requisite

special relationship does exist.

We review a trial court’s summary

judgment de novo. Provident Life & Accident Ins. Co. v. Knott , 128

S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we must consider

whether reasonable and fair-minded jurors could differ in their conclusions in

light of all of the evidence presented. See Goodyear Tire & Rubber Co.

v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart

Stores, Inc. v. Spates , 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City

of Keller v. Wilson , 168 S.W.3d 802, 822-24 (Tex. 2005)). We must consider

all the evidence in the light most favorable to the nonmovant, indulging every

reasonable inference in favor of the nonmovant and resolving any doubts against

the motion. See Goodyear Tire , 236 S.W.3d at 756 (citing Sudan

v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Spates , 186

S.W.3d at 568 ).

“[T]he existence of duty is a question

of law for the court to decide from the facts surrounding the occurrence in

question.” Loram Maint. of Way, Inc. v. Ianni , 210 S.W.3d 593 , 598 n.5

(Tex. 2006) (quoting Greater Houston Transp. Co. v. Phillips , 801 S.W.2d

523, 525 (Tex. 1990)). Generally, there is no duty to control the conduct of third

parties. Tex. Home Mgmt., Inc. v. Peavy , 89 S.W.3d 30, 34 (Tex. 2002) (citing Greater Houston Transp. , 801 S.W.2d at 525 )); accord Loram

Maint. , 210 S.W.3d at 596 . An exception to this general rule applies when

a special relationship exists between an actor and another that imposes a duty on

the actor to control the other’s conduct. Tex. Home Mgmt. , 89

S.W.3d at 34 (citing Greater Houston Transp. , 801 S.W.2d at 525 ).

The question of legal duty is a multifaceted issue

requiring us to balance a number of factors such as the risk and foreseeability

of injury, the social utility of the actor’s conduct, the consequences of

imposing the burden on the actor, and any other relevant competing individual

and social interests implicated by the facts of the case. Although the

formulation and emphasis varies with the facts of each case, three categories

of factors have emerged: (1) the relationship between the parties; (2) the

reasonable foreseeability of harm to the person injured; and (3) public policy

considerations.

Id. at

33-34 (citing Greater Houston Transp. , 801 S.W.2d at 525 ; Otis Eng’g

Corp. v. Clark , 668 S.W.2d 307, 309 (Tex. 1983)) (other citations omitted).

Thus, in Texas Home Management ,

the Court concluded after balancing these factors that a private facility for

the mentally impaired which was required by State contract to exercise

supervisory control of its residents could have a duty to exercise control over

its residents. [6] Id. at 39. And in Texas Department of Mental Health and Mental Retardation v.

McClain , 947 S.W.2d 694 (Tex. App.—Austin 1997, writ denied), the Austin

Court held that the Austin State Hospital had a duty to exercise reasonable

care to protect one patient from another. Id. at 697-98 (citing Restatement (Second) of Torts § 320

(1965)).

Finally, in Browning v. Graves ,

152 S.W.2d 515 (Tex. Civ. App.—Fort Worth 1941, writ ref’d), the Fort Worth

Court of Civil Appeals held that a sheriff (and his deputies) owes a duty “to

use all reasonable efforts to protect his prisoner from harm while in his

custody.” Id. at 518 . The court likewise held that such an officer may

be found liable for injuries inflicted on one inmate by another if there is

“knowledge on the part of such officer that such injury will be inflicted or

good reason to anticipate danger thereof, and negligence in failing to prevent

the injury.” Id. at 519 (quoting Annotation, Liability for Death of

or Injury to Prisoner , 46 A.L.R. 94 , 114 (1927)); accord Miller v. Jones ,

534 F.2d 1178, 1180 (5th Cir. 1976)).

Browning appears directly on

point. Nevertheless, because there is no more contemporary Texas authority on

this issue, we will examine the continuing viability of Browning in

light of more recent decisions, such as Texas Home Management , in which

the Supreme Court has established principles for determining whether a legal

duty is owed in a particular setting.

We begin with Greater Houston

Transportation and Otis Engineering , two of the foundational authorities

on which the Court grounded its decision in Texas Home Management . Both

of these decisions cited and followed the principles set forth in the

Restatement (Second) of Torts for determining when a person owes a legal duty

to control the conduct of another. See Greater Houston Transp. , 801

S.W.2d at 525 (citing Restatement

(Second) of Torts §§ 315-20 (1965)); Otis Eng’g , 668 S.W.2d at

309 (same).

Section 315 of the Restatement

provides:

There is no duty so to control the conduct of a

third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor

and the third person which imposes a duty upon the actor to control the third

person's conduct, or

(b) a special relation exists between the actor

and the other which gives to the other a right to protection.

Restatement (Second) of

Torts § 315.

Section 320 applies this principle in

the context of a prison or jail (or other institution where a person is

confined involuntarily).

Duty of Person Having Custody of Another to

Control Conduct of Third Persons

One who is required by law to take or who

voluntarily takes the custody of another under circumstances such as to deprive

the other of his normal power of self-protection or to subject him to

association with persons likely to harm him, is under a duty to exercise

reasonable care so to control the conduct of third persons as to prevent them

from intentionally harming the other or so conducting themselves as to create

an unreasonable risk of harm to him, if the actor

(a) knows or has reason to know that he has the

ability to control the conduct of the third persons, and

(b) knows or should know of the necessity and

opportunity for exercising such control.

Id. §

320. Comment a then provides as follows:

The rule stated in this Section is

applicable to a sheriff or peace officer, a jailer or warden of a penal

institution, officials in charge of a state asylum or hospital for the

criminally insane, or to teachers or other persons in charge of a public

school. It is also applicable to persons conducting a private hospital or

asylum, a private school, and to lessees of convict labor.

Id. cmt. a.

We first examine the

relationship between the parties to ascertain the extent of control the

defendant exercises over the third party. See Tex. Home Mgmt. , 89

S.W.3d at 34-36 . In Texas Home Management , a mental health facility

contracted with the Department of Mental Health and Mental Retardation to

provide room and board, training, and treatment for juvenile offenders civilly

committed due to mental retardation. Id. at 32, 35 . This contract

incorporated various state and federal regulations applicable to inpatient

mental health facilities. Tex. Home Mgmt. , 89 S.W.3d at 36 .

Regarding the facility’s right of control over the juvenile in question, the

Supreme Court held, “these standards, which THM voluntarily contracted to

follow, gave THM the right to control Dixon, and therefore a special

relationship existed.” Id. Here, it cannot be seriously questioned

that TDCJ exercises an even greater right of control over prison inmates than

the mental health facility in Texas Home Management . Thus, we hold as a

matter of law that the requisite “special relationship” exists between inmates

and TDCJ (and its employees).

Consistent with the

Restatement and with Browning , a significant majority of courts in other

states have likewise concluded that prison or jail officials owe a duty of

reasonable care to protect inmates from harm when that harm is reasonably

foreseeable. [7] Cf.

Tex. Home Mgmt. , 89 S.W.3d at 36 n.5 (citing supporting authorities from

other states). Courts in several states have addressed this type of duty in

other contexts in which a person is held involuntarily, has otherwise

experienced an involuntary restraint of some degree, or has some other “special

relation” as contemplated by section 315 of the Restatement. [8]

Leaving aside for the moment the issue of sovereign or official immunity, our

research has not disclosed a contrary decision. [9] But

see Chivas v. Koehler , 182 Mich. App. 467 , 453 N.W.2d 264, 268 (1990)

(“special relationship” between prison guard and inmate giving rise to duty

exists only if it is shown that guard has particular relationship with inmate

which is different than relationship guard has with general inmate population).

We next examine the reasonable foreseeability of harm to the

person injured. See Tex. Home Mgmt. , 89 S.W.3d at 36-39 ; see also

Restatement (Second) of Torts § 320(b).

The only summary-judgment evidence offered by Appellees is the affidavit of a

TDCJ “classification chief” from a different prison unit explaining the prison

system’s policies for inmate housing generally. This affidavit makes no

reference to the specifics of Salazar’s claims.

By contrast, Salazar

offered summary-judgment evidence in the form of Appellees’ responses to his

requests for admissions. Appellees admitted that Basden had assaulted other

inmates with weapons. They also admitted that they both “had a general

knowledge that inmate-on-inmate assaults did occasionally occur with weapons”

in administrative segregation at the Hughes unit. However, Appellees denied

any prior knowledge of a rivalry between Salazar’s “disruptive group,” the

Hermanos de Pistoleros Latinos, and Basden’s, the Aryan Brotherhood of Texas.

With regard to the housing assignments of rival prison gangs, [10]

Appellees stated, “classification policy and practice is to place buffer cells

between members of rival disruptive groups if they are to be housed in the same

area. Inmates in administrative segregation are furthermore housed in single

cells.”

With regard to Appellees’

summary-judgment motion, we view the evidence in the light most favorable to

Salazar. See Goodyear Tire , 236 S.W.3d at 756 . Applying

this standard to the evidence pertinent to the issue of foreseeability,

Appellees failed to conclusively establish that Basden “did not present an

unreasonable and foreseeable risk of harm to [Salazar].” See Tex. Home Mgmt. , 89 S.W.3d at 36-39 .

With regard to Salazar’s

motion for partial summary judgment, we view the evidence in the light most

favorable to Appellees. See Goodyear Tire , 236 S.W.3d at 756 . Applying

this standard to the evidence pertinent to the issue of foreseeability, Salazar

failed to conclusively establish that Basden did “present an unreasonable and

foreseeable risk of harm to [Salazar].” See Tex. Home Mgmt. , 89 S.W.3d at

36-39 .

Finally, we examine public

policy considerations. Id. at 39 . Appellees vigorously contend in

their summary-judgment motion that public policy considerations weigh heavily against

the imposition of a legal duty in the prison-inmate context.

Basden was housed in the most restrictive area

that TDCJ has for its offenders. There was nothing more either Defendant could

have done. There is no harsher place to put either Basden or Plaintiff. Both

the Plaintiff and his alleged attacker were in the most restrictive part of the

prison. They had no other option in placing offenders. Defendants placed Basden

in the most restrictive place they could; to hold them liable for “not doing

more” would be a miscarriage of justice and set a bad precedent for public

policy.

As with their sparse summary-judgment evidence,

however, Appellees focus almost exclusively on inmate housing assignments

without devoting any serious attention to Salazar’s alternate claims regarding

prison employees’ admitted failure to implement TDCJ security procedures for

the administrative segregation unit.

As already stated, Appellees admitted

that TDCJ “classification policy and practice is to place buffer cells between

members of rival disruptive groups if they are to be housed in the same area.”

However, there is nothing in the record to indicate that a buffer cell was

placed between Salazar and Basden. In addition, Appellees admit that TDCJ

policy AD-03.50 [11]

requires prison guards to “ thoroughly ” search dayrooms and recreational

areas “prior to and after each use”, to “ thoroughly ” strip-search

inmates “before and after recreation or leaving the assigned cellblock,” and to

place inmates “in mechanical restraints ( e.g. , handcuffs)” whenever

“escorting inmates to and from their assigned cells in administrative

segregation areas.” Appellees also admit: (1) inmates in the administrative

segregation area “were allowed under specific circumstances to walk to and from

recreation and showers unescorted by correctional officers and without

handcuffs”; and (2) inmates “were not always strip-searched prior to being

allowed out of their cells for recreation and showers.” [12]

Appellees could neither admit nor deny that Basden was strip-searched on the

date of the alleged assault.

From the evidence including TDCJ’s own

administrative policies for security in the administrative segregation areas of

its prisons, Appellees failed to conclusively establish that public policy

considerations weigh against imposition of a legal duty in this instance.

To summarize, TDCJ and its

officials and employees who exercise supervisory authority in its prisons have

a “special relationship” with TDCJ inmates and thus owe a duty of reasonable

care to protect inmates from harm when that harm is reasonably foreseeable.

Here, genuine issues of material fact remain on the question of whether Basden

presented “an unreasonable and foreseeable risk of harm to [Salazar].” See Tex. Home Mgmt. , 89 S.W.3d at 39 .

Therefore, the court erred

by granting Appellees’ summary-judgment motion on the issue of duty but

correctly denied Salazar’s motion for partial summary judgment insofar as it

was premised on this issue. Accordingly, we overrule Salazar’s second issue

which challenges the court’s denial of his motion for partial summary judgment.

Official Immunity

Salazar also contends in

his first issue that the court erred by granting Appellees’ summary-judgment

motion on the issue of official immunity because Appellees failed to

conclusively establish that (1) Salazar seeks to hold them liable for a failure

to perform discretionary duties or (2) they were acting in good faith.

Official immunity is an

affirmative defense. See Ballantyne v. Champion Builders, Inc. , 144

S.W.3d 417, 424 (Tex. 2004); City of Lancaster v. Chambers , 883 S.W.2d 650,

653 (Tex. 1994). When a defendant is

the movant and relies on an affirmative defense, the defendant must

conclusively establish each element of that affirmative defense to prevail. Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996); Moon v. Lesikar , 230

S.W.3d 800, 802-03 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Johnson

v. Baylor Univ. , 188 S.W.3d 296, 300 (Tex. App.—Waco 2006, pet. denied).

A public official or employee is entitled to

official immunity when a plaintiff seeks to hold him liable for (1) acting

within the scope of his authority (2) in performing discretionary duties (3) in

good faith. See Ballantyne , 144 S.W.3d at 424 ; Chambers , 883

S.W.2d at 653 . By contrast, a defendant is not entitled to official immunity

for the failure to perform (or negligent performance) of ministerial duties. See Harris County v. Gibbons , 150 S.W.3d 877, 886-87 (Tex. App.—Houston [14th

Dist.] 2004, no pet.); Myers v. Doe , 52 S.W.3d 391, 396 (Tex. App.—Fort Worth 2001, pet. denied).

Ministerial acts are those for which “the law

prescribes and defines the duty to be performed with such precision and

certainty as to leave nothing to the exercise of discretion or judgment.” Comm’r

of the Gen. Land Office v. Smith , 5 Tex. 471, 479 (1849). If the public

official must obey an order, without having any choice in complying, the act is

ministerial. If an action involves personal deliberation, decision, and

judgment, however, it is discretionary.

Ballantyne , 144 S.W.3d at 425 (citing Chambers , 883

S.W.2d at 654 ) (other citation omitted).

The distinction between

discretionary and ministerial acts is often one of degree because any official

act that is ministerial still requires the exercise of some discretion. Myers ,

52 S.W.3d at 396 ; Enriquez v. Khouri , 13 S.W.3d 458, 462 (Tex. App.—El Paso 2000, no pet.). Thus, mandatory language in a statute or policy does

not, standing alone, make an act ministerial. Titus Reg’l Med. Ctr. v.

Tretta , 180 S.W.3d 271, 275 (Tex. App.—Texarkana 2005, no pet.); Eakle

v. Tex. Dep’t of Human Servs. , 815 S.W.2d 869, 876 (Tex. App.—Austin 1991,

writ denied).

Here, Appellees’

summary-judgment evidence focuses on TDCJ’s general policies and procedures for

inmate housing assignments. By contrast, Salazar’s summary-judgment response

addresses admitted violations of TDCJ policy AD-03.50 which he contends are

failures to perform ministerial duties. The pertinent policies are as follows:

IX. Segregation

Security Measures : Each warden shall immediately take all necessary steps

to insure that the safety and security of inmates and staff in segregation is

maximized.

. . . .

D. Prior to and

after each use, the shower areas, dayrooms, inside recreational areas and

outside recreation area are to be thoroughly searched. Recreation

activities are to be confined to the hours from 0700-2200 (7 a.m.-10 p.m.).

Inmates shall be recreated before showering.

E. Inmates in

segregation shall be thoroughly strip-searched before and after

recreation or leaving the assigned cellblock.

X. Administrative

Segregation Escort Procedures : The following procedures are to be followed

in escorting inmates to and from their assigned cells in administrative

segregation areas:

A. In order to

prevent injury to others or serious property damage, any Group A inmate in

administrative segregation shall be escorted as follows:

1. Anytime such

an inmate is transported from his assigned cell, the inmate is to be placed in

mechanical restraints ( e.g. , handcuffs).

2. The

mechanical restraints are to be placed on the inmate before opening the door of

the cell. The inmate is to be directed to place his arms behind and through

the foodslot for handcuffing. There shall be one officer required to escort

administrative segregation inmates within the segregation area. However, there

must be at least two officers present when escorting an inmate outside of the

segregation area.

. . . .

4. Before being

returned to their assigned administrative segregation cells, inmates shall be

placed in mechanical restraints.

Appellees admit several

violations of these policies including the following: (1) inmates in the

administrative segregation area “were allowed under specific circumstances to

walk to and from recreation and showers unescorted by correctional officers and

without handcuffs”; and (2) inmates “were not always strip-searched prior to

being allowed out of their cells for recreation and showers.” Appellees could

neither admit nor deny that Basden was strip-searched on the date of the

alleged assault.

We hold as a matter of law that the

violated policies establish ministerial duties because they prescribe and

define the duties “to be performed with such precision and certainty as to

leave nothing to the exercise of discretion or judgment.” See Ballantyne ,

144 S.W.3d at 425 ; Chambers , 883 S.W.2d at 654 . By Appellees’ own

admissions, prison employees failed to comply with these ministerial duties.

Thus, a genuine issue of material fact remains on the question of whether

prison employees complied with these ministerial duties on the date of the

alleged assault.

Because Appellees failed to

conclusively establish that Salazar seeks to hold them liable for a failure to

perform discretionary duties, the court erred by granting their

summary-judgment motion insofar as the motion was premised on official

immunity. Accordingly, we sustain Salazar’s first issue.

Conclusion

Appellees failed to conclusively establish that

Basden did not present “an unreasonable and foreseeable risk of harm” to

Salazar. They likewise failed to conclusively establish that Salazar seeks to

hold them liable for a failure to perform discretionary duties. Accordingly,

they were not entitled to summary judgment on the issues of legal duty or

official immunity. Thus, we reverse the judgment and remand this cause to the

trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice

Gray,

Justice

Vance, and

Justice

Reyna

(Chief Justice Gray concurs in the result with a

note as follows: “I cannot join the majority’s broad sweeping statements that

are unnecessary in the disposition of this appeal of a summary judgment,

therefore I join only the result. I cannot join the judgment because it makes

reference to the majority’s opinion which I cannot join.”)

Reversed and remanded

Opinion delivered and

filed February 27, 2008

[CV06]

[1]

Salazar’s lawsuit has been

pending since 1994, and there have been four prior proceedings in this Court

related to his suit.

[2]

This was Salazar’s live

pleading on file when Appellees filed their summary-judgment motion.

[3]

Section 501.019 permits the

State to deduct the cost of incarceration as a setoff against any adverse judgment

rendered in an inmate’s favor. See Tex.

Gov’t Code Ann. § 501.019 (Vernon 2004).

[4]

Although Appellees’ motion

refers to both subsections (c) and (i) of Rule of Civil Procedure 166a, which

govern traditional and no-evidence summary-judgment motions respectively, their

motion does not delineate in any manner between traditional and no-evidence

claims. See Tex. R. Civ. P. 166a(c),

(i). Salazar cites the standard of review applicable to traditional

summary-judgment motions in his brief, and Collins and Garner do not dispute

that this is the applicable standard. Therefore, we construe their motion as

one for a traditional summary judgment. See Waite v. Woodard, Hall &

Primm, P.C. , 137 S.W.3d 277, 281 (Tex. App.—Houston [1st Dist.] 2004, no

pet.); Amouri v. Sw. Toyota, Inc. , 20 S.W.3d 165, 168 (Tex.

App.—Texarkana 2000, pet. denied); see also Binur v. Jacobo , 135 S.W.3d 646,

650-51 (Tex. 2004).

[5]

Salazar apparently abandoned

his claims that Appellees are liable for housing him in the administrative

segregation unit with Basden despite knowing that they were members of rival

“disruptive groups.”

[6]

The Supreme Court did not hold

that the facility in fact had such a duty but instead held that the facility’s

summary-judgment evidence failed to conclusively establish that it did not have

such a duty. Tex. Home Mgmt., Inc. v. Peavy , 89 S.W.3d 30, 39 (Tex. 2002).

[7]

See B.R. v. State , 144

P.3d 431, 435 (Alaska 2006); Wertheim v. Pima County , 211 Ariz. 422 , 122 P.3d 1, 3-4 (Ariz. Ct. App. 2005); Dep’t of Health & Rehabilitative

Servs. v. Whaley , 574 So. 2d 100, 103-04 (Fla. 1991); Thomas v. Williams ,

105 Ga. App. 321 , 124 S.E.2d 409, 412-13 (1962); Haworth v. State ,

60 Haw. 557 , 592 P.2d 820, 824-25 (1979); Barnard v. State , 265 N.W.2d

620, 621 (Iowa 1978); Jackson v. City of Kansas City , 263 Kan. 143 , 947 P.2d 31, 40-41 (1997); Rowan County v. Sloas , 201 S.W.3d 469, 479 (Ky.

2006); Brou v. Orleans Parish Criminal Sheriff’s Office , 897 So. 2d 817,

819-20 (La. Ct. App. 2005); Cooney v. Hooks , 535 N.W.2d 609, 611 (Minn. 1995); Daniels v. Andersen , 195 Neb. 95 , 237 N.W.2d 397, 400 (1975); Butler

v. Bayer , 168 P.3d 1055, 1063-64 (Nev. 2007); Murdock v. City of Keene ,

137 N.H. 70 , 623 A.2d 755, 756 (1993); Harris v. State , 61 N.J. 585 , 297

A.2d 561, 563 (1972); Doe v. City of Albuquerque , 96 N.M. 433 , 631 P.2d

728, 733 (N.M. Ct. App. 1981); Sanchez v. State , 99 N.Y.2d 247 , 784

N.E.2d 675, 678 (2002); King v. Durham County Mental Health Developmental

Disabilities & Substance Abuse Auth. , 113 N.C. App. 341 , 439 S.E.2d

771, 774-75 (1994); Clemets v. Heston , 20 Ohio App. 3d 132 , 485 N.E.2d

287, 291-92 (1985); Keeland v. Yamhill County , 24 Ore. App. 85 , 545 P.2d

137, 139 (1976); Saunders v. State , 446 A.2d 748, 750 (R.I. 1982); Blakey

v. Boos , 83 S.D. 1 , 153 N.W.2d 305, 307 (1967); Jankee v. Clark County ,

235 Wis. 2d 700 , 612 N.W.2d 297, 321 (2000); accord Cortes-Quinones v. Jimenez-Nettleship ,

773 F.2d 10, 15 (1st Cir. 1985) (applying law of Puerto Rico); Frett v.

Virgin Islands , 839 F.2d 968 , 975-76 (3d Cir. 1988) (applying law of Virgin

Islands), overruled in part on other grounds by Ngiraingas v. Sanchez ,

495 U.S. 182 , 110 S. Ct. 1737 , 109 L. Ed. 2d 163 (1990); Matthews v. Dist.

of Columbia , 387 A.2d 731, 734 (D.C. 1978); see also Marshall v. Winston ,

239 Va. 315 , 389 S.E.2d 902, 904 (1990) (recognizing duty to prevent inmate

released from jail from harming foreseeable victims but holding that plaintiff

failed to allege or show that sheriff knew or should have known that inmate

intended to attack plaintiff); Rayfield v. S.C. Dep’t of Corrections ,

297 S.C. 95 , 374 S.E.2d 910, 918 (1988) (“not questioning” the concept of duty

set out in Restatement sections 314 through 320 but holding that special

relationship ended when inmate was released from custody).

[8]

See Tarasoff v. Regents of

the Univ. of Cal. , 17 Cal. 3d 425 , 551 P.2d 334, 343-44 (1976) (therapist

who learned that patient intended to harm another owed duty to use reasonable

care to protect intended victim); Felger v. Larimer County Bd. of County

Comm’rs , 776 P.2d 1169, 1172 (Colo. Ct. App. 1989) (special relationship

between sheriff and probationer injured in community-service program);

Assoc. Health Sys., Inc. v. Jones , 185 Ga. App. 798 , 366 S.E.2d 147, 150-51

(1988) (nursing home owed duty to prevent one resident from assaulting

another); Sterling v. Bloom , 111 Idaho 211 , 723 P.2d 755, 769-70 (1986)

(probation officer has legal duty to exercise reasonable care to control

conduct of probationer and prevent harm to third party); State v. Johnson ,

108 Md. App. 54 , 670 A.2d 1012, 1017-18 (1996) (special relationship between

state and inmate established “duty to provide reasonable health care”); Knight

v. State , 99 Mich. App. 226 , 297 N.W.2d 889, 894 (1980) (social worker who

knew person in her care posed danger had a duty “to exercise reasonable care to

control the third person and prevent him from harming others”); see also

Rollins v. Petersen , 813 P.2d 1156, 1159 (Utah 1991) (acknowledging “the

general applicability in Utah of the ‘special relation’ analysis described in

sections 314 through 320 of the Restatement”).

[9]

The common law duty discussed

in this paragraph is not to be confused with the constitutional duty imposed on

prison officials by the Eighth Amendment “to protect prisoners from violence at

the hands of other prisoners.” See Farmer v. Brennan , 511 U.S. 825, 833 , 114 S. Ct. 1970, 1976 , 128 L. Ed. 2d 811 (1994) (quoting Cortes-Quinones v.

Jimenez-Nettleship , 842 F.2d 556, 558 (1st Cir. 1988)). Suits premised on

this constitutional duty are usually brought under title 42, section 1983 of

the United States Code. See, e.g., Johnson v. Johnson , 385 F.3d 503

(5th Cir. 2004); Horton v. Cockrell , 70 F.3d 397 (5th Cir. 1995) (per

curiam); City of Waco v. Hester , 805 S.W.2d 807, 815-17 (Tex. App.—Waco

1990, writ denied).

[10]

Appellees also admitted that the

term “disruptive group” is a synonym for a “gang.”

[11]

Appellees admitted that the copy

of Administrative Directive No. AD-03.50 relied on by Salazar “is a verbatim

excerpt” of the version of AD-03.50 applicable on the date of the alleged

assault.

[12]

Appellees could neither admit

nor deny that the recreation area had been searched on the date of the alleged

assault.