Opinion

11th

Court of Appeals

Eastland,

Texas

Opinion

Eastland

County Cooperative Dispatch, Clay Coffey,

Wayne Bradford, Ken Wheeler, and Gerald Cozart

Appellants

Vs. No. 11-00-00184-CV B Appeal from Eastland

County [1]

Elnor

Maxine Poyner, Individually and as Independent

Executor

of the Estate of William Euell Poyner, and as

sole heir of William Euell Poyner [2]

Appellee

Eastland

County Cooperative Dispatch, Eastland County,

and the City of Gorman

Appellants

Vs. No. 11-00-00284-CV B Appeal from Eastland

County

Elnor

Maxine Poyner, Individually and as Independent

Executor

of the Estate of William Euell Poyner, and as

sole heir of William Euell Poyner

Appellee

These appeals arise from the suit Elnor Maxine

Poyner filed following the death of her husband William Euell Poyner who was

killed in an armed encounter with law enforcement officers. Eastland County Cooperative Dispatch,

Eastland County Sheriff Wayne Bradford, Eastland County Deputy Sheriff Clay

Coffey, City of Gorman Chief of Police Ken Wheeler, and City of Gorman Reserve

Officer Gerald Cozart moved for summary judgment and asserted various immunity

claims. The trial court denied all

motions for summary judgment, and No. 11-00-00184-CV is the interlocutory

appeal from that order pursuant to TEX. CIV. PRAC. & REM. CODE ANN. ' 51.014(a)(5) (Vernon Supp.

2001). [3] For the reasons stated in this opinion, we

affirm the judgment denying official immunity to Deputy Coffey and Officer

Cozart, but we reverse the judgment denying the motions for summary judgment in

all other respects and dismiss those claims against all appellants. Eastland County Cooperative Dispatch is a

governmental unit, and we do not have jurisdiction to hear its interlocutory

appeal. See Section 51.014(a)(5). The appeal is dismissed as to Eastland

County Cooperative Dispatch.

By a 1997 amendment to TEX. CIV. PRAC. & REM.

CODE ANN. ' 51.014(a)

(Vernon Supp. 2001), the legislature added Section 51.014(a)(8) which provides

that a governmental unit may file an interlocutory appeal from the denial of a

plea to the jurisdiction. See Section

51.014(a)(8). See also Texas Department

of Criminal Justice v. Miller, 44 Tex. Sup. Ct. J. 963 , 964 n.2 (June 21,

2001). Eastland County, the City of

Gorman, and Eastland County Cooperative Dispatch each filed pleas to the

jurisdiction claiming immunity. The

trial court denied those pleas to the jurisdiction, and No. 11-00-00284-CV is

the appeal from those rulings. For the

reasons stated in this opinion, we reverse the trial court = s ruling upon the pleas to

the jurisdiction and render judgment dismissing the claims against Eastland

County, the City of Gorman, and Eastland County Cooperative Dispatch.

Because the resolution of each of these appeals

involves common questions, although under somewhat different standards of

review, we will consider them together. We will first address the summary

judgment rulings, and then we will discuss the rulings on the pleas to the

jurisdiction.

MOTIONS

FOR SUMMARY JUDGMENT

Standard

of Review

The standard of review in cases in which the trial

court has denied a motion for summary judgment is the same standard used to

review the granting of a motion for summary judgment. City of San Antonio v. Hernandez, 53 S.W.3d 404 (Tex.App. B San Antonio 2001, pet = n den = d); see also Bartlett v.

Cinemark USA, Inc., 908 S.W.2d 229 (Tex.App. - Dallas 1995, no writ). The question is whether the movant has met

its burden of showing that there are no genuine issues of material fact and that

judgment should be granted as a matter of law.

Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546

(Tex.1985). All evidence favorable to

the non-movant must be taken as true, and all reasonable doubts must be

resolved in favor of the non-movant. Nixon

v. Mr. Property Management Company, Inc., supra.

In order to prevail upon a motion for summary

judgment based upon an affirmative defense, the movant must come forward with

summary judgment evidence for each element of the affirmative defense. American Tobacco Company, Inc. v. Grinnell,

951 S.W.2d 420, 425 (Tex.1997); Nichols v. Smith, 507 S.W.2d 518

(Tex.1974). If the movant conclusively

establishes the defense, then it is incumbent upon the non-movant to come

forward with summary judgment evidence to the contrary. Torres v. Western Casualty and Surety

Company, 457 S.W.2d 50 (Tex.1970)

Appellants filed their motions for summary

judgment in accordance with TEX.R.CIV.P. 166a(c) ( A traditional @

motion for summary judgment) and also in accordance with TEX.R.CIV.P. 166a(i)

(a A no-evidence @ motion for summary

judgment), alleging that appellee had no evidence on one or more elements of

the causes of action. Because our

holding in connection with the A traditional @ motions for summary

judgment is dispositive of this appeal except as to Deputy Coffey and Officer

Cozart, we need only discuss the A no-evidence @ aspect of appellants = motions for summary

judgment as to them.

The

summary judgment evidence presented in this case reveals that 96-year-old

William Euell Poyner died as a result of gunshot wounds which he received

during a confrontation with law

enforcement personnel. Mr. Poyner and

his wife, Elnor Maxine Poyner, lived in Eastland County, just outside the city

limits of the City of Gorman. Mrs.

Poyner was 81 years old. On the night

of the shooting, Mrs. Poyner telephoned the Gorman Police Department. The summary judgment evidence showed that

the call was made at 10:39 p.m. Calls

to the Gorman Police Department were

forwarded to the Eastland County Cooperative Dispatch, a governmental

unit created pursuant to what is now TEX. GOV = T

CODE ANN. ' 791.001 et

seq. (Vernon 1994 & Supp. 2001).

Dispatch provided 9-1-1 services within Eastland County; and it also

conducted the law enforcement dispatch business for certain governmental

bodies, including the County of Eastland and the City of Gorman.

When she talked to the Dispatch employee, Mrs.

Poyner informed him that Mr. Poyner mistakenly thought that she was involved

with other men. She told Dispatch that,

on this particular night, she had awakened Mr. Poyner to get him to stop

snoring. Other summary judgment

evidence shows that she eventually went into another room to sleep and turned

the light off in the bedroom. Shortly

after that, she noticed that the light in the bedroom was on again. When she went into the bedroom, Mrs. Poyner

noticed that Mr. Poyner was fully dressed and was looking through a drawer for

his A six shooter. @ She told Dispatch that Mr. Poyner had been looking for the A six shooter, @ that he had found another

gun, and that he was probably out A on

the carport. @

Lights from vehicles traveling down the highway in

front of the Poyner = s

house would shine into their house, and Mr. Poyner thought that these lights

were signals from Mrs. Poyner = s

boyfriends for her to come out. This

particular night was high school graduation night, and there was a lot of

traffic on the highway. Although he

could not find his A six

shooter, @ Mr. Poyner

did find a shotgun. He told Mrs. Poyner: A I = m going to stop this

tonight. @ Mrs. Poyner told Dispatch how to get to

their house and that she would leave the porch light on.

Gorman Police Officer Abel Saldana arrived at the

Poyner residence first. After the

Dispatch employee talked with Mrs. Poyner, Deputy Coffey was dispatched to the Poyner home. Eventually, Deputy Coffey and Officer Cozart

arrived at the scene. Eastland County

Constable Tipton was also there. The

officers = vehicles

were parked in such a manner that the headlights were shining toward the Poyner = s house. Officer Cozart = s

vehicle was parked so that the headlights were shining at the back of the

house. The red and blue emergency

lights were turned off on all of the law enforcement vehicles, and Mr. Poyner

had turned the lights off inside the house.

When Officer Saldana talked with Mrs. Poyner, she

appeared to be shaking and nervous. She

told Officer Saldana that he needed to talk to Mr. Poyner and that Mr. Poyner

had a gun and was accusing her of running around on him. Mrs. Poyner was placed in a safe place away

from the house, and Mr. Poyner was still in the house.

While Deputy Coffey was talking to Mrs. Poyner,

Officer Cozart told the others that Mr. Poyner was coming out of the house and

that he had either a rifle or a shotgun.

Mr. Poyner came out of the house very slowly and walked in a slow

shuffling movement, which was his usual way of walking. Deputy Coffey came to the back of the house

and began to approach Mr. Poyner.

The summary judgment evidence presented by

appellants shows that the officers told Mr. Poyner to drop the gun and called

his name several times. Mr. Poyner

suffered from a hearing problem, and that information had been conveyed to

Deputy Coffey. Summary judgment

evidence presented by appellee contains the statements as well as the

deposition testimony of two non-law enforcement personnel. These witnesses testified that they did not

hear the officers identify themselves nor did they hear the officers order Mr.

Poyner to drop his weapon. However, the

witnesses also said that they could not say that the command was not given and

that, because they were on the other side of the house, they might not have

heard it. The summary judgment record

reveals that Officer Cozart first saw Mr. Poyner begin to raise his weapon to a

firing position and that the officers began to fire multiple rounds at Mr.

Poyner. The summary judgment evidence

conclusively establishes that no other persons were in a position to see

whether Mr. Poyner raised his weapon to a firing position prior to being fired

upon by the officers. Mr. Poyner died

as a result of the gunshot wounds.

Mrs. Poyner, for herself and as executrix of Mr.

Poyner = s estate, sued

appellants and sought damages under 42 U.S.C.A. '

1983 et seq. (West Pamph. Supp. 2001), as well as for damages under state law

brought about by claims of varying degrees of negligence and culpability of

those persons and entities involved. [4] Each appellant filed motions for summary

judgment. The motions for summary

judgment implicated the doctrines of sovereign immunity, official immunity, and

qualified immunity. The trial court

denied all of the motions for summary judgment without giving reasons for denying

the motions.

The petition filed in the trial court by appellee

contained multiple allegations.

Although the petition does not constitute summary judgment evidence, we

feel that it is appropriate to an understanding of the issues on appeal for us

to detail the allegations made against appellants by appellee. Further, it is necessary for us to discuss

the allegations in connection with the pleas to the jurisdiction filed by the

governmental units.

The live petition contained general allegations of

wrongful acts of appellants and others, followed by certain

specifically-enumerated allegations, and then follow other additional general

allegations of wrongful acts.

Generally, the allegations were that the officers at the scene

trespassed with vehicles belonging to Eastland County and the City of Gorman

and that they shined the headlights of the vehicles onto Mr. Poyner = s property and into his

face so that he could not identify those present as law enforcement

officers. Further, appellee alleged

that the officers intentionally and knowingly disguised their identity. Appellee also maintained that the officers

used large caliber weapons to shoot and kill Mr. Poyner with reckless abandon. Appellee alleged that all of the conduct

named A was done

negligently, with reckless disregard and conscious indifference to the rights

of Decedent. @

Appellee also stated in the petition that the

shooting was committed through the gross negligence of the officers, as well as

through the incompetence of the officers, with conscious indifference to Mr.

Poyner = s rights. Further, appellee complained that, through

the gross negligence of the City of Gorman, Eastland County, and Dispatch,

false information was knowingly and with reckless disregard and conscious indifference

to Mr. Poyner = s rights

transmitted to the responding officers, creating a false impression in the

minds of the responding officers. In

other general allegations, appellee stated that the City of Gorman, Eastland

County, and Dispatch negligently and with conscious indifference to Mr. Poyner

broadcasted false and misleading information throughout the entire episode.

The allegations further complained of a negligent

entrustment by the City of Gorman, Eastland County, Sheriff Bradford, and Chief

Wheeler. Appellee also alleged that the

named parties were negligent in hiring and in arming Deputy Coffee and Officer

Cozart when they should have known of their incompetency, their inadequate

training, and their propensity to A make

mistakes and panic. @ Appellee alleged that such conduct was

unconscionable.

Appellee also alleged in her pleadings that

Eastland County and the City of Gorman hired incompetent and mentally unstable

officers and that those officers failed to heed advice given to them regarding

the fact that there was a lack of any threat from Mr. Poyner. Appellee further alleged that the officers

ignored information given to them regarding Mr. Poyner = s physical condition. Appellee also pleaded that the officers

failed to identify themselves to Mr. Poyner and that they also failed to advise

him of the nature of their visit. The

general allegations also provided that the officers created a situation in

which Mr. Poyner could not identify them by failing to display their emergency overhead

lights.

In 22 specifically numbered allegations, appellee

alleged negligence against all parties, except Dispatch. We quote those allegations exactly as they

appeared in the live petition:

1.

Negligent entrustment;

2.

Negligent hiring;

3.

Negligent in failing to check background of their police officers;

4.

Negligent in failing to supervise their police officers and other employees;

5.

Negligent in failing to properly train their police officers and other

employees;

6.

Negligent handling of citizen requests for assistance;

7.

Negligently dispatching of officers;

8.

Negligently drawing inaccurate conclusions and broadcasting the opinions and

biases of the dispatch instead of the information received from Plaintiff;

9.

Negligent in gross misrepresentations of fact to responding officers;

10.

Negligent in using excessive force;

11.

Negligent in not following usual and standard police methods and procedures,

including methods involving the least necessary force;

12.

Negligent use of firearms;

13.

Negligent use of official vehicles;

14.

Failure to warn the Decedent;

15.

Wrongful entry on the Decedent = s

property without a warrant;

16.

Use of excessive force;

17. Negligently failing to heed the advice and

warnings of other officers who warned

that the Decedent was old and deaf and could not hear officers;

18.

Negligently failing to assess the situation, including the lack of any threat

posed by Decedent and the physical condition of Decedent;

19.

Failure to remove the officers that committed the homicide from active duty;

20.

Allowing the officers who committed the homicide to participate in the crime

scene investigation and, in fact, allowing them to control the crime scene and

access evidence;

21.

Negligently acting in a state of panic and failure to exercise standard police

procedure; and

22.

Negligent training and supervision.

In 16 separately enumerated

paragraphs, appellee alleges negligence against Dispatch. We again quote those allegations exactly as

they appeared in the live petition:

1.

Negligent entrustment;

2.

Negligent hiring;

3.

Negligent in failing to check background of their officers and employees;

4.

Negligent in failing to supervise their officers and other employees;

5.

Negligent in failing to properly train their officers and other employees;

6.

Negligent handling of citizen requests for assistance;

7. Negligent dispatching of officers;

8.

Negligently drawing inaccurate conclusions and broadcasting the opinions and

biases of the dispatch and dispatch personnel instead of the information

received from Plaintiff;

9.

Negligent in gross misrepresentations of fact to responding officers;

10.

Negligent in using or causing to be used excessive force;

11. Negligent in not following

usual and standard police methods and procedures, including methods to advise

officers properly so as to involve the least necessary force.

12.

Use or causing to be used of excessive force;

13.

Negligently failing to heed the advice of Plaintiff;

14.

Negligently failing to assess the situation, including the lack of any threat

posed by Decedent and the physical condition of Decedent;

15.

Negligently acting in a state of panic or excitement and failure to exercise

standard police procedure; and

16.

Negligent training and supervision.

Following those specifically

enumerated allegations, appellee continued with additional general

allegations. Appellee contended that

the City of Gorman, Eastland County, Sheriff Bradford, and Chief Wheeler failed

to give advice to their officers regarding coping with the stress of their

jobs; that they failed to maintain proper policies or that the policies were

inadequate regarding such things as use of deadly force and use of emergency

overhead lights on the police vehicles; that they failed to evaluate the

psychiatric, psychological, and emotional stability of the officers, including

alcohol abuse and anger control; that Eastland County and the City of Gorman

wrongfully delegated its duties to Dispatch and their untrained, uncertified

employees; that the City of Gorman, Eastland County, Sheriff Bradford, and

Chief Wheeler conspired to create a cover-up; that the officers improperly used

cover; that the officers improperly advanced upon the victim; and that the

officers failed to use a non-lethal means to resolve the issue.

With this background for an

understanding of the nature of the case and bearing in mind the standard of

review in cases involving the denial of motions for summary judgments and pleas

to the jurisdiction based on immunity, we will examine the various types of

immunity claims involved.

Immunity

Generally

Governmental immunity is a common-law rule. Harris County Flood Control District v. Mihelich,

525 S.W.2d 506 (Tex.1975). Governmental

immunity encompasses both sovereign immunity and official immunity. Federal Sign v. Texas Southern University,

951 S.W.2d 401 (Tex.1997); Delaney v. University of Houston, 835 S.W.2d 56

(Tex.1992). As we will discuss later,

governmental units are immune from suit in certain circumstances, and qualified

immunity also is available for individuals under Section 1983. Therefore, in reaching a resolution of this

case, we must examine and discuss three types of immunity: (1) official

immunity, (2) qualified immunity, and (3) sovereign immunity.

OFFICIAL

IMMUNITY

1. Traditional Summary Judgment

We must first determine whether Sheriff Bradford,

Deputy Coffey, Chief Wheeler, and Officer Cozart are protected from individual

liability in this case by virtue of the doctrine of official immunity. They have been sued not only in their

official capacities but also in their individual capacities.

Unlike sovereign immunity, the doctrine of

official immunity is not a bar to suit (a jurisdictional issue) but is a bar to

liability and shields the party claiming official immunity from liability in

the suit individually. McCartney v.

May, 50 S.W.3d 599 (Tex.App. - Amarillo

2001, no pet = n). Official immunity is an affirmative defense

which protects government employees, in their individual capacities, from

liability related to: (1) the

performance of discretionary duties, (2) within the scope of the employee = s authority, (3) if the

employee acts in good faith. City of

Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994). Because it is an affirmative defense, the burden is upon the movant

to establish each element of the defense. Nichols v. Smith, supra. If the movant establishes the defense, then

the non-movant must come forward with summary judgment evidence to the

contrary. Torres v. Western Casualty

and Surety Company, supra.

First, we hold that the officers have shown that

they were performing discretionary functions and that there is no summary

judgment proof to the contrary.

Officials perform discretionary acts when the actions are those which

involve A personal

deliberation, decision, and judgment. @ See Vasquez v. Hernandez, 844 S.W.2d 802,

804 (Tex.App. B San

Antonio 1992, writ dism = d

w.o.j.).

Next, we hold that the officers have shown that

they were performing those discretionary duties within the scope of their

authority. Officers act within the

scope of their authority if they are discharging duties generally assigned to

them. City of Lancaster v. Chambers,

supra. The question then becomes

whether the officers acted in good faith.

In official immunity cases, good faith is measured

against a standard of objective legal reasonableness, and the subjective state

of mind of the officer is irrelevant.

City of Lancaster v. Chambers, supra.

The test for good faith is analogous to an abuse of discretion

standard. An officer acts in bad faith

only if he could not have reasonably reached the decision in question. University of Houston v. Clark, 38 S.W.3d

578 (Tex.2000).

In order to establish the A good faith @

element of their defense of official immunity, it was necessary for the

officers to establish that a reasonably prudent officer could have believed

that his or her actions were justified under the circumstances. City of Lancaster v. Chambers, supra; Alamo

Workforce Development, Inc. v. Vann, 21 S.W.3d 428 (Tex.App. B San Antonio 2000, no pet = n). Once the officers establish that element,

the non-movant must come forward with summary judgment evidence which shows A that no reasonable person

in the officer = s

position could have thought that the facts justified the officer = s acts. @ University of Houston v. Clark, supra at 581 .

The summary judgment evidence shows that, on the

night of the shooting, Sheriff Bradford requested that Texas Ranger Bobby

Grubbs conduct an investigation into the events of the evening. Ranger Grubbs performed that investigation,

and the summary judgment evidence details his credentials and his

investigation. After giving the details

of his investigation, Ranger Grubbs testified that both Deputy Coffey and

Officer Cozart acted as reasonable officers based on the information they had

at the time. He saw nothing that would

indicate that the use of force was not justified, and he also testified that

all of the evidence considered by him shows that the use of force was justified.

The summary judgment evidence also shows that

Sheriff Bradford was of the same opinion regarding Deputy Coffey and stated

that: A In

my opinion, a reasonably prudent police officer, in the same situation as

Deputy Coffey, could have believed that his actions were justified. @ Sheriff Bradford further testified regarding his hiring,

training, and supervising practices.

His testimony was also to the effect that, at all times pertaining to

this lawsuit, Officer Coffey = s

actions were reasonable, proper, and necessary in connection with the performance

of his duties.

Chief Wheeler also provided summary judgment

evidence. His testimony was that

Officer Cozart acted reasonably with respect to the incident made the basis of

this lawsuit and that Officer Cozart = s

use of his firearm was justified. He

also testified regarding the policies of the Gorman Police Department, and it

was his opinion that neither he nor any of his officers committed any act which

constituted either negligence or proximate cause of any injury connected with

the incident made the basis of this lawsuit. [5]

After appellants produced the summary judgment

evidence outlined above, it was incumbent upon appellee to come forward with

summary judgment evidence A that

no reasonable person in the officer = s

position could have thought that the facts justified the officer = s acts. @ University of Houston v. Clark, supra at 581 . Appellee = s

summary judgment evidence included an affidavit from an expert witness on law

enforcement, Danny B. Steffenauer.

Steffenauer outlined his credentials and gave the basis for his expert

opinion. He swore that there was a lack

of any sufficient policy in the Eastland County Sheriff = s Office or the City of Gorman regarding

deadly force and armed encounters. It

was also Steffenauer = s

opinion that this lack was a negligent and proximate cause of the confrontation

and the death of Mr. Poyner. He is of

the further opinion that:

[N]o

reasonable and prudent police officer, acting under the same or similar

circumstances as those confronting the officers at the Poyner residence, would

not have created or permitted such a fact situation...which raised an issue of

the need to use deadly force at all against [Mr.] Poyner. Poyner = s

death could have been avoided, without resorting to deadly force, had such

officers followed even the most elemental concepts of the use of deadly force. [6]

The affidavit sets forth the details upon which Steffenauer bases

his opinion.

Steffenauer = s

expert opinion was directed toward the policies of Eastland County and the City

of Gorman and at the actions of Deputy Coffey and Officer Cozart while at the

scene. Sheriff Bradford = s and Chief Wheeler = s summary judgment evidence

regarding official immunity was not controverted by proof that no reasonable

officer acting under the same or similar circumstances could have believed that

the decisions which they made at any point in time complained of in this

lawsuit were proper. The trial court

erred when it failed to grant official immunity to Sheriff Bradford and Chief

Wheeler in their individual capacities.

Because appellee came forward with summary judgment proof to controvert

the official immunity claims of Deputy Coffey and Officer Cozart, the trial

court did not err in overruling their motions for summary judgment relating to

official immunity from personal liability.

2. Deputy Coffey = s and Officer Cozart = s A No-Evidence @ Motions for Summary

Judgment

Because we have held that Deputy Coffey and

Officer Cozart were not entitled to summary judgment under their A traditional @ motions for summary

judgment, it is necessary for us to discuss their claims to summary judgment

under TEX.R.CIV.P. 166a(i) A no-evidence @ motions for summary

judgment. In this connection, we view

only the evidence presented by the non-movant.

Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614 (Tex.App. - Eastland

2000, pet = n den = d). We will accept as true evidence that is

favorable to non-movants, and we will indulge every reasonable inference and

resolve all doubts in favor of non-movants.

Lavy v. Pitts, 29 S.W.3d 353, 356 (Tex.App. - Eastland 2000, pet = n den = d). A no-evidence summary judgment is not proper

if the non-movant presents more than a scintilla of evidence in answer to the

motion for summary judgment. Lavy v.

Pitts, supra. We have set forth the

non-movant = s summary

judgment evidence. We again hold that

appellee has presented more than a scintilla of evidence to prevent the

application of the doctrine of official immunity to the individual claims

against Deputy Coffey and Officer Cozart and that neither officer was entitled

to a no-evidence summary judgment on this claim.

SECTION

1983 CLAIMS

We now review the trial court = s action when it denied the

motions for summary judgment filed by Sheriff Bradford, Chief Wheeler, Deputy

Coffey, and Officer Cozart in connection with the Section 1983 claims. Those motions were based, in part, on the

officials = claims to

qualified immunity. A Qualified immunity is an

entitlement not to stand trial or face the other burdens of litigation. @ Saucier v. Katz, 531 U.S. 991 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 ,

281 (2001)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86

L.Ed.2d 411 (1985). It is not a defense

to liability; it is an immunity from suit.

Saucier v. Katz, 150 L.Ed.2d at 281.

In Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct.

3034 , 97 L.Ed.2d 523, 534 (1987), Justice Scalia, writing for a majority of the

Court, stated:

The general rule of qualified immunity is intended

to provide government officials with the ability A reasonably

[to] anticipate when their conduct may give rise to liability for damages. @ Where that rule is applicable, officials can know that they will

not be held personally liable as long as their actions are reasonable in light

of current American law. (Citations

omitted)

In discussing the reason behind the rule, the Court in Anderson

v. Creighton, 97 L.Ed.2d at 529 further stated:

When government officials abuse their offices, A action[s] for damages may

offer the only realistic avenue for vindication of constitutional guarantees. @ On the other hand, permitting damages suits against government

officials can entail substantial social costs, including the risk that fear of

personal monetary liability and harassing litigation will unduly inhibit officials

in the discharge of their duties.

(Citation omitted) Our cases

have accommodated these conflicting concerns by generally providing government

officials performing discretionary functions with a qualified immunity,

shielding them from civil damages liability as long as their actions could

reasonably have been thought consistent with the rights they are alleged to

have violated. See, e.g., Malley v.

Briggs, 475 U.S. 335, 341 , 89 L.Ed.2d 271 , 106 S.Ct. 1092 (1986)(qualified

immunity protects A all

but the plainly incompetent or those who knowingly violate the law @ ).

It is important to remember that we are not

reviewing this case on its merits with the

standards attendant upon such a review and that we are only reviewing

the application of immunity upon motions for summary judgment. In cases involving the preliminary review of

the use of excessive force, whether qualified immunity is available and whether

excessive force actually was used in a particular case are different inquiries. Saucier v. Katz, supra. The test for determining the existence of

qualified immunity in this context is a two-part test. The first part of the inquiry is A whether a constitutional

right would have been violated on the facts alleged. @

Saucier v. Katz, 150 L.Ed.2d at 281.

In other words, when we consider the summary judgment evidence in the

light most favorable to the non-movant, does that evidence show that the

conduct complained of violated a constitutional right? If the evidence does not show that a

constitutional right has been violated, then the matter is at an end; and

qualified immunity protects the official.

If the favorable consideration of the evidence reveals that a violation

of a constitutional right could be shown, then the next inquiry is whether that

right was clearly established at the time.

Saucier v. Katz, supra.

Whether a right has been clearly established

involves more than a broad, general proposition. Saucier v. Katz, supra.

As an example, the court in Saucier noted that in Graham v.

Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), it was

established that the use of force, if excessive under the objective standard of

reasonableness, violates the Fourth Amendment.

However, when determining immunity, that is not enough. A The

contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right. @ Saucier v. Katz, 150 L.Ed.2d at 282. We must review the matter within A the

specific context of the case, not as a broad general proposition. @ Saucier v. Katz, 150

L.Ed.2d at 281.

As the Court did in Saucier , we will

assume, without deciding for purposes of this opinion, that a constitutional violation could have

occurred under the summary judgment evidence based upon the general prohibition

against excessive force. Was that

general prohibition the source for clearly established law which the officers

violated in this case? A The question is what the

officer[s] reasonably understood [their] powers and responsibilities to be,

when [they] acted, under clearly established standards. @

Saucier v. Katz, 150 L.Ed.2d at 285.

When considered in the light most favorable to

appellee, the summary judgment evidence presented by appellee shows that Deputy

Coffey was advancing as opposed to retreating when Mr. Poyner was shot. However, the undisputed evidence establishes

that, at the time Mr. Poyner was shot, the officers had just seen him raise his

weapon to a firing position. The

clearly established standards at the time provided that an officer was

justified in using deadly force to protect himself. City of Dallas v. Half Price Books, Records, Magazines, Inc., 883

S.W.2d 374 (Tex.App. B

Dallas 1994, no writ). Because there

was no clearly established rule which would prohibit Deputy Coffey and Officer

Cozart from using the force which they did, when faced with Mr. Poyner = s weapon, they are entitled

to qualified immunity from Section1983 claims; and the trial court erred when

it failed to grant that immunity to them. [7]

Claims against Sheriff Bradford and Chief Wheeler

basically related to matters connected with hiring, supervising, and training

Deputy Coffey and Officer Cozart.

Unless those policies and practices were entered into or conducted with

conscious disregard or deliberate indifference to the risk that Deputy Coffey

or Officer Cozart would commit the particular constitutional violation in

question, they are entitled to immunity from suit under Section 1983. Board of the County Commissioners of Bryan

County, Oklahoma v. Brown, 520 U.S. 397 , 117 S.Ct. 1382 , 137 L.Ed.2d 626, 641

(1997). Sheriff Bradford and Chief

Wheeler both brought forth summary judgment evidence which established their

hiring, training, and supervision practices.

Viewing the summary judgment evidence in the light most favorable to

appellee, no fact issue has been raised by the summary judgment evidence that

any of the practices and procedures of which complaint is made were the result

of deliberate indifference on the part of either Sheriff Bradford or Chief

Wheeler. Sheriff Bradford and Chief

Wheeler are entitled to immunity in connection with the Section 1983 claims,

and the trial court erred when it failed to grant them that immunity.

PLEA

TO THE JURISDICTION

When determining a plea to the jurisdiction, it is

now clear that we consider not only the plaintiff = s

pleadings but also the evidence before the trial court. Texas Department of Criminal Justice v.

Miller, supra; Bland Independent School District v. Blue, 34 S.W.3d 547

(Tex.2000). In Texas Department of

Criminal Justice v. Miller, supra at 964-65 , the court stated: A Under

Jones , we must examine the plaintiff = s

pleadings to decide whether sovereign immunity has been waived. @ (Citing Texas Department of Transportation v. Jones, 8 S.W.3d

636, 639 (Tex.1999)). The court also

said that it must A decide

whether [the plaintiff] has > affirmatively

demonstrate[d] the court = s

jurisdiction to hear the cause =@

and that it will A consider

the facts alleged by the plaintiff, and to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties. @ See also Texas Natural

Resource Conservation Commission v. White, 46 S.W.3d 864, 868 (Tex.2001).

Sovereign

Immunity

The government, its agencies, and its officials

are protected from suit under the doctrine of sovereign immunity. Federal Sign v. Texas Southern University,

supra. A governmental unit is clothed

with sovereign immunity unless that immunity has been waived by the

legislature. See City of San Antonio v.

Hernandez, supra; see also Harris County v. Dillard, 883 S.W.2d 166

(Tex.1994). An employee of a

governmental unit is also entitled to a claim of sovereign immunity in claims

against him in his official capacity.

McCartney v. May, supra. The

doctrine of sovereign immunity implicates jurisdictional considerations. Vincent v. West Texas State University, 895

S.W.2d 469 (Tex.App. B

Amarillo 1995, no writ).

The

legislature has provided for waiver of sovereign immunity in certain instances

set forth in the Texas Tort Claims Act. [8] These instances of waiver are limited and

are narrowly defined. Texas Department

of Criminal Justice v. Miller, supra.

It is the prerogative of the legislature to waive or not to waive the

protection afforded by sovereign immunity.

Federal Sign v. Texas Southern University, supra. Those instances in which the legislature

has provided for waiver of immunity, as relevant here, are set forth in Section

101.021 of the Texas Tort Claims Act which provides:

A governmental unit in this state is liable for:

(1) property damage, personal injury, and death

proximately caused by the wrongful act or omission or the negligence of an

employee acting within his scope of employment if:

(A) the property damage, personal injury, or death

arises from the operation or use of a

motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the

claimant according to Texas law; and

(2) personal injury and death so 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.

Although immunity might be waived under the

provisions of Section 101.021, certain acts are exempted from that waiver of

immunity. Those circumstances include

instances in which the act complained of is an intentional one. See Section 101.057(2).

The pleadings and proof did not establish that the

death in this case arose from the operation or use of a motor-driven vehicle or

from a condition or use of tangible personal or real property, except for the

weapons involved. Even assuming that the

pleadings and evidence showed negligence or other wrongful acts, that conduct

must involve a condition or use of tangible personal or real property. In Kassen v. Hatley, 887 S.W.2d 4, 14

(Tex.1994), the supreme court stated that Section 101.021 A requires the property = s condition or use to cause

the injury. @ The fact that some property is involved is

not enough. As the Miller court

stated: A Using

that property must have actually caused the injury. @ Texas

Department of Criminal Justice v. Miller, supra at 965 .

In this case, the alleged A use @

of property was the headlights on patrol vehicles, emergency overhead lights,

and similar uses of the vehicles.

However, Mr. Poyner = s

death did not A arise

from @ the use of such

property but, rather, from the intentional use of the weapons. The use of property must be such that it was

the A direct device @ causing the death, and

there must be a A causal

nexus @ for liability;

this has not been established. Holder

v. Mellon Mortgage Company, 954 S.W.2d 786 (Tex.App. B Houston [14st Dist.] 1997), rev = d on other grounds , 5

S.W.3d 654 (Tex.1999). Further, it is

not enough that the property merely furnish the condition which makes the

injury possible. Union Pump Company v.

Allbritton, 898 S.W.2d 773 (Tex.1995); City of San Antonio v. Hernandez,

supra. Likewise, failure to train,

supervise, perform background checks, and other like claims made by appellee

are not such that implicate the use of tangible personal or real property. While those are independent causes of action,

under Section 101.021, the requirement that the claim be based upon the

condition or the use of tangible personal or real property remains. See Texas Department of Public Safety v.

Petta, 44 S.W.3d 575 (Tex.2001).

The difficulty in applying the A use @ provisions of the Texas Tort Claims Act has

been the subject of discussion for many years. We note that the Texas Supreme Court has invited the attention

of the legislature to this difficulty on several occasions. See Texas Department of Criminal Justice v.

Miller, supra at 966 , and cases cited therein.

The matter of waiver of sovereign immunity is one addressed to the

legislature, and any waiver must be A by

clear and unambiguous language. @ DeWitt v. Harris County, 904 S.W.2d 650, 652

(Tex.1995). The legislature recently spoke to the issue of clear and

unambiguous language when it enacted Act of June 15, 2001, 77th Leg., R.S., ch.

1158, ' 8, 2001 Tex.

Sess. Law Serv. ___ (Vernon)(to be codified at TEX. GOV = T CODE ANN. '

311.034):

In order to preserve the legislature = s interest in managing

state fiscal matters through the appropriations process, a statute shall not be

construed as a waiver of sovereign immunity unless the waiver is effected by

clear and unambiguous language. In a

statute, the use of A person, @ as defined by ' 311.005 to include

governmental entities, does not indicate legislative intent to waive sovereign

immunity unless the context of the statute indicates no other reasonable

construction.

All of the remaining claims except one relate to

the handling, mishandling, or ignoring of information, and similar claims. Those types of claims have long been held

not to be subject to the waiver provisions of the Texas Tort Claims Act and do

not involve the condition or the use or misuse of tangible personal or real

property. See Texas Department of

Public Safety v. Petta, supra; see also University of Texas Medical Branch at

Galveston v. York, 871 S.W.2d 175 (Tex.1994).

Those claims pertaining to the use of firearms are

the claims which remain for our discussion in connection with sovereign

immunity. The pleadings and evidence

suggest nothing other than that the officers intended to shoot Mr. Poyner. Merely claiming that an act is negligent does

not change its nature. Medrano v. City

of Pearsall, 989 S.W.2d 141 (Tex.App. B

San Antonio 1999, no pet = n). While it provides for waiver of sovereign

immunity in certain enumerated circumstances, the Texas Tort Claims Act also

provides that the waiver does not apply in certain instances, such as where the

injury or death is the result of an intentional tort. See Section 101.057(2).

An intentional tort, as opposed to negligence, is one in which the actor

has the specific intent to inflict injury.

Reed Tool Company v. Copelin, 689 S.W.2d 404 (Tex.1985). The pleadings and evidence before the court

show that Mr. Poyner = s

death was due to an intentional act which has been excluded from the waiver

provisions of the Texas Tort Claims Act.

Because the pleadings and evidence do not show

that sovereign immunity was waived in this case and because the injury and

death was caused by an intentional act, the trial court erred when it did not

grant the pleas to the jurisdiction.

For the same jurisdictional reasons, Sheriff Bradford, Deputy Coffey, Chief

Wheeler, and Officer Cozart are also entitled to sovereign immunity in their

official capacities.

For the reasons stated in the above discussion

concerning Section 1983 claims against Sheriff Bradford and Chief Wheeler, we

determine that the trial court also erred when it denied the pleas to the

jurisdiction filed by Eastland County, the City of Gorman, and Dispatch. We note that, while Dispatch has raised

immunity issues regarding the state claims and the civil rights claims made under

Section 1983, Eastland County and the City of Gorman raised immunity issues

only under the state claims. However,

Section 1983 immunity is jurisdictional and, therefore, must be addressed and

may be raised at any time. See Monell v. Department of Social Services of the

City of New York, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

HOLDING

IN CAUSE NO. 11-00-00184-CV

The judgment of the trial court is affirmed in

part and reversed and rendered in part. Insofar as it denied official immunity

to Eastland County Deputy Sheriff Clay Coffey and City of Gorman Reserve

Officer Gerald Cozart, the summary judgment is affirmed. Insofar as it denied summary judgment as to

Eastland County Sheriff Wayne Bradford and City of Gorman Chief of Police Ken

Wheeler, the judgment of the trial court is reversed and judgment is rendered

granting Sheriff Bradford = s

and Chief Wheeler = s

motions for summary judgment. The

interlocutory appeal filed by Eastland County Cooperative Dispatch is premature

and is dismissed for want of jurisdiction.

HOLDING

IN CAUSE NO. 11-00-00284-CV

The judgment of the trial court is reversed, and

judgment is rendered dismissing the suit against Eastland County Cooperative

Dispatch, Eastland County, and the City of Gorman brought by Elnor Maxine

Poyner, Individually and as Independent Executor of the Estate of William Euell

Poyner, and as sole heir of William Euell Poyner.

JIM R. WRIGHT

JUSTICE

October 25, 2001

Publish. See TEX.R.APP.P.

47.3(b).

Panel

consists of: Arnot, C.J., and

Wright,

J., and McCall, J.

[1] Although he is the sitting judge of the 91st District

Court, Hon. Steven R. Herod did not hear the motions or pleas made the subject

of these appeals.

[2] Mrs. Poyner is now deceased, and the suits are being

prosecuted by Joan Johnson as executrix of both estates. Pursuant to the direction of TEX.R.APP.P.

7.1(a)(1), these appeals retain the original styles.

[3] The trial court also denied motions for summary

judgment filed by Eastland County and the City of Gorman. Those entities are not parties to the appeal

in Cause No. 11-00-00184-CV.

[4] All references to Section 1983 throughout this opinion

refer to 42 U.S.C.A. ' 1983.

[5] We note that summary judgment evidence similar to that

provided by Sheriff Bradford and Chief Wheeler was held sufficient in

connection with summary judgment proof in City of Hidalgo v. Prado, 996 S.W.2d

364 (Tex.App. B Corpus Christi 1999, no pet = n). Appellants

also provided the affidavit of another expert witness, Merlyn D. Moore,

Ph.D. However, that affidavit was

stricken by the trial court, and it will not be considered here.

[6] While this portion of the affidavit actually stated

that no reasonable officer would not have taken the action, it is clear

from the context of the affidavit that the expert witness was expressing the

opinion that A no reasonable and prudent officer...would have @ created the situation.

[7] In a post-submission letter brief, appellee urges that

the A state created danger @

doctrine applies to the facts of this case.

The cases which recognize the A state

created danger @ doctrine are distinguishable in that in those cases

the State employees created a situation which increased the danger to the

victim from third parties. Here, no

third parties were involved. Further,

in those cases recognizing the

doctrine, the victims played no part in the harm that came to them. See, e.g., McClendon v. City of Columbia,

258 F.3d 432 (5th Cir. 2001); Piotrowski v. City of Houston, 51 F.3d 512 (5th

Cir. 1995); Johnson v. Dallas Independent School District, 38 F.3d 198 (5th

Cir. 1994). The A state created danger @

doctrine does not apply in this case.

[8] All references to the Texas Tort Claims Act refer to

TEX. CIV. PRAC. & REM. CODE ANN. '

101.001 et seq. (Vernon 1997 &

Supp. 2001).