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).