Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS

JOHN CORNYN

October 3.2000

The Honorable Florence Shapiro Opinion No. JC-0289

Chair, State Affairs Committee

Texas State Senate Re: Whether a protective order may permit a

P.O. Box 12068 perpetrator of family violence to collect his

Austin, Texas 7871 l-2068 personal property from the residence he shared

with his victim: Clarification ofAttorney General

Opinion X-01 12 (1999) (RQ-0231-JC)

Dear Senator Shapiro:

You have asked this office two questions relating to the statutes considered in Attorney

General Opinion X-01 12. That opinion considered whether article 5.045 of the Code of Criminal

Procedure protected law enforcement personnel who accompanied victims of domestic violence to

their residences to obtain personal property t?om liability for claims arising from this so-called “civil

standby.” It concluded that article 5.045 did provide such protection from liability, and that it was

specifically intended to do so. See Tex. Att’y Gen. Gp. No. JC-0112 (1999) at 1. On the other hand,

however, it concluded that article 5.045 would not provide immunity to a police officer who brought

a perpetrator of family violence back to the family residence: “An escort of a perpetrator of family

violence to the residence shared with the victim, whether or not it violates the terms of aprotective

order, is not the provision of standby assistance contemplated by article 5.045 of the Code of

Criminal Procedure.” Id. at 6 (emphasis added).

In light of Attorney General Opinion JC-0112, you ask first whether a judge may include in

a domestic violence protective order a provision permitting the perpetrator to go to the family

residence accompanied by a police officer to pick up personal property, and ordering the police to

provide the perpetrator with such an escort; and second, “if so, whether Article 5.045 of the Texas

Code of Criminal Procedure will protect the peace officer l?om civil liability in connection with such

assistance.“’

As to your tirst question, we note, as do you, that “Article 17.292 of the Texas Code of

Criminal Procedure and Chapter 85 of the Family Code are silent as to whether the [c]ourt may

include [such] a provision” as you enquire about. Request Letter, note 1, at 2. These provisions

neither explicitly permit, nor specifically prohibit, the inclusion of such a provision. We note further

‘Letter from Honorable Florence Shapiro, Chair, State Affairs Committee, to Elizabeth Robinson, Chair,

Opinion Committee (May 9,200O) (on tile with Opinion Committee) [hereinafter Request Letter].

The Honorable Florence Shapiro - Page 2 (K-0289)

that it is possible, as in the sample protective order you provided with your request, for the court to

award the perpetrator his or her “personal effects, personal papers, driver’s license, prescription

medication, tools of trade, and vehicle which Respondent customarily drives,” and to order “the

protected person to deliver these items or make same available to a neutral third party for

retrieval by Respondent.” See id. (Attachment: Court Order for Emergency Protection). Such a

provision would seem to obviate the necessity for the supervised appearance ofthe perpetrator at the

victim’s home. Howeyer, particularly given that the statutes are silent, we think that this decision

is committed to the discretion of the judge, which has been defined as “[t]he option a judge has in

deciding between the doing or not doing of a thing which cannot be demanded as an absolute right.”

Tuck v. State, 231 S.W.2d 436,442 (Crim. App. 1950). Moreover, this office does not find facts in

the opinion process, and cannot therefore determine the wisdom or the necessity of such a provision

as that about which you inquire in any particular instance.’

However, article 5.045 does not apply in the situation you describe. As Attorney General

Opinion JC-0112 pointed out, the concern that statute was intended to address was the apparent fear

of certain law enforcement officers and agencies that, should the officers accompany victims of

domestic violence to the family home, they might expose themselves to liability. Tex. Att’y Gen.

Op. JC-0112 (1999) at 2, citing Report of Senate Interim Committee on Domestic Violence. The

specific language of the statute immunizes a police officer who “stay[s] with a victim offamily

violence to protect the victim and allow the victim to take the personal property of the victim or of

a child in the care of the victim to a place of safety in an orderly manner.” TEX. CODE GRIM. PROC.

ANN. art. 5045 (Vernon Supp. 2000) (emphasis added). Neither the language nor the legislative

history of the statute, which Attorney General Opinion JC-0112 details at some length, see Tex.

Att’y Gen. Op. No. JC-0112 (1999) at 2-4, suggests that the statute would protect a police officer

bringing a batterer to the family home. Indeed, this office there concluded that, “An escort of a

perpetrator of family violence to the residence shared with the victim, whether or not it violates the

terms of a protective order, is not the provision of standby assistance contemplated by article 5.045

of the Code of Criminal Procedure.” Id. at 6. Accordingly, police officers who engage in such an

escort may not rely upon the protection of article 5.045.

You suggest that, even so, “peace officers in defense of any claims [based on an escort of a

perpetrator ordered by a judge as a term of a protective order] could still reasonably rely upon the

defense of official immunity for state law claims and qualified immunity for any federal claims.”

Request Letter, supra note 1, at 2. The doctrine of official immunity under Texas law has been

described as follows: “When a government employee carries out the discretionary duties of his job

in good faith and acts within the scope ofhis authority, the employee is entitled to official immunity

from suit.” Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992) (Comyn, J., concurring).

Similarly, the United States Court of Appeals for the Fifth Circuit has written of the federal defense

2See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact

questions cannot be done in opinion process); M-187 (1968) at 3 (“[Tlhis office is without authority to make factual

determinations.“); O-291 1 (1940) at 2 (“[Tlhis presents a fact question which we are unable to answer.“).

The Honorable Florence Shapiro - Page 3 (X-0289)

of qualified immunity, “Qualified immunity cloaks a police officer from personal liability for

discretionary acts which do not violate well-established law.” Streetman v. Jordan, 918 F.2d 555,

556 (5th Cir. 1990) quoted in City ofLancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994).

Whether particular acts were taken in good faith is a question of fact, and accordingly this office

cannot determine the applicability of these immunity doctrines in any given instance.

We note, however, that the act for which the defenses may be plead must be characterizable

as discretionary. “Ordinarily, official immunity extends to any action or decision by a [public]

employee that is ‘discretionary.’ Discretionary functions receive protection, but ministerial duties

do not.” Kassen v. Hatley, 887 S.W.2d 4,9 (Tex. 1994). “Under federal law, the act in question

must be discretionary as a prerequisite to an extension of qualified immunity.” Chambers,

883 S.W.2d at 654. A discretionary function “involves personal deliberation, decision and

judgment ; actions which require obedience to orders, or the performance of a duty to which the

actor has no choice, are ministerial.” Id.

One court of appeals has held that the execution of an arrest warrant, for instance, is a

ministerial act for which a deputy sheriff is not entitled to the defense of official immunity.

Copelandv. Boone, 866 S.W.2d 55,57 (Tex. App.-San Antonio 1993, writ dism’d w.0.j.); see also

City of San Antonio v. Duncan, 936 S.W.2d 63, 66 (Tex. App.-San Antonio 1996, writ dism’d

w.0.j.). On the other hand, another court of appeals has taken the view that the manner in which an

arrest warrant is executed may involve sufficient discretion on the officer’s part for the defense to

be available. See Davis v. Klevenhagen, 971 S.W.2d 111, 116-18 n.10 (Tex. App.-Houston [14th

Dist.] 1998, no pet.) (distinguishing Copeland). “The distinction between these two categories is

often one of degree, since any official act that is ministerial will still require the actor to use some

discretion in its performance.” Id. at 117. Moreover, it would appear unlikely that the injury to be

plead in any tort action based upon such an escort would be the mere following by the officer of the

court’s directive. Rather, the injury would presumably be some allegedly negligent or intentionally

tortious act or omission by the officer that was somehow connected with the carrying out of the

order.

To recapitulate, ifthe acts of a law enforcement officer complained of in a civil action cannot

be characterized as discretionary, the officer will not be entitled to the immunity defense. See

Kassen, 887 S.W.2d at 9. However, if such acts can be so characterized, and in addition were within

the scope of his authority and performed in good faith, he will be so entitled. See Travis, 830

S.W.2d at 102-03 (detailing elements of official immunity defense). We note again that judging

whether the defense is available in any particular instance would require factual determinations we

cannot make. See note 2, supra.

The Honorable Florence Shapiro - Page 4 (JC-0289)

SUMMARY

Neither the domestic violence protective order sections ofthe

Family Code or of the Code of Criminal Procedure explicitly permit,

or specifically prohibit, a judge to include in such an order a

provision requiring a police officer to escort a perpetrator ofdomestic

violence to the family home to retrieve personal property. Article

5.045 of the Code of Criminal Procedure is not by its terms

applicable in such a situation, and accordingly does not provide

immunity from liability for a police officer providing such an escort.

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

CLARK KENT ERVW

Deputy Attorney General - General Counsel

SUSAN D. GUSKY

Chair, Opinion Committee

James E. Tourtelott

Assistant Attorney General - Opinion Committee