# Cuellar v. City of San Antonio

> Texas Court of Appeals, 4th District (San Antonio) · October 9, 1991 · 821 S.W.2d 250

URL: https://www.frixlaw.com/law-library/cases/9775040

## Case

- **Full name:** Adolfo CUELLAR, Sr., Alicia Cuellar, and Norma Jean Olivares, as Next Friend for Angelica Calderon, Appellants, v. CITY OF SAN ANTONIO, Appellee
- **Court:** Texas Court of Appeals, 4th District (San Antonio)
- **Decided:** October 9, 1991
- **Citations:** 821 S.W.2d 250; 1991 Tex. App. LEXIS 3168; 1991 WL 272201
- **Precedential status:** Published
- **Opinion:** Concurrence by Biery
- **Judges:** Chapa, Biery, Carr
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775040

## How later opinions describe it (automated extraction)

- concluding that evidence indicating an officer was off-duty at the time of a murder was insufficient to establish the officer was not acting “under color of law,” particularly when testimony established that the city’s regulations suggested an officer was considered to be on-d…
- stating that “motion for summary judgment is a pleading and may not be considered as summary judgment evidence” (citing Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex. App.—Houston [1st Dist.] 1988, no writ))

## Opinion text

BIERY, Justice,
concurring.
I concur.
At the outset, I note that TEX.R.CIV.P. 166a(f) requires that defects in the form of affidavits, such as not averring that it is made on personal knowledge, must be pointed out by objection at the trial court. There is nothing in the record which shows such an objection was made.
In the trial on the merits, the plaintiffs/appellants will have the burden to prove, among other things, that Stephen Smith pretended to act in the performance of his official duties or under color of law. See Polk County v. Dodson, 454 U.S. 312 , 102 S.Ct. 445 , 70 L.Ed.2d 509 (1981); Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941). However, in the present summary judgment procedural posture of the case, the burden is on the City to prove conclusively that Smith was not acting under color of law. The summary judgment proof contains no evidence from either side as to what Smith did or said vis-a-vis his official police authority. Thus, the City failed in its heavy summary judgment burden. Whether there will be any such evidence in the trial on the merits when the burden shifts to the plaintiff s/appellants remains to be seen. 1
. The City argues that the fact that Stephen Smith was a police officer is not in and of itself conclusive of whether his alleged actions were done under color of law. Conversely, the fact that he was not on his official patrol shift does not prove as a matter of law that he did not pretend to act officially. Thus, a fact issue is born.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775040. Public record. Not legal advice.