# Texas Department of Corrections v. Herring

> Texas Supreme Court · July 24, 1974 · 17 Tex. Sup. Ct. J. 403

URL: https://www.frixlaw.com/law-library/cases/9779274

## Case

- **Full name:** TEXAS DEPARTMENT OF CORRECTIONS, Petitioner, v. James W. HERRING, Respondent
- **Court:** Texas Supreme Court
- **Decided:** July 24, 1974
- **Citations:** 17 Tex. Sup. Ct. J. 403; 513 S.W.2d 6; 1974 Tex. LEXIS 298
- **Precedential status:** Published
- **Opinion:** Dissent by Walker
- **Judges:** Sam D. Johnson
- **Cited by:** 360 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/9779274

## How later opinions describe it (automated extraction)

- holding that when the tiffs' allegations in favor of jurisdiction, as we must, the allegations do not "affirmatively negate" a claim, dis- dangerous condition alleged is not merely "darkness" but missal for failure to state a claim is appropriate only when a failed block of ar…
- holding that special exception, not summary judgment, is proper procedure when plaintiff failed to state cause of action and that court may dismiss case when special exceptions are sustained, plaintiff is given opportunity to amend, and plaintiff still fails to state cause of …
- holding that when the allegations do not “affirmatively negate” a claim, dismissal for failure to state a claim is appropriate only when the plaintiff has been “given an opportunity to amend after special exceptions have been sustained”
- recognizing that “a party may plead himself out of court” or “may plead facts which affirmatively negate his cause of action,” and stating that “[i]n such instance it is proper to grant the defendant’s motion for summary judgment”
- holding that protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiffs pleadings fail to state a cause of action

## Opinion text

WALKER, Justice
(dissenting).
Rule 168 was amended effective February 1, 1973. At that time we eliminated the language that formerly authorized interrogatories to be answered by the attorney of the party interrogated. When the interrogatories in the present case were served, the rule required, as it does now, that the interrogatories be answered “by the party served, or, if the party served is a public or private corporation or a partnership or association, by an officer or agent.” Rule 168 is quite similar to Federal Rule 33, but there is one important difference. Federal Rule 33 specifically provides that if the party served is a “governmental agency,” the interrogatories may be answered by any officer or agent. There is no similar provision in Rule 168. Under our statutes and rules, information in the possession of public officials and employees is subject to discovery by deposition, but neither the Attorney General nor any other official or employee is authorized to answer interrogatories for and in the name of the State of Texas. Until we further amend Rule 168 or until the Legislature authorizes someone to answer interrogatories on behalf of the State, it is my opinion that the State may not be required to respond to interrogatories propounded under Rule 168.
GREENHILL, C. J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779274. Public record. Not legal advice.