University of Incarnate Word and Christopher Carter v. Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus

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ACCEPTED 04-15-00120-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/10/2015 11:02:59 PM KEITH HOTTLE CLERK NO. 04-15-00120-CV FILED IN IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS AT SAN ANTONIO, TEXAS 8/10/2015 11:02:59 PM KEITH E. HOTTLE Clerk UNIVERSITY OF THE INCARNATE WORD, Defendant--Appellant v. VALERIE REDUS, Individually, and ROBERT M. REDUS, Individually and as Administrator of the Estate of Cameron M. Redus Plaintiffs—Appellees _________________________________________________ On appeal from the 150th Judicial District Court of Bexar County, Texas APPELLEES’ REPLY TO UIW’S SUPPLEMENTAL BRIEF AND SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS Appellees Valerie and Robert M. (“Mickey”) Redus file their reply to UIW’s Supplemental Brief and Supplemental Response to Motion to Dismiss pursuant to Local Rule 8.3, but will request leave of Court if necessary. UIW, in its Supplemental Brief, urges this Court to consider recently passed Senate Bill 308 when determining whether UIW is a “governmental unit” for purposes of the Texas Tort Claims Act. The bill, which becomes effective on September 1, 2015, makes a private university’s campus police department a “law enforcement agency and a governmental body” for purposes of complying with Tex. Govt. Code § 552, commonly known as the Texas Public Information Act. This act, as this Court knows, guarantees access to “public information” gathered by a “governmental body,” but excepts information held by a “law enforcement agency” that deals with the detection, investigation, or prosecution of crime. See, e.g., Tex. Govt. Code §§ 552.002, 021 and 108. UIW properly does not consider itself bound by the Senate Bill 308 until it becomes effective next month. When a local television station submitted a request for UIW’s Use of Force Policies and Procedures, UIW declined to respond: Thank you for your request. As you know the Texas Public Information Act is applicable to a “governmental body” as defined in the Texas Government Code. The Texas legislature has passed a bill making clear that a private university’s police department is a “law enforcement agency” and “a governmental body” under the Government Code “only with respect to information relating solely to law enforcement activities” with an effective date of September 1, 2015. This legislation, coupled with the recent Supreme Court ruling in favor of Rice University, clarify that private university police departments authorized and approved by the Texas Commission on Law Enforcement are entitled to the same immunities that public university police departments receive. Therefore, please resubmit your request for consideration on or after September 1, 2015. Exhibit 1 (Statement from UIW dated June 5, 2015). UIW’s statement is correct as to its duty to comply with the Public Information Act. Beginning in September, the Campus Police Department will have to respond to requests made under the act. The law regarding the “powers, privileges, and immunities” accorded campus police at private universities will not otherwise change. See Tex. Educ. Code § 51.212. UIW’s statement is less correct with regard to the law governing immunity. The Supreme Court established in William Marsh Rice v. Refaey, 459 S.W.3d 590, 2 595 (Tex. 2015) that private university police officers are entitled to interlocutory appeals—under Tex. Civ. Prac. & Rem. Code § 51.014(a)(5)—of denials of motions for summary judgment based on an officer’s assertion of immunity. At the same time, the Supreme Court confirmed that private universities are not government agencies under § 51.014: “no applicable statute treats Rice University or its police force like a state agency….” Id. at 593 (distinguishing the Court’s holding in Klein v. Hernandez, 315 S.W.3d 1 (Tex.2010)). Senate Bill 308 may affect how UIW responds to Texas Public Information Act requests after September 1, 2015, but it has no impact on the law applicable to the Reduses’ claims, to their Motion to Dismiss this appeal, or to UIW’s claim to be a “governmental unit” when Campus Police Officer Christopher Carter shot Cameron Redus on December 6, 2013. Those questions are settled by the law in effect when the underlying suit was filed. See Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 149 (Tex. 2010) (holding that statute passed after suit was filed which limited defendant’s liability violated the Texas Constitution prohibition against retroactive laws). FOR THESE REASONS, appellees Valerie and Robert M. Redus again ask this Court to dismiss this appeal for want of jurisdiction or, in the alternative, deny the plea to the jurisdiction and remand this action to the trial court for further proceedings. 3 Respectfully submitted, BURFORD PERRY, LLP ____________________ BRENT C. PERRY STATE BAR NO. 15799650 700 LOUISIANA, SUITE 4545 HOUSTON, TX 77002 TEL: (713) 401-9790 FAX: (713) 993-7739 BPERRY@BURFORDPERRY.COM HERRING LAW FIRM S/MASON W. HERRING MASON W. HERRING STATE BAR NO. 24071746 2727 ALLEN PARKWAY SUITE 1150 HOUSTON, TEXAS 77019 (832) 500-3170 – TELEPHONE (832) 500-3172 – FACSIMILE MHERRING@HERRINGLAWFIRM.COM THE HERRERA LAW FIRM S/JORGE A. HERRERA FRANK HERRERA, JR. STATE BAR NO. 09531000 FHERRERA@HERRERALAW.COM JORGE A. HERRERA STATE BAR NO. 24044242 JHERRERA@HERRERALAW.COM 111 SOLEDAD, SUITE 1900 SAN ANTONIO, TEXAS 78205 TEL: 210.224.1054 FAX: 210.228.0887 ATTORNEYS FOR APPELLEES 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply has been served on the following counsel of record by electronic service in accordance with Tex. R. App. P. 9.5(e), on August 10, 2015. Laurence S. Kurth Matthew Wymer Beirne, Maynard & Parsons, LLP 112 East Pecan St., Suite 2750 San Antonio, TX 78205 Counsel for Defendant UIW Robert A. Valadez Shelton & Valadez 600 Navarro St., Suite 500 San Antonio, TX 78205 Counsel for Defendant Christopher Carter ____________________ BRENT C. PERRY 5 APPELLEES' exhibitsticker.com EXHIBIT 1