NO. 04-15-00120-CV

IN THE FOURTH COURT OF APPEALS

AT SAN ANTONIO, TEXAS

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’ MOTION TO DISMISS FOR

WANT OF JURISDICTION

 Appellees Valerie and Robert M. (“Mickey”) Redus move this Court to 

dismiss this interlocutory appeal for want of jurisdiction. Tex. R. Civ. P. 42.3(a).

Defendant and appellant University of the Incarnate Word (“UIW”) filed this 

interlocutory appeal after the trial court signed an order denying UIW’s Plea to the 

Jurisdiction. This Court lacks subject-matter jurisdiction because UIW is not a 

“governmental unit” as defined in Tex. Civ. Prac. & Rem. Code § 101.001(3). 

Interlocutory orders are not appealable unless expressly authorized by statute, and 

UIW, as a private, non-profit institution of higher education, lacks a statutory basis 

for invoking this Court’s appellate jurisdiction.

ACCEPTED

04-15-00120-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/21/2015 5:57:21 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 4/21/2015 5:57:21 PM KEITH E. HOTTLE Clerk
INTRODUCTION

Appellees Valerie and Mickey Redus are the parents of Robert Cameron 

Redus. Trial court defendant Christopher Carter shot Cameron Redus five times, 

killing him in the parking lot at Cameron’s off-campus apartment in Alamo Heights 

on December 6, 2013. Appellant UIW employed Carter as an on-duty Campus 

Police Officer when he shot Cameron. 

Valerie and Mickey Redus sued UIW and Carter on May 6, 2014 for claims 

arising from Cameron’s death. C.R. 1. UIW filed its Original Answer on June 2, 

2014 and removed the case to federal court. C.R. 22. UIW did not originally raise 

a Texas Tort Claims Act affirmative defense but did claim immunity as a

“charitable institution.” C.R. 34. See Tex. Civ. Prac. & Rem Code § 84.003. The 

federal court remanded this action to state court on November 25, 2014. C.R. 381.

UIW filed its First Amended Answer on February 13, 2015, adding the Texas 

Tort Claims Act as an affirmative defense. C.R. 109. UIW also filed its Plea to the 

Jurisdiction, claiming that plaintiffs’ claims are limited by the Texas Tort Claims 

Act because UIW—or at least its police department—is a “governmental unit.” C.R. 

125. See Tex. Civ. Prac. & Rem. Code § 101.001(3).

The trial court heard UIW’s plea to the jurisdiction on February 26, 2015 and 

signed an order denying it on March 2, 2015. C.R. 418. UIW initiated this 

interlocutory appeal of the denial on March 3, citing Tex. Civ. Prac. & Rem. Code § 

51.014(a)(8) as this Court’s jurisdictional basis. C.R. 419. The trial court has not 

made findings of fact despite appellees’ timely requests. Exhibits 1 and 2.

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MOTION TO DISMISS

I. An appellate court must consider whether it has jurisdiction of an 

interlocutory appeal before proceeding to determine the merits.

“[T]he general rule, with a few mostly statutory exceptions, is that an appeal 

may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 

191, 195 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code § 51.012 (“a person may 

take an appeal...from a final judgment of the district or county court.”) An 

interlocutory order is appealable “only if a statute explicitly provides appellate 

jurisdiction.” Stary v. DeBord, 967 S.W.2d 352, 352-353 (Tex. 1998).

An appellate court has no basis to issue an opinion about the merits of an

interlocutory appeal if it lacks jurisdiction. Id. at 354. See also, Herrera v. Texas 

Department of Family and Protective Services, 2007 WL 2044580 (Tex.App.—

San Antonio 2007, no pet.)(per curiam). An appellate court should determine its 

jurisdiction to consider the interlocutory appeal before reaching the merits. 

Minton v. Gunn, 355 S.W.3d 634, 639 (Tex. 2011).

Courts narrowly construe statutes authorizing interlocutory appeals because 

they are a “narrow exception to the general rule that only final judgments are 

appealable.” City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 

2012)(per curiam). UIW appears to present an issue no other private institution of 

higher education has raised: Can a private university can claim both “charitable 

immunity” and “governmental unit” status? 

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Two appellate courts held they lacked jurisdiction over interlocutory appeals 

by police officers employed by private institutions like UIW because the officers 

were are not “an officer or employee of the state or a political subdivision of the 

state” under § 51.014(a)(5). Rice Univ. v. Rafaey, 413 S.W.3d 667, 661 (Tex.App.—

Houston [14th Dist.] 2013, pet. filed); and Methodist Hosp. v. Miller, 405 S.W.3d 

101 112 (Tex.App.-Dallas 2012, no pet.). The Rice court noted that Rice University

did not claim any other jurisdictional basis for the interlocutory appeal. Id. at 671.

In its attempt to avoid these decisions, UIW attempts to claim “governmental unit” 

status for itself. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

II. This Court lacks subject matter jurisdiction of the denial of UIW’s 

plea to the jurisdiction because UIW is not a “governmental unit”

as defined by Tex. Civ. Prac. & Rem. Code § 101.001(3).

An interlocutory appeal is not allowed following the grant or denial of a plea 

to the jurisdiction unless the plea is made by a “governmental unit.” See Critical 

Air Medicine, Inc. v. Shepard, 2005 WL 3533130 (Tex.App.—San Antonio 2005, 

no pet.)(dismissing interlocutory appeal filed under § 51.014(a)(8) by private 

corporation); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex.App.-Fort Worth 

2004, no pet.) (same); Cantu Services, v. United Freedom Associates, Inc. 329 

S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.).

This Court noted in Critical Air:

It is undisputed that Critical Air is a private corporation and not an 

agency of state government, a political subdivision of the state, or an 

institution, agency or organ of government whose status and authority 

is derived from state law.

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Id. at *2. Similarly, it is undisputed that UIW is a private university and not a state 

government agency. This Court should dismiss this appeal.

III. Neither UIW nor its Campus Police is not a “governmental unit” 

under the Texas Tort Claims Act.

UIW expressly seeks the protections of the Texas Tort Claims Act as a 

“governmental unit.” C.R. at 120 (UIW’s First Amended Answer at ¶ 63-64). UIW 

argues that its police department draws its right to exist from a statute (Tex. Educ. 

Code § 51.212) and that the department and its officers are licensed by the Texas 

Commission on Law Enforcement, a “regulatory state agency.” Id. UIW, in its 

appellate brief, cites no case law holding that any part of a private university is a 

“governmental unit.”

A. No Texas court has ever held that a private institution is a 

“governmental unit” in the absence of a specific statute and 

government funding of the service at issue.

No Texas court has ever held that a private, non-profit institution of higher 

education is a “governmental unit” in the absence of a statute defining the 

institution and its actions as such. In Klein v. Hernandez, 315, S.W.2d 1, 2 (Tex. 

2010), the plaintiff sued Baylor College of Medicine for malpractice by its 

physicians at Ben Taub Hospital, a public hospital. The Supreme Court noted that:

Baylor [College of Medicine] is a private, non-profit medical school, 

but is also a ‘supported medical school,’ which means that it has 

contracts with the Texas Higher Education Coordinating Board and 

receives state funding specifically allocated for training physicians 

who provide medical care at public hospitals such as Ben Taub.

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The Court noted that private medical school derived its status as a “governmental 

unit” from Tex. Health & Safety Code § 312.006(a), which defines Baylor as a 

“governmental unit” when its doctors are working at public hospitals. Id. at 8.

In contrast to the Baylor College of Medicine, UIW has no claim to a contract 

with a state agency, to receiving state funding, or to a statute defining any part of 

the university as a “governmental unit.” UIW does not even address the 

implications of the Texas Supreme Court’s Klein holding, choosing instead to rely 

almost completely on LTTS Charter School, Inc. v. C2 Construction, Inc., 342 

S.W.3d 73 (Tex. 2011). See Appellant’s Brief at 24-26.

The Supreme Court, in LTTS Charter School, held that an open-enrollment 

charter school operated as part of the public school system is a “governmental 

unit.” Id. at 76. The Supreme Court’s opinion drew a vigorous dissent (id. at 82), 

and the case is easily distinguishable from UIW’s claims. Charter schools by statute 

are “part of the public school system” which bears “the primary responsibility for 

implementing the state's system of public education.” Id. at 82. Charter schools 

receive government funding and operate within the Texas public school testing 

system. Id. at 74. 

UIW, by contrast, has specifically and purposely chosen to operate outside 

Texas’ system of public higher education. See Tex. Educ. Code § 61.003, with 

definitions of “public senior college or university” and “private or independent 

institution of higher education.” UIW identifies itself as:

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an incorporated charitable institution created and sponsored by the 

Sisters of Charity of the Incarnate Word, a Catholic order of nuns. The 

Sisters established the school in 1881, devoted to providing education 

without private gain. The UIW is a charitable institution under both 

Texas and Federal law.

C.R. 109. State and private institutions of higher education have different enabling 

statutes for establishing campus police departments. Compare Tex. Educ. Code 

§ 51.203 (state) and § 51.212 (private).

UIW also cites Zacharie v. City of San Antonio by and through San Antonio 

Water System Board of Trustees, 952 S.W.2d 56, 59 (Tex.App.—San Antonio 1997, 

no writ) and City of Leon Valley Economic Development Corporation v. Little, 422 

S.W.3d S.W.3d 37, 40 (Tex.App.—San Antonio 2013, no pet.) as supporting its

argument. Both cases are distinguishable. In Zacharie, this Court held that San 

Antonio’s Water System was a city agent and thus entitled to immunity. 

In Leon Valley, this Court held that an economic development corporation’s

(“EDC”) statutory designation as a “governmental unit” under Tex. Loc. Gov. Code 

§ 505.106(b) did not protect it from contractual liability, although the status did 

authorized the EDC to file an interlocutory appeal. In allowing the interlocutory 

appeal to proceed, this Court followed the EDC’s enabling statute: “For purposes 

of Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a

governmental unit and the corporation’s actions are governmental functions.” 

Tex. Loc. Gov. Code § 505.106(b). Neither this Court nor any other Texas court has 

held that that a private institution is a governmental unit in the absence of a 

specific statute and government funding of the services at issue.

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B. That a statute authorizes UIW to establish a Campus Police 

Department does not make the UIW Campus Police a 

“governmental unit.”

Section 101.001(3)(D) of the Civil Practices and Remedies Code defines a 

“governmental unit” as 

any other institution, agency, or organ of government the status and 

authority of which are derived from the Constitution of Texas or from 

laws passed by the legislature under the constitution.

UIW argues that a Texas statute—Tex. Educ. Code § 51.212—authorizes the 

creation of UIW’s police department, that its officers are licensed by a state agency, 

and that they enforce state law. Appellant’s Brief at 17-24.

So, UIW’s argument goes, the UIW Campus Police Department is an 

“institution, agency, or organ of government the...authority of which [is] derived 

from...laws passed by the legislature.” The argument proves too much ignoring the 

fact that UIW as private university is not an “institution, agency, or organ of 

government.”

The only case applying this statute to any extent is LTTS Charter School, 

Inc., 342 S.W.3d at 80. The Supreme Court held only that § 101.001(3)(D) does not 

require a statute specifically establishing the government agency. The Court’s 

holding, however, is primarily based on Tex. Educ. Code § 12.105: “An openenrollment charter school is part of the public school system” and the public 

schools are governmental units. See §101.001(3)(B).

UIW’s argument misinterprets §101.001(3)(D). According to the Supreme 

Court, an “open-enrollment charter school” is an “institution, agency, or organ of 

8
government” because it is “part of the public school system.” Id. at 82. Unlike open

enrollment public charter schools, UIW has no claim to being part of a “state 

institution of higher education” or part of the “field of public higher education.”

See Tex. Educ. Code § 51.203 (enabling statute for police departments at state 

universities) and § 61.002 (enabling statute for the Texas Higher Education 

Coordinating Board). UIW has specifically chosen to avoid the extensive state 

regulation of higher education, such as tuition regulation and degree offerings. See 

Tex. Educ. Code Title 3 generally.

Textually—as the statute requires—UIW cannot establish that it is a

governmental “institution, agency, or organ.” See Tex. Civ. Prac. & Rem. Code 

§ 101.001(3)(D). Merely being an “institution, agency, or organ” whose existence is 

enabled by a statute and governed by a state agency does make the “institution, 

agency, or organ” a “governmental unit.” 

For example, Texas lawyers draw their right to practice law in Texas courts 

and to form law firms from the State Bar of Texas, “a public corporation and an 

administrative agency of the judicial department of government.” See Tex. Govt. 

Code § 81.011. Only persons licensed by the State Bar of Texas can be employed as 

lawyers in law firms.

Texas barbers draw their authority to “perform any act of barbering” from 

Tex. Occ. Code § 1601.251 and Texas barbershops draw their authority to exist from 

Tex. Occ. Code § 1601.301. Barbers and barbershops are governed by a state 

licensing agency, the Texas Department of Licensing and Regulation (“TDLR”), a 

9
“regulatory state agency,” pursuant to administrative rules. See Tex. Admin. Code 

§ 82.1, et seq. Neither barbers nor barbershops are turned into a “governmental 

unit” by these statutes. 

The same could be said for numerous other respectable occupations. But 

neither barbershops nor law firms are entitled to call themselves “governmental 

units” and claim the immunities of the TTCA when sued in tort.

C. Allowing UIW’s campus police to enforce state and 

municipal law in limited circumstances does not turn UIW 

or its police department into a “governmental unit.”

UIW argues that the authority of its Campus Police and the individually 

licensed officer to enforce state law bolsters its claim to be a “governmental unit.” 

See Appellant’s Brief at 19-23. The truth, however, is that any person can enforce 

a good portion of Texas criminal law without a TCOLE license.

Article 14.01(a) of the Code of Criminal Procedure allows:

A peace officer or any other person, may, without a warrant, arrest an 

offender when the offense is committed in his presence or within his 

view, if the offense is one classed as a felony or as an offense against 

the public peace.

The statute grants both peace officers and private citizens the same rights of 

warrantless arrest for the two broadly defined categories of crimes. See Office of 

the Attorney General, Texas, Opinion No. MW-537, Dec. 22, 1987 (citing 

Alexander v. United States, 390 F.2d 101 (5th Cir. 1968); Romo v. State, 577 

S.W.2d 251 (Tex. Crim. App. 1979); Woods v. State, 213 S.W.2d 685 (Tex. Crim. 

10
App. 1948) (“Any individual may make a ‘citizen’s arrest’ under that provision, 

provided that all applicable legal requirements are met.”)

No Texas court has ever held that a statute authorizing a private entity to 

enforce state law makes that entity an “institution, agency, or organ of 

government” for purposes of the Texas Tort Claims Act. See Tex. Code of Crim. 

Proc. § 2.12 for an extended list of 36 types of peace officers and § 14.03 for the 

authority given to the officers. UIW Campus Police are “officers commissioned 

under... Subchapter E, Chapter 51, Education Code.” Tex. Code. Crim. Proc. 

§ 2.12(8). The officers’ authority is defined by § 14.03. 

In its application for a “law enforcement agency number,” UIW identifies its 

“Requesting Governmental Body” as “University of the Incarnate Word.” C.R. 206. 

UIW’s Board of Trustees approved a resolution supporting the formation of the 

police department. C.R. 350. As noted above, Texas law gives “governing boards of 

private institutions of higher education” the authority “to employ and commission 

police officers.” Tex. Educ. Code § 51.212. Nothing about this process turns UIW 

into a “governmental unit.” UIW’s Campus Police Department receives no 

government funding and has no contract with any government agency.

The cases UIW cites in the appellate brief do not support its argument; they 

instead hold that private entities subject themselves to Constitutional violations by 

their involvement with governmental functions. Appellant’s Brief at 19-20.

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For example, in Evans v. Newton, 382 U.S. 296 (1966), the Supreme Court 

held that private managers of a public park could not enforce racial segregation in 

the park. In Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th

Cir. 2003), the Fifth Circuit found that “private prison-management corporations 

and their employees may be sued under § 1983 by a prisoner who has suffered a 

constitutional injury.” In other words, the cases cited by UIW hold that a private 

entity subjects itself to greater, not less, liability by taking on a government 

function. This is consistent with the statute providing limited immunity for peace 

officers employed by private universities. See Tex. Educ. Code § 51.212(b)(1). 

 

FOR THESE REASONS, appellees Valerie and Mickey Redus move and 

respectfully pray that this Court dismiss with ten days’ notice this interlocutory 

appeal for want of jurisdiction under Tex. R. App. P. 42.3(a) and grant all other 

and further relief to which appellees are entitled.

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Respectfully submitted,

LAW OFFICE OF BRENT C. PERRY, PC

____________________

BRENT C. PERRY

STATE BAR NO. 15799650

800 COMMERCE STREET

HOUSTON, TX 77002

TEL: (713) 334-6628

FAX:(713)237-0415

BRENTPERRY@BRENTPERRYLAW.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

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing motion has been 

served on the following counsel of record by electronic service in accordance with 

Tex. R. App. P. 9.5(e), on April 21, 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

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Certificate of Conference

As required by Tex. R. App. P. 10.1(a)(5), I conferred with Matthew Wymer, 

counsel for appellant University of the Incarnate Word, about the merits of this 

motion, and University of the Incarnate Word opposes this motion.

 _________________________ 

Brent C. Perry

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