NO. 04

- 15

- 00120

- CV

IN THE FOURTH COURT OF APPEALS

AT SAN ANTONIO, TEXAS

U NIVERSITY 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 150 th Judicial District Court

of Bexar County, Texas

APPELLEES’ REPLY TO UIW’S

SUPPLEMENTAL BRIEF AND

SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS

A ppellees Valerie and R obert 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. ACCEPTED

04-15-00120-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/10/2015 11:02:59 PM

KEITH HOTTLE

CLERK2 Th is act , as this Court knows, guarantees access to “public information”

gathered by a “governmental body,” but excepts i nformatio n 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 ne xt month. When a local television station submitted a request

for UIW’s Use o f 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 defin ed 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 relatin g 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 c orrec t 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 priva te 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 590,3 595 (Tex. 2015) that private university police officers are entitled to interlocutory

appeals

— under Tex. Civ. Prac. & Rem. Code § 51.014(a)(5)

— of deni als of motion s

for summary judgment based on an officer’s assertion of immunity . At the same

time, the Supreme Court confirmed that pr ivate 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 th e 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

, appell ees Valerie and Robert M. R edus 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

.4 Respectfully submitted,

B URFORD P ERRY

, LLP

____________________ B RENT C. P ERRY

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ATTORNEYS FOR APPELLEES5 C ERTIFICATE OF S ERVICE

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

Matth ew 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

____________________ B RENT C. P ERRY