IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50568

LACRESHA MURRAY; R L MURRAY, Individually and as next friend of Cleo

Murray, Jason Murray, Tyler Murray, and Trent Murray; SHIRLEY MURRAY,

Individually and as next friend of Cleo Murray, Jason Murray, Tyler Murray,

and Trent Murray; SHANTAY MURRAY, Individually

Plaintiffs-Appellees-Appellants

v.

RONNIE EARLE, Etc; ET AL

Defendants

DAYNA BLAZEY, Individually and as an Assistant District Attorney of Travis

County, Texas

Defendant-Appellee

STEPHANIE EMMONS, Individually and as an Assistant District Attorney of

Travis County, Texas; ANGELA MCGOWN, Individually and as Supervisor of

the Travis County Child Protective Services; HECTOR REVELES, Individually

and as a Detective of the Austin Police Department; ERNEST PEDRAZA,

Individually and as a Detective of the Austin Police Department; ALBERT

EELLS, Individually and as a Detective of the Austin Police Department

Defendants-Appellants

Appeals from the United States District Court 

for the Western District of Texas 

USDC No. 1:02-CV-552

United States Court of Appeals

Fifth Circuit

F I L E D

April 11, 2008

Charles R. Fulbruge III

Clerk
No. 06-50568

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

2

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

For this interlocutory appeal, primarily at issue is whether LaCresha

Murray has alleged a violation of a clearly-established constitutional right,

depriving five Defendants of qualified immunity. Stephanie Emmons, Angela

McGown, Hector Reveles, Ernest Pedraza, and Albert Eells (DefendantsAppellants) appeal the denial of summary judgment on their assertions of

qualified immunity regarding Murray’s Fourteenth Amendment claim and

official immunity, inter alia, for the related state-law civil-conspiracy claim.

Alternatively, Emmons appeals the district court’s jurisdiction to reinstate sua

sponte the earlier-dismissed Fourteenth Amendment claim. On cross-appeal,

Murray challenges the summary judgment awarded Dayna Blazey. VACATED

and RENDERED in part; DISMISSED in part; REMANDED. 

I.

Previously, this action was here on an interlocutory appeal regarding the

qualified-immunity denial for Murray’s Fifth-Amendment claim. Murray v.

Earle, 405 F.3d 278, 283-84 (5th Cir. 2005) (Murray I). The facts pertinent to

this action are stated in that prior opinion:

This case arises out of the investigation of plaintiff-appellee

LaCresha Murray’s . . . involvement in the death of Jayla Belton,

age two, in 1996. At the time of these events, LaCresha was eleven

years old. She and her siblings lived with her grandparents, R.L.

and Shirley Murray, who were her adoptive parents, as well. The

Murrays also provided daycare in their home for several other

children.

Late in May of 1996, Jayla, who was routinely cared for by the

Murrays, was dropped off at the Murray home by her mother’s

boyfriend. During the course of the day, Jayla appeared to be ill.
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After she vomited at the lunch table, LaCresha’s older sister,

Shantay, gave Jayla some medication and put her to bed. No one

checked on Jayla until later that day. R.L. Murray testified that,

late in the afternoon, LaCresha came in from outside and went to

the back of the house, near the bedroom where Jayla was sleeping.

R.L. then heard “thumping noises,” but he assumed that LaCresha

was playing with a ball and told her to stop. Shortly after that,

LaCresha told R.L. that Jayla was throwing up and shaking. He

asked her to bring Jayla to the front of the house, where he observed

that Jayla appeared ill. He told LaCresha to take Jayla outside to

warm her up.

At 5:00 p.m., another parent arrived to collect her children

and noticed that Jayla was sweating profusely. That parent urged

R.L. to call 911, but he declined to do so. R.L. took Jayla to the

hospital, however; she was pronounced dead at approximately 5:30

p.m.

An autopsy conducted the following day revealed that Jayla

had suffered a severe liver injury caused by a blunt blow to the

abdomen. This trauma had broken four of her ribs and split her

liver into two pieces. The medical examiner concluded that Jayla

had died within five to fifteen minutes after receiving the injury and

also noted some thirty other bruises to her head, ear, forehead,

back, shoulder, elbow, chest, and the left side of her torso. The

examiner ruled Jayla’s death a homicide.

That same day, law-enforcement authorities removed all the

children from the Murray home. They placed LaCresha and one of

her sisters in Texas Baptist Children’s Home, a private shelter for

children which contracts with the State to provide foster care. At

the time that these children were removed from their adoptive

parents’ home, the authorities believed that they were in danger.

There is some dispute as to exactly when the police first began to

suspect that LaCresha had killed Jayla, but the focus of the

investigation had quickly shifted to LaCresha after law-enforcement

authorities spoke with other members of the household.

Three days after LaCresha had been removed from her

adoptive parents’ home, Detective Reveles directed Detectives

Pedraza and Eells, along with Angela McGown, the supervisor of

theTravis County ChildProtective Services, to interview LaCresha.

It is undisputed that, by this time, the police no longer feared for

LaCresha’s safety but instead considered her a suspect in Jayla’s

death.
No. 06-50568

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Before the interview of LaCresha, Detectives Reveles and

Pedraza consulted with assistant district attorney Emmons on the

proper method of interrogating LaCresha. Emmons testified that,

even though LaCresha had been at the Texas Baptist Children’s

Home for three days, none of the officials believed that she was in

the custody of the State. In their minds, this obviated the need for

them to take her before a magistrate, as required by Texas law for

children who are in state custody. Pedraza and Eells gave

LaCresha a Miranda warning before beginning to interrogate her,

but they did not take her before a magistrate or notify her parents

or attorney.

The detectives questioned LaCresha atthe Baptist Children’s

Home for approximately two hours, eventually eliciting a confession

that she had dropped Jayla and kicked her. The State then charged

her with capital murder and injury to a child; the juvenile court

ruled her confession admissible; and the jury convicted her of

negligent homicide and injury to a child. Extensive publicity

followed, presumably influencing the juvenile court to order a new

trial on its own motion. At the second trial, the State charged

LaCresha with injury to a child; her confession was again admitted;

and the second jury convicted her. The juvenile court adjudicated

LaCresha delinquent and sentenced her to twenty-five years in the

custody of the Texas Youth Commission.

Three years later, the Texas Court of Appeals reversed

LaCresha’s conviction. The appellate court ruled that LaCresha had

been in the custody of the State, that law-enforcement authorities

had violated Texas law by not taking her before a magistrate prior

to interrogating her, and that her confession was therefore

inadmissible.

Murray I, 405 F.3d at 283-84 (footnotes omitted).

Pursuantto 42 U.S.C. § 1983, Murray filed this action in 2002 for damages

against numerous individuals for violations of her constitutional rights under

the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and

for state-law violations. On motions for summary judgment, the district court

dismissed all claims, exceptthose against Blazey and Defendants-Appellants for

violations of Murray’s Fifth Amendment right against self-incrimination and for

related state-law civil conspiracy. 
No. 06-50568

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As noted supra, an interlocutory appeal was pursued from the immunitydenial for those two remaining claims. This court vacated the qualifiedimmunity denial for the Fifth Amendment claim, holding, pursuant to the

qualified-immunity analysis discussed infra, that the law was not yet clearly

established that pre-trial interrogation of a suspect could expose an official to

liability for violation of the suspect’s Fifth Amendment rights. Murray I, 405

F.3d at 293. Our court also held Defendants-Appellants had official immunity

against the related state-law civil-conspiracy claim. Id. at 294-95. 

On remand, the district court entered judgment for Defendants-Appellants

on, inter alia, the Fifth Amendment claim; but, on the other hand, it reinstated

sua sponte the previously-dismissed Fourteenth Amendment substantive-dueprocess and related state-law civil-conspiracy claims. Defendants-Appellants

requested summary judgment on those claims, asserting: for the federal-law

claim, qualified immunity; and, for the state-law claim, official immunity and

immunity under theTexas Tort Claims Act. The district court granted summary

judgment to Blazey on those claims, but denied it for Defendants-Appellants.

II.

For this interlocutory appeal, only Emmons challenges the district court’s

jurisdiction to reinstate sua sponte the earlier-dismissed Fourteenth

Amendment, and related state-law, claims. Defendants-Appellants contest the

denials of qualified immunity on that constitutional claim and of state-law

immunity for the related civil-conspiracy claim. Murray cross-appeals,

contesting the qualified-immunity judgment for Blazey.

A.

Emmons maintains Murray I precluded the district court’s sua sponte

reinstatement, on remand, of the Fourteenth Amendment claim. That decision,

however, concerned only the qualified-immunity denial for the Fifth Amendment

claim. Murray I, 405 F.3d at 285. 
No. 06-50568

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Needless to say, the Murray I interlocutory review extended only to the

district court’s immunity-denial for the Fifth Amendment and related state-law

claims. E.g., Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (“Under the

collateral order doctrine . . . a district court’s ‘order denying qualified immunity,

to the extent that it turns on an ‘issue of law’ is immediately appealable’”.

(quoting Behrens v. Pelletier, 516 U.S. 299, 306, 311 (1996))); see also Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). Our court, therefore, was without jurisdiction

to review, inter alia, the district court’s Rule 12(c) (judgment on the pleadings)

dismissal of the Fourteenth Amendment claim. On remand, the reinstatement

of the Fourteenth Amendment, and related state-law, claims was within the

district court’s jurisdiction. 

B.

As noted, the “district court’s denial of a claim of qualified immunity, to

the extent that it turns on an issue of law, is an appealable ‘final decision’ within

the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment”. Mitchell, 472 U.S. at 530; see also Collins v. Ainsworth, 382 F.3d

529, 536 (5th Cir. 2004) (“This Court has interlocutory jurisdiction to determine

the legal question of whether Plaintiffs’ summary judgment facts state a § 1983

claim under clearly established law.”). Similarly, “orders denying official

immunity under Texas law are immediately appealable to the same extent as

denials of qualified immunity under federal law”. Kinney v. Weaver, 367 F.3d

337, 346 n.7 (5th Cir. 2004) (en banc). 

A summary judgment is reviewed de novo, applying the same standards

as the district court. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d

255, 260 (5th Cir.), cert denied 128 S. Ct. 181 (2007). Accordingly, such

immunity-denial is reviewed de novo. E.g., Rutland v. Pepper, 404 F.3d 921, 923

(5th Cir. 2005). The well-pleaded facts are accepted as true, viewing them in the

light most favorable to the plaintiff. E.g. Atteberry v. Nocona Gen. Hosp., 430
No. 06-50568

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F.3d 245, 252 (5th Cir. 2005). As noted, the scope of our review, however, for an

immunity-denial is restricted to the district court’s legal conclusions. Foley v.

Univ. of Houston Sys., 355 F.3d 333, 337 (5th Cir. 2003) (“The district court’s

determination that fact issues are genuine is not appealable. However, [its]

determination that fact issues are material, that is, that resolution of them

might affect the outcome of the case under governing law, is appealable . . . .”).

1.

In general, the qualified-immunity doctrine shields government officials

from civil liability if “their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known”.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Wallace v. County of

Comal, 400 F.3d 284, 289 (5th Cir. 2005). Qualified immunity is a defense

required to be raised by the official, and should be addressed by a district court

in the early stages of litigation. E.g., Siegert v. Gilley, 500 U.S. 226, 231 (1991).

Determining whether an official is entitled to qualified immunity can

involve two steps. The first step concerns “whether [, under then existing law,]

a plaintiff has successfully alleged facts showing the violation of a statutory or

constitutional right by [government] officials”. Rutland, 404F.3d at 923; see also

Saucier v. Katz, 533 U.S. 194, 200 (2001) (clarifying that “the first inquiry must

be whether a constitutional right would have been violated on the facts alleged”);

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). 

If such a violation is alleged, the second step involves first determining

whether that right was clearly established when the official acted. E.g.,

Martinez v. Tex. Dep’t of Criminal Justice, 300 F.3d 567, 576 (5th Cir. 2002); see

also Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (A right is

“clearly established” when its contours are “sufficiently clear that a reasonable

official would understand that what he is doing violates that right”. (citation and

internal quotation marks omitted)). If it was then clearly established, next
No. 06-50568

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examined is whether the official’s conduct was objectively reasonable in the light

of that law. E.g., McClendon, 305 F.3d at 323.

“If [, under the first step,] no constitutional right would have been violated

were the allegations established, there is no necessity for further inquiries [,

under the second step,] concerning qualified immunity.” Saucier, 533 U.S. at

201. Because Murray fails to allege conduct establishing a violation of a

constitutional right, we proceed no further than the first step. 

Murray maintains she alleged a violation of a Fourteenth Amendment

substantive-due-process right. It is well settled: “Regardless of the theory of

liability that a plaintiff is pursuing, in order to state a viable substantive due

process claim the plaintiff must demonstrate that the state official acted with

culpability beyond mere negligence”. McClendon, 305 F.3d at 325 (emphasis

added); see County of Sacramento v.Lewis, 523 U.S. 833, 846-849 (1998) (holding

mere negligence “is categorically beneath the threshold of constitutional due

process”). Restated, a plaintiff must allege conduct which “shocks the

conscience”. County of Sacramento, 523 U.S. at 846-47; see also McClendon, 305

F.3d at 325-26. Therefore, to satisfy the first step for this court’s qualifiedimmunity analysis, Murray must have alleged such conduct. As shown below,

she failed to do so. 

Murray maintains Defendants-Appellants violated her Fourteenth

Amendment substantive-due-process right by depriving her of “life, liberty, and

property without due process of law and denied [her] the equal protection of the

laws”. She alleges Defendants-Appellants violated her constitutional right by:

not “advis[ing] her . . . she was a suspect in the murder of Jayla Belton”; and not

properly advising her of her Miranda rights and protection afforded under the

Texas Family Code. Murray maintains Detective Pedraza ordered an illegal

removal of all children from her grandparents’ residence and improperly

attempted to take a statementfrom her. She alleges Assistant District Attorney
No. 06-50568

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Emmons and DetectivesPedraza, Eells, and Reveles refused to inform the Texas

Protective Services caseworker of her status as a suspect. 

Regarding Defendants-Appellants’ plan to interrogate her, Murray

maintains McGown (Supervisor of the Travis County Child Protective Services)

and the three Detectives conspired to question her withoutthe indicia of custody,

in order to avoid constitutional requirements, such as the right to counsel. She

alleges: Defendants-Appellants discussed how to legally question an elevenyear-old; and Assistant District Attorney Emmons advised the Detectives how

to avoid custodial interrogation. Regarding her interrogation, she alleges only:

Detectives Pedraza and Eells attempted to “Mirandize” her prior to questioning;

and the interrogation lasted two hours and 40 minutes.

Murray maintains the above-stated allegations give rise to a Fourteenth

Amendment violation. Viewing the evidence in the light most favorable to her,

see McClendon, 305 F.3d at 323, she fails to allege Defendants-Appellants

engaged in conduct that shocks the conscience. Instead, she simply alleges

Defendants-Appellants, while investigating the death of Jayla Belton, attempted

to determine (and follow) the proper procedure for questioning an eleven-yearold. Murray has, at most, asserted negligence, which, as stated, does not give

rise to a constitutional violation. See County of Sacramento, 523 U.S. at 846-49.

Therefore, Defendants-Appellants are entitled to qualified immunity.

2.

Defendants-Appellants maintain they are entitled to official immunity for

the related state-law civil-conspiracy claim. Alternatively, they claim qualified

immunity pursuant to the Texas Tort Claims Act. Although Murray lists these

state-law immunity claims in her brief’s statement of issues, she fails to address

either claim. 

“Official immunity is an affirmative defense that shields governmental

employees from personal liability so that they are encouraged to vigorously
No. 06-50568

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perform their official duties.” Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.

2002) (citation omitted). “A governmental employee is entitled to official

immunity for (1) the performance of discretionary duties (2) that are within the

scope of the employee’s authority, (3) provided that the employee acts in good

faith.” Id. at 461 (citations omitted). 

It is undisputed Defendants-Appellants were performing discretionary

functions and acting within the scope of their authority. At issue, therefore, is

whether they acted in good faith. Defendants-Appellants are entitled to official

immunity from Murray’s state-law claim if a reasonable prudent official, under

the same or similar circumstances, could have believed their actions were

correct. See City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994). 

As discussed, Murray Iheld Defendants-Appellants officially immune from

Murray’s state-law claim thatthey conspired to deprive her of Fifth Amendment

rights. 405 F.3d at 294-95. Our court ruled: “the officers did not conceal from

the Texas trial court any of the circumstances surrounding [Murray]’s

interrogation and, therefore, that they did not cause the violation of her rights”.

Id. at 295. 

Our analysis for the Fourteenth Amendment, and related state-law, claims

is identical. Murray shows no bad-faith conduct on the part of DefendantsAppellants. Indeed, they establish, as they did in Murray I,that all actions were

performed in good faith. As stated supra, Defendants-Appellants attempted

legally to question an eleven-year-old suspected of murder. DefendantsAppellants are, therefore, entitled to official immunity from the state-law civilconspiracy claim. (Accordingly, we need not reach immunity vel non under the

Texas Tort Claims Act.)

C. 

Finally, Murray cross-appeals the qualified-immunity summary judgment

for Blazey. As stated supra, only a qualified-immunity denial is immediately
No. 06-50568

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appealable pursuant to the collateral-order doctrine. See Kinney, 367 F.3d at

346. Jurisdiction is lacking to review the summary judgment for Blazey because

it is neither a final decision nor an appealable interlocutory order. See 28 U.S.C.

§§ 1291, 1292. Restated, qualified-immunity grants can be reviewed only after

final judgment. See Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985). 

III.

For the foregoing reasons, the summary judgment denying federal and

state-law immunity is VACATED and judgmentis RENDERED for DefendantsAppellants Emmons, McGown, Reveles, Pedraza, and Eells; Murray’s crossappeal is DISMISSED for lack of jurisdiction; and this matter is REMANDED

for further proceedings consistent with this opinion.