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# The Attorney General of Texas
January 6, 1983 JIM MATTOX Attorney General
Supreme Court Building P. 0. Box 12548 Austin. TX. 78711. 2548 5121475-2501 Telex 9101874.1367 Telecopier 5121475.0266
1607 Main St.. Suite 1400 Dallas. TX. 75201.4709 2141742.8944

4824 Alberta Ave., Suite 160 El Paso. TX. 79905-2793 9151533.3484
1220 Dallas Ave.. Suite 202 Houston. TX. 77002.6986 7131850-0666

806 Broadway. Suite 312 Lubbock. TX. 79401-3479 8061747.5238

4309 N. Tenth. Suite 6 McAllen. TX. 78501-1685 5121682.4547
200 Main Plaza. Suite 400 San Antonio. TX. 78205.2797 5121225-4191 Mr. Gail Shannon,President West Texas StateUniversity Canyon,Texas 79016 Re: Clarificationof Attorney General OpinionMW-537 (1982) Dear Mr. Shannon: This office issued Attorney General Opinion MU-537 to you on December 22, 1982. Since issuing this opinion, this office has discovered some significant legal authoritywhich is relevant to the answer to the second question. The purpose of this letter is to clarifyAttorneyGeneralOpinionMW-537 in light of thisauthority. Your secondquestionwas as follows: Would the university be liable if an individual being arrested [by a West Texas State University police officerat a WTSU basketballgame conducted in theAmarillo Civil Center] is injuredby a WTSU police officer? The opiniondiscussed section 14(9)of article 6252-19a.V.T.C.S., the Texas Tort ClaimsAct. This sectionprovidesas follows:

sec. 14. The provisions of thisAct shallnot apply to:

. . .. (9) Any claim based on an injury or death connectedwith any act or omission arising out of CiVil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fireprotection. The opinion concluded that:

If an arrest made by a WTSU police officer constitutes a 'method of providing policeMr. Gail Shannon - Page 2

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protection,' which is a fact question, the university will not be liable for an injury suffered by the party being arrested during the course of that arrest. In reaching this conclusion, the opinion relied upon Lloyd V. University of Texas, 524 S.W.2d 958 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.), and Davis v. County of Lubbock, 486 S.W.Zd 109 (Tex.Cl".App. - Amarillo 1972,no writ). The Lloyd and Davis cases were disapproved to the extent of conflict in State v. Terrell, 588 S.W.2d 784 (Tex. 1979). In that case, the Texas SupremeCourt construed the section 14(9)exemptionas follo"s: We think, therefore,that the Legislature intended

to exclude from the Act only those acts or omissionswhich constitute the executionof or the actualmaking of thosepolicydecisions.... Thus, if the negligence causing an injury lies in the formulating of policy -- &, the determiningof the method of police protection to provide -- the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under theAct. (Emphasisin original). 588 S.W.2d at 788. Thus, theTerre11 case states the proper standard to rely upon in answering your second question. If the negligence causing an arrestee's injury lies in formulation of policy regarding police protection, the university remains illllll"ne from liability. If, however, a university peace officer injures someone through his negligent act in carrying out policy, the university may be liable under the Tort Cfaims Act. Whether any particular set of circumstances will give rise to liability is a fact questionwhich cannotbe resolved /

JIM MATTOX AttorneyGeneral of Texas