. . . 

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 

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McAllen. TX. 78501-1685 

5121682.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 78205.2797 

5121225-4191 

Mr. Gail Shannon, President 

West Texas State University 

Canyon, Texas 79016 

Re: Clarification of Attorney 

General Opinion MW-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 authority which is relevant to the 

answer to the second question. The purpose of this letter is to 

clarify Attorney General Opinion MW-537 in light of this authority. 

Your second question was as follows: 

Would the university be liable if an individual 

being arrested [by a West Texas State University 

police officer at a WTSU basketball game conducted 

in the Amarillo Civil Center] is injured by a WTSU 

police officer? 

The opinion discussed section 14(9) of article 6252-19a. V.T.C.S., the 

Texas Tort Claims Act. This section provides as follows: 

sec. 14. The provisions of this Act shall not 

apply to: 

. . . . 

(9) Any claim based on an injury or death 

connected with 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 

fire protection. 

The opinion concluded that: 

If an arrest made by a WTSU police officer 

constitutes a 'method of providing police 
Mr. Gail Shannon - Page 2 

. . 

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 Supreme Court construed the section 14(9) exemption as 

follo"s: 

We think, therefore, that the Legislature intended 

to exclude from the Act only those acts or 

omissions which constitute the execution of or the 

actual making of those policy decisions.... Thus, 

if the negligence causing an injury lies in the 

formulating of policy -- &, the determining of 

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 the Act. (Emphasis in original). 

588 S.W.2d at 788. 

Thus, the Terre11 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 

question which cannot be resolved / 

JIM MATTOX 

Attorney General of Texas