* District Judge of the Southern District of Texas, sitting by

designation.

[875] Garwood

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 93-8117

__________________

GLORIA CAMPBELL,

Plaintiff-Appellant,

versus

CITY OF SAN ANTONIO, ET AL.,

Defendants-Appellees.

CITY OF SAN ANTONIO & GEORGE R. VIDAL,

Individually and in His Official Capacity

as Detective with the San Antonio Police

Department,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

______________________________________________

(January 19, 1995)

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD,*

District Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant Gloria Campbell (Campbell) appeals the

dismissal of her federal civil rights and pendent state law claims,

in which she sought damages for injuries allegedly caused by her
2

arrest for delivery of crack cocaine. We affirm.

Facts and Proceedings Below

On April 13, 1990, defendant George R. Vidal (Vidal), a

detective with the San Antonio Police Department (SAPD), bought a

small amount of crack cocaine from a woman named Gloria Smothers.

In August 1990, Vidal, using SAPD identification equipment and

procedures, concluded that Gloria Smothers was actually plaintiff

Gloria Jean Campbell, whose maiden name was Smotherman. On

September 4, 1990, Vidal identified Campbell as Gloria Smothers in

a photographic lineup, using Campbell's Texas driver's license

photograph. Although not specifically alleged in the complaint,

Campbell asserted at oral argument that Vidal set forth his

conclusions in a report furnished to the local district attorney's

office, as a result of which Campbell was indicted by the grand

jury for the April 13, 1990, incident.

Following the return of the grand jury indictment, officers of

the SAPD arrested Campbell in February 1991 on the charge of

delivery of less than twenty-eight ounces of crack cocaine. It is

not alleged that Vidal was one of the arresting officers. Campbell

alleges that she was released from the Bexar County Jail later that

day on $15,000 bond, that she was arraigned in state district court

on March 25, 1991, and that in July 1991, after several court

appearances and a voluntary lie detector test, the charges against

her were dismissed due to insufficient evidence.

On April 29, 1992, Campbell filed this suit in Texas state

court seeking damages for alleged constitutional violations and

negligence on the part of the defendants leading to and arising out
1 Campbell has not appealed the dismissal of her claims

against Bexar County or Harlon Copeland; those defendants are not

party to this appeal.

3

of her arrest for delivery of crack cocaine. Named as defendants

were the City of San Antonio, Texas (the City); Bexar County,

Texas; and Harlon Copeland, in his official capacity as Sheriff of

Bexar County. The defendants removed the lawsuit to the district

court below on the strength of Campbell's federal civil rights

claims brought pursuant to 42 U.S.C. § 1983. Thereafter, in

October 1992, Campbell amended her complaint to include claims

against Vidal, individually and in his official capacity as a

detective with the SAPD. Defendants Bexar County and Sheriff

Copeland moved for dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) or, in the alternative, for summary judgment.

Vidal and the City subsequently filed a motion to dismiss pursuant

to Rule 12(b)(6). Campbell responded to both motions. The

district court granted the 12(b)(6) motions and dismissed the

action. 

Campbell timely appealed this ruling.1

Discussion

In dismissing the claims against Vidal and the City, the

district court ruled that (1) Vidal, individually, was entitled to

qualified immunity on the civil rights claims for the mistaken

arrest of Campbell; (2) Campbell failed to allege specific facts

demonstrating an official policy or custom as a basis for liability

of the City and Vidal, in his official capacity, on the civil

rights claims; and (3) Campbell's state law negligence claims
4

against Vidal and the City were not cognizable under the Texas Tort

Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001, et seq.

(Vernon 1986).

We review the district court's order of dismissal pursuant to

Rule 12(b)(6) de novo, accepting all well-pleaded facts as true and

viewing those facts in the light most favorable to Campbell.

Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 276 (5th Cir.

1990); Heaney v. United States Veterans Admin., 756 F.2d 1215, 1217

(5th Cir. 1985). Our review is narrow: we will not uphold the

dismissal "`unless it appears beyond doubt that [Campbell] can

prove no set of facts in support of [her] claim which would entitle

[her] to relief.'" Heaney, 756 F.2d at 1217 (quoting Conley v.

Gibson, 78 S.Ct. 99, 101-02 (1957)). However, "the complaint must

contain either direct allegations on every material point necessary

to sustain a recovery . . . or contain allegations from which an

inference fairly may be drawn that evidence on these material

points will be introduced at trial." 3 Wright & Miller, FEDERAL

PRACTICE AND PROCEDURE: CIVIL 2d § 1216 at 156-159 (footnote omitted).

"[A] statement of facts that merely creates a suspicion that the

pleader might have a right of action" is insufficient. Id. at 163

(footnote omitted). "Dismissal is proper if the complaint lacks an

allegation regarding a required element necessary to obtain relief

. . ." 2A MOORE'S FEDERAL PRACTICE ¶ 12.07 [2.-5] at 12-91 (footnote

omitted). The court is not required to "conjure up unpled

allegations or construe elaborately arcane scripts to" save a

complaint. Gooley v. Mobil Oil Corp, 851 F.2d 513, 514 (1st Cir.
2 In her brief on appeal, Campbell states: "It is not the

actual execution of the warrant of which Plaintiff complains but

the procedure which was utilized by Detective Vidal and

sanctioned by the City of San Antonio." 

3 In the Joint Agreed Pre-Trial Order, Campbell conceded that

she "was arrested pursuant to a valid warrant." She also agreed

that Vidal was acting in the course and scope of his employment

as a detective with the SAPD at all time material to the lawsuit,

and that he acted under the color of law in his discretionary

authority as a SAPD detective.

4 This concession distinguishes Malley v. Biggs, 106 S.Ct.

1092 (1986). In Malley, the warrant was invalid because of the

5

1988). Further, "conclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a

motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987

F.2d 278, 284 (5th Cir. 1993).

I. Federal Constitutional Violations

A. Claims Against Vidal Individually

In considering Campbell's section 1983 claims against Vidal,

our first inquiry is whether Campbell was deprived of a right

secured by the Constitution. Baker v. McCollan, 99 S.Ct. 2689,

2692 (1979). All injuries complained of in Campbell's complaint

stem from her arrest for delivery of crack cocaine. Campbell does

not, however, challenge her arrest on appeal.2 Indeed, even before

the district court, Campbell agreed that she had been arrested

pursuant to a valid warrant.3 See Baker at 2694-95; Simons v.

Clemons, 752 F.2d 1053, 1055 (5th Cir. 1985) (plaintiff asserted no

deprivation of constitutional right where she was arrested on a

facially valid warrant because of an honest mistake).

Campbell has conceded that she was named in the arrest warrant

and that it was valid.4 She has also conceded that the warrant was
lack of probable cause, and the resulting illegal arrest was in

violation of the Fourth Amendment. Here, the warrant was valid;

Campbell's arrest was thus also valid, and no Fourth Amendment

violation occurred.

5 That this mistaken conclusion is the focus of our attention

is evident from Campbell's description of the facts underlying

her claim in her amended complaint:

"On or about August 20, 1990, Defendant Vidal,

using San Antonio Police Department identification

equipment and procedures . . . mistakenly concluded

that the true identity of Gloria Smothers [who had sold

him the crack cocaine] was Plaintiff, Gloria Jean

Campbell whose maiden name was Smotherman.

"On or about September 4, 1990, Defendant George

Vidal identified a Texas Drivers [sic] License

photograph of Plaintiff as the person who had sold him

`crack cocaine' on April 13, 1990, nearly five months

6

based on a grand jury indictment, which itself establishes probable

cause. "A warrant of arrest can be based upon an indictment

because the grand jury's determination that probable cause existed

for the indictment also establishes that element for the purpose of

issuing a warrant for the apprehension of the person so charged."

Giordenello v. United States, 78 S.Ct. 1245, 1250 (1958). See also

Gerstein v. Pugh, 95 S.Ct. 854, 865 n.19 (1975) (indictment

"conclusively determines the existence of probable cause and

requires issuance of an arrest warrant without further inquiry");

Ex parte United States, 53 S.Ct. 129, 131 (1932); Beavers v.

Henkel, 24 S.Ct. 605, 608 (1904). 

Because Campbell does not pursue a Fourth Amendment claim on

appeal, the only facts before us which may form the basis of the

alleged constitutional violation, therefore, are Vidal's actions in

identifying Campbell as the woman known as Gloria Smothers five

months after he purchased the crack cocaine.5 We must determine
before.

"On or about February 26, 1991, approximately

12:30 p.m., the Plaintiff was arrested by members of

the San Antonio Police Department. Plaintiff was

incarcerated in the Bexar County Jail and charged with

the offense of Delivery of Cocaine under 28 ounces."

In the portion of the amended complaint detailing the basis

for her lawsuit, Campbell does not state what Vidal actually did,

other than in some manner identify her to someone as the suspect,

to trigger her arrest:

"The occurrence made the basis of this action was

a direct and proximate result of the negligence of the

City of San Antonio, Bexar County, their agents,

servants, and officers, and Defendant Vidal in the

following particulars:

"(a) In failing to properly supervise or carryout

[sic] sufficient identification procedures on or

about February 26, 1991 in order to prevent

Plaintiff's injuries[;]

"(b) In failing to properly correct mistakes in

identification of the Plaintiff in order to

prevent the Plaintiff's injuries;

"(c) In failing to maintain proper record keeping

as to the Plaintiff in order to prevent the

Plaintiff's injuries;

"(d) In failing to properly supervise or use

tangible implements of identification and record

keeping which were under its care, custody, or

control[;]

"(e) In failing to timely attempt an

identification of a suspect rather than wait

approximately five months."

7

whether her claims based upon Vidal's mistaken identification

amount to a violation of the Fourteenth Amendment Due Process

Clause. The Supreme Court has observed that, "[u]nlike a

warrantless search, a suggestive preindictment identification

procedure does not in itself intrude upon a constitutionally

protected interest." Manson v. Brathwaite, 97 S.Ct. 2243, 2252
6 Further, it is plain that no such right was clearly

established at the time. Hence, even assuming, arguendo, that

Campbell has shown the violation of a constitutionally protected

right, she has not established a right to damages on her section

1983 claims against Vidal. Vidal is protected from liability by

qualified immunity: Campbell has conceded that Vidal was acting

within the scope of his employment with the SAPD. "If reasonable

public officials could differ on the lawfulness of the

defendant's actions, the defendant is entitled to qualified

immunity." Pfannstiel v. Marion, 918 F.2d 1178, 1183 (5th Cir.

1990).

8

n.13 (1977). Campbell has not asserted that the procedures used by

Vidal to identify her were suggestive, nor that Vidal acted

intentionally in misidentifying her as the woman who had sold him

the crack cocaine. Her sole allegation is that her injuries were

caused by Vidal's negligence in arriving at, and acting in some

unspecified way upon, the mistaken identification. The Supreme

Court has held that the negligent act of a state official which

results in unintended harm to life, liberty, or property, does not

implicate the Due Process Clause. Daniels v. Williams, 106 S.Ct.

662, 663 (1986). See also Herrera v. Millsap, 862 F.2d 1157, 1160

(5th Cir. 1989) (arresting officers not liable for mistaken arrest

where, as a result of negligence, civil rights plaintiff's name was

submitted to grand jury instead of that of suspect); Simmons v.

McElveen, 846 F.2d 337 (5th Cir. 1988) (negligent detention

following valid arrest not actionable under section 1983, citing

Daniels).

Campbell had no constitutional right to be protected from

Vidal's merely negligent conclusion that she was the suspect who

had sold him the crack cocaine.6 The district court correctly

ruled that she did not assert a section 1983 claim against Vidal,
9

individually, upon which relief could be granted.

B. Claims against the City

A municipality may be held liable under section 1983 for a

deprivation of rights protected by the Constitution or federal law

only if that deprivation is inflicted pursuant to an official,

municipal policy. Such a policy may include "a persistent,

widespread practice of city officials or employees, which, although

not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly

represents municipal policy." Webster v. City of Houston, 735 F.2d

338, 841 (5th Cir. 1984).

The crux of Campbell's complaint is that Vidal incorrectly and

negligently concluded that she was Gloria Smothers. The claims

against the City rest on her allegations that the City negligently

failed to correct the mistaken identification or to prevent such a

mistake from occurring in the first place. Campbell has not

asserted any facts, however, indicating that her alleged

deprivation of constitutionally protected rights was the result of

an official policy or custom. Campbell describes only this single

incident in which Vidal was mistaken in his identification of her

as Smothers. "Isolated violations are not the persistent, often

repeated constant violations that constitute custom and policy" as

required for municipal section 1983 liability. Bennett v. City of

Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984), cert. denied, 105

S.Ct. 3476 (1985). See also Coon v. Ledbetter, 780 F.2d 1158, 1161

(5th Cir. 1986); Lopez v. Houston ISD, 817 F.2d 351, 353-54 (5th

Cir. 1987); Hamilton v. Rodgers, 791 F.2d 439, 443-44 (5th Cir.
7 The Act governs the instances in which governmental units of

the state, including cities, may, or may not, be held liable to

private litigants. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §§

101.021, 101.055, 101.057. 

8 The heart of Campbell's allegations of negligent use of

tangible personal property does indeed seem merely a part of a

larger claim for false arrest or false imprisonment. An action

for either of these intentional torts is barred by section

101.057(2) of the Act (barring claims "arising out of assault,

battery, false imprisonment, or any other intentional tort"). 

See City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.

App.SQSan Antonio 1990, writ denied). Campbell's claim for

damages centers around the arrest itself and the results thereof. 

She does not rely on her allegations of the negligent use of the

identification materials as a source of damage by itself, but

10

1986). The facts alleged in the amended complaint simply do not

tend to show, nor does the complaint assert, that the City had any

such policy or custom that resulted in infringement of Campbell's

constitutional rights or that any such policy or custom of the City

was adopted or continued by its policymakers in "deliberate

indifference to the constitutional rights of its inhabitants."

City of Canton v. Harris, 109 S.Ct. 1197, 1206 (1989). 

The district court correctly dismissed Campbell's section 1983

claims against the City.

II. State Law Negligence Claims

A. Texas Tort Claims Act

The district court dismissed Campbell's state law negligence

claims, construing them as claims for false arrest or false

imprisonment. Neither claim falls within a statutory waiver of

immunity under the Texas Tort Claims Act (the Act).7 In fact,

section 101.057(2) of the Act proscribes liability for claims

arising out of "false imprisonment, or any other intentional

tort."8 
only as it led to her arrest, detention, and prosecution. It

would appear, therefore, that if Campbell's allegations of

negligent misidentification are only background and support for a

claim for false arrest, detention, or prosecution, these claims

should also be barred.

A Texas intermediate appellate court has stated, however,

that immunity from an action for false arrest or false

imprisonment does not extend to claims for simple negligence

arising from the same set of facts. Jefferson County v. Sterk,

830 S.W.2d 260, 261-62 (Tex. App.SQBeaumont 1992, writ denied). 

In that case, the plaintiff claimed Jefferson County negligently

caused his false arrest by failing to withdraw an arrest warrant

from its active files after resolution of his probation case. As

part of this claim, he alleged that the County was liable for the

negligent misuse of the arrest warrant, which he contended to be

tangible personal property within the context of the Act. The

trial court agreed with him and ruled against the County. On

appeal, the Beaumont court of appeals rejected the County's claim

that its immunity for false arrest or false imprisonment

precluded its liability for the plaintiff's negligence claim. 

Id. Campbell's claims, even if solely for false arrest, are

couched in terms of negligence. Sterk indicates that the

defendants may not rely on their immunity from liability for

intentional false arrest or false imprisonment to avoid liability

for claims of negligent false arrest. Campbell has alleged only

negligence.

9 Campbell alleged in her amended complaint that her damages

were directly and proximately caused by the negligence of the

City and Vidal "[i]n failing to properly supervise or use

tangible implements of identification and record keeping which

were under [defendants'] care, custody, or control." (Emphasis

added.)

11

Campbell argues that her claim was not for false arrest (or

"other intentional tort"), but rather for the negligent use of

tangible personal property, i.e., that the proximate and direct

cause of her mistaken arrest and subsequent injuries was the

negligent use of the City's identification materials and

procedures, including the photographic lineup.9 Section 101.021 of

the Act provides the instances in which a governmental unit of the

State of Texas may be liable:

"A governmental unit in the state is liable for: 
10 The Act was amended in 1987 to provide for municipal

liability for damages arising from certain governmental

functions, including police and fire protection and control. 

TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(1) (Vernon 1994

Supp.). Campbell has not asserted this section of the Act as a

ground for liability.

12

* * * *

"(2) personal injury and death so caused by a

condition or use of tangible personal or real property if

the governmental unit would, were it a private person, be

liable to the claimant according to Texas law." TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021(2) (emphasis added).10

Campbell relies on a series of cases in which the Texas courts

have held that the negligent misuse of medical equipment may

provide grounds for a negligence action under section 101.021(2).

See, e.g., Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31-32

(Tex. 1983) (misuse of electrocardiogram provided grounds for

liability of hospital); Texas Dep't of Mental Health and Mental

Retardation v. Petty, 848 S.W.2d 680, 684 (Tex. 1992) (patient's

treatment records were tangible personal property, rendering state

liable for negligent misdiagnosis); Robinson v. Central Texas MHMR

Center, 780 S.W.2d 169, 171 (Tex. 1989) (allegation of liability

based on failure to equip epileptic patient with life preserver).

The cases dealing with a doctor's negligent treatment of a

patient may not be analogous to the present case, because a doctor

may be liable under the common law for negligently rendering

medical treatment. In any event, the Texas Supreme Court recently

has seemed to disagree with any broad reading of its earlier

decisions in the medical context. In Univ. of Texas Medical Branch

at Galveston v. York, 871 S.W.2d 175 (Tex. 1994), the court held

that information, which may or may not be recorded in medical
13

records, is not tangible personal property within the meaning of

section 101.021(2) of the Act. Id. at 179. "Information then, is

intangible; the fact that information is recorded in writing does

not render the information tangible property." Id. The court

distinguished Salcedo on the ground that in that case the plaintiff

alleged misuse of the electrocardiogram, a piece of hospital

equipment. Id. at 178. York was recently reaffirmed by the Texas

Supreme Court in Kassen v. Hatley, No. D-4248, November 10, 1994,

1994 WL 625998(Tex.). There, citing York, the Court stated that

"information in medical records is not tangible personal property

within the meaning of the Texas Tort Claims Act" and that "[t]he

reasoning of York extends to [plaintiffs' descendent] Johnson's

medical records, the difficult patient file, and the emergency room

procedures manual. Use, misuse or non-use of these items . . . did

not support a claim under the Texas Tort Claims Act." Kassen goes

on to also hold that "a claim of non-use of property . . . does not

trigger waiver of sovereign immunity under the Texas Tort Claims

Act." See also Washington v. City of Houston, 874 S.W.2d 791, 795

(Tex. App.SQTexarkana 1994; no writ) (construing York as

disapproving cases such as Petty, holding use or nonuse of

information in city's personnel files not within Act, and stating

that contrary position "would expand the statute to the point that

a plaintiff could characterize almost any act or omission as

involving the use of tangible property.").

Other cases have distinguished Salcedo on the ground that the

item "used," generally some official record or permit, was merely

a piece of paper evidencing some action or information which is the
14

real source of the alleged negligence. See, e.g., Jefferson County

v. Sterk, 830 S.W.2d 260 at 262-63 (Tex.App.SQBeaumont1992) (arrest

warrant was not personal property to support action under the Act;

court did not reach question of whether "non-use," or failure to

remove warrant from active files, established liability); Eakle v.

Texas Dep't of Human Servs., 815 S.W.2d 869, 872-73 (Tex.

App.SQAustin 1991, writ denied) (plaintiffs, suing for injuries to

son at "registered family home" named on list obtained from

defendant, failed to state claim under the Act; negligence

complained of related to background check of home required before

compiling list); Wyse v. Department of Public Safety, 733 S.W.2d

224, 228 (Tex. App.SQWaco 1986, n.r.e.).

Similarly, Campbell's claims for negligent use of the SAPD

identification materials actually allege the misuse of the

information contained in the identification materials. In

substance, she contends that Vidal drew the wrong conclusion from

what he observed in the materials. Drawing and/or communicating

the conclusion itself is the alleged negligence. 

Further, under section 101.021(2) the governmental unit is

liable only if it "would, were it a private person, be liable to

the claimant according to Texas law." As discussed below in

relation to Vidal, Campbell has not alleged any negligence that

would be actionable under Texas law if committed by a private

person. Hence, she has alleged no liability on the part of the

City under section 101.021(2). See Wyse at 228. Cf. Carpenter v.

Barner, 797 S.W.2d 99, 102 (Tex. App.SQWaco 1990, denied) (§

101.021(1)).
15

We conclude that Campbell has not alleged a violation of the

Act for which the city may be held liable.

B. Claims Against Vidal Individually

As to Vidal, Campbell's allegations are in essence that he

negligently misidentified her to another law enforcement officer or

the District Attorney as the person from whom he had purchased

cocaine in April 1990. There is no allegation that Vidal was

actuated by malice or did not actually believe that his

identification was correct. We are not cited to, and we are

unaware of, any Texas authority holding that Campbell has a cause

of action against Vidal for such a merely negligent

misidentification. We have long held that we will not create

"innovative theories of recovery" under local law. See Galindo v.

Precision American Corp., 754 F.2d 1212, 1217 (5th Cir. 1985). See

also, e.g., Junior Money Bags, Ltd. v. Segal, 970 F.2d 1, 11 (5th

Cir. 1992); Mitchell v. Random House Inc., 865 F.2d 664, 672 (5th

Cir. 1989); Graham v. Milky Way Barge Inc., 824 F.2d 367, 381 (5th

Cir. 1987); Harmon v. Grande Tire co., 821 F.2d 252, 259 (5th Cir.

1987). Such restraint is particularly appropriate in the present

context.

The question of providing citizens civil redress for incorrect

arrest or prosecution for or accusation of crime is not of recent

origin, but rather has long been addressed by the Texas common law

in diverse causes of action, each of which has strict limitations

that have been dictated by recognized public policy concerns.

Recognition of Campbell's asserted cause of action would sweep away

these limitations, contrary to the public policy on which they
11 As noted, Campbell does not challenge the lawfulness of her

arrest, and "[i]t is a complete defense to an action for false

arrest or imprisonment that the arrest or detention was executed

by virtue of a process legally sufficient in form and duly issued

by a court having jurisdiction to issue it." Sanchez v. Garza,

581 S.W.2d 258, 259 (Tex. Civ. App.SQCorpus Christi 1979, no

writ). See also Pete v. Metcalfe, 8 F.3d 214, 218-219 (5th Cir.

1993).

Nor does Campbell challenge the method by which her arrest

and detention were effectuated, i.e. there is no claim of

excessive force or the like. 

Moreover, it is plain that Campbell is not asserting abuse

of process, which relates not to the issuance or origin of the

process but to its abuse "after its issuance." Martin v.

Trevino, 578 S.W.2d 763, 769 (Tex. Civ. App.SQCorpus Christi

1978, n.r.e.). See also Tandy Corporation v. MacGregor, 527

S.W.2d 246, 249 (Tex. Civ. App.SQTexarkana 1975, n.r.e.). 

Further, abuse of process requires wrongful motive or intent on

the part of the defendant, not mere negligence, as one of its

necessary elements is that "the defendant had an ulterior motive

or purpose in exercising such illegal, perverted or improper use

of the process." Martin at 769. See also Tandy Corporation at

249 (same). Cf. RESTATEMENT (SECOND) OF TORTS § 682; Id. comment b

("The usual case of abuse of process is one of some form of

extortion, using the process to put pressure upon the other to

compel him to pay a different debt or to take some other action

or refrain from it").

What Campbell in essence complains of is the origin of the

process by which she was detained (Vidal's allegedly negligent

misidentification of her to other law enforcement officers or the

district attorney as the person from whom he purchased cocaine in

April 1990), not its validity, execution or use.

16

rest. This is evident from a consideration of the two torts which

are most analogous to Campbell's situation, namely libel and

slander, and malicious prosecution. Each of these torts requires

a greater culpability than mere negligence.11

In cases of libel and slander, Texas has long recognized at

least "a qualified privilege" for "the communication of alleged

wrongful acts to an official authorized to protect the public from

such acts." Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ.
12 Cf. RESTATEMENT (SECOND) OF TORTS § 598A (inferior

administrative officer, where not absolutely privileged, has

conditional privilege for "communication required or permitted in

the performance of his official duties").

13 See also Ryder Truck Rentals v. Latham, 593 S.W.2d 334, 341

(Tex. Civ. App.SQEl Paso 1979, n.r.e) (same); RESTATEMENT (SECOND) OF

TORTS § 600 (same).

14 See also Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d

914, 924 (Tex. App.SQCorpus Christi 1991, dissm'd w.o.j.) (same);

Mayfield v. Gleichert, 484 S.W.2d 619, 627 (Tex. Civ. App.SQTyler

1972, no writ) (same); RESTATEMENT (SECOND) OF TORTS § 600, comment b

("mere negligence as to falsity" does not defeat a conditional

privilege). "'If one makes a statement, believing it to be true,

he would not lose the protection arising from the privileged

occasion, although he had no reasonable ground for his belief.'" 

Mayfield at 627.

17

App.SQCorpus Christi 1977, no writ).12 "The effect of such

privilege is to justify the communication when it was made with

proper motives and without actual malice." Id. The communication

is privileged unless made "with the knowledge that . . . [it] was

false or with reckless disregard for whether it was false."

Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex.

App.SQHouston [1st] 1984, n.r.e).13 Further, the privilege is not

defeated by "[n]egligence, failure to investigate . . . [or]

failure to act as a reasonably prudent man . . ." Id.

14 The

privilege is founded on "a strong public policy consideration," it

being "vital to our system of criminal justice" that there be the

ability "to communicate to peace officers the alleged wrongful acts

of others without fear of civil action for honest mistakes."

Zarate at 655. To allow Campbell a cause of action for Vidal's

negligence in telling law enforcement personnel that Campbell was

the person from whom he purchased cocaine is to negate the

justification that the law of libel and slander gives to such a
15 We observe that on public policy grounds Texas has refused

to recognize the separate tort of false light. Cain v. Hearst

Corp, 878 S.W.2d 577 (Tex. 1994). The Cain court noted that if

not subjected to all the strictures, limits, and restrictions of

defamation actions, false light might allow recovery for speech

in instances where such would not be allowed under the law of

libel and slander. Id. at 582-83. The Cain court stated "we

decline to restrict speech in any manner beyond our existing tort

law." Id. at 583.

16 We note that at least one recognized treatise has referred

to "the substantial similarity if not outright identity between

the malicious prosecution action and the defamation suit." See

PROSSER AND KEETON ON TORTS at 886 (5th ed. 1984). 

18

communication so long as it is made believing it to be true; and

allowing such a cause of action would be contrary to the public

policy that is the foundation for that justification.15

The tort of malicious prosecution16 requires, among other

elements, not only that there have been a want of probable cause

but also, and independently, that the defendant have acted with

"malice." James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982);

Stringer v. Cross, 564 S.W.2d 121, 123 (Tex. Civ. App.SQBeaumont

1978, no writ) (finding only proof of malice wanting); Parker v.

Dallas Hunting and Fishing Club, 463 S.W.2d 496, 499 (Tex. Civ.

App.SQDallas 1971, no writ) ("a defendant in a malicious

prosecution action is not liable where there was no probable cause

if he was not actuated by malice"); Yianitsas v. Mercantile

National Bank at Dallas, 410 S.W.2d 848, 850 (Tex. Civ.

App.SQDallas 1967, no writ); Montgomery Ward v. Kirkland, 225

S.W.2d 906, 908 (Tex. Civ. App.SQSan Antonio 1949, n.r.e.); Deaton

v. Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex. Civ.

App.SQBeaumont 1942, w.o.m.) ("The failure of the plaintiff to

establish either malice or want of probable cause . . . is fatal to
17 Similarly, such actions are said to "have never been favored

in law." Parker at 499. See also Stringer at 122 (same);

Kirkland at 909; Deaton at 972; Daughtry v. Blanket State Bank,

60 S.W.2d 272 at 273 (Tex. Civ. App.SQAustin 1933, no writ).

19

his cause of action"). See also RESTATEMENT (SECOND) OF TORTS § 668

(malicious prosecution requires that "the proceedings must have

initiated primarily for a purpose other than that of bringing an

offender to justice"). Here, there is no allegation of malice, ill

will, or improper purpose, or that the misidentification was other

than an honest, though negligent, mistake. Nor do the facts

alleged suggest otherwise. There is no indication that Vidal ever

knew Campbell, or had any reason to bear her any ill will, or had

any reason to misidentify her. In these circumstances, there is no

malice, as the Texas courts have held in analogous circumstances,

Stringer, Yianitsas, even where it is obvious that the

misidentification was negligent. Yianitsas at 850, 851.

Texas courts have long recognized a strong public policy

behind the various restrictions and limitations applicable to

malicious prosecution suits complaining of criminal proceedings,

namely that "public policy favors the exposure of crime." Parker

at 499. See also Kirkland at 909 (same); Yianitsas at 851.17 This

"public policy . . . requires and demands that the rules governing

such actions be strictly adhered to." Parker at 499. See also

Kirkland at 909; Daughtry v. Blanket State Bank, 60 S.W.2d 272, 273

(Tex. Civ. App.SQAustin 1933, no writ).

To hold, as Campbell would have us do, that Vidal's negligent

misidentification of her is actionable would in substance convert

the Texas tort of malicious prosecution to one of negligent
18 We note the following decisions from other jurisdictions

taking a similar approach. In Lundberg v. Scoggins, 335 N.W.2d

235 (Minn. 1983), the Minnesota Supreme Court held that "a

complaint of negligent accusation and misidentification of a

criminal suspect" fails to "state[] a claim upon which relief can

be granted," noting that "our decision is controlled by a wellestablished body of law relating to an analogous claim of

malicious prosecution." Id. In Pokorny v. First Federal Savings

& Loan association of Largo, 382 So.2d 678 (Fla. 1980), the

Florida Supreme Court stated:

"Florida courts have never recognized a separate tort

for 'negligently' swearing out a warrant for arrest. 

Such cases may be brought only in the form of civil

suits for malicious prosecution . . . [citations

omitted]. A plaintiff contending that he had been

improperly arrested as the result of negligence in

swearing out a warrant must bear the burden of

establishing malice and want of probable cause. Mere

negligence alone is insufficient." Id. at 683.

See also, e.g., Reaves v. Westinghouse Electric Coop, 683 F.Supp.

521, 523 (D. Md. 1988) ("The tort of false arrest is predicated

upon knowing misconduct . . . [citation omitted] Negligence or

other mistake in providing incorrect information to lawful

authorities does not give rise to liability.").

19 As to the tort of negligent misrepresentation:

"To recover for negligent misrepresentation, the

plaintiff must prove that: (1) the defendant made the

representation in the course of business or in a

transaction in which it has a pecuniary interest; (2)

the defendant supplied false information for the

guidance of others in their business; (3) the defendant

did not exercise reasonable care or competence in

obtaining or communicating the information; and (4) the

plaintiff suffered pecuniary loss by justifiably

relying on the representation." Milestone Properties

Inc. v. Federated Metals Corp., 867 S.W.2d 113, 118 n.6

20

prosecution. This we decline to do.18

Moreover, "there is no general duty in Texas not to

negligently inflict emotional distress. A claimant may recover

mental anguish damages only in connection with defendant's breach

of some other legal duty." Boyles v. Kerr, 855 S.W.2d 593, 594

(Tex. 1993).19
(Tex. App.SQAustin 1993, no writ) (emphasis added).

Here, any misrepresentation by Vidal was not made to Campbell,

and she did not rely on any misrepresentation by Vidal. In a

case where an arrestee brought suit for negligent identification

of him to the police, a New York appellate court sustained

dismissal of the suit and rejected "negligent misrepresentation"

as a basis for recovery "[b]ecause it was the police and not

plaintiff who relied upon [defendant] Brown's identification." 

Collins v. Brown, 129 A.D.2d 902, 514 N.Y.S.2d 538, 540 (N.Y.

Appellate Div. 1987).

21

Campbell has not stated a Texas law claim against Vidal.

The district court correctly dismissed the state law claims

against the City and Vidal.

Conclusion

For the reasons discussed above, the judgment of the district

court dismissing Campbell's amended complaint is 

AFFIRMED.