In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-23-00370-CV

___________________________

On Appeal from the 352nd District Court

Tarrant County, Texas

Trial Court No. 352-333908-22

Before Sudderth, C.J.; Womack and Walker, JJ.

Memorandum Opinion by Justice Walker

MICHAEL LOWE, Appellant

V.

AMERICAN AIRLINES, INC. AND TAMIKA BARKERS, Appellees
2

MEMORANDUM OPINION

This case arises from the misidentification of Appellant Michael Lowe as the 

suspect in a burglary that occurred at DFW Airport (the Airport). Lowe was arrested 

for the burglary and spent seventeen days in a New Mexico jail before law 

enforcement determined that he was not the proper suspect and dropped the charges 

against him. Lowe sued Appellants American Airlines, Inc. (AA) and Tamika Barkers,

a former AA security employee, for their alleged involvement in his misidentification,

pleading various negligence claims and claims for false arrest and imprisonment and 

ratification. AA and Barkers moved for traditional and no-evidence summary 

judgment, and the trial court granted their motion. Lowe appeals from that judgment. 

We will affirm.

I. BACKGROUND

A. FACTUAL BACKGROUND

The material facts of this case are unfortunate and largely undisputed.1 In 

May 2020, an unknown male burglarized a store inside the Airport. Airport police 

officer Juan Torres investigated the burglary and viewed video-surveillance footage in 

an attempt to identify the suspect. Based on timestamps from the footage, Torres 

concluded that the suspect had boarded an AA flight to Reno, Nevada, at 6:29 p.m. 

Lowe also boarded the flight at that time. 

1We derive all background facts from the summary-judgment evidence 

submitted by the parties.
3

Torres then spoke with Barkers—a security specialist with AA’s Security 

Department and a former police officer—and asked her for “identifying information” 

for the passenger who had scanned his boarding pass at 6:29 p.m. He also sent 

Barkers screenshots of the alleged suspect as he boarded the flight and informed her 

that the suspect had been traveling with a companion. Barkers told Torres that she 

had the information he was seeking but that she could not release it to him unless she 

was provided a valid subpoena or warrant.2 

Torres submitted a probable-cause affidavit and search-warrant request, in 

which he attested that AA had information related to the burglary, namely passenger 

identification and other records from the flight in question. He described the burglary 

suspect as a “tall, thin, White or Hispanic male with a short military[-]style haircut, 

black polo shirt[,] and blue jeans” and stated that the suspect had boarded the flight at 

6:29 p.m. 

A search warrant issued that broadly commanded law enforcement to search 

for and seize passenger records, “driver[’s] license or identification number[s], dates of 

birth, telephone number(s), and email address[es]” from AA’s premises. Though it 

2AA had adopted internal policies related to the protection of customer 

information that instructed its employees to keep this information confidential 

because its disclosure could lead to customer harm. Employees were instructed to 

follow all relevant data protection laws, provide law enforcement immediate access to 

data when they presented a subpoena, and to disclose only the minimum amount of 

data needed to achieve a particular purpose. 
4

referenced Torres’s affidavit, the warrant itself was not limited to a specific passenger, 

boarding time, or flight. 

Torres provided the warrant to Barkers and again asked her specifically for the 

identity of the passenger who had scanned his boarding pass at 6:29 p.m. He did not 

ask for or obtain a more comprehensive set of passenger records, such as a flight 

manifest or the identification of roughly the ten other passengers who had boarded

the plane at or around the same time. In response to this request, Barkers identified 

Lowe as the passenger in question. She also offered to provide Torres with the name 

of a companion whom she believed to have been travelling with Lowe, but Torres 

declined that information.

3

 Torres testified at a deposition that AA and Barkers had 

fully complied with the search warrant. 

Torres searched for Lowe in law enforcement databases and obtained 

additional information about him, including a picture from his 2009 driver’s license. 

He compared this picture to the picture of the burglary suspect from the Airport 

surveillance footage. Though Lowe’s picture did not closely resemble the person 

from the Airport footage, Torres reasoned that a person’s appearance can change 

over time. 

An arrest warrant was issued for Lowe, and he was eventually arrested in New 

Mexico and jailed for seventeen days. Lowe was then released from jail and, after 

3The record suggests that Lowe had not been travelling with a companion. 
5

hiring an attorney and convincing Torres that he had been misidentified as the 

burglary suspect, his charges were dismissed. 

B. PROCEDURAL BACKGROUND

Lowe sued AA and Barkers, alleging that the conditions in the jail had been so

deplorable that they caused him lasting physical and mental injuries. He brought 

claims for negligence, negligent undertaking, gross negligence, false arrest and 

imprisonment, and “respondeat superior, agency[,] and ratification.” As to the 

negligence claim, Lowe alleged that Appellees owed him a duty to protect his personal 

identifying information from disclosure; that Appellees had breached their duty of 

care by failing to properly comply with the search warrant and by wrongfully 

producing only Lowe’s identifying information in response to the warrant; and that 

these breaches proximately caused his damages. 

As to the negligent-undertaking claim, Lowe alleged that, “to the extent there 

[was] no duty otherwise recognized under common law,” Appellees undertook duties 

to protect AA’s passengers’ personal information and to perform law enforcement 

tasks beyond what was ordinarily required of an airline; that Appellees had developed 

policies for interacting with law enforcement and protecting AA’s passengers’ 

personal information; that Appellees had failed to exercise ordinary care in 

performing these duties and adhering to these policies; that Lowe had relied upon 

Appellees’ performance of these duties to his detriment; or alternatively, that these 
6

failures increased the risks of foreseeable harm to Lowe; and that these breaches had 

caused his damages. 

As to the gross-negligence claim, Lowe alleged that Appellees’ acts or 

omissions in providing only Lowe’s name in response to the search warrant involved 

an extreme risk that he would be arrested or imprisoned; that Appellees knew of those 

risks and still did not fully comply with the search warrant and its own internal 

policies; and that these failures led to Lowe’s foreseeable harm. 

As to the false-arrest-and-imprisonment claim, Lowe alleged that Appellees 

“willfully participated in acts that would foreseeably result in” his arrest and that 

Lowe’s arrest and detention were without his consent and without legal authority or 

justification. 

Finally, as to the respondeat superior, agency, and ratification claim, Lowe 

alleged that Barkers had been working within the course and scope of her 

employment at the time of the alleged acts and had AA’s express or implied authority 

to act; that AA had ratified her behavior and had failed to discipline her for those acts; 

and that those acts and omissions had proximately caused Lowe’s damages and were 

imputed to AA. 

Appellees filed a traditional and no-evidence motion for summary judgment. 

They argued as follows:

• Traditional summary judgment was appropriate on Lowe’s negligence claim

because Appellees did not owe him a legal duty; the evidence established that 
7

no breach occurred; and his damages were not proximately caused by the 

alleged breaches. 

• Traditional summary judgment was appropriate on Lowe’s 

negligent-undertaking claim because Appellees did not undertake to perform 

services necessary for Lowe’s protection and AA’s internal policies did not 

create a duty to protect Lowe. 

• Traditional summary judgment was appropriate on Lowe’s gross-negligence 

claim because Barkers did not act with an extreme degree of risk or conscious 

indifference and because AA did not ratify or negligently hire, train, or retain 

Barkers. 

• Traditional summary judgment was appropriate on Lowe’s false-arrest-andimprisonment claim because Lowe could neither establish that he was willfully 

detained by Appellees nor that his arrest and detention occurred without 

authority of law.

• Traditional summary judgment was appropriate on Lowe’s ratification claim 

because “everyone involved, including [AA], was unaware that a 

misidentification occurred until many months later, [thus Lowe could not] 

establish that [AA] possessed full knowledge of, and therefore[] ratified[,] 

Barkers’s acts by failing to disavow them.” 

• No-evidence summary judgment was appropriate on Lowe’s gross-negligence 

claim because no evidence supported any element of that claim. 

• No-evidence summary judgment was appropriate on Lowe’s ratification claim 

because no evidence supported any element of that claim. 

Lowe responded, raising substantially the same arguments as he raises on 

appeal. At a hearing on Appellees’ motion, the trial court made the following oral 

pronouncement:

[T]he Court’s experience as a federal prosecutor for many years shapes 

the analysis. Specifically, the case and I don’t have the cause number --

United States versus Ledezma-Cepeda, Ledezma-Compano, and CepedaCortes, that this judge prosecuted, where specifically a search warrant 
8

was served upon a tracking company -- the search warrant asked for a 

specific tracking information, and the company responded: Do you want 

the additional six trackers attached to this? That solved that case. What 

plaintiff is asking for, even assuming the facts as plaintiff has laid them 

out, is that when someone served with a search warrant believes it has 

information that would be helpful to law enforcement, they would not 

provide it; they would simply give the black letter of what’s requested.

And I’m not saying that I find that that’s not what was given, but that’s 

the argument that counsel is giving is that there should be no further 

effort on the part of someone served with a search warrant. The Court 

finds that that is a horrible policy decision to be made and that there is 

no duty -- I mean, I find just as a general rule that there is no duty on the 

part of American Airlines as it relates to that. But even if, factually, they 

did go that extra step that, that for policy reasons, we, as a society, want 

that policy to be put into effect. Obviously, the Second Court may 

disagree with me. I assume that this will be appealed. I just wanted to 

put that on the record.

The trial court granted Appellees’ motion without indicating the grounds upon 

which it relied. Lowe moved for reconsideration and new trial, which the trial court 

denied. Lowe appealed. 

II. STANDARDS OF REVIEW

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable 

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors 

could, and disregarding evidence contrary to the nonmovant unless reasonable jurors 

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 

(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A 

defendant that conclusively negates at least one essential element of a plaintiff’s cause 
9

of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 

315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). Once the defendant 

produces sufficient evidence to establish the right to summary judgment, the burden 

shifts to the plaintiff to come forward with competent controverting evidence that 

raises a fact issue. Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999).

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground that 

no evidence supports an essential element of the nonmovant’s claim or defense. Tex. 

R. Civ. P. 166a(i). The motion must specifically state the elements for which no 

evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The 

trial court must grant the motion unless the nonmovant produces summary-judgment 

evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 

cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable 

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 

291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that 

would enable reasonable and fair-minded jurors to differ in their conclusions. 

Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 

2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, 

and we disregard evidence contrary to the nonmovant unless reasonable jurors could 
10

not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 

572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of 

probative evidence that raises a genuine issue of material fact, then a no-evidence 

summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

III. DISCUSSION

Lowe raises seven issues on appeal: (1) traditional summary judgment was 

improper as to his negligence claim, (2) traditional summary judgment was improper 

as to his negligent-undertaking claim, (3) traditional summary judgment was improper 

as to his gross-negligence claim, (4) traditional summary judgment was improper as to 

his ratification claim, (5) no-evidence summary judgment was improper as to his 

gross-negligence claim, (6) no-evidence summary judgment was improper as to his 

ratification claim, and (7) the trial court erred by granting summary judgment based 

on its personal experience as a prosecutor rather than the summary-judgment 

evidence, and this error also showed bias.

4

 

A. NEGLIGENCE CLAIM

In his first issue, Lowe argues that the trial court erred by granting Appellees’ 

traditional summary judgment on his ordinary negligence claim because fact issues 

existed regarding the element of duty. In his view, Appellees owed him a duty “to 

4Lowe does not challenge the trial court’s granting of summary judgment as to 

his false-imprisonment claim. 
11

handle [his] personal information in a reasonably prudent manner and not to use it to 

falsely identify him as a criminal suspect.” Appellees contend that the law is well

settled that no duty exists to hold a private citizen liable for the negligent 

misidentification of a criminal suspect. We agree with Appellees.

To prove negligence, a plaintiff must establish duty, breach, and damages 

proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 

2006). “Whether a duty exists is a threshold inquiry and a question of law: liability 

cannot be imposed if no duty exists.” Id. In determining whether the defendant was 

under a duty, we consider several interrelated factors, including the risk, foreseeability, 

and likelihood of injury weighed against the social utility of the actor’s conduct; the 

magnitude of the burden of guarding against the injury; the consequences of placing 

the burden on the defendant; and whether one party would generally have superior 

knowledge of the risk or a right to control the actor who caused the harm. Pagayon v. 

Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017). “The question is whether a duty 

should be imposed on a defined class of cases, not whether the facts of the case at 

hand show a breach.” Id. 

The heart of Lowe’s argument is that Appellees breached a duty to not

negligently misidentify him as the suspect in the burglary. But Lowe does not point to 

a single case in any jurisdiction to support that such a duty exists. Indeed, courts in 

this state and across the nation have routinely rejected negligent misidentification as a 
12

recognized class of claims permitting recovery.5 See, e.g., Walgreens v. McKenzie, 

676 S.W.3d 170, 180 (Tex. App.—Houston [14th Dist.] 2023, pet. filed) (holding that 

plaintiff could not plead ordinary negligence claim based on false accusations of a 

crime); Smith v. Sneed, 938 S.W.2d 181, 184–85 (Tex. App.—Austin 1997, no pet.)

(“We therefore decline to hold that a duty exists outside the torts of malicious 

prosecution and defamation not to falsely accuse someone of criminal wrongdoing.”); 

ITT Consumer Fin. Corp. v. Tovar, 932 S.W.2d 147, 158 (Tex. App.—El Paso 1996, writ 

denied) (holding that defendant bank did not owe a duty to the innocent plaintiff 

based on information bank had supplied to law enforcement that aided in plaintiff 

being wrongly indicted for embezzlement); Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 

71, 73–74 (Tex. App. Corpus Christi–Edinburg 1991, writ denied) (“Thus, there is no 

recovery in tort for damages caused by an incorrect, but not malicious prosecution.”);

see also Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 487 (Tex. App.—Dallas 1987, 

writ denied) (holding in a shoplifting case that store did not owe a duty to police 

officer—who had been sued by wrongly accused plaintiff—“to convey all the relevant 

information it knew or to convey accurately the relevant information it knew”); cf. 

Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 511 (Tex. 2002) (“But we decline to 

5For other jurisdictions, see, for example, Campbell v. City of San Antonio, 43 F.3d 

973, 979 (5th Cir. 1995) (“[W]e are unaware of[ ] any Texas authority holding that [the 

plaintiff] has a cause of action . . . for . . . a merely negligent misidentification.”);

Morris v. T.D. Bank, 185 A.3d 215, 220 (N.J. App. Div. 2018) (collecting cases from 

other jurisdictions); Foley v. Univ. of Dayton, 81 N.E.3d 398, 401–02 (Ohio 2016) 

(same); Jaindl v. Mohr, 541 Pa. 163, 167 (1995) (same).
13

hold that negligently providing inaccurate or incomplete information to legal 

authorities will make a reporting party liable for false imprisonment.”).

Accordingly, a wrongly accused plaintiff cannot circumvent the stringent 

standards for recovery of an intentional tort such as false imprisonment or malicious 

prosecution by pleading negligence claims based on the same facts. See Charlie Thomas 

Chevrolet, Ltd. v. Martinez, 590 S.W.3d 9, 16 (Tex. App.—Houston [1st Dist.] 2019, no 

pet.) (collecting cases); Smith, 938 S.W.2d at 185 (same). The plaintiff is left instead to 

redress his injuries through intentional-tort claims, such as wrongful imprisonment, 

defamation, intentional infliction of emotional distress, or malicious prosecution. See

Walgreens, 676 S.W.3d at 180; Charlie Thomas Chevrolet, Ltd., 590 S.W.3d at 16; Smith,

938 S.W.2d at 185; see also Rodriguez, 92 S.W.3d at 511 (“And while we recognize that 

Wal–Mart could expose its innocent customers to the serious risk of arrest by not 

carefully adhering to its policies and procedures governing the receipt and acceptance 

of its customers’ checks, those customers, though, will have to seek a remedy through 

other avenues such as defamation, assuming all necessary elements are shown.”).

Our sister court in Smith explained the rationale behind this jurisprudence:

There is no guarantee in our society that only guilty persons will be 

accused and arrested. Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 

2689, 2695 (1979). Except in cases for which malicious prosecution is a 

viable remedy, a person wrongfully accused of a crime must bear a risk 

of being subjected to prosecution. Otherwise, those who suspect 

wrongful activity may be intimidated from speaking about it to the 

proper authorities for fear of becoming embroiled themselves in the 

hazards of lengthy and expensive litigation. See Fowler V. Harper, 

Malicious Prosecution, False Imprisonment and Defamation, 15 Tex. L. Rev. 157, 
14

168 (1937). For these reasons, the balance of factors weighs heavily 

against the wrongly accused. It is unfortunate that this balance may 

sometimes result in “something less than natural justice.” See Louis v.

Blalock, 543 S.W.2d 715, 719 (Tex. App.—Amarillo 1976, writ ref’d 

n.r.e.). Yet, allowing the accused to recover in negligence poses too 

great a disincentive for people to cooperate freely with law enforcement 

officials. To hold, as Smith would have us do, that Sneed’s negligence is 

actionable would in substance convert the tort of malicious prosecution 

to one of negligent prosecution. We therefore decline to hold that a 

duty exists outside the torts of malicious prosecution and defamation 

not to falsely accuse someone of criminal wrongdoing. 

Smith, 938 S.W.2d at 184–85 (cleaned up).

In light of this overwhelming precedent, we cannot conclude that Appellees 

owed Lowe a duty to not misidentify him as a criminal suspect. This is particularly 

true under the facts of this case where Barkers was obligated by a search warrant to 

comply with Torres’s specific requests for information. To hold otherwise would 

subject private citizens facing search warrants to a proverbial Catch-22: refuse to 

comply with the warrant and face criminal liability, see Tex. Penal Code Ann. § 38.15 

(interfering with public duties), or comply and risk civil liability if the provided 

information leads to the prosecution of an innocent person. Accordingly, because 

Appellees owed Lowe no duty as a matter of law, we hold that the trial court did not 

err by granting summary judgment on his negligence claim and overrule his first issue.

B. NEGLIGENT-UNDERTAKING CLAIM

In his second issue, Lowe argues that the trial court erred by granting 

traditional summary judgment on his negligent-undertaking claim. He contends that 
15

fact issues exist as to whether a duty was imposed on AA (where one does not 

normally exist) due to the actions it took to protect his information from disclosure. 

Appellees argue, among other things, that no such duty arose in this case because 

Barkers disclosed Lowe’s information to law enforcement in response to a search 

warrant. We agree with Appellees. 

The essential elements of a negligent-undertaking claim are (1) the defendant 

undertook to perform services that it knew or should have known were necessary for 

the plaintiff’s protection, (2) the defendant failed to exercise reasonable care in 

performing those services, and (3) either the plaintiff relied upon the defendant’s 

performance, or the defendant’s performance increased the plaintiff’s risk of harm. 

Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000). As with every negligence 

case, the threshold inquiry in a negligent-undertaking case is whether a duty exists. 

M.A. Mortenson Co. v. Shelton, No. 02-19-00435-CV, 2021 WL 2253299, at *3 (Tex. 

App.—Fort Worth June 3, 2021, pet. denied) (mem. op.). The critical question

concerning the duty element of a negligent-undertaking theory is whether a defendant 

undertook to protect an individual so as to require the imposition of a duty where one 

otherwise would not exist. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013); Vance v 

Hurst Joint Venture LP, 657 S.W.3d 141, 156 (Tex. App.—El Paso 2022, no pet.). 

Lowe argues that AA undertook a duty to protect its passengers’ personal 

information by taking possession of that information and then implementing policies 

and procedures to guard it from harmful disclosure. It is true that the summary-
16

judgment evidenced showed that AA had adopted broad confidentiality policies and 

procedures to protect its passengers’ information. For instance, AA employees were 

instructed to keep customer information confidential and to disclose only the 

minimum amount needed to effectuate the purpose at hand. 

However, the allegedly negligent disclosure pleaded by Lowe is that Barkers 

provided his confidential information to Torres after he presented her with a warrant. 

There is no evidence that AA undertook a duty to protect passenger information from 

disclosure to law enforcement when presented with a valid search warrant. Nor do 

we see how AA could undertake this duty even if it desired to. Indeed, AA instructed 

its employees to comply with all relevant data protection laws and to give law 

enforcement immediate access to data when provided with a subpoena.6 On this 

record, even when the evidence is viewed in the light most favorable to Lowe, there is 

no evidence to support the contention that AA undertook a duty to protect his

personal information from law enforcement. We hold that the trial court did not err 

by granting summary judgment on Lowe’s negligent-undertaking claim and overrule 

his second issue. 

6We see no material difference under the circumstances between whether law 

enforcement sought information via a subpoena or search warrant, and Lowe does 

not quibble over this issue. 
17

C. GROSS-NEGLIGENCE AND RATIFICATION CLAIMS

With his third and fourth issues, Lowe argues that the trial court erred by 

granting traditional and no-evidence summary judgment on his gross-negligence 

claim. However, it is well established that a finding of ordinary negligence is a 

prerequisite to a finding of gross negligence and that without a legal duty there can be 

no gross negligence. Rayner v. Claxton, 659 S.W.3d 223, 258 (Tex. App.—El Paso

2022, no pet.); Mata v. Argos USA LLC, No. 06-21-00089-CV, 2022 WL 1193671, at 

*8 (Tex. App.—Texarkana Apr. 22, 2022, no pet.) (mem. op.); Seaway Prod. Pipeline Co. 

v. Hanley, 153 S.W.3d 643, 659 (Tex. App.—Fort Worth 2004, no pet.). Because we 

have held that Lowe’s negligence claim fails for lack of duty, it necessarily follows that 

his gross-negligence claim also fails as a matter of law. We hold that the trial court did 

not err by granting summary judgment on Lowe’s gross-negligence claim and overrule 

his third and fourth issues.

With his fifth and sixth issues, Lowe argues that the trial court erred by 

granting traditional and no-evidence summary judgment on his ratification claim

because fact issues remained as to whether AA had ratified Barkers’s grossly-negligent 

conduct such that her gross negligence was imputed to AA. Having held that Lowe’s 

gross-negligence claim fails as a matter of law, so too must his ratification claim,

which rests thereon. We hold that the trial court did not err by granting summary 

judgment on Lowe’s ratification claim and overrule his fifth and sixth issues. 
18

D. TRIAL COURT’S PERSONAL EXPERIENCE

In his seventh and final issue, Lowe contends that the trial court erred by 

improperly relying on personal experience as a prosecutor outside of the summaryjudgment evidence to grant summary judgment on public policy grounds. He 

claims—without any supporting legal authority—that the trial court’s oral 

pronouncements at the summary-judgment hearing “reveal[ed] a disregard for the 

actual record evidence in favor of a personal bias.” We disagree. 

First, there is no indication from the record that the trial court decided the 

summary judgment on improper grounds or evidence. Summary-judgment motions 

are decided solely on the written filings of the parties, see Tex. R. Civ. P. 166a(c), and it 

is inappropriate for us to consider the record of the summary-judgment hearing to 

determine the trial court’s reasoning for its decision, see Dyegard Land P’ship v. Hoover, 

39 S.W.3d 300, 307 (Tex. App.—Fort Worth 2001, no pet.). When, as here, a trial 

court’s order granting summary judgment does not specify the grounds relied on for 

its ruling, we will affirm summary judgment if any of the theories presented to the trial 

court and preserved for appellate review are meritorious. Provident Life & Acc. Ins. Co. 

v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 

473 (Tex. 1995). Our preceding discussion of Lowe’s substantive issues shows that 

the trial court’s granting of summary judgment was not improper on any legal basis, 

and we do not view the trial court’s oral comments at the hearing as presenting a 

proper or successful challenge to that ruling. 
19

Neither do we view those comments as evidencing a reversible bias against 

Lowe. “One of the fundamental components of a fair trial is a neutral and detached 

judge.” Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.—Houston [14th Dist.] 

2003, pet. denied). In the absence of clear proof to the contrary, we presume that the 

trial court acted without bias or partiality. De Los Reyes v. Maris, No. 02-21-00022-CV, 

2021 WL 5227179, at *3 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem. op.). 

In his comments at the summary-judgment hearing, the trial-court judge simply 

explained his reasoning for determining that no duty existed in this case. In doing so, 

he noted that his reasoning was informed by his experience as a prosecutor who had

juggled the varied interests of law enforcement and private citizens responding to 

search warrants. His disagreement with Lowe’s position did not show animus or bias 

toward Lowe himself, only a divergence with Lowe’s legal position on the issue. 

Thus, there is no evidence in the record to rebut the presumption that the trial court 

acted without bias in this case. 

For these reasons, we hold that the trial court did not improperly rely on 

personal experience when it granted summary judgment and that it did not otherwise 

exhibit bias in this case. We overrule Lowe’s seventh issue. 

IV. CONCLUSION

Through no fault of his own, Lowe was subjected to being wrongly arrested 

and imprisoned for seventeen days. We do not condone injustice. But we cannot 

ignore the policy that informs our decision and, ultimately, we must follow the law.
20

Accordingly, having overruled all of Lowe’s issues on appeal, we affirm the trial 

court’s order granting summary judgment.

/s/ Brian Walker

Brian Walker

Justice

Delivered: August 22, 2024