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Governmental Immunity & Declaratory Judgment

Aug 15, 2013 — by Jeff Mundy
Tags: Civil Procedure Civil Rights

Sovereign immunity protects the State from lawsuits for money damages, and political subdivisions of the State are entitled to this immunity—referred to as governmental immunity—unless it has been waived.  An exception to governmental immunity exists when the plaintiff seeks declaratory relief against state officials who allegedly act without legal or statutory authority because "[a] state official's illegal or unauthorized actions are not acts of the State."  For a suit to fall within this "ultra vires" exception to governmental immunity, the suit "must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." 


Consent to Search - Civil Rights

Jun 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

For consent to be valid, it must "'not be coerced, by explicit or implicit means, by implied threat or covert force.'" Consent must be given freely, unequivocally, and without duress or coercion.  "The ultimate question is whether the suspect's will was overborne" by the officer's actions.  The trial court must examine the voluntariness of a consent based on the "totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence." If the voluntariness of the consent is challenged at trial, the State must prove the voluntariness of a consent to search by clear and convincing evidence. "If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding." 


Civil Rights - Fracking Water Contamination

May 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

When the legislature enacted chapter 27 in 2011, it expressed that the purposes of doing so were to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002. To promote these purposes, chapter 27 creates an avenue at the early stage of litigation for dismissing unmeritorious suits that are based on the defendant's exercise of the rights of free speech, petition, or association as those rights are defined within the chapter. Id. § 27.003; see also id. § 27.001(2)-(4) (defining the exercise of the right of association, the exercise of the right of free speech, and the exercise of the right to petition).

In re: Lipsky, (Tex. App. - Fort Worth, 2013)


Constitutionality of Municipal Ordinance

Mar 18, 2013 — by Jeff Mundy
Tags: Civil Rights

In United States v. O'Brien, the United States Supreme Court established a four-pronged test for the purpose of determining whether a government regulation is justified and determined that a regulation does not impinge on First Amendment freedom of expression if: (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id.; Fantasy Ranch Inc. v. City of Arlington, Texas, 459 F.3d 546, 554 (5th Cir. 2006).


Police Excessive Force & Civil Rights

Jan 4, 2013 — by Jeff Mundy
Tags: Civil Rights

Cases asserting the use of excessive force by police are complex with substantial legal challenges.

However, citizens have the right to be free from the use of excessive force by police.

Most of these types of cases tend to be in federal court.  

The Fifth Circuit Court of Appeals is the federal court of appeals for Texas.

In this case from Beaumont, the Fifth Circuit explains the law relating to bringing a case for the use of excessive force.


Police Excessive Force & Civil Rights

Jan 4, 2013 — by Jeff Mundy
Tags: Civil Rights

Cases asserting the use of excessive force by police are complex with substantial legal challenges.

However, citizens have the right to be free from the use of excessive force by police.

Most of these types of cases tend to be in federal court.  

The Fifth Circuit Court of Appeals is the federal court of appeals for Texas.

In this case from Beaumont, the Fifth Circuit explains the law relating to bringing a case for the use of excessive force.


Prison Litigation - Administrative Grievances Mandatory

Dec 17, 2012 — by Jeff Mundy
Tags: Civil Rights

The Prison Litigation Reform Act requires prisoners to file grievances and exhaust their administrative remedies before they may seek redress in courts.

Exhaustion of the administrative grievance is mandatory with no exceptions as a jurisdictional pre-requisite.

 


Action for Negligently Placing Handcuffs Too Tightly May Proceed

Dec 6, 2012 — by Jeff Mundy
Tags: Civil Rights

The Fort Worth Court of Appeals ruled that an arrestee could pursue an action against a municipality for an officer allegedly negligently putting handcuffs on too tightly. 

The city asserted governmental immunity, which the Court of Appeals rejected.


Texas Supreme Court - Inmate Civil Rights

Nov 24, 2012 — by Jeff Mundy
Tags: Civil Rights

Texas Supreme Court holds that the Texas Department of Criminal Justice is entitled to immunity when guards sexually assault prisoners.


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