SOUTHEAST TEXAS RECORD

Texas government agencies and there employees aren’t shielded with immunity from lawsuits brought outside of the Tort Claims Act, justices on the Texas Supreme Court recently found.

The ruling stems from a negligence claim brought by Mary Cannon, who sued Brenham State School and several employees alleging the defendants caused the death of her son, Patrick Dyess.

Court records show Dyess was a resident at Brenham, a state-supported living center operated by the Texas Department of Aging and Disability Services.

On Sept. 12, 2003, Dyess began engaging in disruptive behavior and attacked a female employee. Dyess was restrained in a physical hold. When he said he’d calmed down, the employees released him.

However, Dyess died shortly afterward and his mother sued alleging the department was negligent in hiring and training the employees that she contends used excessive force to discipline her son.

The state department countered by filing a plea to the jurisdiction, asserting governmental immunity. Cannon responded by amending her petition to add claims for violations of Dyess’ Fourth and Fourteenth Amendment rights, eventually dismissing all common-law tort claims.

A trial court denied the department’s plea and appeals court affirmed the lower courts order denying the motions to dismiss the department’s employees from Cannon’s section 1983 claims, court records show.

Section 1983 claims can be filed in either federal or state court, in conjunction with other claims such as state law counts for battery or false imprisonment.

The case was brought before the Texas Supreme Court and on Jan. 9 justices found that when a governmental entity files a motion to dismiss, the plaintiff is not barred from amending his or her petition to assert claims not brought under the Tort Claims Act.

“We further hold that such claims are properly before the court for its consideration in ruling on the … motion,” writes Justice Debra Lehrmann.

“Because Cannon’s section 1983 claims against the individual Employees are not brought under the Tort Claims Act, (it) does not mandate their dismissal. Accordingly, we hold that the trial court properly denied the Department’s … motion, and we affirm the court of appeals’ judgment.”

Case No. 12-0830