Brown v. Daniels

• Decision Date: 19 May 2021
• Docket Number: No. 05-20-00579-CV,05-20-00579-CV
• Parties: DALLAS COUNTY SHERIFF MARIAN BROWN, IN HER OFFICIAL CAPACITY, Appellant v. DAVID DANIELS, JODIE CAMPBELL, AND KELLIE MCCULLAR, ON BEHALF OF THEMSELVES AND A CLASS OF MEDICALLY VULNERABLE PERSONS, Appellees
• Court: Texas Court of Appeals

DALLAS COUNTY SHERIFF MARIAN BROWN,IN HER OFFICIAL CAPACITY, Appellant v. DAVID DANIELS, JODIE CAMPBELL,AND KELLIE MCCULLAR, ON BEHALF OF THEMSELVESAND A CLASS OF MEDICALLY VULNERABLE PERSONS, Appellees

No. 05-20-00579-CV

Court of Appeals Fifth District of Texas at Dallas

May 19, 2021

On Appeal from the 298th Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-20-07112

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Myers, and Justice Carlyle

Opinion by Justice Myers

This is an accelerated, interlocutory appeal from the trial court's order denying the plea in abatement filed by appellant Dallas County Sheriff Marian Brown. Appellees David Daniels, Jodie Campbell, and Kellie McCullar, on behalf of themselves and a class of 1,800 "medically-vulnerable" persons detained in the Dallas County Jail, sued Sheriff Brown in her official capacity. Sheriff Brown brings three issues arguing the trial court erred in denying the plea in abatement. We sustain the Sheriff's issues, reverse the trial court's order, and render judgment dismissing appellees' claims for lack of subject matter jurisdiction.

BACKGROUND AND PROCEDURAL HISTORY

I. Introduction: The Lawsuit

This lawsuit brought by appellees concerns conditions at the Dallas County Jail (Jail) during the COVID-19 pandemic. On May 21, 2020, appellees filed their original verified petition against Dallas County Sheriff Marian Brown (Sheriff) in her official capacity. Appellees sought injunctive relief under Texas constitutional, statutory, and common law on behalf of themselves and a class of approximately 1,800 "medically-vulnerable" people detained in the Jail. Appellees explained the "Necessity of Action" in what they characterized as "simple and obvious" terms on the first page of their original verified petition:

• COVID-19 poses a serious threat to health and life;

• The threat is especially elevated for people who are medically vulnerable;

• The medical consensus suggests that six feet of social distancing is necessary to prevent the spread of COVID-19; and

• Social distancing is not possible at the jail complex under current conditions.

Appellees' petition stated in part:

Unlike members of the general public, Class members are unable to socially distance and avoid close contact with detained individuals and DSOs [Detention Service Officers] who are spreading COVID-19 within the Jail, and Class members are also unable to take other steps to protect themselves from injury and death and are utterly dependent on the Sheriff for protection of their health and lives. The Sheriff's failure to provide adequate PPE [personal protective equipment],cleaning, training, and other measures to prevent unnecessary spread of COVID-19 makes the lack of social distancing even more dangerous to Plaintiffs and the members of the Class.

The petition cited a study by UT Southwestern Medical Center projecting that, in Dallas County, "a 5-percentage-point gain in the effectiveness of social distancing from 60 percent to 65 percent would prevent 800 new COVID-19 cases a day by the middle of July 2020."

Appellees' original petition alleged the following claims:

• Count I: Violation of Article 1, sections 13 and 19 of the Texas Constitution

• Count II: Public Health Nuisance

• Count III: Negligence and Gross Negligence.

Appellees asserted that "the Sheriff's conduct violates the rights of Plaintiffs and members of the Class under the Bill of Rights in the Texas Constitution as well as under Texas statutory and common law," and they sought "emergency injunctive relief to stop the unsafe and unconstitutional conditions causing immediate and irreparable harm and the imminent loss of human life and serious damage to human health." They alleged "the Sheriff's actions and inactions violated Article I, Sections 13 and 19, of the Texas Constitution, violate the Sheriff's mandatory obligations under Texas statutory law, and would, unless restrained, cause personal injury and death in contravention of Texas tort law."

II. The Plea to the Jurisdiction

The Sheriff filed a plea to the jurisdiction. The plea, filed on May 22, 2020,challenged the allegations in appellees' petition, claiming appellees failed to plead sufficient facts to avoid immunity. Sheriff Brown contended the court lacked subject matter jurisdiction because:

• There is no private cause of action for equitable relief under the Texas Constitution;

• Appellees have not identified a statutory basis for injunctive relief;

• Appellees have not pled a use or condition of property sufficient to waive immunity under the Texas Tort Claims Act (TTCA);

• Plaintiffs have not identified any ministerial duty imposed on Sheriff Brown sufficient to support an ultra vires claim.

The Sheriff argued that her response to the challenges posed by a public health emergency involved the exercise of discretion and judgment, triggering the doctrine of sovereign immunity.

The trial court heard Sheriff Brown's plea in a hearing held on May 26, 2020, but deferred ruling because technical problems prevented receipt of some submissions. In an email to counsel sent two days later, on May 28, the trial court informed the parties it was denying the plea: "I hereby deny Defendant's Plea to the Jurisdiction. [Appellees' counsel], please circulate an order and efile it. In light of this ruling, you are ordered to confer on expedited discovery, if needed." Appellees' counsel sent a proposed order denying the plea to the Sheriff's counsel, who approved it as to form. The proposed order, however, was not tendered to the court.

III. The Sheriff Files a Notice of Appeal

On June 01, 2020, the appellees filed their first amended verified petition, andtwo days later, on June 3, Sheriff Brown filed a notice of interlocutory appeal from the trial court's order denying her plea to the jurisdiction. Arguing no written order had been signed, appellees moved to dismiss the appeal. On June 12 we issued an order deferring ruling on the motion and ordering responses from the parties. On June 16, 2020, the trial court signed an order deferring a ruling on the plea to the jurisdiction, concluding it should make the jurisdictional determination:

[A]fter a fuller development of the case through expedited discovery requested by Plaintiffs, evidence presented at a hearing to be conducted on the Plea and Plaintiffs' application for temporary injunction, and further briefing by the parties of the issues raised by the Plea and any amendment to it in light of the evidence.

Six days later, on June 22, 2020, appellees filed their second amended verified petition.

IV. The Sheriff Seeks Mandamus Relief

Meanwhile, on June 25, 2020, Sheriff Brown sought mandamus relief in this Court, arguing the trial court's June 16 order deferring its ruling on her plea deprived her of her right to an accelerated, interlocutory appeal. On July 20, 2020 we conditionally granted the writ, concluding the trial court abused its discretion in deferring its ruling on the plea and ordering the trial court to (1) vacate its June 16 order and (2) rule on the plea. See In re Brown, No. 05-20-00639-CV, 2020 WL 4047965 (Tex. App.—Dallas July 20, 2020, orig. proceeding). On July 21, the trial court signed a written order vacating the June 16 order and denying Sheriff Brown's plea after "having considered the Plea and the Parties' submissions and argumentsof counsel." Eight days later, on July 29, 2020, we denied appellees' motion to dismiss the appeal.

V. Sanchez v. Brown

Appellees' original verified and first amended verified petitions both exceed 1,000 pages in length because—in addition to affidavits and declarations from witnesses who expressed opinions about COVID-19 and its spread or provided information about conditions at the Jail—they attach and incorporate by reference the entire 1,091-page reporter's record from a four-day preliminary injunction hearing held in a related (and, at the time of this opinion, ongoing) federal lawsuit.¹ That lawsuit was brought by Jail inmates against Sheriff Brown and Dallas County,² and likewise complained of conditions at the Jail arising from COVID-19. See Sanchez v. Brown, No. 3:20-cv-00832-E, 2020 WL 2615931 (N.D. Tex. May 22, 2020) (mem. op. and order) (denying request for a preliminary injunction).

At the time the trial court held the hearing on the plea to the jurisdiction, appellees' original petition was the "live" pleading. Later, after the Sheriff filed the instant notice of appeal (and three days before she sought mandamus relief in this Court from the trial court's June 16, 2020 order deferring its ruling on the plea to the jurisdiction), appellees filed their second amended verified petition, which is nowtheir live pleading. The second amended petition includes, according to counsel's verification, excerpts of the testimony heard in federal court.³

VI. The Second Amended Verified Petition

Appellees' second amended petition adds (among other things) updated information about the spread of COVID-19 in the community and in the Jail as well as other factual information,⁴ cites a May 22, 2020 executive order from the Governor of Texas,⁵ and also cites additional statutory and regulatory provisions.

The lack of social distancing at the Jail is at the heart of appellees' complaint. Appellees cite the Center for Disease Control's (CDC's) recommendation of social distancing to prevent the spread of COVID-19. Appellees allege in their petition:

18. On March 23, 2020, the Centers for Disease Control and Prevention (CDC) issued its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities ("CDC Interim Guidance"). The CDC Interim Guidance recommended "social distancing" as a "cornerstone" of any strategy to prevent thespread of COVID-19 in a jail setting.

* * * *

34. Jails must maintain or create environments that allow social distancing because it is the only way to prevent people from contracting COVID-19.

Appellees fault Sheriff Brown...