City of Waco v. Hester

Decision Date29 November 1990
Docket NumberNo. 10-89-087-CV,10-89-087-CV
Citation805 S.W.2d 807
PartiesThe CITY OF WACO, et al., Appellants, v. Johnny HESTER, Appellee.
CourtTexas Court of Appeals

THOMAS, Chief Justice.

Johnny Hester, claiming that he was homosexually raped by another inmate while in the Waco jail, sued the City of Waco and Police Chief Larry Scott under the Texas Tort Claims Act and § 1983 of Title 42 of the United States Code. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1986 and Vernon Supp.1990); 42 U.S.C.A. § 1983 (West 1981). He recovered a judgment against the City for $270,416.13 in damages, plus post-judgment interest, costs, and $97,500 in attorney's fees. No judgment was entered against Scott.

A pivotal question related to the Tort Claims Act is whether Hester's claim arose out of an intentional tort or the failure to provide police protection. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.055(3), 101.057(2) (Vernon Supp.1990 and Vernon 1986). Other points involve the evidentiary support for liability findings, damages, and attorney's fees, and Scott's contention that he was entitled to attorney's fees under § 1988 as a "prevailing party." 1 See 42 U.S.C.A. § 1988 (West 1981). Recovery under the Tort Claims Act will be sustained, but recovery under § 1983 will be denied. Therefore, the judgment will be reformed to reduce Hester's recovery of damages from $270,416.13 to $250,000, the City's maximum liability under the Tort Claims Act, and to delete all attorney's fees. The reformed judgment will then be affirmed.


Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably concluded that the following occurred on September 7, 1986. Shortly after lunch, Don Davis homosexually raped nineteen-year-old Johnny Hester in the shower area of the Waco jail's "dayroom." Hester was "laying out" his fine on a misdemeanor theft conviction for failing to pay for $5.00 of gas at a convenience store. Davis was awaiting transfer to the county jail on charges that he had sexually assaulted two female Baylor students. He threatened and intimidated Hester before assaulting him, and afterwards threatened to kill him if he told anyone. Hester suffered severe emotional distress from the assault prior to the trial, and will continue to suffer mental anguish.


The Texas Tort Claims Act waives governmental immunity on claims arising out of the "negligence of an employee acting within his scope of employment." TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(1) (Vernon 1986). However, the Act does not apply to a "claim arising out of assault, battery ... or any other intentional tort." Id. at § 101.057(2). In other words, the Act does not waive governmental immunity if the intentional-tort exemption applies.

The City's first point is that it was entitled to a judgment notwithstanding the verdict because Hester's claim arose out of an intentional tort as a matter of law. Relying on a case interpreting a similar exemption in the Federal Tort Claims Act, Hester argues that his claim arose out of the City's negligence, not an intentional tort, and that the exemption only applies to intentional torts committed by government employees. See Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 2454-55, 101 L.Ed.2d 352 (1988). He points out that the person who raped him was not a city employee. As authority for its contention that the exemption applies to intentional torts committed by third parties as well as government employees, the City cites Trevathan v. State, 740 S.W.2d 500, 502 (Tex.App.--Houston [1st Dist.] 1987, writ denied). A more recent decision clearly supports the City's argument. See Delaney v. University of Houston, 792 S.W.2d 733, 735 (Tex.App.--Houston [14th Dist.] 1990, writ granted). However, the Supreme Court granted a writ of error in Delaney. 34 Tex.Sup.Ct.J. 48 (Oct. 27, 1990).

Disposition of point one will necessarily turn upon what the legislature intended when it adopted the Tort Claims Act in 1969. Several well-established rules of statutory construction will guide the determination of legislative intent.

One must presume that the legislature was aware of the law when it enacted the Tort Claims Act. See Acker v. Texas Water Com'n, 790 S.W.2d 299, 301 (Tex.1990). Prior to the Act's adoption, a city was immune from liability for injuries to inmates resulting from the negligence of its jailers. Strickland v. City of Odessa, 268 S.W.2d 722, 723 (Tex.Civ.App.--El Paso 1954, no writ); Stinnett v. City of Sherman, 43 S.W. 847, 849 (Tex.Civ.App.1897, no writ). However, jailers were individually liable for their negligence. Browning v. Graves, 152 S.W.2d 515, 519 (Tex.Civ.App.--Fort Worth 1941, writ ref'd).

Another fundamental rule of construction requires legislative intent to be gleaned from the Act's language if possible. See Minton v. Frank, 545 S.W.2d 442, 445 (Tex.1976). Consideration must be given to the legislature's stated intent in adopting the Act and the remedy chosen to achieve it. See TEX.GOV'T CODE ANN. § 312.005 (Vernon 1988). The legislature's manifest objective is stated in explicit language: to abolish governmental immunity on claims arising out of the "negligence of an employee acting within his scope of employment." TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.025, 101.021(1) (Vernon 1986). The Act must be liberally construed to achieve that objective. Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 (Tex.1989).

Unlike the crystal-clear language waiving governmental immunity on negligence claims, the language of the intentional-tort exemption does not explicitly signal legislative intent. Did the legislature intend, by inserting the exemption, to retain governmental immunity on claims arising out of a jailer's negligence, when the result of that negligence and the means of injury fortuitously happened to be an intentional tort? Although the language of the exemption is broad enough to achieve that result, such a construction defeats the clearly expressed legislative intent to waive immunity on negligence claims. That result must be avoided. See Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex.1978). Moreover, applying the exemption to intentional torts committed by third parties gives it an expansive effect, which violates the rule that exemptions are not to be enlarged by construction. See Heard v. Heard, 305 S.W.2d 231, 235 (Tex.Civ.App.--Galveston 1957, writ ref'd). Only by strictly construing the exemption can the Act be liberally construed in favor of the waiver of immunity on negligence claims.

A narrower construction of the exemption, one in harmony with its language and supportive of the legislature's manifest objective, is to limit its effect to intentional torts committed by government employees. This interpretation avoids the incongruity of an inmate being able to sue for injuries proximately caused by a jailer's negligence, if the injury is inflicted by means other than an intentional tort, but being barred from recovery if the jailer's negligence results in an intentional tort. Legislative intent can also be discerned by juxtaposing the Federal Tort Claims Act and the Texas Tort Claims Act. Both waive governmental immunity and then provide certain exemptions which, when applicable, preserve it. Furthermore, each contains substantially similar exemptions for intentional torts. 2 See 28 U.S.C.A. § 2680(h) (West Supp.1990); TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986).

Fifteen years prior to the adoption of the Texas Tort Claims Act, the exemption in the federal act was given the same narrow construction, thereby limiting its application to claims arising from intentional torts by government employees. Panella v. United States, 216 F.2d 622, 624-25 (2nd Cir.1954); see also Rogers v. United States, 397 F.2d 12, 15 (4th Cir.1968). The United States Supreme Court ruled in 1963 that a prisoner could sue under the Federal Tort Claims Act for injuries sustained in a beating by other inmates allegedly resulting from the negligence of a federal employee. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 1851, 10 L.Ed.2d 805 (1963). Curiously, the Court never discussed the intentional-tort exemption, other than noting that the federal government is not liable for the intentional torts of "its employees." Id. 83 S.Ct. at 1858. However, the result in Muniz could have been reached only by the Supreme Court implicitly limiting the exemption to intentional torts committed by federal employees. The decisions in Panella, Muniz and Rogers all predated the adoption of the Texas Tort Claims Act in 1969.

In 1988 the United States Supreme Court expressly limited the exemption's application to intentional torts by federal employees. Sheridan, 108 S.Ct. at 2454-55. It adopted the analysis in Panella and recognized that the holding in Muniz could best be explained by limiting the exemption's application to cases arising out of assaults by federal employees. Id.

Considering the similarity of the exemptions, a presumption exists that the legislature intended, when it included the exemption in the Texas Tort Claims Act, to likewise adopt the narrow construction theretofore placed on the federal exemption by federal courts. See State v. Klein, 154 Tex.Crim. 31, 224 S.W.2d 250, 253 (1949); Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (1943). Nothing in the Texas Tort Claims Act indicates that a contrary or more expansive construction of the exemption was intended. Thus, the construction in Panella and Rogers, and the implicitly narrow construction in Muniz--all predating the adoption of the Texas Tort Claims Act--must be considered in determining legislative intent. See id.

Based upon the Act's explicit...

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