Valles v. Texas Com'n on Jail Standards

• Decision Date: 01 July 1992
• Docket Number: No. 3-91-017-CV,3-91-017-CV
• Citation: 845 S.W.2d 284
• Parties: Roger VALLES and Ann Valles, Appellants, v. TEXAS COMMISSION ON JAIL STANDARDS, et al., Appellees.
• Court: Texas Court of Appeals

Page 284

845 S.W.2d 284

Roger VALLES and Ann Valles, Appellants, v. TEXAS COMMISSION ON JAIL STANDARDS, et al., Appellees.

No. 3-91-017-CV.

Court of Appeals of Texas Austin.

July 1, 1992.

Rehearing Denied Aug. 12, 1992.

Rehearing Overruled Aug. 12, 1992.

James C. Harrington, Austin, for appellants.

Dan Morales, Atty. Gen., Susan Werner, Asst. Atty. Gen., Austin, for appellees.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

PER CURIAM.

Roger and Ann Valles appeal the summary judgment rendered against them in their suit against the Texas Commission on Jail Standards and Robert Viterna, the Commission's Executive Director. Roger and Ann Valles are the parents of Michael Valles, who committed suicide in the Tom Green County Jail in San Angelo. The Valleses brought a class action suit for injunctive and declaratory relief and a suit for damages under the Texas Wrongful Death Act, the Survival Statute, and the Tort Claims Act. ¹ We will affirm the judgment of the trial court.

Background

At the time of his confinement in the Tom Green County Jail, Michael Valles had a history of mental illness and had previously attempted suicide. On June 2, 1986, while incarcerated, he slashed his wrists with a piece of sharp metal. He was taken to a hospital for stitches and then transferred to an infirmary jail cell, constructed of solid cement walls and a solid steel door with only a small window. The three padded cells designed to house suicidal inmates had been unfit for use since 1982. Video monitors, although available in other parts of the jail, were not available to monitor this cell. On June 10, he called the jailers and requested a pair of pliers so he could pull out his stitches. On June 13, he committed suicide by hanging himself with material torn from a pair of jail overalls.

In the several years preceding Michael Valles's death, five suicides had occurred and three attempts had been made at that jail. The Commission had cited the jail for violations of its standards delineating adequate care for detainees exhibiting suicidal tendencies, for example, the failure to repair the padded cells. A June 27, 1983, inspection report noted that some shifts were inadequately staffed, that two of the "violent cells" were not used, and that there had been a suicide in the previous year. The report threatened a "notice of noncompliance," which was issued on July 15, 1983.

The Valleses brought a class action suit for injunctive and declaratory relief and a suit for damages under the Texas Wrongful Death Act, the Survival Statute, and the Tort Claims Act, contending that appellees' acts were systematically negligent, grossly negligent, reckless, and violated the Texas Constitution. The Valleses argue that appellees owed Michael a duty because they had particularized knowledge of life-endangering conditions with respect to this jail; they had the legal ability to take preventive measures and had that ability to a greater extent than other officials; and they had the actual means at their command to eliminate or diminish the life-endangering situation. In addition, the Valleses sought class declaratory relief, challenging appellees' official policies and interpretations of the statute under which the Commission functions. They also sought class injunctive relief, requiring appellees to refrain from deliberate and systematic conduct that violated the legal rights of current and future prisoners in the Tom Green County Jail.

Appellees filed a plea to the jurisdiction, which was granted, while giving appellants thirty days to replead. After appellants repleaded, appellees moved for summary judgment, which was granted. In two points of error, appellants contend that the trial court erred in holding: (1) the Commission had no duty under state law to promulgate minimum standards, to inspect county jails to detect violations, and to enforce the standards; and (2) the Commission had no duty to Michael Valles under the Texas constitution.

Summary Judgment

When we review a summary judgment we apply the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and doubts resolved in his favor.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When a defendant moves for summary judgment because plaintiff failed to state a cause of action, based solely on plaintiff's pleadings, then all allegations, facts, and inferences in the pleadings are taken as true and viewed in the light most favorable to the non-movant. Havens v. Tomball Community Hospital, 793 S.W.2d 690, 691 (Tex.App.1990, writ denied). A defendant moving for summary judgment has the burden of showing that as a matter of law, the plaintiff had no cause of action against him. Citizens First Nat'l Bank v. Cinco Explorations, 540 S.W.2d 292, 294 (Tex.1976). The defendant-movant for summary judgment must establish as a matter of law there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action.

The dispositive question on appeal is not whether the summary judgment proof raises fact issues, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In granting a summary judgment the trial court is confined to the specific grounds set forth in the motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979). If the trial court's judgment does not specify the ground relied upon for its ruling, the summary judgment must be affirmed if any of the theories advanced are meritorious. See, e.g., Price v. Texas Employer's Ins. Ass'n, 782 S.W.2d 938, 942 (Tex.App.1989, no writ). ²

Jail Standards Commission

The legislature created the Jail Standards Commission in 1975. 1975 Tex.Gen.Laws, ch. 480, §§ 1-14, at 1278. Appellants rely on the language of the statute, the structure of the statute, and the legislative history of the statute to support their position that appellees owed a duty to Michael Valles. Appellants argue that the statute creates an elaborate and specific regulatory administrative scheme, similar to enabling statutes for other administrative agencies. They conclude that this structure must then mean that the statute was not intended to create an agency in which the director's duties were to be merely advisory or purely discretionary. Appellants also contend that the legislative history suggests that appellees owed a duty to Michael Valles, arguing that the legislature created the commission in 1975 to relieve individual counties from the large number of suits challenging county jail conditions as unconstitutional that were then pending in federal courts.

Text of Statute

Appellants contend that the plain language of the statute imposes a duty on appellees to set standards, inspect facilities, and perform enforcement activities. The statute establishing the Commission says:

(a) The commission shall:

(1) adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails;

(2) adopt reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners;

(3) adopt reasonable rules establishing minimum standards for the number of jail supervisory personnel and for programs and services to meet the needs of prisoners;

....

(8) require that the sheriff and commissioners of each county submit to the commission ... an annual report on the conditions in each county jail within their jurisdiction, including all the information necessary to determine compliance with state law, commission orders and the rules adopted under this chapter;

(9) review the reports ... and require commission employees to inspect county jails regularly to ensure compliance with state law, commission orders, and rules and procedures adopted under this chapter; and

(10) at least annually determine whether each county jail is in compliance....

Tex.Gov't Code Ann. § 511.009 (1990) (emphasis added). ³

The sections dealing with enforcement power say that the Commission shall grant a period of not more than one year to remedy non-compliance, that it may grant a variance where warranted, and that, in the event of noncompliance, the Commission "by order may prohibit confinement of prisoners in the county jail." Tex.Gov't Code Ann. § 511.012 (1990) (emphasis added). Instead of closing a county jail, the Commission "may bring an action in its own name...." Tex.Gov't Code Ann. § 511.014 (1990) (emphasis added).

We observe that, in setting out some of the Commission's functions, the legislature used the word "shall," language usually construed as mandatory. Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex.1956); City of Dallas v. Vaughan, 750 S.W.2d 345, 347 (Tex.App.1988); see generally 2B Sutherland Statutory Construction, § 57.11 (C. Sands ed., 5th ed. 1992, Temporary Pamphlet). When providing methods of enforcement, however, the legislature employed the term "may," language usually construed as directory or permissive language. See Sutherland, supra, § 57.03 at p. 7. When the legislature uses both mandatory and directory verbs in the same statute, we may fairly infer that the legislature realized the difference in meaning, and intended that the verbs used should have their ordinary meanings. Sutherland, § 57.11.

The legislature could have drafted the statute to use "shall" in the enforcement sections of the statute as well as in the standard-setting and reporting sections. It could have required that the...