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Lorenzo Franks v. Arnold S. Zwicke

April 17, 2013

LORENZO FRANKS
APPELLANT
v.
ARNOLD S. ZWICKE, SHERIFF, AND DEPUTIES OF THE GUADALUPE COUNTY SHERIFF'S DEPARTMENT,
APPELLEES



From County Court at Law No. 1, Guadalupe County, Texas Trial Court No. 2012-CV-0105 Honorable Linda Z. Jones, Judge Presiding

The opinion of the court was delivered by: Marialyn Barnard, Justice

MEMORANDUM OPINION

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

AFFIRMED

Appellant Lorenzo Franks, a prison inmate, appeals the trial court's judgment granting the plea to the jurisdiction filed by appellees Arnold S. Zwicke, Sheriff, and Deputies of the Guadalupe County Sheriff's Department (collectively "Zwicke"). Franks argues the trial court erred in: (1) granting Zwicke's plea to the jurisdiction based on governmental immunity; (2) holding a hearing in his absence; (3) making no findings of fact and conclusions of law; and (4) dismissing his claim with prejudice. We affirm the trial court's judgment.

BACKGROUND

Deputies from the Guadalupe County Sheriff's Office were dispatched to investigate a potential break-in at a Guadalupe County facility. Upon arrival, the deputies discovered a breakin in progress and an unknown subject, later identified as Franks, lying underneath a truck inside the garage area of the facility.

Franks was instructed multiple times to move out from underneath the truck. Although he was awake and opened his eyes several times to view the officers, Franks refused to comply with the deputies' commands. After noticing Franks had a knife, the deputies sprayed Franks with oleoresin capsicum ("OC") and pulled him from under the truck. Franks refused to cooperate with the deputies and spit on one of them. The deputies restrained Franks and called Emergency Medical Services at the time of the arrest for the purpose of OC decontamination.

Franks admitted he was under the influence of alcohol, cocaine, and Xanax at the time of his arrest. Franks had a box cutter and several other items he apparently used to force his way into the facility. Franks also had keys to a stolen vehicle in his pocket. Although Franks claimed he had no previous arrests, deputies later determined Franks had been using the alias "Freddie Lee Walker," and had been convicted multiple times for burglary, theft, and larceny.

Months after his conviction, Franks filed a petition with the justice court alleging claims for personal injuries suffered during his arrest. Franks claimed the deputies knocked out four of his teeth by "intentionally" hitting him during his arrest. Franks did not plead a waiver of immunity under the Texas Tort Claims Act.

Zwicke filed a plea to the jurisdiction, plea in abatement, and original answer asserting governmental immunity. Furthermore, Zwicke pled Franks's claims should be abated because he failed to present his claims to the Guadalupe County Commissioner's Court prior to filing suit in accordance with section 89.004 of the Texas Local Government Code.

Franks filed a response and a notice with the Commissioner's Court. A notice of hearing on the plea was mailed to Franks, and a bench warrant was issued. The justice court granted Zwicke's plea to the ...


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