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Gonzalez v. Lichtenberger

Court of Appeals of Texas, Fourth District, San Antonio

June 14, 2017

Abelardo G. GONZALEZ, Appellant
v.
Nicholas LICHTENBERGER; Judge Jose Antonio Lopez; City of Laredo; Roque Perez;Christina M. Pena; Webb County; Martin Cuellar; Pepe Salinas;Sergio Lozano; and Edward A. Nolen, Appellees

         From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2015CVT003714 D1 Honorable Robert C. Cheshire, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         Abelardo G. Gonzalez appeals the trial court's order dismissing his claims against all of the defendants in the underlying lawsuit. Gonzalez asserts sixteen issues on appeal. We affirm the trial court's order.

         Background

         Gonzalez filed the underlying lawsuit against numerous defendants alleging they were grossly negligent in failing to warn him of a threat made against his life by the Mexican Mafia prison gang. Gonzalez alleged the threat was discovered by the defendants during an investigation of three bomb threats that were made during Gonzalez's criminal trial which was held the week of January 11, 2010. Gonzalez further alleged the defendants had a duty to warn him regarding the threat, and the defendants' failure to warn him proximately caused the damages he sustained when two members of the Mexican Mafia prison gang made an attempt on his life on November 19, 2013. Gonzalez alleged he sustained serious bodily injuries as a result of the attempt on his life.

         The allegations against the various defendants can be grouped based on their alleged involvement. Gonzalez alleged the following defendants were grossly negligent in failing to competently and effectively investigate the 2010 threat against his life and inform him about the threat: (1) Nicholas Lichtenberger, a supervisor with the Laredo Police Department; (2) Roque Perez, an investigator with the Laredo Police Department; (3) Cristina M. Pena, a police officer with the Laredo Police Department; and (4) the City of Laredo through its police department (Lichtenberger, Perez, and Pena are collectively referred to herein as the "Individual Laredo Defendants"). Gonzalez similarly alleged the following defendants were grossly negligent in failing to communicate the threat to Gonzalez or the Texas Department of Criminal Justice: (1) Sergio Lozano, an assistant district attorney; (2) Edward Nolen, an assistant district attorney; (3) Pepe Salinas, the Webb County jail commander; (4) Martin Cuellar, the Webb County Sheriff; and (5) Webb County (Lozano, Nolen, Salinas, and Cuellar are collectively referred to herein as the "Individual Webb County Defendants"). Finally, Gonzalez alleged Judge Jose Antonio Lopez, the judge who presided over Gonzalez's criminal trial, also failed to inform him about the threat on his life.

         On March 11, 2014, the trial court signed an order dismissing Gonzalez's claims against all of the defendants with prejudice, citing section 14.003 of the Texas Civil Practice and Remedies Code. In the order, the trial court found the claims should be dismissed for the following reasons: (1) the claims were frivolous; (2) the claims were barred by limitations; (3) the claims against the Individual Laredo Defendants and the Individual Webb County Defendants were barred by election of remedies and immunity; (4) the claims against the City of Laredo and Webb County were barred by immunity; and (5) the claims against Judge Lopez were barred by election of remedies and official and judicial immunity. Gonzalez appeals.

         Assignment Order and Qualifications

         In his first issue, Gonzalez contends the trial court lacked jurisdiction because the order assigning the trial judge to hear the case under chapter 74 of the Texas Government Code contained clerical or typographical errors. In his second issue, Gonzalez contends the trial court lacked jurisdiction because the record does not contain proof that the trial judge assigned to hear the case met the requirements of section 74.055 of the Texas Government Code.

         Section 74.056 of the Texas Government Code authorizes the presiding judge of an administrative region to assign visiting judges to preside over cases. Tex. Gov't Code Ann. § 74.056 (West 2013). Gonzalez contends clerical or typographical errors in the order assigning the visiting judge to the underlying case deprived the visiting judge of jurisdiction to preside over the case. Gonzalez cites no law in support of his argument. See Tex. R. App. P. 38.1(i) (noting arguments must be supported with appropriate citations to authorities). We hold the clerical or typographical error in the assignment order did not render the order void or deprive the visiting judge of jurisdiction. See Brewer v. State, No. AP-76, 378, 2011 WL 5881612, at *1 (Tex. Crim. App. Nov. 23, 2011) (not designated for publication) (holding clerical error in order on motion to quash did not deprive the trial court of jurisdiction); Kim v. Evans, No. 03-11-00193-CV, 2013 WL 491009, at *2 (Tex. App.-Austin Jan. 31, 2013, no pet.) (mem. op.) (holding clerical error in order did not invalidate order); Delacerda v. State, 425 S.W.3d 367, 380 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (holding clerical errors in order pursuant to which district court assumed jurisdiction did not affect district court's jurisdiction); Speer v. State, 890 S.W.2d 87, 93 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (holding discrepancy in district court number within order assuming jurisdiction was "no more than a typographical error or editing oversight, " and district court named in caption properly assumed jurisdiction); Miller v. K & M P'ship, 770 S.W.2d 84, 88 (Tex. App.-Houston [1st Dist.] 1989, no writ) (refusing to find typographical error in order rendered the order void).

         Section 74.055 of the Texas Government Code requires the presiding judge of an administrative region to maintain a list of retired and former judges who meet the requirements of section 74.055. Tex. Gov't Code Ann. § 74.055. In his second issue, Gonzalez contends the trial court abused its discretion in not providing him with proof that the visiting judge "annually demonstrated that the judge has completed in the past fiscal year the educational requirements for active district, statutory, probate, and statutory county court judges" as required by section 74.055(c)(5). Gonzalez cites no authority for the proposition that he must be provided with proof that a visiting judge meets the requirements set forth in section 74.055(c). See Tex. R. App. P. 38.1(i) (noting arguments must be supported with appropriate citations to authorities).[1]

         Appointment of Attorney

         In his third issue, Gonzalez contends the trial court erred in not ...


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