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White v. Smith

Court of Appeals of Texas, Twelfth District, Tyler

October 31, 2019

JAMES J. WHITE, APPELLANT
v.
LARRY SMITH, IRA EARLS AND F.N.U. BENSON, APPELLEES

          Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 16-0130-C/B)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE

         James J. White, appearing pro se, appeals from an adverse summary judgment rendered in favor of Appellees Larry Smith, Ira Earls, and Clint Benson in White's suit for damages. In two issues, White contends the trial court erred in granting the summary judgment. We modify the judgment and affirm as modified.

         Background

         On December 25, 2012, White's son disclosed that White's father sexually abused him. The abuse was reported to a social worker on May 28, 2013, who notified the Smith County Sheriff's office. Appellee Larry Smith is the Smith County Sheriff. Appellees Earls and Benson are the deputies who investigated the case. On June 15, 2013, White shot and killed his father. White is currently incarcerated for that offense.

         On January 19, 2016, White brought suit against Appellees, citing the Texas Tort Claims Act and numerous sections of the Texas constitution, and alleging the denial of statutory protections provided in Texas Code of Criminal Procedure Articles 5.04 and 5.045. He sought monetary relief of at least $200, 000 and not more than $1, 000, 000 and exemplary damages.

         In their motion for summary judgment, Appellees asserted that the suit is an impermissible collateral attack on White's conviction and an attempt to shift responsibility for the crime; the tort claims are barred by the two-year statute of limitations; White pleaded no facts to support his constitutional claims; the Texas constitution does not permit a private cause of action for damages; there is no private civil cause of action for violations of the code of criminal procedure; and official immunity.

         The trial court granted Appellees' motion for summary judgment, ordering that White take nothing. This appeal ensued.

         Summary Judgment

         White lists two issues asserting that the trial court abused its discretion and erred in granting Appellees' motion for summary judgment. His arguments address each of the grounds asserted in their motion.

         Standard of Review

         A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). A defendant who conclusively negates at least one of the essential elements of the cause of action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Simulis, L.L.C. v. Gen. Elec. Capital Corp., 439 S.W.3d 571, 575 (Tex. App.-Houston [14th Dist.] 2014, no pet.). To determine if there is a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence raises a genuine issue of fact if reasonable and fair minded jurors could differ in their conclusions in light of all the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

         Tort ...


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