Court of Appeals of Texas, Twelfth District, Tyler
JAMES J. WHITE, APPELLANT
LARRY SMITH, IRA EARLS AND F.N.U. BENSON, APPELLEES
from the 241st District Court of Smith County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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
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
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
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.
trial court granted Appellees' motion for summary
judgment, ordering that White take nothing. This appeal
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.
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).