2021 – OUR YEAR IN REVIEW

OUR VISION:

SUCCESS BASED ON LONG LASTING

RELATIONSHIPS FORGED IN INTEGRITY,

EXCELLENCE, COMMITMENT AND TEAMWORK.

Fanning Harper Martinson Brandt & Kutchin is pleased to share a look at the successes, victories, and honors earned by our attorneys in representing you this past year. We are grateful for the confidence you place in us and look forward to working with you in 2022 and beyond.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Victory in Student Free Speech Case

FRANK VALENZUELA obtained a victory from the Fifth Circuit Court of Appeals for two teachers in a First Amendment student speech case regarding the recitation of the Pledge of Allegiance. The former high school student alleged that she was compelled to recite the Pledge in violation of her First Amendment right to be free from compelled speech. The teachers asserted qualified immunity in a motion for summary judgment, which the district court granted. The student appealed to the Fifth Circuit, and on October 26, 2021, the Fifth Circuit affirmed the district court’s decision.

UNITED STATES DISTRICT COURT

Major Victory for County and County Officials

THOMAS P. BRANDT, JOHN D. HUSTED, LAURA O’LEARY, and CHRISTOPHER BRANDT obtained a significant district court victory on behalf of an east Texas county and four of its jailers against federal claims of deliberate indifference brought by a pretrial detainee who suffered catastrophic injuries after he attempted suicide by hanging while in custody. The plaintiff alleged that the officers had knowledge that he was a significant suicide risk, and that they failed to take appropriate measures to address the risk when he was temporarily placed in a solitary cell at his request, where he eventually attempted to hang himself with a ligature that was in the cell. Officers rescued and resuscitated the detainee upon discovering him hanging, but he suffered major injuries from the attempted suicide. After multiple summary judgment motions and oral argument, the district court issued its opinion and final judgment granting summary judgment on all claims asserted against all defendants. The plaintiff appealed the decision to the Fifth Circuit Court of Appeals, but voluntarily dismissed the appeal prior to the submission of any briefing.

Victory in Twin Peaks Bikers’ Case

STEPHEN D. HENNINGER, JOHN ROEHM, III, and CHRISTOPHER BRANDT obtained a victory for a Central Texas County and its former District Attorney. The Plaintiff was one of many persons arrested following an outbreak of violence by two rival motorcycle clubs at a restaurant. Plaintiff sued the County and the District Attorney, asserting he was falsely arrested. He asserted claims under the First, Fourth, and Fourteenth Amendments. Our office filed a motion for summary judgment, seeking dismissal of all claims. The District Court granted the motion and dismissed all claims against the County and the District Attorney.

DALLAS COURT OF APPEALS

Victory in Major Tort Claims Case

THOMAS P. BRANDT, JOHN F. ROEHM, III and LAURA O’LEARY obtained a final victory for a municipality in a lawsuit involving the tragic drowning of a law enforcement officer who was swept away by flood waters while working an off-duty assignment at a private residence. The officer’s widow asserted tort claims against the town in which the private residence is located. Agreeing with the town’s arguments, the appellate court held that the plaintiff did not provide timely written notice of her claims as required under the Texas Tort Claims Act and that the town did not have actual notice of the claims. For these reasons, the plaintiff did not establish a waiver of the town’s governmental immunity.

The Dallas Court of Appeals also adopted the town’s argument that the town’s coordination of off-duty work by a law enforcement officer for a private party was a governmental function, not a proprietary function. This holding is important for law enforcement officers, towns, cities, and counties more broadly, because it means that tort claims arising from law enforcement officers’ off-duty assignments may fall within the protections of the Texas Tort Claims Act and may be subject to governmental immunity. The appellate court granted the town’s plea to the jurisdiction and dismissed all claims against the town.

TEXAS DISTRICT COURT

Victory for Public School District

STEPHEN D. HENNINGER and CHRISTOPHER BRANDT obtained a victory for a North Texas public school district. Plaintiffs were students of the district and passengers on a school bus that was involved in a tragic accident which killed one of the students on board and injured many more. The school district attempted to settle all of the claims with the passengers before any suit was filed. Plaintiffs were part of those negotiations, but did not settle with the district, even though they were advised that the district would be paying out its statutory limits of liability under the Texas Tort Claim Act to other claimants. Plaintiffs later filed suit. Our office filed a plea to the jurisdiction and motion for summary judgment, arguing that the suit could not proceed as the district had already paid out its statutory limits of liability under the Texas Tort Claim Act and could have no further monetary liability to anyone, as a matter of law. The District Court granted the motion and dismissed the case against the school district.

AMICUS BRIEFS

FHMBK Files Amicus Brief in Major Challenge to Bail Laws

THOMAS P. BRANDT, LAURA O’LEARY, and JOHN F. ROEHM, III recently wrote amicus briefs on behalf of organizations representing Texas counties, in a lawsuit relating to bail setting. Tom, Laura, and John initially wrote an amicus brief in support of a defendant’s petition for rehearing en banc before the Fifth Circuit Court of Appeals. When the Fifth Circuit granted the petition, we wrote an amicus brief on the merits, supporting the defendant county. Our briefs addressed the roles of various types of county judges and their status as policymakers for their counties. Because the lawsuit involved a federal court imposing a structural injunction relating to state criminal processes, we also raised concerns about issues of comity. The en banc Court heard oral argument in late May, during which several judges referred to cases or arguments from our briefing. The Court has not yet issued its opinion in this matter.

FHMBK Files Amicus Brief in State-Created Danger Appeal

THOMAS BRANDT, FRANK VALENZUELA, and LAURA O’LEARY recently filed an amicus brief in the Fifth Circuit Court of Appeals on behalf of an organization which represents school districts and their personnel across Texas. The brief addressed a lawsuit in which a high school football player sought to hold his school district and its personnel liable for an injury he incurred during football practice. The player appealed the district court’s dismissal of his claims, asking the Fifth Circuit to find that he had stated a claim for a violation of his due process rights under a state-created danger theory. Our brief supported the school district and its personnel and urged the Fifth Circuit not to adopt a state-created danger theory of recovery

HONORS AND ANNOUNCEMENTS

Congratulations to THOMAS P. BRANDT and JOSHUA T. KUTCHIN for being named to the 2021 Texas Super Lawyers list. This is Tom’s 12th time being named to Texas Super Lawyers list and Josh’s 13th time.

Also, FHMBK congratulates THOMAS P. BRANDT and GEORGE LANKFORD for their inclusion in the 2022 edition of the Best Lawyers in America. Tom was recognized for his work in Education Law and Litigation and Employment and Labor Law. George was recognized for his work in Insurance Law.

FHMBK is proud to announce that JOHN D. HUSTED was once again named to the Texas Rising Stars list for 2021.This list recognizes exceptional attorneys who are 40 or younger and/or have less than 10 years experience practicing law.