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2023: FHMBK’s Year In Review





Fanning Harper Martinson Brandt & Kutchin, P.C. 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 2024 and beyond.


Our Landmark Victory Survives – The Supreme Court Denies Plaintiff’s Effort to Overturn Carswell

THOMAS P. BRANDT, LAURA O’LEARY, and JOHN HUSTED obtained a significant victory in the Fifth Circuit Court of Appeals in a case addressing discovery and qualified immunity.  In response to our challenge to a scheduling order which summarily denied pending motions to dismiss based on qualified immunity, and which subjected governmental officials to discovery in their role as witnesses with respect to claims against their governmental employer, the Fifth Circuit agreed with our arguments, holding that, when defendants assert qualified immunity in a motion to dismiss, district courts may neither defer ruling on that defense nor permit any discovery against immunity-asserting defendants before the court determines whether the plaintiffs have pled facts sufficient to overcome the assertion of qualified immunity.

The plaintiffs filed a petition for writ of certiorari with the U.S. Supreme Court.  After requesting a response to the petition, the Supreme Court recently denied certiorari.


THOMAS P. BRANDT, LAURA O’LEARY, STEPHEN D. HENNINGER, and JOHN F. ROEHM, III successfully argued against a petition for review in the Texas Supreme Court in a case involving questions about the applicability of the Texas Tort Claims Act’s election-of-remedies provisions. The petitioner asked the Texas Supreme Court to require lower courts to determine whether tort claims arise from proprietary functions before deciding whether a governmental employee is entitled to dismissal under the TTCA’s election-of-remedies provisions, arguing that immunity does not apply to such claims. The Court requested a response to the petition. We argued that motions to dismiss claims against individual defendants pursuant to the TTCA’s election-of-remedies provisions only address whether plaintiffs are pursuing tort claims against the proper defendant, not whether the proper defendant is entitled to immunity. We asserted that questions about the applicability of governmental immunity arise only if the governmental entity is timely brought into the lawsuit. The Court denied the petition.


Appellate Victory for Sheriff, Deputy, and Jailer:  No Deliberate Indifference

THOMAS P. BRANDT, LAURA O’LEARY, JOHN F. ROEHM, III, and CHRISTOPHER BRANDT obtained a victory from the Fifth Circuit Court of Appeals in a case involving a jail suicide.  A peace officer responded to reports about a man who was appearing in various places around a town and claiming that someone was trying to kill him.  The officer took the man into custody after learning that he had an outstanding warrant.  Within two and a half hours after the man arrived at the jail, he used a sheet to hang himself.  The decedent’s estate and family members asserted various constitutional claims in connection with the detainee’s suicide, including claims under the Eighth and Fourteenth Amendments, alleging that the sheriff and officers failed to protect the decedent from his suicidal tendencies.  The sheriff, a deputy, and a jailer appealed the district court’s order denying their motions to dismiss in which they asserted their entitlement to qualified immunity.  In a published opinion, the Fifth Circuit vacated the district court’s order and rendered judgment in favor of the sheriff and the peace officers.  The Fifth Circuit rejected the plaintiffs’ argument that their claim for failure to protect a detainee from suicide should be measured by an objective reasonableness standard rather than a deliberate indifference standard.  Instead, the appellate court agreed with our arguments that the detainee’s conduct did not provide notice to the sheriff or peace officers that the detainee presented a significant risk of suicide and, therefore, the plaintiffs did not sufficiently allege a constitutional violation.

Plaintiffs’ petition writ of certiorari is currently pending before the Supreme Court


Trial Victory For Former Athletic Director:  No Negligence

THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained a trial victory for the former Athletic Director of a university. The plaintiff, a former student at the university, alleged that her boyfriend, a student-athlete at the college, had physically assaulted her on multiple occasions. The plaintiff claimed that the Athletic Director’s negligent responses to other alleged instances domestic violence by student-athletes, and a general failure to provide for the safety of students from acts of violence, had caused her boyfriend to assault her. Following a jury trial in Federal court, the judge granted our motion for judgment as a matter of law and dismissed all claims against the Athletic Director, finding that the plaintiff had failed to present sufficient evidence in support of her claims.

Victory for Sheriff’s Deputy: The Search Did Not Violate the Fourth Amendment

FRANK VALENZUELA obtained a victory for a Texas county’s sheriff’s office corporal in a Fourth Amendment unreasonable search claim in which the plaintiff alleged that the corporal sexually assaulted him. After prevailing on all the motions to dismiss filed on behalf of several defendants, Frank then filed a motion for summary judgment on behalf of the last remaining officer. The court granted the motion for summary judgment.


Victory for Sheriff and County: No Fourth Amendment Violation; Probable Cause Existed

FRANK VALENZUELA obtained a victory on two motions to dismiss – one in favor of the sheriff and the other in favor of the county. The plaintiff alleged that the sheriff failed to supervise an investigator in violation of the Fourth Amendment and that the sheriff conspired against the plaintiff in violation of 42 U.S.C. §§ 1983 and 1985. The plaintiff also alleged that the county, through the alleged actions of the sheriff and another co-defendant, violated the plaintiff’s Fourth Amendment rights to be free from illegal seizures. The plaintiff claimed that the sheriff conspired with the co-defendant and directed the co-defendant to write and submit to the judge a sham arrest affidavit knowing it was not supported by probable cause, all while failing to supervise the co-defendant. Frank prevailed on motions to dismiss he filed on behalf of the sheriff and the county.

Victory for County: No Wrongful Termination

STEPHEN D. HENNINGER obtained a victory for a north Texas county that had been sued for wrongful termination. The plaintiff alleged that he had been fired because of his religious beliefs, because of his disabilities, and as retaliation for having filed a claim of discrimination, in violation of Title VII, the Americans with Disabilities Act, and the Texas Commission on Human Rights Act. The court granted the county’s motion for summary judgment, finding that the plaintiff had failed to allege and prove any viable claims under federal or state law.

Victory for City: Censure of Mayor Did Not Violate the First Amendment

STEPHEN D. HENNINGER and JOHN F. ROEHM, III obtained a victory for a north Texas city that had been sued by its former mayor. The plaintiff alleged that he had been improperly censured by the City Council and prohibited from investigating alleged misconduct by city officials. The plaintiff brought claims for the violation of his due process and First Amendment rights, as well as declaratory judgment claims under both federal and state law. The court granted the city’s motion for summary judgment, finding that the plaintiff had failed to allege and prove any viable claims under Federal or State law.

Victory for Sheriff and Deputies: No Excessive Force

THOMAS P. BRANDT and JOHN D. HUSTED obtained a complete victory for a west Texas county, its sheriff, and three sheriff’s deputies in federal district court. The county and officers were sued for allegedly using excessive deadly force during an arrest that culminated in a shootout. The three officers attempted to apprehend a known dangerous fugitive during the early morning hours after receiving a tip about a location where he would be found traveling on foot. When the officers approached the fugitive, he pulled a firearm and began to run while shooting at the officers. Two of the officers returned fire, and the fugitive sustained multiple gunshot wounds. The fugitive recovered and was ultimately convicted, both for his underlying crimes and the aggravated assault against the arresting officers. All defendants moved for summary judgment. The court agreed with the defendants’ motions and found that the plaintiff failed to plead viable claims against the county and Sheriff. The court determined that the plaintiff’s excessive force claims against the arresting officers were barred pursuant to Heck v. Humphrey, because claims for excessive force are barred as a matter of law if brought by an individual convicted of aggravated assault related to the same events, and the conviction has not been overturned. The court further noted that, to the extent any excessive force claims are not barred by Heck, the summary judgment evidence shows that the force used was not clearly excessive or objectively unreasonable.

Victory for City Regarding Officer Involved Shooting

FRANK VALENZUELA and JOHN D. HUSTED prevailed for a north Texas city on a motion to dismiss in a case involving an officer involved fatal shooting.

Victory for Police Officer Accused of False Arrest

CHRISTOPHER D. LIVINGSTON obtained a victory for a north Texas police officer who had been sued for false arrest. The plaintiff alleged that he had been falsely arrested following a domestic disturbance incident at his home. The incident resulted in the termination of a responding officer, and the plaintiff sued both the arresting officer and the officer who was fired. We filed a motion to dismiss along with a Schultea motion indicating additional facts on the arresting officer’s behalf. Chris then met with the plaintiff’s attorney and the plaintiff dismissed the case against the arresting officer.



Poker Houses Appeal Our Victory: Are Poker Houses Legal?

THOMAS P. BRANDT, JOHN D. HUSTED, and LAURA O’LEARY are defending a significant victory for a major north Texas city, in which the trial judge agreed with our arguments that commercial poker rooms violate the Texas Constitution and Texas Penal Code provisions relating to gambling. In mid-December of 2023, the Dallas Court of Appeals will hear oral argument on the poker house’s challenge to the trial court’s decision. As commercial poker rooms have been proliferating across Texas, this case will likely have wide reaching implications for the many cities and counties across Texas which are faced with the prospect of similar businesses purporting to be legal despite Texas’s strict gambling laws. The poker house involved in this case has indicated that it will seek to continue to appeal this case up to the Texas Supreme Court, if necessary.

Regulating Donation Bins: Are City’s Regulations Constitutional?

THOMAS P. BRANDT and CHRISTOPHER D. LIVINGSTON are appealing a preliminary injunction involving a major north Texas city, in which the federal district court judge granted a First Amendment challenge to the city’s unattended donation bin ordinance. As unattended donation bins have been proliferating across Texas, this case will likely have wide reaching implications for the many cities across the State of Texas faced with developing ordinances to control the time, place, and manner regulation of these bins. The district court cited a ruling involving another major north Texas city in support of his ruling. Both cases are currently on appeal to the Fifth Circuit Court of Appeals.


Split-Second Uses of Force: When Does Qualified Immunity Apply?

LAURA O’LEARY and CHRISTOPHER D. LIVINGSTON wrote an amicus brief on behalf of one national organization and eight state-wide organizations representing law enforcement personnel, municipalities, and counties. The amicus brief supported a municipality and a police officer’s petitions for writs of certiorari in the U.S. Supreme Court in a lawsuit involving issues related to pretextual traffic stops, qualified immunity, and the use of deadly force.


In July 2023, FRANK VALENZUELA was certified as a mediator.

FHMBK is pleased to announce that JOSHUA HARPER has joined the firm as an associate. Joshua is a recent graduate of the Southern Methodist University Dedman School of Law. Joshua obtained his Bachelor of Business Administration from Baylor University, while majoring in Economics, Supply Chain Management, and Great Texts. Joshua’s work will focus on civil rights, school law, employment law, insurance defense, and appellate law.


FRANK VALENZUELA presented an “Overview of Federal Laws,” a three-hour presentation, at the American Association of School Personnel Administrator’s 85th Annual Conference in Anaheim, California.

On November 15, 2023, STEPHEN D. HENNINGER participated in a panel discussion on the Intersection of Law Enforcement and Legal Liability at the Texas Association of School Boards’ Annual Summit on School Based Law Enforcement.

JOHN D. HUSTED presented and CHRISTOPHER D. LIVINGSTON worked on a presentation at the AASPA Personnel Administrator Boot Camp. The presentation touched on determining qualified disabilities under the Americans with Disabilities Act (ADA) and then addressed the latest legal guidelines, practical tips, useful tricks, and common pitfalls of navigating how to reasonably accommodate a qualified disability through the interactive process.


THOMAS P. BRANDT will be presenting at the University of Texas School Law Conference which will take place in Austin on February 15-16, 2024. Tom will discuss recent employment cases of interest to school districts.


FRANK VALENZUELA served as the Moot Court professor at the University of Dallas during the Fall 2023 semester.


DOL Proposes Nearly 50% Increase to Exempt Employee Salary Threshold

The U.S. Department of Labor is currently taking comments on a proposed rule that would raise the minimum salary floor required to qualify for the overtime exemptions for executive, administrative, and professional workers under the FLSA by over 50 percent.

To qualify for one of the white-collar exemptions (executive, administrative, or professional), an employee must meet one of the primary duty tests, be paid on a salaried basis, and earn above a minimum threshold. The proposed rule would raise the salary threshold from $35,568 to $55,000 for exempt employees and increase the salary threshold for highly compensated employees from $107,432 to $143,988 per year. As you likely recall, the Obama DOL tried to raise the salary threshold to $47,000, but the federal courts struck it down.

Employers will want to track developments affecting this proposed rule and consider developing a plan to transition any currently exempt employees who do not meet the new salary minimums (or do not meet the duties tests) to non-exempt status.