Franks v Zwicke, No. 04-12-00529-CV (Tex. App. – San Antonio, April 17, 2013)
Franks is a pro se inmate who alleges deputies intentionally knocked out four of his teeth during his arrest for breaking into a county facility. The deputies filed a plea to the jurisdiction which was granted. The important points to take away from this opinion are that the Fourth Court of Appeals first determined since Franks sued the deputies only, but failed to specify if they were sued individually or in their official capacity, then the court automatically assumes it is only in their official capacity (which is simply a suit against the entity). The court analyzed under sovereign/governmental immunity not official immunity standards.
The court held the alleged actions sound more in assault (if true) which is an intentional tort with no waiver of immunity. Next, Franks was not taken out of jail to attend the hearing on the plea and he argued such violated his access to the court. However, the court ruled that since the plea was based on the pleadings “the trial court did not abuse its discretion in proceeding with the hearing in Franks’s absence because Franks failed to affirmatively plead any facts that would subject his claim to the court’s jurisdiction and to make the required showing that his presence was needed at the hearing.” Finally, the court ruled that Franks failed to preserve his point the trial court did not issue findings of fact and conclusions of law; however, when there are no factual disputes and the legal conclusions are stated in the motions, no findings are necessary anyway.
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