Opinion
Civil Action No. SA-04-CA-20-FB.
January 27, 2005
ORDER REGARDING DEFENDANT'S MOTION TO DISMISS THE CLAIMS OF PLAINTIFF-INTERVENORS JOSE ANGEL VILLARREAL AND DANIEL EDWARD ROBLES
Before the Court are Defendant's Rule 12(b)(6) Motion for Partial Dismissal (docket no. 22) seeking dismissal of the claims of plaintiff-intervenors Jose Angel Villarreal and Daniel Edward Robles, the response filed by Mr. Villarreal and Mr. Robles (docket no. 27) and the government's reply (docket no. 32). After careful consideration, the Court is of the opinion the motion should be converted to one for partial summary judgment and then granted in part and denied in part. Specifically, the motion should be granted to the extent the government seeks dismissal of Mr. Villarreal's claims and denied to the extent the government seeks dismissal of Mr. Robles' claims.
BACKGROUND
Plaintiff and plaintiff-intervenors bring this suit against the government under the Federal Tort Claims Act for injuries related to the death of fourteen-year-old Ashley Rose Marie Villarreal, who was shot and killed by United States Drug Enforcement Administration ("DEA") agents on February 9, 2003. It is undisputed that earlier in the evening, agents had been outside of the home of Ashley's grandmother, plaintiff-intervenor Nelly G. Villarreal, located at 810 S. San Joaquin Street. It is also undisputed the agents were conducting a drug surveillance operation of the property in connection with reports that Ashley's father, plaintiff-intervenor Jose Angel Villarreal, and plaintiff-intervenor Daniel Edward Robles, a "family friend" who also lived on the property, were part of a widespread organization which distributed large amounts of cocaine and methamphetamine.
At about 11 p.m. on the night in question, Ashley and Mr. Robles came out of the house and entered a Mitsubishi Eclipse automobile. Plaintiff and plaintiff-intervenors contend Ashley, who was the driver of the car, intended only to move the vehicle from the front of the residence to the rear. As she exited the driveway, plaintiff and plaintiff-intervenors maintain, Ashley saw "someone was driving up quickly behind her," so she turned onto a side street to "let the car pass." It was then, according to plaintiff and plaintiff-intervenors, that Ashley's vehicle was struck by a pick-up truck being driven by a DEA agent on the wrong side of the road. Plaintiff and plaintiff-intervenors allege other agents arrived on the scene, but no one in the Eclipse could tell these individuals were law enforcement officers because it was dark. Immediately after the collision, plaintiff and plaintiff-intervenors continue, the DEA agent who had hit Ashley's vehicle, without identifying himself, jumped out of the truck. This officer, and perhaps other agents, fired shots at the Eclipse, killing Ashley. Plaintiff and plaintiff-intervenors contend the agents knew an unarmed female was driving and an unarmed man was in the car as evidenced by the bright light of a street lamp.
The government agrees the officers on the scene at Ashley's grandmother's house saw activity near 11 p.m. outside the home. These agents, the government maintains, saw a Chevrolet Lumina back out onto the street; then the Eclipse backed out onto the street with its lights-off facing north. It was too dark, the government contends, for the agents to see who was in the vehicle. The agent closest to the house purportedly radioed other agents that a person had moved out of the Lumina and into the Eclipse on the passenger side and it could be Ashley's father, the subject of the "sting." According to the government, the Eclipse then made a U-turn onto a side street and encountered two DEA vehicles. At that point, the government contends, the Eclipse hit the front bumper of the DEA truck, accelerated backward for approximately thirty to fifty feet, ran into the DEA Ford Mustang, and finally came to a stop. The DEA agent who had his pick-up truck hit, the government continues, exited his vehicle and, wearing a protective vest with large POLICE lettering in yellow, yelled "police, let me see your hands" and "police, show me your hands" several times at the Eclipse, to no avail. According to the government, the Eclipse then, after standing still for a short period of time, accelerated directly at the DEA officer who had exited his pick-up. This agent, and possibly others, fired shots, one of which killed Ashley. The government contends the agents could see the outline of, but not identify, who was in the vehicle until they approached the car after the shooting.
The next day, Jose Angel Villarreal, Ashley's father, and several others were charged with conspiracy to distribute large quantities of cocaine and other related criminal activities in Criminal Action No. SA-03-CR-71-EP, before this Court. Mr. Villarreal pleaded guilty to this crime and agreed he was a "co-conspirator and leader of an organization that distributed well over five kilograms of cocaine in the Western District of Texas." The plea agreement and judgment reflect this conspiracy operated "from on or about January 2000 until on or about February 10, 2003," the day after the shooting. Mr. Villarreal was sentenced to 228 months of imprisonment.
Daniel Robles, the passenger in the vehicle with Ashley on the night of February 9, 2003, was also charged with a federal crime. He pleaded guilty to misprision of a felony and agreed he "was aware that cocaine was being distributed from the San Joaquin location by various members of the conspiracy" and concealed the commission of this felony offense. The judgment reflects that his offense concluded "on or about January 1, 2003," well before the events in question. Mr. Robles was sentenced to serve 27 months in a federal prison.
Ashley's mother, plaintiff Deborah De Luna Villarreal; Ashley's father, Mr. Villarreal; and David Wise, temporary administrator of the estate of Ashley Villarreal, have alleged wrongful death actions against the government in connection with the shooting. The family friend and passenger, Mr. Robles; and Ashley's grandmother, plaintiff-intervenor Nelly G. Villarreal, have also alleged the wrongful acts of the DEA agents caused them to suffer. Mr. Robles seeks assault, intentional infliction of emotional distress and false imprisonment damages.
The government filed Defendant's Rule 12(b)(6) Motion for Partial Dismissal contending the claims of Ashley's father and those of the family friend and passenger should be dismissed. Mr. Villarreal and Mr. Robles filed a response in opposition to the motion, to which the government replied.
STANDARD OF REVIEW
In a motion to dismiss, the central issue is whether, in the light most favorable to plaintiff, the complaint states a valid claim for relief. Copeland v. Wasserstein, Perella Co., 278 F.3d 472, 477 (5th Cir. 2002). In a summary judgment motion, a court must go beyond the pleadings to determine whether there is a genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Id. "When matters outside the pleadings are presented to and not excluded by the district court, a motion to dismiss should be converted into one for summary judgment." In re Dengel, 340 F.3d 300, 312 (5th Cir. 2003) (quoting Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998)), cert. denied, 124 S. Ct. 1714 (2004). As matters outside the pleadings have been presented to, and not excluded by, this District Court, the government's motion to dismiss shall be construed as a motion for summary judgment.
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 506 U.S. 845 (1992). A fact is "material" if it might reasonably affect the outcome of the case.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); In re Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991). The movant has the initial burden of showing the absence of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Either party may satisfy its burden by presenting depositions, affidavits, and other competent summary judgment evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert denied, 506 U.S. 825 (1992). The Court has been supplied with competent summary judgment evidence in this case.
DISCUSSION
Mr. Villarreal and Mr. Robles are asserting claims for damages pursuant to the waiver of immunity in the Federal Tort Claims Act. The substantive law to be applied is the "law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because the acts of which Mr. Villarreal and Mr. Robles complain occurred in Texas, they must show they are entitled to recover under Texas law. Johnson v. Sawyer, 47 F.3d 716, 727-28 (5th Cir. 1995). Since 1985, the Texas Legislature has prescribed the following affirmative defense in a tort action:
(a) A claimant who has been convicted of a felony or misdemeanor may not recover damages for an injury sustained during the commission of the felony or misdemeanor if the injury would not have been sustained but for the commission of the felony or misdemeanor.
(b) Subsection (a) does not bar the claimant from recovering damages if the claimant shows that:
(1) the damages arose from an act entirely separate from any act intended to result in the:
(A) prevention of the commission of a felony or misdemeanor by the claimant; or
(B) apprehension of the claimant during or immediately after the commission of the felony or misdemeanor; and
(2) the damages did not arise from a premises defect or other circumstance that the claimant was exposed to as a result of the commission of the felony or misdemeanor.
TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997). The government contends the claims of Mr. Villarreal and Mr. Robles are barred by section 86.002. Id. Mr. Villarreal and Mr. Robles respond that section 86.002 does not foreclose their claims.Id. Mr. Villarreal alternatively argues that, even if section 86.002 does apply, he is entitled to proceed under the Texas Wrongful Death Act of 1995. Section 71.006 of the Act provides:
An action under this subchapter [the Texas Wrongful Death Act] is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding in relation to the felony.
TEX. CIV. PRAC. REM. CODE ANN. § 71.006 (Vernon 1997). The government replies that section 71.006, if applicable, does not control over section 86.002. Compare id., with TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997).
The Wrongful Death Claims of Mr. Villarreal
The government argues Mr. Villarreal's wrongful death claims are barred under subsection (a) of section 86.002 because he was convicted of a felony and his injuries were sustained "during the commission of" that felony. Id. § 86.002(a). Mr. Villarreal admits to the felony, but denies his injuries arose during the commission of that crime. Id. He also argues his claims are not barred because they fall within the exception provided under subsection (b). Id. § 86.002(b). He contends his injuries arose from an act entirely separate from his felony conviction — the wrongful actions of government's agents on February 9, 2003. Id.
Section 86.002 "is written to establish an affirmative defense-subsection (a), and an exception to the affirmative defense-subsection (b)." Salazar v. NATCO, Inc., 53 S.W.3d 412, 413 (Tex.App.-San Antonio 2001, no pet.) (Lopez, J., concurring). In this case, the government asserts the affirmative defense created by subsection (a) and Mr. Villarreal asserts his claim falls within the exception to the affirmative defense created by subsection (b). TEX. CIV. PRAC. REM. CODE ANN. § 86.002(a), (b) (Vernon 1997). Because subsection (a) creates an affirmative defense, the burden is on the government to show that Mr. Villarreal sustained his injury during the commission of the drug conspiracy. If the government meets this requirement, the burden then shifts to Mr. Villarreal to prove the separate act exception provided for in subsection (b). See id.; see also Campbell v. Grand Trunk W.R.R., 238 F.3d 772, 775 (6th Cir. 2001) (In a summary judgment proceeding, "[b]ecause the statute of limitations is an affirmative defense, the burden is on the defendant to show that the statute of limitations has run. If the defendants meets this requirement then the burden shifts to the plaintiff to establish an exception to the statute of limitations."); Bell Lumber Pole Co v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir. 1995) (for purposes of summary judgment review, initial burden is on defendant/insurance carrier to prove affirmative defense; burden then shifts to plaintiff/insured to prove exception to affirmative defense). It is not the government's burden to prove that Mr. Villarreal's damages did not arise from a separate act, but rather the burden is upon Mr. Villarreal to show his damages did arise from a separate act. See TEX. CIV. PRAC. REM. CODE ANN. § 86.002(b) (Vernon 1997) (Subsection (a) does not bar a claimant from recovering damages "if the claimant shows" his damages arose from a separate act.); see also Bell Lumber Pole Co., 60 F.3d at 441 (summary judgment burden is not on defendant to show exception to affirmative defense does not apply, but on plaintiff to show exception does apply). Thus, the applicability of the exception is an essential element of Mr. Villarreal's case. Bell Lumber Pole Co., 60 F.3d at 441 (applicability of exception to affirmative defense is essential element of plaintiff's case). Accordingly, if there are no genuine issues of material fact as to the non-applicability of the separate act exception, the government is entitled to summary judgment on Mr. Villarreal's wrongful death claims. See id. (defendant is entitled to summary judgment if there exists no genuine issue of material fact regarding non-applicability of exception).
Mr. Villarreal is claiming an injury — the loss of his daughter — which was sustained on February 9, 2003. The cocaine distribution conspiracy for which he was convicted by this Court admittedly existed from January of 2000 until February 10, 2003. Mr. Villarreal does not dispute that the DEA agents went to 810 South San Joaquin to arrest him for that crime. Nor does he dispute that they would not have gone to the location and his injury would not have been sustained "but for" the commission of this felony. Accordingly, the government contends, his claim is barred by section 86.002(a). TEX. CIV. PRAC. REM. CODE ANN. § 86.002(a) (Vernon 1997).
Mr. Villarreal argues the government has presented no evidence to show Ashley's death occurred "during the commission of the felony" for which he was convicted, even though the plea agreement and judgment reflect that the conspiracy to distribute cocaine existed at least until the day after the shooting. See id. As the government notes, a conspiracy does not stop and start each time overt acts are taken in furtherance of the object of the conspiracy; it is a "continuing offense." United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 490 U.S. 1112 (1989). "Conspiracy is an ongoing crime, and if a criminal conspiracy is established, it is presumed to continue until its termination is affirmatively shown." United States v. Barsanti, 943 F.2d 428, 437 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992). "The conspiracy is presumed to continue unless the defendant makes a 'substantial' affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose." United States v. Branch, 850 F.2d 1080, 1082 (5th Cir. 1988), cert. denied, 488 U.S. 1018 (1989). The burden of proof is on the defendant to show he has withdrawn from the conspiracy. United States v. Killain, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021 (1981). "A member of a conspiracy continues to be responsible for acts committed by coconspirators even after the former's arrest unless he has withdrawn from the conspiracy." Id. at 209.
Mr. Villarreal does not argue and the record indicates no facts which would support a finding that he abandoned, terminated or withdrew from the conspiracy before or at the time of the shooting. See United States v. United States Gypsum Co., 438 U.S. 422, 464 (1978) ("Affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally ben regarded as sufficient to establish withdrawal or abandonment."); see also United States v. Jimenez, 622 F.2d 753, 755 (5th Cir. 1980) (although Gypsum stands for proposition that withdrawal from conspiracy may be demonstrated in variety of ways, an affirmative act and communication must still be shown) (internal quotation omitted). A claimant:
must do more than demonstrate that he undertook no conspiratorial activity after the cut-off date; he must demonstrate that he took affirmative action to withdraw from the conspiracy either by making a clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators.United States v. Zimmer, 299 F.3d 710, 718 (8th Cir. 2002),cert. denied, 537 U.S. 1146 (2003). "In order to withdraw, a conspirator must show that he acted affirmatively to defeat or disavow the purpose of the conspiracy." Killain, 639 F.2d at 209.
Mr. Villarreal states in his affidavit: "On the day of February 9, 2003, I did not take any action in furtherance of the conspiracy to distribute cocaine for which I have been convicted." He explains he had been at his mother's house during the morning and afternoon of February 9, 2003, but left in the early evening hours and did not return that day. He maintains he spent time with his attorney and later at his apartment without furthering the conspiracy, and it was not until the next day that he received a message his daughter had been shot. Even if true, this testimony does not show Mr. Villarreal took the affirmative acts necessary to withdraw from the conspiracy before the shooting. See Jimenez, 622 F.2d at 756 (In order to constitute a withdrawal, statements from a defendant must show "an affirmative act which demonstrated his intent to extricate himself from the conspiracy."). His challenge to the government's proof therefore fails and section 86.002(a) operates to bar his claim. See TEX. CIV. PRAC. REM. CODE ANN. § 86.002(a) (Vernon 1997).
Mr. Villarreal next argues, even if section 86.002(a) applies, his claims should be allowed to proceed because they fall under the exception provided for in section 86.002(b). Id. § 86.002(b). Subsection (b) of 86.002 permits claimants to recover for damages which arose from an entirely separate act which was not intended to result in (1) the prevention of the commission of the felony for which the claimant was convicted or (2) the apprehension of the claimant during or immediately after the commission of the felony for which he or she was convicted. Id. Mr. Villarreal argues that, because "the DEA agents knew Mr. Villarreal was not inside the residence located at 810 S. San Joaquin, they cannot now claim their attempts to stop the Mitsubishi Eclipse were intended to result in the apprehension of Mr. Villarreal or the prevention of the conspiracy for which he was convicted." Mr. Villarreal maintains:
In fact, at least two of the DEA agents on the scene have stated that they had seen Mr. Villarreal in the neighborhood surrounding 810 S. San Joaquin earlier in the day, but that he had left the scene and did not enter the residence located at that address. See Affidavits of DEA Agent William C. Swierc and Mike McDaniel. In fact, Mr. Villarreal had left his mother's residence at 810 S. San Joaquin at approximately 5:30 or 6:00 p.m. on the day in question.See Affidavit of Jose Angel Villarreal, Exhibit E to Intervenor Jose Angel Villarreal and Daniel Edward Robles's Memorandum in Opposition to Defendant's Rule 12(b)(6) Motion for Partial Dismissal (docket no. 27). Although Mr. Villarreal does not direct the Court's attention to specific testimony from Agent Swierc to support his argument, the officer's statement provides in relevant part:
As I sat there on the side street [a couple of streets south of 810 San Joaquin] it was dark outside. I can only guess that it was between 9:30 p.m. and 10:30 p.m. [on February 9, 2003]. As I sat there, a low sitting type car with a black ragtop on it pulled up next to me. It stopped next to me facing the same direction I was facing in. I could see what appeared to be a female driving and a male passenger. I say the driver was a female because I remember seeing a ponytail. The passenger rolled the passenger side window down just enough for me to see the top of his head. I was familiar with Joey Villarreal because I saw him in person on Friday and this guy looked to have the same hairstyle that Joey had which is the shaved/close crop style. The window on the car was rolled back up. The car went to the corner and made a left turn onto San Joaquin and north before slowing down in front of 810 S. San Joaquin. No one got in or out of the car but suddenly the car took off at a high rate of speed north on San Joaquin. I am thinking I was burned and I departed from my surveillance point . . . thinking that if it was Joey that left in the very first car that pulled up next to me . . . other [vehicles leaving the area, including a red Dodge pickup truck] would possibly lead me to Joey.
Agent McDaniel, the group supervisor on the night of February 3, 2003, stated:
Bill [Swierc] notified me also prior to my arrival that he observed a Camaro leaving the location. The Camaro passed him and had the driver's side window down and he thought the driver looked like Joey Villarreal. It left at a high rate of speed along with a red Dodge pickup truck. Agents in the area attempt [sic] to follow them and get both vehicles stopped but lost them as soon as they took off. I felt like we had been made and Joey knew we were watching him."
Agent McDaniel states he then "decided to wait to see if they returned to the house."
Although Mr. Villarreal asserts the testimony of these agents constitutes an admission they knew Mr. Villarreal was not at the residence, an examination of the statements as a whole does not support this assertion. Rather, the statements show the agents were concerned they may have been detected by Mr. Villarreal and the driver of a convertible early in the surveillance as the vehicle left the area — they were not sure — and the supervisor, Agent McDaniel, "decided to wait to see if they returned to the house." Neither agent said or even implied he knew Mr. Villarreal had left the house located at 810 S. San Joaquin and did not come back.
Given the ambiguity of the statements, the government speculates Mr. Villarreal "could have returned by walking down the alley and entering the back of the house under the cover of darkness." Viewing the evidence in the light most favorable to Mr. Villarreal, this is what must have happened, at least earlier in the evening, for it to have been Mr. Villarreal in the car which the agent saw leaving the residence. In his affidavit, Mr. Villarreal states he left his mother's house at approximately 5:30 or 6 p.m. on February 9, 2003. Agent Swierc testified a man resembling Mr. Villarreal left 810 S. San Joaquin in a convertible between 9:30 and 10:30 p.m. that night. Mr. Villarreal asks the Court to find the agents knew it was Mr. Villarreal in the vehicle which left the residence between 9:30 and 10 p.m., when he himself admits he had departed hours earlier. Given that the agents did not conclusively testify Mr. Villarreal had departed and did not re-enter the house, and because his reliance on the agents' statements is inconsistent with his own version of the events, the Court declines to find Mr. Villarreal has shown the agents knew he was not inside the residence located at 810 S. San Joaquin. Accordingly, Mr. Villarreal has not demonstrated his claims fall under the separate act exception of subsection (b). TEX. CIV. PRAC. REM. CODE ANN. § 86.002(b) (Vernon 1997). As the government has proven the affirmative defense created by subsection (a), and as there are no genuine issues of material fact as to the non-applicability of the exception as provided in subsection (b), Mr. Villarreal's claims are barred by section 86.002. Id. § 86.002.
Mr. Villarreal next argues he can nonetheless maintain his cause of action under section 71.006 of the Texas Wrongful Death Act. TEX. CIV. PRAC. REM. CODE ANN. § 71.006 (Vernon 1997). As noted, section 71.006 provides an action "is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding in relation to the felony." Id. Mr. Villarreal argues:
Thus, even if, as defendant claims, the DEA agents['] shooting of Ashley Villarreal was caused by Jose Angel Villarreal's felonious acts, which is strongly disputed, Mr. Villarreal can still maintain a cause of action for wrongful death under the Texas Wrongful Death Act.
The government contends that the Legislature did not intend to provide a right of recovery under the Wrongful Death Act for Mr. Villarreal, only to take away that right under section 86.002.Compare TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997), with TEX. CIV. PRAC. REM. CODE ANN. § 71.006 (Vernon 1997).
The Court's research reveals no case law or authorities considering the interplay between section 86.002 and section 71.006. See id. It is clear that section 86.002 operates to bar a person convicted of a criminal offense from recovering damages for injuries sustained during the commission of the crime unless he can show he sustained his injuries as a result of an act entirely separate from the felony for which he was convicted.Id. § 86.002; see also Salazar v. NATCO, 53 S.W.3d 412, 413-14 (Tex.App.-San Antonio, no pet.). It is not clear, however, that section 71.006 was intended to authorize this same criminal wrongdoer to bring his cause of action under the Texas Wrongful Death Act. Id. § 71.006. An analysis and history of this section of the Code proves helpful.
Under the plain language of the statute, section 71.006 applies in cases where the death of an individual is caused by felonious conduct. Id. Although Mr. Villarreal's injury would not have occurred but for his own act of participating in the conspiracy, the conspiracy was not the cause of Ashley's death. Mr. Villarreal's daughter was not killed by someone conspiring to distribute drugs, but by agents attempting to put an end to the commission of that crime. To this extent, Ashley was not a victim of the conspiracy, but of her father's choice to participate in this felonious conduct. Accordingly, section 71.006 does not operate to authorize Mr. Villarreal's wrongful death claims.See TEX. CIV. PRAC. REM. CODE ANN. § 71.006 (Vernon 1997).
It appears this section of the Act was intended to apply only in cases in which the defendant has been or may be charged with a felony in connection with the wrongful death. There exists an old common law doctrine which provided the death of a human being could not be complained of as an injury in a civil court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990). "This was probably founded upon the generally received opinion that the civil remedy was merged into the felony which, at common law, worked a forfeiture of property, and that a personal action dies with the person." Galveston, Harrisburg San Antonio R.R. v. Le Gierse, 51 Tex. 189, 1879 WL 7659, at *6 (1879). The Texas Legislature obviated this rule by passing a wrongful death act on February 2, 1860. Gohen v. Texas Pac. Ry., 10 F. Cas. 536 (C.C.W.D. Tex. 1876) (No. 5,506). Section 1 provided:
If the life of any person is lost, by reason of the negligence or carelessness of the proprietor or proprietors, owner, charterer, or hirer of any railroad, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, gross negligence, or carelessness of their servants or agents; and whensoever the death of a person may be caused by wrongful act, neglect, unskillfulness, or default, and the act, neglect, unskillfulness, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action for such injury, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.Houston Tex. Cent. Ry. v. Moore, 49 Tex. 31, 1878 WL 9142, at *3 (1878) (quoting Section 1) (emphasis added). The rights created by this legislation were supplemented by Article 16, section 26, of the Texas Constitution of 1876, which provides:
Every person, corporation, or company that may commit a homicide through willful act or omission or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceedings that may or may not be had in relation to the homicide.
TEX. CONST. art. XIV, § 26 (emphasis added).
Historically, some courts found that an award of damages in a civil case would violate constitutional protections against double jeopardy when the conduct that formed the basis for the plaintiff's claim also subjected the defendant to criminal prosecution. This view was later rejected by Texas courts. See March v. Walker, 48 Tex. 372, 1877 WL 8693, at *3 (1877) ("This was a civil suit for damages, and, under the Constitution, was allowed, without regard to any criminal proceeding. The rule would be the same, if the Constitution were silent on the subject."); Hartman v. Logan, 203 S.W. 61, 63 (Tex.Civ.App. — Dallas 1918, writ ref'd) ("The appellant in this case having made an unwarranted assault on appellee, it makes no difference if he has been punished by fine, for said fine does not suffice for the exemplary damages to which appellee is entitled. In other words, a criminal conviction in this state is no bar to a recovery in a civil action.").
The Texas Wrongful Death Act was codified in 1985. TEX. CIV. PRAC. REM. CODE ANN. §§ 71.001-71.012 (Vernon 1997). This codification included the provision upon which Mr. Villarreal relies:
An action under this subchapter is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding in relation to the felony.Id. § 71.006. Given its history, the ostensible purpose of this section is to make it apparent that a suit for money damages is not to be considered a double punishment or otherwise impaired by the initiation of criminal proceedings against a party which caused the wrongful death. See id. It seemingly would apply to this case if a DEA agent had been charged with felony manslaughter and was asserting that an award of money damages would be a double punishment, although this is not the situation before the Court.
Presuming section 71.006 does apply, an argument can also be made that, because the provisions of section 86.002 are more specific to cases in which the plaintiff has been convicted of a crime, it controls over the earlier and more general section 71.006. Compare TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997) (added by an Act of 1995 and applying solely to "claimants" seeking relief), with TEX. CIV. PRAC. REM. CODE ANN. § 71.006 (Vernon 1997) (added by an Act of 1985 without specific application). The Texas Code Construction Act prescribes the general rules to be applied under circumstances such as this:
(1) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible so that effect is given to both.
(2) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.
Tex. Gov't Code Ann. § 311.026 (Vernon 2005). Chapter 86 can be harmonized with section 71.006 by interpreting section 86.002 to control in cases in which the plaintiff has been convicted of a crime and interpreting section 71.006 to control in cases in which the defendant has been or may be charged with a felony in connection with the wrongful death. See TEX. CIV. PRAC. REM. CODE ANN. §§ 82.002, 71.006 (Vernon 1997). Alternatively, because section 86.002 is specific to cases in which the plaintiff has been convicted of a crime, its provisions should control over the earlier and more general section 71.006. See id., Tex. Gov't Code Ann. § 311.026 (Vernon 2005). Based upon the foregoing, the Court finds that Mr. Villarreal's wrongful death claims are barred by section 86.002, and section 71.006 does not authorize his claims to proceed. See id. Accordingly, the government's motion for summary judgment is granted and Mr. Villarreal's wrongful death claims are dismissed.
The Claims of Mr. Robles
Mr. Robles, the passenger in the car with Ashley at the time of her death, has brought against the government assault, intentional infliction of emotional distress and false imprisonment causes of action. The government moves for summary judgment under section 86.002, citing Mr. Robles' misprision of a felony criminal conviction. TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997). Mr. Robles argues section 86.002(a) does not bar his claims because his injuries were not sustained during the commission of the crime which he was convicted. See id. § 86.002(a). He also contends his injuries arose from an act entirely separate from his felony — the wrongful conduct of the government's agents on February 9, 2003. See id. § 86.002(b).
Unlike Mr. Villarreal, Mr. Robles was not convicted of an ongoing crime which encompassed the events of February 9, 2003. Although Mr. Robles' plea agreement reflects he was aware the conspiracy operated from "at least January 2000 until around February 2003," his misprision of felony conviction is based only upon his concealment of conspiracy until "on or about January 1, 2003." "When paragraphs (a) and (b) of Section 86.002 are read together, as they should be, it is apparent that the bar to recovery was intended to apply only to those criminal wrongdoers who are injured by third parties who caused the injury while attempting to prevent the commission of the crime, or while attempting to apprehend the wrongdoers during or after the commission of the crime." Salazar v. NATCO, Inc., 53 S.W.3d 412, 413 (Tex.App.-San Antonio 2001, no pet.). As Mr. Robles was convicted of a felony which concluded more than a month prior to the shooting, he could not have been injured by someone in the course of attempting to stop him from concealing information or attempting to apprehend him during the commission of his crime. Accordingly, Mr. Robles' claims are not barred by section 86.002. See TEX. CIV. PRAC. REM. CODE ANN. § 86.002 (Vernon 1997). The government's motion for summary judgment is therefore denied and Mr. Robles' claims remain pending for disposition.
IT IS THEREFORE ORDERED that Defendant's Rule 12(b)(6) Motion for Partial Dismissal (docket no. 22) is converted to a motion for partial summary judgment and the motion is GRANTED in PART and DENIED in PART. Specifically, the motion is GRANTED to the extent that the claims of plaintiff-intervenor Jose Angel Villarreal are DISMISSED; the motion is DENIED to the extent that the government seeks dismissal of the claims of plaintiff-intervenor Daniel Edward Robles and these claims remain pending for disposition.
It is so ORDERED.