11. Civil Process and Liability (12 hrs.)

1. 11. Civil Process and Liability (12 hrs.) TCLEOSE LEARNING OBJECTIVES 07/30/04

2. Objectives • Unit Goal: 11.1. The student will understand the liability assumed resulting from improper acts or failure to act during daily law enforcement duties and in the execution of civil process. • 11.1.1. Recognize that peace officers and the entity that employs them are liable for improper acts likely resulting in civil action. • 11.1.2. Recognize the difference between criminal and civil liability for wrongful actions taken by peace officer. • Unit Goal: 11.2. The student will understand the difference between civil and criminal process. • 11.2.1. Identify the major differences between civil and criminal law. • 11.2.2. Define the most common terms used in civil process. • 11.2.3. Define the most common Latin terms used in civil process. • Unit Goal: 11.3. The student will understand the procedure and methods for a civil action. • 11.3.1. Identify the methods for a civil suit. • 11.3.2. Identify the procedure for a civil suit. • 11.3.3. List the persons authorized to serve process and their duties under the Texas Rules of Civil Procedure (TRCP). • 11.3.4. Identify the methods for service of citations.

3. Unit Goal: 11.1. The student will understand the liability assumed resulting from improper acts or failure to act during daily law enforcement duties and in the execution of civil process.

4. 11.1.1. Recognize that peace officers and the entity that employs them are liable for improper acts likely resulting in civil action.

5. The potential for civil liability in any action a peace officer takes has greatly increased in recent years.

6. When an alleged civil wrong occurs, the civil action is not usually limited to just the individual officer, but also involves the agency or political sub-division that represents the commissioning authority of the officer.

7. Although there are specific statutory prohibitions against these actions, agencies and officers may also be held civilly responsible.

8. Potential liability: • Employing agency • Governmental liability - 101.021 TCPRC • Officer Reference: Texas Criminal Law and Motor Vehicle Handbook O’Connor’s Texas Rule (2003 Edition) Web site is www.capitol.state.tx.us/statutes/statutes.html

9. Officer liability: • Due course of law - 1.04 CCP • Search and seizure - 1.06 CCP • Official misconduct - 3.04 CCP • Racial Profiling - 3.05 CCP • Improper influence - 36.04 PC • Tampering with witness - 36.05 PC • Obstruction or retaliation - 36.06 PC

10. Acceptance of honorarium - 36.07 PC • Perjury - 37.02 PC • Tampering with or fabricating physical evidence - 37.09 PC • Tampering with governmental record - 37.10 PC • Abuse of official capacity - 39.02 PC • Official oppression - 39.03 PC • Violations of the civil rights of person in custody - 39.04 PC

11. Process: • Liability for Refusal or Neglect in Performance of Official Duties - 7.001 TCPRC • Liability regarding execution of writs - 7.003 TCPRC • Neglecting to execute process - 2.16 CCP • Execution of process; penalty (sheriff) - 85.021 LGC • Failure to execute process (constable) - 86.024 LGC

12. 11.1.2. Recognize the difference between criminal and civil liability for wrongful actions taken by peace officer.

13. In many cases before civil action is initiated, a case may be reviewed by the Grand Jury for criminal action or charges filed for penal or statutory violations of the law.

14. If the disposition results in a conviction and punishment is rendered, the officer(s) and his or her commissioning authority are most likely to be involved in civil action and is a totally separate action.

15. In today’s environment, if a wrong occurs from an act performed as a peace officer, criminal action will be reviewed and most likely will result in some sort of civil action.

16. Also note the cost of civil actions can be extremely costly individually and to the governmental entity.

17. Unit Goal: 11.2. The student will understand the difference between civil and criminal process. Note to the instructor: You may wish to review 4.3.3 and 4.3.4 with students, including the chart of court structure in Texas.

18. 11.2.1. Define laws, civil law and criminal law.

19. 11.2.1. Identify the major differences between civil and criminal law.

20. Criminal law regulates the conduct of individuals through threats of fines and imprisonment.

21. In criminal cases, the state brings an action against an individual to punish him for breaking one of their laws.

22. Criminal judgments may result in the guilty party being assessed a fine only or a fine and period of confinement or community service.

23. In a criminal case, the defendant is adjudicated guilty or innocent based upon the evidence presented to a judge or jury beyond a reasonable doubt.

24. Civil law defines the legal significance of public and private acts and regulates conduct through injunctions and the award of money damages.

25. In a civil case, a person brings a lawsuit seeking some sort of redress for an injury he claims to have suffered. The person may be an individual, partnership, corporation, or sometimes the state. The redress that the person seeks is usually in the form of money. He asks the court to order his opponent to pay him monetary compensation or an injunction to the defendant for the wrongful act.

26. Civil judgments usually require the part adjudged of a wrongful act to compensate the wronged party in the form of money or the return or possession of property.In a civil case, a judgment is rendered in favor of the complaining party or the defendant or somewhere in between based upon the preponderance of evidence before a judge or jury.

27. 11.2.2. Define the most common terms used in civil process. Reference: Black’s Law Dictionary

28. Definitions of Civil Process Terms:

29. Alternative Service - A method of delivering to an uncooperative defendant. • Answer - A defendant’s written reply to a plaintiff’s petition. • Applicant - A party making application to the court or petitioning the court for some action. • Bench Warrant - A writ issued to an officer commanding that specific person be taken into custody and brought before the court immediately or at a specific time and place. Bench warrant is issued by and signed by a judge. • Capias - Capias is in motion form and issued by a clerk of the competent court. • Citation - An official notice from a court of competent jurisdiction, issued to a defendant after a plaintiff’s petition is filed; the citation commands the defendant to answer and appear in court at a specific time.

30. Contempt - Proceedings held to determine whether a person has violated a lawful court order and to set punishment if violation is found. Where an officer refuses to carry out lawfully imposed duties, refusal is punishable as contempt. • Default Judgment - The failure to perform some action required by law within the specified time. In a civil lawsuit, judgment by default may be rendered against a party who has failed to answer or appear as directed. • Diligence Effort - Persistent activity, prudence or care; “diligent effort” is that which is properly expected from a reasonable and prudent person under the particular circumstances.

31. Instanter - Immediate, now or instantly. • Judgment - The final order of a court in a civil suit that settles all disputed issues, determines the rights of the parties with regard to the subject matter of the suit, and which is subject to being enforced by a writ. • Jurisdiction - The power of a court to lawfully act with regard to persons and property. • Orders - The directions of a court or judge, a mandate or command. (Also known as “writs.”)

32. Petition - A document filed by the plaintiff with the clerk of the court, which outlines the basis of the complaint against the defendant and the relief being sought from the court. • Plaintiff - A party in a civil suit, mainly the one who initiates the suit by filing a petition. • Process - All writs and official documents issued by courts in connection with pending suits. • Respondent – Also known as the defendant. • Return - The endorsement made by a constable or sheriff upon process. Writ or notice stating what has been accomplished, and the time and mode of service.

33. Service - The delivery of a writ, notice, injunction, etc., by an authorized person, to a person who is thereby officially notified of some proceeding concerning him. • Showcase - A notice to the defendant to either appear in court or prepare a written answer to show cause for failing to respond to a previous order of the court. May also be known as a notice. • Style Or Format - The prescribed structure for the clerks of the court to use in developing the process. • Writ - These are examples of writs from the proper courts: execution, possession, garnishment, sequestration, attachment, injunction. (See also “Orders.”)

34. 11.2.3. Define the most common Latin terms used in civil process. Reference: Black’s Law Dictionary

35. Definitions of Civil Process Terms in Latin:

36. Et Al - And all others (commonly rendered “et al.”) • Ex Parte - Any proceeding which is held for the benefit of, or on application of, only one party, in the absence of one party • In Re - In the interest of • Nulla Bona - No goods, or no funds • Pro Bono - No fee, usually work provided by attorney at no cost • Pro Se - Representing oneself in an action.

37. Unit Goal: 11.3. The student will understand the procedure and methods for a civil action

38. 11.3.1. Identify the methods for a civil suit.

39. Methods for a civil suit:

40. 1. Incident occurs resulting in a civil wrong

41. 2. Style or format is developed • Plaintiff(s) and Defendant(s) are identified. • Style can have multiple plaintiffs and defendants. • Either side can be individuals, partnerships, or corporations. • Some type of demand is made to the defendant(s) and if the parties are unable to resolve the dispute a suit may commence.

42. 3. Plaintiff(s) are within the statute of limitations to commence a suit • Unwritten agreement of a personal injury...2 years to start action. • By written agreement usually 4 years NOTE: The longer the period, the more difficult the case to prove.

43. 4. Preparation of a petition (the document that tells what the suit is about). • Determination of what court of competent jurisdiction that the suit may be filed. • Note: Courts have concurrent jurisdiction in some cases and in others they must be filed in specific jurisdictional courts as specified by statue. • Filing of the petition stating the claims with the appropriate clerk of the court. The complaining party(s) may also file additional documents, usually by motion, with the clerk for review and approval of the judge to be issued along with the initial petition, i.e., prejudgment writs, temporary restraining orders, interrogatories, show cause orders, ex parte hearings, etc.

44. 11.3.2. Identify the procedure for a civil suit.

45. Procedure for a civil suit: • Writs & Process - 15 TRCP • Issuance - 99(a) TRCP • Form - 99(b)(c) TRCP • Attorney in charge - 8 TRCP

46. 11.3.3. List the persons authorized to serve process and their duties under the Texas Rules of Civil Procedure (TRCP).

47. Authorized persons - 103 TRCP • Duty of officer or person receiving - 105 TRCP

48. 11.3.4. Identify the methods for service of citations.

49. Methods for serving citations: • Suits commenced on Sunday - 6 TRCP • Shall endorse all process - 16 TRCP • Who may serve - 103 TRCP • Duty of officer or person receiving - 105 TRCP • Method of service - 106 TRCP • Return of service - 107 TRCP • Citation by publication - 109, 109(a) TRCP

50. "Our greatest battles are that with our own minds."-- Jameson Frank