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City of Brownsville v. Alvarado3/30/1995
e particular evidence excluded or admitted. See GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.Houston [1st Dist.] 1991, writ denied); Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.-San Antonio 1983, writ ref'd n.r.e). We determine whether the case turns on the evidence excluded by reviewing the entire record. Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989); Gee, 765 S.W.2d at 396.
A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The guiding rules and principles governing the exclusion of evidence in this case must be culled from the provisions of the Tort Claims Act applicable to the Alvarados' claims, specifically, the police protection and discretionary powers exceptions to the basic waiver of sovereign immunity. Both exceptions implicate the policy decisions of government.
In State v. Terrell, this Court elaborated on a distinction necessary to analyze governmental liability for policy decisions. 588 S.W.2d 784 (Tex.1979). Discussing both the police protection and the discretionary powers exemptions to the Tort Claims Act, the Court distinguished between the negligent formulation of policy, for which sovereign immunity is preserved[ and the negligent implementation of policy, for which immunity is waived:
As we understand the two provisions, the purpose of both is the same: to avoid a judicial review that would question the wisdom of a government's exercise of its discretion in making policy decisions. The interests to be served by these provisions are several-e.g., effective, unfettered performance of officials in making policy decisions and the maintenance of the separation of powers between the executive, legislative, and judicial branches of government. [footnote omitted]
....
Thus, if the negligence causing an injury lies in the formulating of policy-i.e., the determining of the method of police protection to provide-the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the Act. Id. at 787-88 (driving decisions by highway patrolman related to policy implementation); see also City of Waco v. Hester, 805 S.W.2d 807, 812-13 (Tex.App.-Waco 1990, writ denied) (failing to follow city policy regarding segregation of certain inmates related to policy implementation by jailers); Forbus v. City of Denton 595 S.W.2d 621, 623 (Tex.Civ. App.-Fort Worth 1980, writ ref'd n.r.e.) (deciding what particular type of mattress to provide to prisoners related to policy implementation)
Reviewing the record as a whole, we conclude that the trial court did not abuse its discretion by excluding the challenged evidence. Assuming that Ricardo's use of the jail-issued blanket was sufficient to bring his parents' claim within the Tort Claims Act, the evidence highlighted above was properly excluded because it pertained largely to the City's discretionary formulation of jail policy. The City's decision to use certain intake forms or perform cell checks at particular intervals did not of itself violate any requirements imposed on the City by law, and the jury was able to fully consider whether the jailers complied with the policy in place at the time. The recommendations made to the City following the 1986 suicide attempt were just that-recommendations for formulating or changing the City's jail policy.
As for the remaining items of excluded evidence, it cannot reasonably be said that the verdict probably would have been different upon their admission. Evidence from the
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