Civil Process.

A peace officer is trusted to protect society, so a misapplied law or procedure can harm the people being served. That harm can lead to a civil action against the officer and the employing agency. The results can include settlements being paid out, embarrassment for the agency and the profession, personal civil responsibility, and alienation of law enforcement from the public. The way to reduce the risk is to know the laws of the State thoroughly and to know the constitutional restraints on officers and the process due to citizens.

Liability can land at three levels. A level of government may be held liable, including the state, a county, a municipality or a special district. An agency may be held liable, however it was created. An individual peace officer may be held liable in their individual capacity.

Being justified under the criminal law does not end the matter. Under Penal Code 9.05, an officer who is justified in using force or deadly force against one person, but who recklessly injures or kills an innocent third person while doing so, cannot use that justification in a prosecution for the injury to the third person. Under Penal Code 9.06, the fact that conduct is justified under Chapter 9 does not abolish or impair any remedy available in a civil suit.

Officers who serve civil process carry their own liability. An officer who neglects or refuses to perform a duty under the Texas Rules of Civil Procedure is liable for actual damages only, in a suit by the person injured, or may be punished for contempt with a fine of not less than $10 or more than $100, with costs, after 10 days’ notice of the motion. A party may seek damages or contempt sanctions, but not both. An officer who executes a writ in good faith, as provided by law, is not liable for damages that result.

A sheriff must execute all process directed to the sheriff and return it to the proper court on or before the return date. Failing to return process, or making a false return, is an offense punishable as for contempt by a fine of not more than $100, and the sheriff is liable for all damages a person sustains because of it. A constable who fails or refuses to execute and return process is fined for contempt, not less than $10 or more than $100 with costs, for the benefit of the injured person, after 10 days’ notice of the motion.

Criminal law comes from the states’ reserved, or police, powers under the 10th Amendment. Those powers let a state regulate the conduct of people within its borders. The legislature defines conduct that is unacceptable, called a crime, and prescribes a penalty. A crime in Texas is committed “against the peace and dignity of the State.” The conduct and penalties are found in the Penal Code. There are three types of penalty: fine, imprisonment or execution. The standard for conviction is proof beyond a reasonable doubt.

Civil law involves legal actions between two parties, which may be individuals, corporations, associations or levels of government. One party alleges a harm, called a tort, caused by the actions of the other. What is sought is a remedy. The remedy may be an injunction to stop a continued action, or compensation to restore the harmed party to whole status.

Civil actions include tort law, family law, real estate law, and business and employment law. The State is not a party, but it is involved by providing a court system that can hear and decide civil matters. The standard in a civil action is a preponderance of the evidence. The procedures are in the Texas Civil Practice and Remedies Code.

On a civil call, such as a neighbor who floods another’s land by opening the wrong irrigation gate, think along both tracks. The contract dispute and the damage claim are civil matters for the parties to take to court. Separately, consider whether the conduct fits a criminal offense, such as one under Chapter 28 of the Penal Code.