Misty Strauss v. Texas Department of Criminal Justice

ACCEPTED 15-25-00079-CV FIFTEENTH COURT OF APPEALS Matthew J. Kita AUSTIN, TEXAS attorney and counselor at law 10/13/2025 10:11 PM a professional limited liability company CHRISTOPHER A. PRINE licensed in texas and california CLERK FILED IN October 13, 2025 15th COURT OF APPEALS AUSTIN, TEXAS 10/13/2025 10:11:38 PM Via e-filing CHRISTOPHER A. PRINE Mr. Christopher A. Prine Clerk Fifteenth Court of Appeals P.O. Box 12852 Austin, Texas 78711

Re: Strauss v. Texas Department of Criminal Justice Case No. 15-25-00079-CV

Dear Mr. Prine:

I represent Appellant in the above-referenced case. Please accept this letter in lieu of a formal reply brief and distribute it to the members of the Court for review.

In sum, this appeal ultimately turns on the Court’s interpretation and application of a single case: the Texas Supreme Court’s 2019 decision in Tarrant County v. Bonner.1

Although TDCJ’s brief claims that four other cases also support an affirmance of the district court’s summary judgment, a close review reflects that they do not. Instead, the plaintiffs in all of those disputes apparently conceded that they were required to prove gross negligence to recover, as none of the opinions discuss whether the defendant’s allegedly tortious conduct was “in connection with” an “activity” covered by the statutes at issue.2

1 574 S.W.3d 893 (Tex. 2019). 2 See Appellee’s Br., pp. 27–31 (citing Tex. Dep’t of Criminal Justice v. Taylor, No. 13-21- 00246-CV, 2023 WL 4013700 (Tex. App.—Corpus Christi–Edinburg June 15, 2023, no pet.); Hurd v. Tex. Dep’t of Criminal Justice, No. 12-11-00174-CV, 2012 WL 759016 (Tex. App.—Tyler Mar. 7, 2012, pet. denied); Evans v. Tex. Dep’t of Criminal Justice- Institutional Div., No. 01-07-00847-CV, 2008 WL 2548986 (Tex. App.—Houston [1st 3110 webb avenue matt@mattkita.com 6701 center drive west suite 150 214.699.1863 14th floor dallas, tx 75205 310.844.9696 los angeles, ca 90045

Accordingly, Bonner is only case that provides any insight on the issue presented. And both parties agree that the following two sentences from the supreme court’s analysis is controlling:

The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities.3

TDCJ, however, suggests that Bonner required only a “but-for” connection between the injury and the activity.4 But while the supreme court acknowledged that the defendant in Bonner also advanced this argument,5 the above-cited paragraph reveals that the supreme court did not agree.

And for good reason. Although the present case requires this Court to consider the “connection” between Appellant’s injury and her undisputed participation in a “treatment activity,” that is only one of the several “activities” identified by the statutes at issue. The others include, for example, a “work” activity. But all able-bodied TDCJ inmates are required to “work.” Accordingly, if this Court were to conclude that these statutes cover Appellant’s injuries because “she was being transported to one of TDCJ’s facilities, where she would eventually engage in treatment activities,”6 TDCJ could make the same argument about any inmate who is ever injured in a TDCJ-owned vehicle because “eventually he or she would engage in work.”

Appellant respectfully submits that this Court does not need extensive additional briefing to conclude that TDCJ’s arguments go too far. Although “but-for” causation has its place in common law, it also has its limitations.

Dist.] June 26, 2008, no pet.); Moncada v. Brown, 202 S.W.3d 794, 796–97 (Tex. App.— San Antonio 2006, no pet.)). 3 Bonner, 574 S.W.3d at 900 (emphasis added). 4 Appellee’s Br., pp. 25–26. 5 Bonner, 574 S.W.3d at 898. 6 Appellant’s Br., p. 14; Appellee’s Br., p. 26.

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Just ask Mrs. Palsgraf.7 Or, for a more recent example from the Texas Supreme Court, Mrs. Blake.8 In both cases, appellate courts imposed an outer boundary on the applicability of the “but-for” test with respect to a plaintiff’s ability to recover. This Court should reach a similarly sensible result in response with respect to a defendant’s ability to claim immunity.

And after doing so, for all of the other reasons stated in Appellant’s opening brief, this Court should reverse the trial court’s summary judgment and remand this case for trial.

Respectfully submitted,

Matthew J. Kita

cc: Via e-filing All counsel of record

7 Palsgraf v. Long Island R. Co., 341, 162 N.E. 99 (N.Y. 1928). 8 Werner Enterprises, Inc. v. Blake, 719 S.W.3d 525, 529 (Tex. 2025).

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Matthew Kita on behalf of Matthew Kita Bar No. 24050883 matt@mattkita.com Envelope ID: 106791722 Filing Code Description: Letter Filing Description: Appellant's Reply Letter Brief Status as of 10/14/2025 7:06 AM CST

Associated Case Party: Misty Strauss Name BarNumber Email TimestampSubmitted Status Matthew JKita matt@mattkita.com 10/13/2025 10:11:38 PM SENT Associated Case Party: Texas Department of Criminal Justice Name BarNumber Email TimestampSubmitted Status Joseph McDuffie Joseph.McDuffie@oag.texas.gov 10/13/2025 10:11:38 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Gloriana Ojeda gloriana.ojeda@oag.texas.gov 10/13/2025 10:11:38 PM SENT Courtney Sawhill courtney.sawhill@oag.texas.gov 10/13/2025 10:11:38 PM SENT