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.

-2-
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).

-3-
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Matthew Kita on behalf of Matthew Kita
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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