Monsanto v. Harris County, et al

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21053
SHERRY MONSANTO,
Plaintiff,
versus
HARRIS COUNTY; ET AL.,
Defendants,
HARRIS COUNTY;
DICK MOORE, Constable,
Defendants-
Third Party Plaintiffs-
Appellants,
versus
STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,
Third Party Defendant-
Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(No. H-98-CV-3700)
June 14, 2002

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* District Judge of the Central District of Illinois, sitting
by designation.
** Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Before JOLLY and PARKER, Circuit Judges, and MILLS,* District
Judge.
PER CURIAM:**
On State Farm’s petition for declaratory relief, the
judgment of the district court is AFFIRMED. Judges Jolly and
Parker affirm on the ground that neither State Farm nor its
employee Sherry Monsanto violated § 38.16 of the Texas Penal
Code. Judge Mills would affirm on the ground that § 38.16 is
unconstitutional.
The district court’s finding that the county’s motion for
summary judgment was frivolous is REVERSED, this court having
determined that the motion was a proper vehicle for resolution of
State Farm’s claims. Consequently, the district court’s award of
attorney’s fees for State Farm’s having to contest the motion is
VACATED.
AFFIRMED in part, REVERSED and VACATED in part.

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