County seeks Hail Mary in lawsuit

For The Record

After last week’s negative finding in its appeal of damages awarded in a jail death lawsuit, Orange County is hoping for a last-gasp ruling.

County commissioners met in closed session for 90 minutes at the end of Tuesday’s commissioners court meeting to discuss the Nov. 29 ruling by the Fifth Circuit Court of Appeals.

That decision not only rejected the county’s appeal of the 2015 jury decision that awarded $1.5 million in damages to his family for pain suffered by Robert Montano while in custody prior to his death; it also reinstated a $900,000 “wrongful death” award that the 2015 trial judge had stripped from the verdict.

Jody Crump, Commissioner Precinct 4, said in a Tuesday evening interview the county could be on the hook for as much as $3.1 million (counting $440,000 for plaintiff’s attorney’s fees plus interest) in as soon as 60 days.

Commissioners took no official action Tuesday.

But Crump said they had previously retained appellate lawyer David Gaultney, a former Texas Court of Appeals justice, and he is already working on another appeal.

“He’s our counselor,” Crump said, “and he started an appeal the day (Nov. 29) the judgment came down. I think he’s going to file it Thursday.”

Crump said the county would ask for an en banc appeal, which would be a rehearing before all 15 judges of the Fifth Circuit Court of Appeals to reconsider the decision made by the three-judge panel of the court.

BP asked the Fifth Circuit for an en banc rehearing of its oil spill settlement and the state of Texas was granted an en banc hearing by the Fifth Circuit, which in turn ruled against its Voter ID Law earlier this year.

More than legal maneuvers, there’s a sense of concern around the courthouse as to where the $3.1 million might be found to pay the judgment.

At the time of Montano’s death in 2011, the county did not have liability insurance in case of such lawsuits. It does now.

The county struggled for months to put together its operating budget for 2017, skimping on raises and trimming future employee and retiree benefits along the way.

“If the appeal doesn’t come forward, we’re looking at about 30 to 60 days (to pay),” Crump said.

Asked where the money would come from, Crump said: “That’s what we have to figure out now.”

Asked if county employees should worry about job security, Crump skirted the question.

“We have to figure out where that $3.1 million is coming from,” he said.

County Judge Stephen Carlton missed Tuesday’s meeting because of a commitment to the Air Force Reserve.