IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JOHN DOE I; JOHN DOE II; JOHN DOE III
Plaintiffs - Appellants,
HENDERSON INDEPENDENT SCHOOL DISTRICT, ET AL
HENDERSON INDEPENDENT SCHOOL DISTRICT; RAY DEASON; EASTSIDE
Defendants - Appellees
Appeal from the United States District Court for the Eastern District of Texas
October 31, 2000
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
Plaintiffs-Appellants John Doe I, John Doe II, and John Doe
III appeal from the district court's grant of summary judgment in
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this opinion should not be published and is not precedent except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.
favor of Defendants-Appellees Henderson Independent School
District, Ray Deason, and the Eastside Baptist Church. For the
following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
John Doe I, John Doe II, and John Doe III brought the
instant suit against the Henderson Independent School District
(HISD), Ray Deason, the Eastside Baptist Church (the "Church"),
and Kenneth Ward for injuries sustained from the sexual abuse
perpetrated by Ward from 1978 to 1981, when the plaintiffs were
minors.1 The complaint against HISD, Deason, and the Church was
brought under 42 U.S.C. § 1983, alleging various violations of
the plaintiffs' civil and constitutional rights.2
Doe I and Doe II filed suit on November 20, 1998,
approximately nine years after their eighteenth birthdays. Doe
III joined the suit in February of 1999, almost fifteen years
after his eighteenth birthday. All the defendants, except Ward,3
During the time of the abuse, Ward was the plaintiffs'
teacher at Northside Elementary School, where Deason was the
principal. In that capacity, Ward was employed by HISD. He was
also the plaintiffs' pastor at the Church.
The allegations against HISD, Deason, and the Church
include negligent hiring and supervision, failure to warn about
Ward's dangerous sexual propensities, intentional infliction of
emotional distress, failure to offer counseling and assistance,
negligent assumption of risk of intentional or criminal conduct,
negligent misrepresentation involving risk of physical harm,
deliberate indifference in ensuring the protection of the
plaintiffs' constitutional rights of bodily integrity and
personal security, fraudulent concealment, and conspiracy.
Ward was served with the plaintiffs' original complaint,
and although he never made a formal appearance, he was deposed by
[End Page 2]
moved for summary judgment on the ground that the plaintiffs'
claims were barred by the statute of limitations.
The plaintiffs countered that the limitations period was
either tolled or the defendants were estopped by their actions
from asserting a statute of limitations defense. To support
these claims, the plaintiffs asserted several tolling and
estoppel doctrines, including unsound mind, fraudulent
concealment, the discovery rule, and equitable estoppel.
The district court granted summary judgment to the
defendants and issued a show cause order directing the plaintiffs
to demonstrate why the case against Ward should not also be
dismissed. The plaintiffs filed a timely notice of appeal of the
court's judgment and requested the district court to hold in
abeyance the case against Ward pending resolution of this appeal.
The district court entered an order administratively closing the
case until the appeal is resolved by this court. On August 11,
2000, pursuant to a request for clarification from this court,
the district court entered a final judgment pursuant to Rule
54(b) for the defendants' summary judgment claims.4
the parties. The record does not indicate that Ward was served
with the plaintiffs' First Amended Complaint. Apparently, Ward
pleaded guilty in an unrelated criminal matter to molesting a
young boy who is not a plaintiff in this case. Therefore, for
purposes of this opinion, the "defendants" are HISD, Deason, and
Any concerns about jurisdiction were resolved by the
issuance of this final judgment. Although this action involves
multiple parties, the district court found, despite Ward's
failure to join in the motion for summary judgment, that the
question at issue is equally applicable to his claims and that
all parties would suffer economic hardship from further delay.
[End Page 3]
II. STANDARD OF REVIEW
This court reviews a district court's grant of summary
judgment de novo, applying the same criteria used by the district
court in the first instance. See Bussian v. RJR Nabisco, 223 F.3d 286
, 293 (5th Cir. 2000). Summary judgment is appropriate
when the record shows "that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Allen v. Rapides Parish Sch. Bd., 204 F.3d 619
, 621 (5th Cir. 2000) (citation omitted). "[W]e must view all
facts in the light most favorable to the nonmovant." Cardinal
Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686
(5th Cir. 1999).
This court also reviews a district court's decision
concerning the tolling of limitations de novo. See Rashidi v.
Am. President Lines, 96 F.3d 124
, 126 (5th Cir. 1996).
On appeal, the plaintiffs argue that the district court
erred in granting summary judgment to the defendants on the
issues of unsound mind, fraudulent concealment and fraud, the
discovery rule, equitable estoppel, and conspiracy.
A. Accrual of Cause of Action
Before addressing the merits of the plaintiffs' claims, we
must first determine when the cause of action accrued, as it is
from that point that the limitations period is measured. There
Rule 54(b) is therefore satisfied.
[End Page 4]
is no federal statute of limitations for § 1983 actions, and the
federal courts borrow the forum state's general personal injury
limitations period. See Owens v. Okure, 488 U.S. 235
(1989); Rotella v. Pederson, 144 F.3d 892
, 897 (5th Cir. 1998).
Texas has a limitations period of two years for personal injury
actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp.
2000); Jackson v. Johnson, 950 F.2d 263
, 265 (5th Cir. 1992). In
1995, the Texas legislature adopted a special limitations statute
providing that personal injury actions arising as a result of
conduct that violates sexual assault provisions of the Texas
Penal Code may be brought within five years from the date that
the cause of action accrues. See TEX. CIV. PRAC. & REM. CODE ANN. §
Although the federal courts look to state law to determine
the applicable statute of limitations, they look to federal law
to determine when the cause of action accrued. See Pete v.
Metcalfe, 8 F.3d 214
, 217 (5th Cir. 1993). Under federal law, a
cause of action accrues at the time the plaintiff "knows or has
reason to know of the injury which is the basis of the action."
Id. (internal quotations and citation omitted); see also
Piotrowski v. City of Houston, 51 F.3d 512
, 516 (5th Cir. 1995).
We agree with the district court that the causes of action
accrued prior to the plaintiffs' eighteenth birthdays. In their
We agree with the district court that we need not
determine whether the two-year or five-year limit applies to the
instant action. If the statute of limitations is not tolled, the
causes of action are time-barred even under the longer five-year
[End Page 5]
depositions, all three plaintiffs testified that, although they
did not speak of the abuse or "learned not to think about it,"
they knew the conduct was wrong.6 The plaintiffs' causes of
action accrued when they realized the conduct was wrong because
it was at that time that the plaintiffs "kn[ew] or ha[d] reason
to know of the injury which is the basis of the[ir claims]."7
See, e.g., Chapman v. Homco, Inc., 886 F.2d 756
, 758 (5th Cir.
1989) (holding that limitations period began on date of discharge
from employment, not on date of discovery of discriminatory
intent); Longoria v. City of Bay City, 779 F.2d 1136
(5th Cir. 1986) (finding limitations period began to run when the
flooding occurred, not when plaintiffs learned the city had been
on notice of flooding potential and had fraudulent motive).
The cause of action accrued when the "wrongful act cause[d]
some legal injury, even if the fact of injury is not discovered
until later, and even if all resulting damages have not yet
occurred." S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).
Therefore, whether or not the plaintiffs were aware of the extent
of the damage caused by Ward's actions, their causes of actions
Doe I testified that he kept the abuse by Ward a secret
from 1981 to 1995, although it was always in his mind tormenting
him. Doe II testified that he blocked out many of the memories
of abuse and learned not to think about it, but he never forgot
what Ward had done to him. Doe III testified that by the time he
was eleven or twelve years old he knew what Ward was doing to him
was wrong, and he thought about telling his parents.
We also note what is not an issue. This is not a situation in which the plaintiffs assert they have repressed the
memories of the abuse and, therefore, did not "know" of the
[End Page 6]
accrued prior to their eighteenth birthdays.8 As such, unless
the statute of limitations is tolled or the defendants are
estopped from asserting limitations as a defense, the plaintiffs'
causes of action are time barred.
B. Unsound Mind
The plaintiffs assert that they suffered from the disability
of unsound mind and that, therefore, the limitations period
should be tolled. Specifically, they argue that they suffer from
"Traumatic Bonding," "Learned Helplessness," and Post-Traumatic
Stress Disorder, as well as "denial, impaired cognitive
appraisals, guilt, shame, self-blame, etc.," and therefore
"failed to appreciate the life-long injury that had been
inflicted upon them."
A federal court applying a state statute of limitations
should give effect to the state's tolling provisions as well.
See Pete, 8 F.3d at 217. The Texas tolling provisions provide
that when a person is of unsound mind at the time his cause of
action accrues, the applicable statute of limitations will be
tolled until the disability is removed. See TEX. CIV. PRAC. & REM.
CODE ANN. § 16.001; Helton v. Clements, 832 F.2d 332
, 336 (5th
Cir. 1987). The purpose of the statute is "to suspend limitation
with respect to persons who have no access to the courts."
Helton, 832 F.2d at 336 (internal quotations and footnote
We need not decide the exact moment the causes of action
accrued because there is no dispute that the causes of action
were tolled until the end of the plaintiffs' minority at age
[End Page 7]
omitted). It is also designed to protect persons who are unable
"to participate in, control, or even understand the progression
and disposition of their lawsuit." Ruiz v. Conoco, 868 S.W.2d
752, 755 (Tex. 1993).
The term "unsound mind" generally "has been interpreted to
mean that such a person is unable to manage his affairs or to
understand his legal rights or liabilities." Helton, 832 F.2d at
336 (internal quotations and footnote omitted). However, under
Texas law, a person of "unsound mind" need not be adjudicated
incompetent to prevent summary judgment. See Casu v. CBI Na-Con,
Inc., 881 S.W.2d 32, 34 (Tex. App. â€" Houston [14th Dist.] 1994,
no writ).9 "To prevent summary judgment, it is only required
that the plaintiff raise the issue of mental incompetency." Id.
The plaintiffs argue that their "Traumatic Bonding" with
Ward and "Learned Helplessness" made them unable to assert their
rights "with respect to the wrong committed by Ward and the
institutional defendants." They argue that traumatic bonding is
a "defensive attempt" to insulate against fear and helplessness.
Although the courts do not require that the plaintiff be
adjudicated incompetent, they require a showing of serious mental
injuries. In Casu v. CBI NA-CON, Inc., no writ), cited by the
plaintiffs, the plaintiff had not been adjudicated incompetent,
but he had been diagnosed as incompetent by his doctor. In that
case, the plaintiff suffered from acute psychosis with significant paranoid features caused by exposure to a chemical
explosion. See 881 S.W.2d at 34. The doctor's affidavits in
Casu noted that plaintiff's cognitive functioning was defective
and he suffered from confused thinking, problems with sustained
attention, concentration, and judgment, and impaired memory. See
id. Notably, one year after Casu, a Texas court of appeals stated in Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 547
(Tex. App. 1995), that "in general, â€˜persons of unsound mind' and
â€˜insane persons' are synonymous."
[End Page 8]
The plaintiffs assert further that they were also disabled by
their mental condition of "denial." We agree with the district
court that even taking the assertions of the plaintiffs as true,
due to the above interpretation of "unsound mind" under Texas
law, the plaintiffs' conditions simply do not reach the level of
incapacity required to toll the statute of limitations.10
The Texas courts have generally applied "unsound mind" to
toll the limitations period in cases in which the plaintiffs'
injuries were substantial and prolonged, preventing them from
being cognitively aware of, and lending assistance to, their
lawsuit. See, e.g., Palla v. McDonald, 877 S.W.2d 472, 473-77
(Tex. App. - Houston [1st Dist.] 1994, no writ) (finding summary
judgment on limitations bar improper where plaintiff suffered
permanent brain damage and blindness); Felan v. Ramos, 857 S.W.2d
113, 116-17 (Tex. App. - Corpus Christi 1993, writ denied)
(finding summary judgment on limitations bar in error when
plaintiff was unconscious from date of surgery until death two
years later); Tinkle v. Henderson, 730 S.W.2d 163, 165 (Tex. App.
- Tyler 1987, writ ref'd n.r.e.) (finding material fact issue as
The plaintiffs contend that the district court "treated
the Defendants' expert opinions as effectively undisputed." From
our review of the record, the district court thoroughly examined
the evidence presented by both sides and found that "the very
real psychological and emotional damages suffered by Plaintiffs"
did not establish a genuine material issue of fact regarding
unsoundness of mind as defined in Texas case law.
[End Page 9]
to mental competency when plaintiff suffered brain damage caused
by oxygen deprivation).11
In the present case, all three plaintiffs have participated
in life activities that belie a claim of their inability to
manage their own affairs, appreciate their legal rights, or
participate in their lawsuit.12 They have held down jobs, been
married, participated in legal proceedings, and in some cases,
joined the military. This evidence shows that the plaintiffs
are, and have been capable of, managing their own affairs and
By contrast, Texas courts deny tolling based on the
unsound mind disability when the facts show the plaintiff is able
to assert his legal rights. In Helton, this court refused to
toll the limitations period when the facts alleged by the
plaintiff did not show that his psychological depression rendered
him unable to manage his affairs or comprehend his legal rights,
but demonstrated only that it distracted him from pursuing his
cause of action. Helton v. Clements, 832 F.2d 332
, 336 (5th Cir.
1987). This court stated that the plaintiff's psychological
condition was insufficient to establish unsoundness of mind where
the evidence showed that "he undertook other activities such as
going back to graduate school during this period." Id.
Doe I attended Oklahoma Baptist University from 1990 to
1991, and East Texas Baptist University from 1991 to 1994, during
which time he applied for financial aid and received both loans
and scholarships. He was married in 1997 and divorced in 1998.
For the divorce proceeding, he hired an attorney, went to court,
and signed the relevant legal paperwork. In 1999, he joined the
navy, passing all the required mental and physical tests, and
began training to become a ship's navigator.
Doe II served in the Marine Corps for two years. He has
been married for five years and has two children. He and his
wife separated at one point during their marriage, at which time
he hired an attorney to represent him in his divorce. He opened
up a rodeo arena, but was ultimately forced into bankruptcy
proceedings for which he hired an attorney and in which he
Doe III is divorced with two children. He represented
himself in the divorce. He maintains regular visits with his
children and understands his support obligations. He attended
Kilgore College for two or three years and has worked in sales at
Texas Kilgore Tire Center for almost ten years.
[End Page 10]
participating in a lawsuit since their eighteenth birthdays.
Although the plaintiffs suffered very real harm at the hands of
Ward, they are not of unsound mind as contemplated by the Texas
statute of limitations, despite the diagnoses by their experts.
Therefore, the district court did not err in refusing to toll the
limitations period based on unsound mind.
C. Fraudulent Concealment, Fraud, and the Discovery Rule
The plaintiffs also assert that the district court erred in
granting summary judgment to the defendants on three other claims
that would have tolled their causes of action: fraudulent
concealment, fraud,13 and the discovery rule. The Texas Supreme
Court has stated that there are essentially two classes of cases
in which the limitations period is tolled due to deferred accrual
of a cause of action: "those involving fraud and fraudulent
concealment, and all others. The deferral of accrual in the
latter cases is properly referred to as the discovery rule."
S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Fraudulent
concealment is based on an equitable estoppel theory to prevent a
defendant from invoking a limitations defense. See Borderlon v.
Peck, 661 S.W.2d 907, 908 (Tex. 1983). The discovery rule, on
The plaintiffs assert that fraud is a separate theory
that will toll the statute of limitations. However, although
they are two different theories, the tolling analysis is the same
for both. "[T]he cases in which we have deferred accrual of
causes of action for limitations purposes fall into two
categories: those involving fraud and fraudulent concealment, and
all others . . . . We observe the distinction between the two
categories because each is characterized by different substantive
and procedural rules." S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.
1996). Therefore, we refrain from analyzing fraud as a separate
[End Page 11]
the other hand, may toll the limitations period when "the nature
of the injury incurred is inherently undiscoverable and the
evidence of injury is objectively verifiable." Computer Assocs.
Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994).
1. Fraudulent Concealment
"Where a defendant is under a duty to make disclosure but
fraudulently conceals the existence of a cause of action from the
party to whom it belongs, the defendant is estopped from relying
on the defense of limitations until the party learns of the right
of action or should have learned thereof through the exercise of
reasonable diligence." Borderlon, 661 S.W.2d at 908. The
estoppel effect lasts only until "a party learns of facts,
conditions, or circumstances which would cause a reasonably
prudent person to make inquiry, which, if pursued, would lead to
discovery of the concealed cause of action." Id. at 909.
We agree with the district court that, even assuming a
continuing duty to disclose existed, the plaintiffs possessed
sufficient knowledge by age eighteen of facts or circumstances
that would cause a reasonable person to inquire further and lead
to the discovery of the concealed cause of action. Although a
person may be relieved of diligence in discovering an injury when
owed a fiduciary duty, "when the fact of misconduct becomes
apparent it can no longer be ignored, regardless of the nature of
the relationship." S.V., 933 S.W.2d at 8.14
"[T]he fiduciary rationale is, in reality, a variation on
the inherently undiscoverable element." Computer Assocs., 918
S.W.2d at 456. Thus, the fiduciary relationship is properly
[End Page 12]
Although the plaintiffs argue that they were ignorant of the
defendants' concealment, they were painfully aware of the abuse
by Ward. The plaintiffs do not allege that they were deceived
into thinking that they were not being abused when they were.
See S.V., 933 S.W.2d at 8 (stating that plaintiff did not, and
could not, allege fraudulent concealment when she was fully aware
of the episodes of abuse).
The district court was correct in finding that the
plaintiffs had sufficient knowledge to put them on notice of
their claims. As discussed in the previous section, although
each of the plaintiffs attempted to block out memories of the
abuse, none of them forgot what had happened, and each knew that
Ward's conduct was wrongful. The plaintiffs also knew that Ward
was employed by HISD and the Church. Under federal law, a cause
of action accrues, and the limitations period begins to run, when
the plaintiff knows of his injury or has sufficient information
to know that he has been injured. See Piotrowski v. City of
Houston, 51 F.3d 512
, 516 (5th Cir. 1995). The plaintiff need
not know that a legal cause of action exists; he need only know
facts that would support a claim. See id.; see also Longoria v.
City of Bay City, 779 F.2d 1136
, 1138-39 (5th Cir. 1986) (holding
that the limitations period began to run when the flooding
occurred, not when the plaintiffs learned the city had been on
notice of the flooding potential and had a fraudulent motive).
analyzed in relation to the plaintiffs tolling theories and not
as a separate tolling theory of its own.
[End Page 13]
Here, the plaintiffs had sufficient facts to know they had been
injured and had sufficient information that would lead a
reasonable person to inquire further. The district court did not
err in finding that fraudulent concealment did not toll the
2. The Discovery Rule
The plaintiffs argue further that the limitations period was
tolled by the discovery rule. The "discovery rule applies in
cases where the injured party did not and could not know of its
injury at the time it occurred, that is, when the injury is
inherently undiscoverable." Bayou Bend Towers Council of Co-
Owners v. Manhattan Constr. Co., 866 S.W.2d 740, 743 (Tex. App. -
Houston [14th Dist.] 1993, writ denied).
The plaintiffs argue that there is a fiduciary relationship
between the defendants and the plaintiffs. Under Texas law, a
fiduciary's misconduct is presumed to be inherently
undiscoverable. See S.V., 933 S.W.2d at 8. However, even
assuming arguendo that a fiduciary relationship exists between
the parties, not all injuries caused by fiduciaries are
undiscoverable. In Computer Associates, the Texas Supreme Court
said that "in the fiduciary context, it may be said that the
nature of the injury is presumed to be inherently undiscoverable,
although a person owed a fiduciary duty has some responsibility
to ascertain when an injury occurs." 918 S.W.2d at 456. Thus,
the presumption of undiscoverability can be overcome with a
showing that the plaintiffs actually had knowledge of the injury.
[End Page 14]
This is consistent with the Texas Supreme Court's statement in
S.V. that apparent misconduct cannot be ignored, regardless of
the fiduciary nature of the relationship. See S.V., 933 S.W.2d
A Texas court of appeals stated in Bayou Bend that a
plaintiff need not know the full extent of his injury because it
is the discovery of the injury, not all of the elements of the
cause of action, that starts the limitations clock. See Bayou
Bend, 866 S.W.2d at 743 ("[A]ll that is required to commence the
running of the limitations period is the discovery of an injury
and its general cause, not the exact cause in fact and the
specific parties responsible." (emphasis added)).
As discussed above, the plaintiffs knew they had been
injured by Ward by the time of their eighteenth birthdays. They
also knew that Ward was employed by HISD and the Church as that
was the context in which they came in contact with Ward. This
should have been sufficient knowledge by the plaintiffs that
there was nothing left for them to "discover" for tolling
purposes.15 That the plaintiffs may not have fully appreciated
the extent of their injuries due to the abuse by Ward, as put
forth by their experts, is not controlling. "The fact that a
party may not immediately be able to determine the total amount
of damages it may suffer does not toll the statute of
limitations." Bayou Bend, 866 S.W.2d at 744. There is no error
See Bayou Bend, 866 S.W.2d at 742 ("The discovery rule
imposes a duty on the plaintiff to exercise reasonable diligence
to discover facts of negligence or omission.").
[End Page 15]
in holding that the limitations period was not tolled by the
D. Other Claims
1. Equitable Estoppel
The plaintiffs argue further that the doctrine of equitable
estoppel prevents the defendants from claiming the benefits of
the limitations period. To invoke equitable estoppel, a party
must prove: "(1) a false representation or concealment of
material facts; (2) made with knowledge, actual or constructive,
of those facts; (3) with the intention that it should be acted
on; (4) to a party without knowledge or means of obtaining
knowledge of the facts; (5) who detrimentally relies on the
representations [or concealments]." Johnson & Higgins, Inc. v.
Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998). The
effect of such estoppel is not to suspend the running of the
statute of limitations; "rather, the effect is simply to preclude
the defendant from interposing limitations when it has induced
the plaintiffs not to file suit, within the limitations period,
on a cause of action the plaintiffs know they have." Palais
Royal, Inc. v. Gunnels, 976 S.W.2d 837, 849 (Tex. App. - Houston
[1st Dist.] 1998, writ dism'd by agr.).
The plaintiffs assert that the defendants remained silent
when they knew that Ward had abused young boys, thereby
effectively assuring the plaintiffs of Ward's trustworthiness.
The defendants argue that equitable estoppel is inapplicable
because one of the elements of estoppel is that the plaintiff
[End Page 16]
lack knowledge of a material fact. Because the plaintiffs knew
they had been abused by Ward, where Ward worked, and who
supervised him, the defendants argue that they could not have
prevented the plaintiffs from knowing a material fact.
In Leonard, a Texas court of appeals stated that the
doctrine "presupposes that the plaintiff knows those facts
[necessary to constitute accrual of a cause of action] but does
not sue on the cause of action because the defendant has induced
him not to sue." Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex.
App. - Austin 1987, writ ref'd n.r.e.). The plaintiffs knew
about the abuse by Ward and certainly knew the abuse was wrong by
the time they were eighteen. The plaintiffs fail to identify any
representations by the defendants to the plaintiffs after their
eighteenth birthdays that induced them not to file their lawsuit.
A plaintiff "may not continue to rely upon the defendant's
original inducement beyond a point when it becomes unreasonable
to do so." Id. Here, the plaintiffs cannot rely on alleged
misrepresentations made to them as minors when they knew about
the abuse upon reaching majority. The district court did not err
by refusing to apply equitable estoppel.
2. Statutory Duty to Report
The plaintiffs argue next that the defendants had a
statutory duty to report suspicions of child abuse pursuant to
the Texas Family Code. See TEX. FAM. CODE ANN. § 261.101 (Vernon
Supp. 2000). Further, the plaintiffs note that a failure to
report suspected child abuse is a criminal offense. See id.
[End Page 17]
§ 261.109 (Vernon 1996). The plaintiffs thus claim that because
the defendants violated their statutory duty to report Ward, they
are estopped from asserting a limitations defense.
The Texas Supreme Court has stated that the mere fact that
the legislature has adopted a criminal statute does not
necessarily mean the statute is a standard for civil liability.
See Perry v. S.N., 973 S.W.2d 301, 304 (Tex. 1998). In Perry,
the Texas Supreme Court held that "it is not appropriate to adopt
Family Code section 261.109(a) as establishing a duty and
standard of conduct in tort." Id. at 309. Therefore, the Perry
plaintiffs could not maintain an action for negligence per se
against the defendants for failing to report incidents of child
Because the child abuse reporting statute does not provide a
standard of civil liability for negligence per se, it does not
provide a standard for fraud. If the reporting statute fails to
support a fraud claim, it cannot support a claim to toll the
limitations period based on fraud.
Finally, the plaintiffs argue that "Texas law clearly
recognizes a cause of action for civil conspiracy" and that the
district court should have found "that fact issues regarding the
defendants' conspiracy preclud[ed] the granting of summary
judgment." Civil conspiracy is a claim on the merits, which
itself is subject to a two-year statute of limitations. See
Redman Indus., Inc. v. Couch, 613 S.W.2d 787, 789 (Tex. App. -
[End Page 18]
Houston [14th Dist.] 1981, writ ref'd n.r.e.); see also TEX. CIV.
PRAC. & REM. CODE § 16.003(a) (Vernon Supp. 2000). Therefore, the
plaintiffs' argument fails to support a tolling of the
For the above-stated reasons, we AFFIRM the ruling of the
[End Page 19]