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Partial Victory Although the ruling went against their clients, two attorneys for survivors and families of victims killed in the Nov. 18, 1999, bonfire collapse at Texas A&M University found good news in the 5th U.S. Circuit Court of Appeals’ April 24 decision in Breen v. Texas A&M University, et al. and five other cases consolidated for appeal. “It’s a landmark partial victory for the victims in the bonfire case,” says Darrell L. Keith, president of Fort Worth’s Keith Law Firm, who represents two survivors and relatives of three students killed in the accident. Steven DeWolf, attorney for the families of two students who died in the bonfire collapse and for two survivors, says the good news for Texas is the three-judge panel in Breen recognized that the 5th Circuit panel that decided Scanlon v. Texas A&M University, et al. in 2003 adopted the “state-created danger” theory at issue in the bonfire cases. “The bad news for this case is they say it was not established at the time of the accident,” says DeWolf, a partner in Bellinger & DeWolf in Dallas. The plaintiffs in the bonfire cases had asserted that Texas A&M and its officials were liable to the plaintiffs under 42 U.S.C. �1983. “Because this court’s pre-November 1999 decisions evince substantial uncertainty as to the existence of even the general right the plaintiffs claim has been violated, those decisions cannot be said to have given defendants fair warning that any of their actions or omissions with respect to the Texas A&M bonfire construction would violate the affected students’ constitutional rights,” Judge James L. Dennis wrote for the 5th Circuit panel, which included Judges Patrick Higginbotham and Jacques Wiener Jr. The panel upheld U.S. District Judge Samuel Kent of Galveston, who granted summary judgment to Texas A&M and its officials on qualified immunity grounds. Texas Solicitor General Ted Cruz, who represents the university and its officials, did not return a telephone call seeking comment before presstime on April 26. DeWolf says his clients will ask the 5th Circuit for a rehearing, or they’ll go straight to the U.S. Supreme Court. No Joking Matter It was supposed to be a joke. On April 16, Barbara Bogart, an assistant district attorney in Bastrop County, wrote, “Pay up or we break your knees” on a court’s appearance/reset notice to the defendant in State v. Edward Charles Moore, a hot check case. Moore’s case is pending in the Bastrop County Court-at-Law. “It was in fun; it was in jest,” Bogart, a seven-year veteran in the district attorney’s office, says of her unusual message to Moore, a Cedar Creek resident. “It certainly was not with the intent of threatening anybody,” she says. Philip Wilson, Moore’s court-appointed attorney, says he saw Bogart write the message on the notice. “I figured she was joking,” says Wilson, president of P.M. Wilson & Associates in Austin. “There’s no actual threat of my client’s knees being broken,” Wilson says. But Moore isn’t laughing. He says his mother was concerned when she saw the message on the court’s notice. “I didn’t take it as a joke,” Moore says. “I took it real personal.” Moore says he took the message as a threat, because it came from an authority figure. “I thought it wasn’t very professional,” he says. Moore says he plans to plead guilty to the theft by check charge and make repayment. Bastrop County District Attorney Bryan Goertz did not return a telephone call seeking comment before presstime on April 26. Bogart says she may have acted unprofessionally when she wrote the note and will apologize to Moore. “I certainly didn’t mean to offend him,” she says.

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