District Judge W. Stacy Trotter has slated a 9 a.m. Oct. 22 trial for the high-profile lawsuit in the Jan. 14, 2015, collision of a state prison bus and a freight train in which two Texas Department of Criminal Justice guards and eight inmates died 15 miles west of Odessa at the oilfield ghost town of Penwell.
All the suits filed since March 1, 2016, on behalf of the surviving and deceased inmates and their survivors have been consolidated, so Trotter’s 358th Judicial District courtroom will presumably be packed with attorneys representing plaintiffs and the three Texas state agencies named as defendants.
An effort by plaintiffs’ lawyers to bring in Union Pacific Railroad as a defendant failed when Trotter granted a motion by Austin attorney Robert B. Burns Jr. to excuse the Omaha, Neb.-based corporation from the legal affray.
“The incident occurred on an interstate highway when the bus drove off the road,” Burns told the OA in a phone interview. “After sliding down the side of the highway, the bus hit the side of a train moving on the tracks. There was no connection with Union Pacific in the cause of the accident.”
Asked if the plaintiffs had tried to involve UP because the Texas Tort Claims Act limits the total possible damages from the state to between $100,000 and $500,000, Burns said, “I can’t speak on their motivation, but we had no liability exposure.”
None of the other lawyers could be reached during the past two weeks, but two gave interviews in May last year.
Representing Karl and Petra Townsend of Fort Worth, whose son Tyler is one of the deceased inmates, Fort Worth attorney Nate Washington blamed the TDCJ, the Texas Department of Public Safety and the Texas Department of Transportation.
A correctional officer and four prisoners survived critical injuries after the westbound 47-passenger white Bluebird bus hit a damaged Interstate 20 guardrail at 7:40 a.m. and careened down the south side of an embankment, hitting the last cars of an eastbound UP freight train.
“The DPS and TxDOT were negligent in not warning about the guardrail, but before that I’m not aware of any pressing reason to make the trip that day,” Washington said in May. “There was no mystery about the weather and icy road conditions, so I don’t know why they even set out.”
The inmates were being moved from the Robertson and Middleton Units southeast of Anson to Sanchez State Jail at El Paso, and the National Transportation Safety Board has said the bus was going 57 mph when its left front tire hit the guardrail. The NTSB said the guardrail was protruding two feet from having previously been hit by vehicles sliding across the median. The bus was following a truck and passing one.
Although the bus was under the 75-mph speed limit, Washington said, it was not traveling slowly enough. “Keep in mind that the Texas Transportation Code requires you to drive an appropriate speed for the conditions,” he said.
“If there is ice on the road or a blinding snowstorm, the law requires that you adjust your speed and slow down.”
Washington said the suit is worth trying even with the limited potential settlement. “It’s not about getting square, it’s about, No. 1, the chance to get answers and, No. 2, being able to walk into a courtroom and ask questions about why it was OK to put a bus on the road during an ice storm,” he said.
“Yes, they were prisoners, but they were still people who had families. There were also people on the bus who were not prisoners, and who is going to ensure change?”
The survivors were TDCJ guard Jason Self of Baird and inmates Remigio Pineda of Odessa, Damien Rodriguez of Midland and Hector Rivera and Terry Johnson Jr. of Dallas. Others with fatal injuries were correctional officers Eligio Garcia, the driver, and Christopher Davis of Abilene and inmates Jeremiah Rodriguez and Jesus Reyna of Odessa, Byron Wilson and Angel Vasquez of Amarillo, Kaleb Wise of Abilene and Adolfo Ruiz and Michael Stewart of Fort Worth.
Assistant attorneys general from Austin have filed answers for all three departments in the Ector County District Clerk’s Office, claiming sovereign immunity.
They say the tragedy “was proximately caused by conditions, instrumentalities, parties, individuals or entities who were not under the direction or control of the TDCJ and for whose conduct the TDCJ is not legally responsible.
“Specifically, the TDCJ pleads that the plaintiffs must show actions by the defendant TDCJ were willful, wanton, negligent or performed with a conscious indifference or reckless disregard,” state attorneys said.
They contend TxDOT was not responsible “because the sole or alternative cause of the incident in question was the negligent or unintended act or commission of an entity or person whose acts or commissions cannot be imputed to TxDOT.”
Making similar arguments for the TDPS, they said, “In the alternative, the accident was unavoidable.”
Adolfo Ruiz’ wife Jennifer and sons are represented by Pampa attorney Mark N. Buzzard, who said last May that the inmates were shackled in pairs without seatbelts and the sole survivors were in the last few rows of seats, which were the only ones bolted down.
Noting a federal law requiring seatbelts on such vehicles was scheduled to go into effect last July, Buzzard said, “Because all the inmates were manacled to their respective seats or each other, they were just stuck.
“All the buses had been purchased empty. The seats were installed by prisoners, and all but the last three or four rows tore loose. Everybody in the other seats perished.”
In the 28 hours before the crash, three eastbound vehicles came through the I-20 median and knocked the 225-foot-long guardrail into the outside westbound lane, the NTSB said.
“These are not well-to-do clients,” Buzzard said. “They need everything they can get. My guy was due to be paroled almost immediately. He had been charged with copying video tapes, which used to be a misdemeanor. He was not a bad kid. He loved his children, and their mother is a lovely lady.”