923 N.E.2d 34 (2010)
EVANS
v.
STATE.
No. 20A05-0910-CR-581.
Court of Appeals of Indiana.
February 26, 2010.
BRADFORD, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
NAJAM, J., concurs.
FRIEDLANDER, J., concurs.


786 F.2d 1153
Goodev.Landon
85-6485
United States Court of Appeals,Fourth Circuit.
3/3/86

1
E.D.Va.

CPC DENIED-DISMISSED


193 S.E.2d 745 (1973)
282 N.C. 582
STATE of North Carolina
v.
Gary Patton BRADY.
Supreme Court of North Carolina.
January 18, 1973.
Robert Morgan, Atty. Gen., Raymond W. Dew, Jr., Rafford E. Jones, Asst. Attys. Gen., for the State.
James J. Caldwell, for defendant.
Petition for writ of certiorari by defendant to review the decision of the North Carolina Court of Appeals, 192 S.E.2d 640. Denied. Motion of Attorney General to dismiss appeal of defendant allowed.


<META NAME="Generator" CONTENT="WordPerfect 9">
<TITLE></TITLE>

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00605-CR

The State of Texas, Appellant

v.

Eric Michael Gregory, Appellee

FROM THE COUNTY COURT OF MILAM COUNTY

NO. 24,157, HONORABLE FRANK SUMMERS, JUDGE PRESIDING

PER CURIAM

The State's motion to dismiss this appeal is granted.  See Tex. R. App. P. 42.2(a).
The appeal is dismissed.

Before Justices Jones, Yeakel and Patterson

Dismissed on State's Motion

Filed:   February 10, 2000

Do Not Publish


216 S.E.2d 441 (1975)
26 N.C. App. 387
Harry C. SISKRON, d/b/a City Plumbing Company
v.
TEMEL-PECK ENTERPRISES, INC., et al.
No. 7526SC217.
Court of Appeals of North Carolina.
July 2, 1975.
*444 Hamel, Cannon & Hamel, P.A., by I. Manning Huske and Reginald S. Hamel, Charlotte, for plaintiff.
Weinstein, Sturges, Odom, Bigger & Jonas, P.A., by John J. Doyle, Jr., Charlotte, for defendant.
CLARK, Judge.
When one person confers a benefit upon another which is not required by a contract either express or implied or a legal duty, the recipient thereof is often unjustly enriched and will be required to make restitution therefor. However, this rule is not the case where the person conferring the benefit is a volunteer or intermeddler or where the person conferring the benefit does so without affording the recipient an opportunity to reject the benefit. See D. Dobbs, Remedies, § 4.9 (1973). This latter principle called the "choice principle", does not apply, however, with absolute rigidity but yields at times to special situations cognizable in equity which override a defendant's right of free choice. Nevertheless, it has been said that:
"Where a plaintiff in the performance of his own duty incidentally confers a benefit on the defendant, it is usually held that restitution is not available. Thus, where one in possession of land hires the plaintiff to put an improvement on it, the fact that this inures to the benefit of the owner does not create liability to make restitution." Wade, Restitution for Benefits Conferred Without Request, 19 Vand.L.Rev. 1183, 1204 (1966).
Further,
"A person is ordinarily not required to pay for benefits which were thrust upon him with no opportunity to refuse them. The fact that he is enriched is not enough, if he cannot avoid the enrichment." Wade, Restitution for Benefits Conferred Without Request, 19 Vand.L. Rev. at 1198 (1966).
The concept of the "choice principle" finds cognizance in this State in Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E.2d 434 (1966), wherein the plaintiff-contractor contracted with defendant's mother for the construction of a house upon a lot which was represented by the mother to be owned by her. As it turned out, the plaintiff was mistaken as to the ownership of the lot as it was actually owned by the defendant. The defendant thereafter refused to allow the plaintiff to remove the house from the lot and refused to pay for the improvement. It was held that ". . . where through a reasonable mistake of fact one builds a house upon the land of another, the landowner, electing to retain the house upon his property, must pay therefor . . .." Homes, Inc. v. Holt, supra, at 474, 146 S.E.2d at 439. As is apparent from the above case, the defendant had the "choice" of either allowing plaintiff to remove the house or retaining it. Having elected to retain it, equity required her to pay since she had the choice of returning the benefit conferred even though she could not reject the benefit in advance of its bestowal.
Applying these principles to the facts in the present case, we fail to discern that the defendant Belk was ever given an opportunity to either reject the benefits in advance of their bestowal or to return them after they had been conferred. Under the lease to Temel-Peck Enterprises, Inc., the lessee covenanted to ". . . keep and maintain the improvements, equipment, fixtures and furnishings in good repair", and ". . . make all necessary and appropriate repairs and replacements to the premises." Even though Belk was aware that repairs were being made, it was perfectly proper for him to assume that Temel-Peck was making them pursuant to its covenants in the lease and that the contractor was looking to the lessee for payment, which he in fact was. It would be unreasonable to place upon every lessor of substantial leasehold property the duty of policing every *445 expenditure made for repairs by a lessee who is required under the lease to make repairs. Under the circumstances, the defendant had no opportunity to reject the benefits conferred in advance.
The next question is whether defendant Belk had an opportunity to return in specie the benefits conferred prior to his reentry into the property in January 1972. The answer to this is simply in the negative as the plaintiff personally admitted that the improvements and repairs could not feasibly be removed without closing down the hotel.
We find no special circumstances present in this case which would override Belk's freedom of choice and coerce liability for the benefits conferred upon him. The plaintiff relies upon his good faith, reasonable belief that Temel-Peck was the owner, and Belk's inaction after the newspaper article previously referred to was published as grounds for liability. He further contends that the evidence that someone representing himself to be Belk's vice president told his agent that Temel-Peck owned the hotel is probative of an innocent misrepresentation by Belk. We fail, however, to see how the representations of an unidentified person amount to any kind of representation on Belk's part. Furthermore, there was no evidence whatsoever that Belk was ever aware of plaintiff's mistaken belief as to the ownership of the property. In any event, it is not clear whether ownership in Belk as opposed to Temel-Peck would have made any difference to the plaintiff when he originally formed the contract with Temel-Peck. Under these circumstances, the general rule of equity applies and the defendant Belk, having had no suitable opportunity to accept or decline the benefits, could not be held liable in restitution for the benefits conferred. See generally, LaChance v. Rigoli, 325 Mass. 425, 91 N.E.2d 204 (1950); Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754 (1940); and Kennedy v. Nelson, 37 Ala.App. 484, 70 So.2d 822 (1954).
For the foregoing reasons, we find
No error.
MARTIN and ARNOLD, JJ., concur.


648 F.2d 946
Margarette CURTIS, et al., Plaintiffs-Appellees,v.Alvin J. TAYLOR, Individually and as Secretary of the Stateof Florida, Department of Health andRehabilitative Services, Defendant-Appellant.Margarette CURTIS, et al., Plaintiffs-Appellees,v.Alvin J. TAYLOR, etc., Defendant-Appellant.
Nos. 78-2203, 79-2244.
United States Court of Appeals,Fifth Circuit.
Dec. 19, 1980.

Chester Senf, Asst. Gen. Counsel, Charles Collett, Atty., Florida Dept. of Health & Rehabilitative Services, Tallahassee, Fla., for defendant-appellant.
Legal Services of Greater Miami, Inc., Stephen Maher, Perrine, Fla., Marcia K. Cypen, Legal Services of Greater Miami, Miami, Fla., Florida Legal Services, Robert F. Williams, Tallahassee, Fla., David Fredric Chavkin, National Health Law Program , Washington, D. C., for plaintiffs-appellees.
Appeals from the United States District Court for the Northern District of Florida.
ON PETITIONS FOR REHEARING
Before RUBIN and POLITZ, Circuit Judges, and POINTER*, District Judge.
ALVIN B. RUBIN, Circuit Judge:

1
The opinion in this case, 625 F.2d 645, is modified as follows:

2
1.  The word "defendants" in the caption and in the text of the opinion is changed to "defendant."

3
2. The order in case number 78-2203 is changed from "Appeal dismissed" to "Judgment vacated, case remanded with instructions to the district court to enter an order dismissing count I as moot."1

4
Some of the issues raised in the state's brief were not mentioned in our prior opinion.  We had considered each of them and thought it supererogatory to reject each in explicit terms, particularly because, after deciding that they had no merit, we decided the ultimate substantive issue in the state's favor.  However, because the state again raises these issues on the supposition that they were overlooked, we will state briefly the reasons why we rejected them.2

5
This Circuit is now considering en banc whether exhaustion of administrative remedies is required before resort to federal court under 42 U.S.C. § 1983.  Patsy v. Florida International University, 612 F.2d 946 (5th Cir. 1980) rehearing en banc granted, 617 F.2d 442 (5th Cir. 1980).  In addition, the Supreme Court has granted writs in a case that involves this issue.  Jenkins v. Brewer, -- U.S. --, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980).

6
We do not think it either necessary or desirable to await the decisions in those suits.  Even if the Supreme Court or this court should decide that exhaustion of administrative remedies is necessary before a Section 1983 claim may be asserted, recourse to state agencies has never been required unless the suggested state administrative remedy is adequate.  See 17 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 4233, at 373 (1978); Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 1696 n. 14, 36 L.Ed.2d 488, 498 n. 14 (1973); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970).  Therefore, we assume arguendo for present purposes that, if an adequate state remedy is available, a Section 1983 suitor must resort to it before invoking the aid of a federal court.

7
The state regulation in this case was under attack both because it denied the plaintiff class equal protection under the fourteenth amendment and because it violated the federal statute.  The administrative procedures available to the plaintiff class under Florida's Administrative Procedure Act (APA), Fla.Stat. ch. 120 (Supp.1974), could not provide the plaintiffs with the relief they sought.3

8
Although Section 120.57 of the Act provides for a proceeding of an adjudicatory nature before an administrative hearing officer to challenge agency action, the authority of that hearing officer is limited.  The Florida courts have held that "the administrative hearing officer lacks jurisdiction to consider constitutional issues " Gulf Pines Memorial Park v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978).  See also Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978); E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla.4th Dist.Ct.App.1980).  "The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them nor otherwise impair the judicial function to determine constitutional disputes."  Department of Revenue v. Young American Builders, 330 So.2d 864, 865 (Fla.1st Dist.Ct.App.1976).  See generally Swan, Administrative Adjudication of Constitutional Questions: Confusion in Florida Law and a Dying Misconception in Federal Law, 33 U.Miami L.Rev. 527 (1979).

9
Nor was the administrative hearing officer empowered to consider the invalidity of the state regulations under the applicable federal statutes.  The final order issued by the administrative hearing officer after a Section 120.57 hearing regarding the fifty cent co-payment rule reveals the limited nature of this administrative relief.  That final order provides in relevant part:

10
It is noted that appellants raised in their motions numerous questions of constitutionality, invalidity of statutes, invalidity of regulations, and conflicts of regulations with statutes and with each other.  While many of the arguments appear to be of questionable merit, with respect to the presentation of such issues to him, the Hearings Officer believes that he is invested with only quasi-judicial authority and possesses no general judicial powers such being reserved to the courts alone under Article V of the Constitution of Florida.  Thus, an administrative Hearings Officer has no power to rule on constitutionality, declare a statute or rule invalid, pick from among myriad statutes or rules and declare which is controlling these things call for the exercise of judicial, rather than quasi-judicial, power.

11
The Section 120.57 hearing invoked to challenge the fifty cent co-payment rule could not resolve the plaintiffs constitutional and federal statutory challenges to that rule.  The plaintiffs made the same claims of invalidity in regard to the other rule challenged in this case.  Because the administrative hearing provided by Section 120.57 could not resolve the claims advanced by the plaintiffs, the failure to exhaust that avenue of relief will not bar the resort to federal court in this case.4

12
The state also asserts that the judicial review of agency action provided by the APA Section 120.68 is an adequate remedy.  If this is an argument that state judicial remedies must first be exhausted, the argument has been repeatedly rejected by the Supreme Court.  See, e. g., Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961); McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622, 625 (1963) ("We would defeat (the) purposes (of Section 1983) if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.")  Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281-82 (1975); Preiser v. Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827, 1830, 36 L.Ed.2d 439, 443 (1973).  See generally, C. Wright, Law of Federal Courts 210-11 (1976) (traditional rule that exhaustion of administrative remedies is generally required, though exhaustion of judicial remedies is not required).  On the other hand, the argument may suggest that the state judicial review will supply deficiencies in the state administrative process.  In this light, we note that judicial review under Section 120.68 is limited to the administrative record except where the court directs the agency to conduct a factfinding proceeding to supplement that record.  Fla.Stat. § 120.68(4) & 120.68(6) (Supp.1974).  Moreover, Section 120.68 requires the reviewing court to remand the case to the agency if it finds that the exercise of discretion by the agency violates a constitutional or statutory provision.  The reviewing court is not allowed to substitute its judgment for that of the agency.  Fla.Stat. § 120.68(12)(c) (Supp.1974).  Such a disposition of the complaining party's challenge by a court that, in most cases, conducts its review only after final agency action cannot be said to constitute an adequate administrative remedy.

13
The available administrative procedures could not provide the plaintiffs with the remedy they sought: an adjudication of the validity of the challenged rules under the Constitution and the applicable federal statutes.  Inadequate administrative procedures need not be exhausted before the plaintiffs' claims are entertained in federal court.

14
The district court correctly refused to abstain.  There was no issue of interpretation of state law.  Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); BT Investment Managers, Inc. v. Lewis, 559 F.2d 950, 953 (5th Cir. 1977); Romero v. Coldwell, 455 F.2d 1163 (5th Cir. 1972).  There was no overriding state interest, special state competence or threat to Florida's administration of its own affairs that warranted denying those who challenged Florida's actions access to their chosen federal forum.  BT Investment Managers, Inc. v. Lewis, 559 F.2d at 955; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).  None of the issues had been decided in state court.  Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977).  While there were pending state proceedings on behalf of persons not named as plaintiffs, these involved the fifty cent co-payment issue, not the question concerning validity of the limitation on payments for physicians' visits.

15
The state does not contend that the district court should have abstained under any established doctrine.  Instead it argues that, while the case "does not present the orthodox abstention situation," Gibson v. Jackson, 578 F.2d 1045, 1051 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979), the "necessity for abstention is to be determined by principled discretion " 578 F.2d at 1048.  Such principled discretion was, indeed, exercised by the district court.  The pending state proceedings involved the fifty cent co-payment rule, which is only one of the issues here.  That issue has since become moot.  Even if the district court might properly have considered abstention as to that issue, there was no reason to abstain from considering the other issues.

16
Having thus shown why we considered it our duty to reach the merits despite the various jurisdictional hurdles asserted by the state, we see no reason to reconsider that decision.  Accordingly, the petition for panel rehearing is DENIED.

*
 District Judge of the Northern District of Alabama, sitting by designation

1
 This is the procedure used in Board of Regents v. New Left Education Project, 414 U.S. 807, 94 S.Ct. 118, 38 L.Ed.2d 43 (1973); Pugh v. Rainwater, 572 F.2d 1053, 1059 & n.10 (5th Cir. 1978) (en banc) and McRae v. Hogan, 576 F.2d 615, 617 (5th Cir. 1978).  It prevents the district court's opinion, which was not reviewed by us, from "spawn(ing) any precedential consequences."  National lawyers Guild, University of Texas Chapter v. Board of Regents, 490 F.2d 97, 98 (5th Cir. 1974)

2
 We note that these issues were raised only in one appeal, 78-2203, which we have found to be moot.  However, they do relate to the entire complaint and the issues considered in appeal 79-2244

3
 In its original brief, the state contended that adequate administrative remedies are available under several sections of Florida's APA.  Two of the sections of that statute that are suggested to supply an adequate remedy clearly do not provide sufficient relief.  Section 120.54(4) permits an administrative attack on a proposed rule on the limited ground that the rule is an invalid exercise of delegated legislative authority.  Section 120.56 provides for a similarly narrow attack on a rule once it is adopted.  Moreover, in Sections 120.54(4)(d) and 120.56(5), the Act specifies that the failure to utilize these procedures shall not constitute a failure to exhaust administrative remedies.  See 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage, 348 So.2d 934, 936 (Fla. 1st Dist.Ct.App.1977).  We shall hereafter consider the sufficiency of the remaining sections of the APA contended by the state to provide adequate administrative remedies

4
 We recognize the possibility that Florida courts might in the future construe the Administrative Procedure Act to confer power to consider both statutory and constitutional claims.  However, in the absence of an authoritative judicial decision, we follow the course we think the courts would likely take, the one indicated by the administrative hearing officer in the hearing on the fifty cent co-payment rule


363 P.2d 935 (1961)
Billy Ray CROSS, a minor, by his father and next friend, M.F. Cross, Petitioner,
v.
W.C. BROWN, dba Brown's Sinclair Station, Sinclair Refining Company and the State Industrial Court, Respondents.
No. 39270.
Supreme Court of Oklahoma.
June 20, 1961.
Rehearing Denied August 1, 1961.
Fischl & Culp, Ardmore, for petitioner.
C.W. Clift, Oklahoma City, for respondent W.C. Brown, dba Brown's Sinclair Station.
Sloan Blair, Ft. Worth, Tex., and Thomas E. Douglass, Tulsa, for respondent Sinclair Refining Co.
Mac Q. Williamson, Atty. Gen., for respondent State Industrial Court.
BERRY, Justice.
Billy Ray Cross, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while employed in a service station owned by W.C. Brown he sustained an accidental injury arising out of and in the course of his employment on January 31, 1960. The lessor of the employer, Sinclair Refining Company, was joined as respondent in the State Industrial Court. At the conclusion of hearings an award was denied. This proceeding is brought by claimant against the employer, W.C. Brown, and Sinclair Refining Company to review the order denying the award.
The evidence discloses that claimant, seventeen years of age was employed as a service station attendant at the place of business of employer, 817 N. Broadway, Ardmore, Oklahoma. He received serious *936 burns when he attempted to use a cigarette lighter while repairing a leak in a gasoline tank of an automobile he was washing. The service station consisted of a main office or service room, a store room and supply room and a room where cars were washed and greased. Minor repairs were made either where the cars were parked for service for oil and gas or in one of the rooms for washing and greasing. The equipment used consisted of pumps for gasoline in the front driveway, necessary tools and equipment for minor repairs, an appliance for breaking rims from tires, air compressors for greasing cars and for lifting cars for washing or greasing. There was a welding torch used to melt lead off battery cables. There was also evidence of use of an electric buffer to buff inner tubes but the employer denied use or ownership of such electric buffer. The employer sold at retail oil and gas products of Sinclair Refining Company and other incidental supplies. He did no wholesale business.
It is first argued that the State Industrial Court erred in finding claimant was not an employee in a hazardous employment. Claimant argues he was an employee of a workshop as the term workshop is defined in 85 O.S. 1951 § 3, par. (11), as follows:
"`Workshop' means any premises, yard, plant, room or place wherein machinery is employed and manual or mechanical labor is exercised by way of trade for gain or otherwise, or incidental to the process of making, altering, repairing, printing, or ornamenting, cleaning, finishing, or adopting for sale or otherwise, any article, or part of article, machine or thing over which premises, room or place the employer of the person working therein has the rights of access or control."
In Mobley v. Brown et al., 151 Okl. 167, 2 P.2d 1034, 83 A.L.R. 1014, in vacating an award made to a delivery boy injured while employed by a retail drugstore, this Court stated:
"Our Workmen's Compensation Law is remedial in its objects and operation and should receive a liberal construction in favor of those entitled to its benefits, but before one is entitled thereto he should be held to proof that he is in a class embraced within the provision of the law, and nothing can be presumed or inferred in this respect."
In Rider v. Bob Hiner Service Station et al., Okl., 321 P.2d 378, this Court, in sustaining an order denying an award, stated:
"The operation of a retail oil and gas filling station is not one of the plants, industries or occupations defined by the Workmen's Compensation Law as hazardous and an employee of a filling station who sustains an injury while engaged in servicing a car is not engaged in a hazardous employment within the meaning of the Workmen's Compensation Law and cannot recover compensation for disability sustained as the result of such injury."
And in Skelly Oil Company v. Waters et al., Okl., 348 P.2d 320, 322, in vacating an award, the Court said:
"In a retail filling station where no repair services are offered or made, use of a hydraulic hoist in greasing or lubricating automobiles is merely incidental to the services rendered, and the presence and use of such hoist alone does not necessarily constitute the filling station a workshop wherein machinery is employed."
We are of the opinion the rule announced in these cases controls here. The equipment used by the employer in the case we are now considering furnishes no basis for a legal conclusion different to that arrived at in the former opinions above mentioned. Claimant relies on Butler et al. v. McKenzie et al., 169 Okl. 30, 35 P.2d 888. This case cited with approval Sunshine Food Stores *937 et al. v. Moorehead et al., 153 Okl. 301, 5 P.2d 1066, wherein an employee of a meat market which used an electrical meat grinder was held to be in hazardous employment. This case was specifically overruled in Hurley v. O'Brien et al., 192 Okl. 490, 137 P.2d 592, in a similar fact situation. Butler v. McKenzie, supra, and Bishop et al. v. Wilson et al., 147 Okl. 224, 296 P. 438, have both been superseded by Skelly Oil Company v. Waters, supra, in so far as they are authority for the rule that an employee of a retail service station is engaged in hazardous employment.
Claimant also cites Dalton Barnard Hardware Co. et al. v. Gates et al., 203 Okl. 268, 220 P.2d 249. This case was based on Harbour-Longmire-Pace Co. v. State Industrial Commission, 147 Okl. 207, 296 P. 456. In both of said cases the employer was manufacturing goods for sale. They are readily distinguishable from this case as is the case of McClung v. Colclasure, 197 Okl. 445, 172 P.2d 623, also cited by claimant, where an employee of a cleaning establishment was held to be engaged in hazardous employment.
Claimant also asserts his employment comes within 85 O.S. 1959 Supp., § 2, which authorizes an award in employments repairing or servicing appliances which utilize electricity, natural gas, liquefied petroleum gas or gasoline. We cannot agree that claimant's employment comes within its provision.
The State Industrial Court did not err in finding claimant was not an employee in one of the lines or industries covered by the Workmen's Compensation Act, 85 O.S. 1951, §§ 2 or 3 or any amendment thereof.
The disposition of this case on the first proposition renders unnecessary the consideration of the remaining propositions.
Order denying award sustained.
WILLIAMS, C.J., and WELCH, DAVISON, HALLEY, JOHNSON, JACKSON, and IRWIN, JJ., concur.
BACKBIRD, V.C.J., dissents.


43 F.Supp.2d 1202 (1999)
Jack D. WILSON and Phyllis J. Wilson, Co-Administrators of the Estate of Kevin S. Wilson, Deceased, and Jack D. Wilson and Phyllis J. Wilson, In Their Own Behalf and On Behalf of the Heirs of Kevin S. Wilson, Plaintiffs,
v.
CITY OF CHANUTE, The Board of County Commissioners of The County of Neosho, John Rausch, Michael A. Benard, James R. Cotton, Sam Budreau, and Sheryl Beagley, All in Their Individual and Official Capacities, Defendants.
No. Civ.A. 97-2496-GTV.
United States District Court, D. Kansas.
February 23, 1999.
*1203 *1204 *1205 Scott E. Giffen, Mission, KS, for Jack D. Wilson and Phyllis J. Wilson.
David S. Brake, Henshall, Pennington & Brake, Chanute, KS, for City of Chanute, John Raush, Michael A. Benard, James R. Cotton and Sam Budreau.
Michael T. Jilka, Wendell F. Cowan, Jr., Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Neosho County Bd. of County Com'rs. and Sheryl Beagley.

MEMORANDUM AND ORDER
VANBEBBER, Chief Judge.
Plaintiffs Jack and Phyllis Wilson bring this action arising out of the death of their son Kevin Wilson, who died of a drug overdose shortly after being released from the City of Chanute, Kansas, police custody on March 7, 1996. On behalf of their son, plaintiffs assert claims under the Fourth and Fourteenth Amendments, and under state law. The case is before the court on the following motions:
(1) Defendants City of Chanute, John Rausch, Michael A. Benard, James R. Cotton, and Sam Budreau's motion (Doc. 89) for summary judgment; and
(2) Defendants Sheryl Beagley and the Board of County Commissioners of Neosho County's motion (Doc. 91) for summary judgment.
For the reasons set forth below, summary judgment is granted to defendants Sheryl Beagley and Neosho County with respect to the federal law claims. The court declines jurisdiction over the state law claims with respect to Beagley and Neosho County. Summary judgment is denied with respect to the City of Chanute, Rausch, Benard, Cotton, and Budreau.

I. Summary Judgment Standards
Summary judgment is appropriate if the evidence presented by the parties demonstrates "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." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue is "material" if it is essential to the proper disposition of the claim. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. Id.
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party will not bear the burden of *1206 persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific evidence that creates a genuine issue of material fact left for trial. Id.

II. Factual Background
The following facts are either uncontroverted or are based on evidence submitted with the summary judgment papers viewed in a light most favorable to the nonmoving party. Immaterial facts and facts not properly supported by the record are omitted.
On March 4, 1996, Kevin Wilson appeared in Neosho County, Kansas, District Court and pleaded guilty to a felony drug offense. A few days later, Wilson telephoned a friend, Deborah Shields, and asked her to receive a Federal Express package on his behalf. Suspicious of the package's contents, Shields informed the Chanute Police Department of Kevin's request and the police arranged to acquire the package from Shields. The package was inspected and the contents were analyzed at the Missouri Southern State College Regional Crime Laboratory. The results indicated that the substance in the package was cocaine.
At 1:30 p.m. on March 7, 1996, Chanute Police Officer Michael Benard arrested Wilson and took him to the Chanute police station. At that time, Wilson was verbal and communicative and was able to stand and walk without assistance. Both Benard and Detective John Rausch testified in their depositions that, after being taken to the police station to give a statement, Wilson verbally agreed to a search of his residence on the condition that they allow him to accompany them to his home.
At approximately 2:15 p.m., Rausch, Benard, and Wilson arrived at Wilson's home and the officers searched the residence. Wilson indicated that he needed to use the bathroom and to take his Prozac. Rausch searched the bathroom prior to allowing Wilson to occupy it and found approximately thirty bottles of medicine. Rausch testified in his deposition that he checked to make sure that Wilson's name was on each bottle and that he believed that all were legal prescription medications. He did not inventory the drugs or notice if any were narcotics. The officers allowed Wilson to be in the bathroom unattended. Rausch later told County Attorney Sheryl Beagley that Wilson had taken some medications while they were searching his house. No contraband nor any evidence was found during the search.
Benard and Rausch advised Wilson that he should prepare to be taken into custody. Wilson told Benard that he needed to take his maintenance medications with him. Rausch and Benard accompanied Wilson to the bathroom to get his medications but neither noticed how many bottles of medication Wilson put in his bag and no inventory was taken.
Benard, Rausch, and Wilson returned to the station at approximately 3:10 p.m. and Wilson continued to walk normally and to speak without slurring. Wilson was allowed to keep possession of his bag of medications on the trip back to the police station and he carried the bag into the station. Benard testified in his deposition that he stayed with Wilson in the police department booking area prior to the bond hearing, which was held the same afternoon, and Wilson responded to all of Benard's questions.
During Wilson's bond hearing, Wilson told Judge Timothy Brazil that he had taken only two Valium. Wilson denied that he had taken any other drugs or that he intended to harm himself. Upon further inquiry, however, Wilson divulged that the county hospital had given him some antibiotics and acyclovir (Zovirax) and that he took Prozac every day. Wilson kept possession of his bag of medications throughout the bond hearing. *1207 During the hearing, Wilson appeared lethargic  swaying while he stood up and leaning against a table, with occasionally drooping eyelids and slightly slurred speech. Judge Brazil suggested that Wilson be examined and set Wilson's bond at $10,000.00 cash or surety. Neither Beagley, Rausch, nor Benard requested that Wilson be released on his own recognizance.
Immediately upon Wilson's return to the police station after the bond hearing, Barbara Laver, a records clerk at the police department, noticed Wilson's sickly appearance and asked Rausch if she could call an ambulance. Without explanation, Rausch refused. After the bond hearing, Wilson called an acquaintance, James Goble, in Denver regarding bail money. Goble testified in his deposition that he was able to understand Wilson's speech during the entire conversation. Laver testified in her deposition that, approximately fifteen minutes after Wilson returned from the hearing, he staggered to the drinking fountain, put pills in his mouth, and took a drink of water. Laver immediately told Rausch that Wilson had taken the pills and again suggested that they call an ambulance.
After the bond hearing, Benard kept track of Wilson until Wilson was released from custody. During that time, Benard continued to question Wilson regarding the number of Valium he had taken and Wilson finally admitted that he did not know how many pills he had taken, but that he had taken a handful of them. Rausch, a licensed emergency medical technician, was standing nearby during that conversation. Benard testified that he believed that he should obtain medical assistance for Wilson if his condition worsened. Benard knew that a drug overdose involved a serious risk of harm and might require immediate medical attention. Wilson's condition deteriorated much more rapidly after the hearing. Wilson was drifting in and out of consciousness, was trying to go to sleep, and was "slush-mouthed."
At approximately 4:00 p.m. after Benard told Rausch that Wilson admitted taking a handful of Valium, and asked if they should call an ambulance, Rausch telephoned the County Attorney's Office. Rausch testified in his deposition that he called to suggest that Wilson be released on his own recognizance. At the time, Beagley was at the county law library taking the statement of a witness in another case. In Beagley's absence, Lisa Black, an employee of the county attorney's office, spoke with Rausch. At the same time, Phaedra Wade, Beagley's secretary, contacted Beagley at the law library so that Black and Wade acted as intermediaries between Rausch and Beagley. Wade testified in her deposition that she overheard Black tell Rausch to call an ambulance or take Wilson to the hospital. Wade also testified in her deposition that it was Beagley's suggestion to release Wilson on bond. Rausch testified that he and Beagley never discussed saving medical expenses by releasing Wilson, but William Edwards, a local attorney who was with Beagley in the library, testified in his deposition that Beagley told him that the police were trying to release Wilson to avoid medical expenses. Approximately five minutes later, Officer James Cotton arrived in the booking area and watched Wilson. Cotton observed that Wilson was unable to sit upright in his chair and that he had slurred speech. He testified that he believed Wilson was drunk.
As a result of Rausch's call, Beagley directed Wade to prepare an own recognizance bond, fill out the conditions and the court date, and take it to the police station for Wilson's signature. Beagley testified in her deposition that she instructed Wade to get Wilson's signature before taking the bond form to Judge Brazil because the judge would not approve it without the defendant's signature. Wade arrived at the police station at approximately 4:11 p.m. to get the bond form signed by Wilson. Wade described Wilson's condition as pale and sweaty when she arrived at the police station. Wilson needed assistance *1208 to get out of a chair and to stand at the counter with Wade. Because Wilson was unable to sign the document without assistance, Wade helped him guide his hand. Wade was concerned that the signature was insufficient. Wade therefore waited for Wilson's sister, Nan Lassman, to arrive and requested her signature also.
Benard testified in his deposition that no one suggested to him that he call an ambulance for Wilson. Benard called Lassman to request that she pick up Wilson and informed her that Wilson was being released on his own recognizance, that he was under the influence of Valium, and that he was unable to drive. At approximately 4:20 p.m., Lassman arrived at the police station to pick up Wilson. At that time, Benard told her that Wilson kept changing his answer to how many pills he had taken  two, then four, then a handful. Lassman testified that, when she arrived, Wilson was totally incoherent, he was unable to respond to her questions, and his eyes were rolled back. Lassman further testified that, at that time, Wilson was semi-conscious or unconscious. Lassman did not believe that Wilson needed immediate medical attention because she believed that the police would have taken care of him if he had. After the bond was signed by Wilson and Lassman, Cotton offered to assist Lassman in taking Wilson home. Benard then said to Wilson, "Come on, Kevin, it's time to go home."
Cotton, Lassman, and Wilson arrived at Wilson's home about four minutes later. Cotton was a licensed EMT employed by Neosho County Hospital. Cotton helped Wilson into his house. Cotton testified that Wilson was conscious at the time. Bill Pennington, Wilson's neighbor, however, witnessed the incident and testified in an affidavit that Wilson appeared unconscious when Cotton was helping him outside. Inside the house, Cotton placed Wilson on his back on the living room floor. After turning on the light, Cotton saw that Wilson's mouth was full of emesis and immediately knew that Wilson had gone into full respiratory and cardiac arrest. Cotton called an ambulance and immediately began cardiopulmonary resuscitation. The ambulance arrived and took Wilson to the hospital, where he was pronounced dead.
That night after Wilson's death, Kansas Bureau of Investigation agent Tom Williams found a handwritten note in the bathroom of Wilson's home. The note indicated to whom Wilson wanted his property to go and stated, "This is no one's fault I want NO MORE PAIN. Please Understand. I love you all."
Dr. Erik Mitchell conducted the autopsy of Wilson on the night of his death. Dr. Mitchell reported that Wilson died of an acute drug overdose, and that Wilson's system contained propoxyphene (Darvon), diazepam (Valium), loxapine (Loxatine), and fluoxetine (Prozac). Dr. Mitchell testified in his deposition that if Wilson had received medical care while he was still conscious or semi-conscious, he would have had a good chance of survival.
During all relevant times, Rausch was the supervisor of the criminal investigation division and he was the supervisor the day of Wilson's death. Rausch testified in his deposition that he has read the entire Chanute Police Department Manual. According to Rausch, the manual directs officers to monitor an arrestee when the arrestee's behavior appears to be affected by the use of drugs. Rausch also testified that intoxicated persons taken into custody were to be placed in a cell monitored by video and personally checked on a periodic basis. Rausch testified in his deposition that he was familiar with the effects of Valium, and that Valium begins to affect a person within one hour, causes a person to relax, and eventually to sleep. Rausch testified that he never believed that Wilson had taken an overdose because he denied that he was trying to harm himself. Rausch testified in his deposition that he was not aware that, during Wilson's previous incarceration, he had been under a suicide watch. Sheriff Rick Wingate, however, testified in his deposition that, on March 7, *1209 1996, prior to Wilson's arrest, Wingate told Rausch about the previous suicide watch.
During all relevant times, Sam Budreau was the chief of police in Chanute and was responsible for the operation of the Chanute Police Department. He was the final policymaker for developing and implementing policies and procedures for the police department. Rausch reported on Wilson to Budreau in Budreau's office at approximately 4:15 p.m. on March 7, 1996, telling Budreau that Wilson was being released to a family member, that Wilson had told Judge Brazil that he had taken two Valium, and that Wilson's actions were consistent with that statement. Budreau's office is approximately fifty to one hundred feet from the booking area. Budreau testified in his deposition that Rausch did not tell him that Wilson admitted taking a handful of pills. Budreau further testified that Rausch did not tell him that Wilson was unable to walk or speak.
During all relevant times, Sheryl Beagley was the Neosho County Attorney. As part of Beagley's normal practice and procedure, she would obtain the release of defendants under modified bond terms without getting prior approval of the judge. Beagley was the final authority on policies in the Neosho County Attorney's Office. Beagley testified in her deposition that, prior to the events involved in this case, she had received a copy of a letter sent from the Neosho County Sheriff to the Chanute Chief of Police expressing concern regarding the lack of medical care provided to detainees before they were sent to the Neosho County Jail.

III. Discussion
Plaintiff asserts claims against each police officer in his individual and official capacities, the City of Chanute, the county attorney, in her individual and official capacities, and Neosho County.

A. Fourth Amendment Claims
Plaintiffs allege that Benard and Rausch violated Wilson's Fourth Amendment right to be free of unreasonable searches. Defendants argue that Wilson consented to the search of his home on the condition that he be allowed to accompany the officers to his house.
The Supreme Court has long held that the "touchstone of the Fourth Amendment is reasonableness." Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). When an officer conducts a search without a warrant, a Fourth Amendment violation occurs unless an exception to the warrant requirement applies. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Specht v. Jensen, 832 F.2d 1516, 1522-23 (10th Cir.1987). Consent to the search is one such exception. Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041; United States v. Bell, 892 F.2d 959, 965 (10th Cir.1989). "A consent to search, however, is valid only if voluntary." United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir.1994). The government bears the burden to prove that the search was voluntary. Id.
In this case, Benard took Wilson into custody at 1:30 p.m. and brought him to the police station. Benard and Rausch testified that, after giving a statement, Wilson orally consented to a search of his residence on the condition that they allow him to be present during the search. Wilson was lucid at the time that he consented to the search. Benard and Rausch complied with Wilson's conditions for the search by allowing Wilson to accompany them to his residence. Defendants have met their burden of showing a voluntary consent to the search.
Plaintiff has offered no evidence to suggest that the consent was coerced or involuntary. Instead, plaintiffs argue that, because Wilson was in custody at the time of the alleged consent, defendants were required to remind Wilson of his Miranda rights. The court disagrees. Although the police are required to give certain warnings to a suspect prior to conducting *1210 any custodial interrogation, an officer's request to search does not constitute interrogation under the Fifth Amendment. McCurdy, 40 F.3d at 1118; see also Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (defining interrogation as "words or actions ... that the officers should know are reasonably likely to elicit an incriminating response from the subject"); United States v. McClellan, 165 F.3d 535, 543-44 (7th Cir. 1999) (request for consent to search not an interrogation because giving consent is not an incriminating statement). Even if the police did engage in custodial interrogation prior to the request for consent to search, "the request for consent to search can be properly separated from whatever illegal interrogation that might have preceded it, thereby making the consent constitutionally valid." Id.; see also United States v. Shlater, 85 F.3d 1251, 1255-56 (7th Cir. 1996) (assertion of Miranda rights does not invalidate subsequently received consent to search); United States v. Knight, 58 F.3d 393, 397 (8th Cir.1995) (same). Thus, the failure of defendants to advise Wilson of his Miranda rights did not invalidate the consent whether or not they conducted a custodial interrogation.
Plaintiffs also argue that because no written consent to search was obtained by the officers, the search was constitutionally infirm. The Constitution does not require that officers procure written consent to search. See United States v. Lewis, 24 F.3d 79, 81 (10th Cir.1994) (voluntary oral consent validated search). Plaintiff has failed to offer any evidence to refute the fact that Wilson gave oral consent to the search of his home. Accordingly, summary judgment is granted with respect to plaintiffs' Fourth Amendment claim.[1]

B. Fourteenth Amendment Claims Against Individual City Defendants
Plaintiffs allege that Rausch, Benard, Cotton, and Budreau violated Wilson's Fourteenth Amendment substantive due process rights through their deliberate indifference to Wilson's serious medical needs resulting from his drug overdose. Defendants argue that they are entitled to qualified immunity.
Once the defendant has properly raised the defense of qualified immunity in a summary judgment motion, [the court applies] a two-part framework. First the plaintiff must show the defendant's conduct violated a constitutional right; second the plaintiff must show the right the defendant's conduct violated was clearly established such that a reasonable person in the defendant's position would have known the conduct violated the right.... In considering whether the plaintiff makes such a showing, we view the evidence in the light most favorable to the plaintiff.
Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997) (citations omitted).

1. Was there a constitutional violation?
"Under the Fourteenth Amendment's Due Process Clause, pretrial detainees are entitled to the same degree of protection against denial of medical care as that afforded to convicted inmates under the Eighth Amendment." Estate of Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir.1994). Thus, the survival of plaintiffs' claim hinges on whether defendants' conduct rose to the level of "deliberate indifference to serious medical needs." Id. (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The deliberate indifference standard applies whether the claim is based on Wilson's physical condition, his suicidal mentality, or both. See Mitchell v. *1211 Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996) (physical condition); Barrie v. Grand County, Utah, 119 F.3d 862, 866 (10th Cir.1997) (suicidal mentality).
Considering the deliberate indifference standard in the Eighth Amendment context, the United States Supreme Court held that:
a prison official cannot be found liable ... unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[I]t is enough that the official acted or failed to act despite knowledge of a substantial risk of serious harm." Id. at 842, 114 S.Ct. 1970; see also Barrie, 119 F.3d at 868-69 (no claim unless custodian knows of and ignores risk). Whether the official was aware of the risk is a question of fact, which is "subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842, 114 S.Ct. 1970.

a. Officer Benard
Officer Benard was with Wilson almost the entire time that Wilson was in custody. Benard witnessed Wilson's deterioration from 3:10 p.m. until his departure from the police station shortly after 4:20 p.m. From 1:30 p.m. when Benard took Wilson into custody until 3:10 p.m. when Benard, Rausch, and Wilson returned from searching Wilson's residence, Wilson was able to walk and talk normally, and was responsive to Benard's questions. During the bond hearing, Wilson became lethargic, with drooping eyelids and slurred speech, and he needed to lean against a table to prevent swaying while he stood in the courtroom. Judge Brazil even suggested that Wilson be examined. By 4:00 p.m., Wilson was drifting in and out of consciousness and "slush-mouthed." When Wade arrived at 4:11 p.m., Wilson was pale and sweaty, was unable to sit upright in his chair, and needed assistance to get out of his chair, to stand at the counter, and to sign the bond form. At 4:20 p.m., Wilson was, at best, semi-conscious, totally incoherent, and unresponsive, and his eyes were rolled back.
Benard knew that Wilson had possession of his maintenance medications the entire time that he was in custody. At his residence, Wilson indicated to Benard that Wilson needed to take his Prozac. At the bond hearing and in the presence of Benard and Rausch, Wilson admitted to Judge Brazil that he took Prozac every day. Wilson eventually admitted to Benard that he had taken a handful of pills. Benard thus knew that Wilson's statement during the bond hearing that he had taken only two Valium was a misrepresentation as to how many pills and the type that he had taken. Benard testified that he kept track of Wilson after the bond hearing until he was released from custody. Viewing the facts in the light most favorable to plaintiffs, Benard was aware that, fifteen minutes after the hearing, Wilson ingested several pills at the drinking fountain.
Benard also testified that he knew that a drug overdose involved a serious risk of harm and may require immediate medical attention. Moreover, Benard believed that he should obtain medical assistance for Wilson if his condition worsened after the bond hearing. Nevertheless, Benard did nothing. Viewing the evidence in the light most favorable to plaintiffs, plaintiffs have shown that Benard displayed deliberate indifference to Wilson's serious medical needs.

b. Detective Rausch
Detective Rausch was also with Wilson as his condition deteriorated in the span of just seventy minutes. Viewing the evidence in the light most favorable to plaintiffs, Rausch witnessed or was informed of every event that Benard witnessed. *1212 Moreover, Rausch knew that there were thirty bottles of medication in Wilson's bathroom when he allowed Wilson to be in the room unattended. Rausch knew that the maintenance medications, which Wilson kept in his possession all day, had been taken from the selection in the bathroom. Rausch also admitted to Beagley later that Wilson had taken some medications while they were searching his residence.
Rausch was a licensed medical technician. He knew that Wilson had misrepresented to Judge Brazil the type and number of pills that he had taken, and that Wilson actually had taken a handful of pills. Several persons suggested to Rausch that he should call an ambulance, but he refused to do so. Immediately after Benard told him that Wilson had taken a handful of pills and Benard asked if they should call an ambulance, Rausch called Beagley to arrange for Wilson's release.
Rausch argues that he never believed that Wilson had taken an overdose because Wilson told Judge Brazil that he was not trying to harm himself. Rausch, however, had been told earlier that same day that, during Wilson's previous incarceration, he was under a suicide watch. Rausch also argues that he should not be liable for allowing Wilson to use his own bathroom or to have possession of legal prescription drugs. Those acts are not the basis of liability here, but rather are evidence of Rausch's knowledge that a drug overdose was involved. This is sufficient to create an inference that Rausch knew of the serious risk of harm to Wilson. Viewing the evidence in the light most favorable to plaintiffs, plaintiffs has shown that Rausch displayed deliberate indifference to Wilson's serious medical needs.

c. Officer Cotton
Officer Cotton did not arrive at the police station until approximately 4:05 p.m., just fifteen minutes before Lassman arrived to take Wilson home. Cotton testified that he believed that Wilson was drunk. Cotton did not witness Wilson's rapid deterioration  only the results. Viewing the evidence in the light most favorable to plaintiffs, however, Cotton was present when Benard told Lassman that Wilson admitted taking a handful of pills and when Lassman saw Wilson's eyes rolled back. Nevertheless, Cotton did nothing to provide medical assistance to Wilson. Plaintiff has offered evidence sufficient to show that Cotton acted with deliberate indifference to Wilson's medical needs while Wilson was in custody.[2]

d. Chief Budreau
"Liability of a supervisor under § 1983 must be predicated on the supervisor's deliberate indifference, rather than mere negligence." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997). Deliberate indifference is met only if the supervisor knows that he is creating a substantial risk of serious harm. Id.
Plaintiffs first argue that Police Chief Budreau personally exercised deliberate indifference to Wilson's serious medical needs. The court disagrees. There is no evidence in the record that Budreau was aware of a substantial risk of serious harm to Wilson. Budreau saw Wilson shortly after his arrest when he was lucid. The evidence indicates that just before Wilson was released Rausch reported to Budreau that Wilson had told Judge Brazil that he had taken two Valium, that Wilson's actions were consistent with that statement, and that Wilson was being released to a family member. Budreau testified that he was not aware that Wilson had taken more pills, or that Wilson was unable to walk or speak. Plaintiffs have failed to establish a genuine issue of material fact regarding Budreau's personal involvement *1213 and deliberate indifference to Wilson's serious medical needs.
Plaintiffs also argue that Budreau's failure to properly train or supervise the other officers constituted deliberate indifference to Wilson's serious medical needs. "[S]upervisor liability requires allegations of personal direction or of actual knowledge and acquiescence." Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir.1992). At the time of Wilson's death, the police department manual only instructed officers to monitor a detainee when his behavior appeared to be affected by the use of drugs. Benard testified that he did not know what the written protocol of the police department was concerning medical attention for detainees. Plaintiffs offered nonhearsay evidence of one other arrestee in need of medical care, who was sent directly to the Neosho County Jail from the Chanute police station. Moreover, Beagley testified in her deposition that she received a copy of a letter from the county sheriff to Budreau expressing concern about the city bringing detainees in need of medical attention to the county jail. Plaintiff has offered evidence of actual notice and acquiescence with respect to a practice of denying necessary medical care to detainees. Such evidence is sufficient to establish supervisor liability for Budreau.

2. Was the law clearly established at the time of the violation?
In light of the court's finding that plaintiff has submitted sufficient evidence to establish the alleged constitutional violations by Benard, Rausch, Cotton, and Budreau, the court must consider whether the specific constitutional right claimed to have been violated was clearly established on March 7, 1996. The Tenth Circuit Court of Appeals has already answered this question. See Martin v. Board of County Comm'rs, 909 F.2d 402, 406 (10th Cir.1990). In Martin, the court held that, at least by 1985, it was clearly established in the Tenth Circuit that "pretrial detainees are entitled under the Fourteenth Amendment's Due Process Clause to the same degree of protection regarding medical attention afforded [to] convicted inmates under the Eighth Amendment." Id. (citing Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir.1985)). The court further stated that, "[p]laintiff has thus identified a clearly established constitutional standard by which [his] inadequate medical attention claim must be judged in the familiar `deliberate indifference to serious medical needs.'" Id. The same standard applies here. On March 7, 1996, the allegedly violated constitutional standard was clearly established in the Tenth Circuit. Summary judgment is denied with respect to the Fourteenth Amendment due process claims against Benard, Rausch, Cotton, and Budreau.[3]

C. Claims against the City of Chanute[4]
Plaintiff claims that the city is liable for the constitutional violations of its officers in this case. Plaintiff alleges that the denial of medical attention rose to a custom within the Chanute Police Department, and that the city failed to adequately train its employees to provide constitutionally required medical attention.
"A plaintiff suing a municipality under section 1983 for the acts of one of its employees must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation." Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316 (10th Cir. *1214 1998). "[M]unicipal liability based on a policy of inadequate training requires proof of the municipality's `deliberate indifference' to its inhabitants  i.e., the failure to train must reflect a deliberate or conscious choice by a municipality." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.1998). Plaintiffs may sufficiently show deliberate indifference by establishing that "the municipality [had] actual or constructive notice that its action or failure to act [was] substantially certain to result in a constitutional violation, and it consciously or deliberately [chose] to disregard the risk of harm." Id. "In the municipal liability context, deliberate indifference is an objective standard which is satisfied if the risk is so obvious that the official should have known of it." Id. at 1307 n. 5.
Plaintiff offered evidence that Budreau had received a letter from the Sheriff expressing concern regarding past incidents in which the Chanute Police Department had sent detainees in need of immediate medical attention to the Neosho County Jail. Such evidence is sufficient to show notice to Budreau acting for the city. Plaintiff has offered evidence that despite that notice the city failed to train its officers in handling detainees in need of immediate medical care. Accordingly, summary judgment is denied to the City of Chanute with respect to the Fourteenth Amendment due process claim.

D. Fourteenth Amendment Claim against County Attorney Sheryl Beagley
Plaintiffs allege that Beagley exercised deliberate indifference to Wilson's serious medical needs by facilitating his release from custody without medical attention. Beagley argues that she is entitled to absolute immunity from suit in her individual capacity because her alleged actions were taken as part of her prosecutorial function. The court agrees.
"[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [her] role as an advocate for the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Absolute immunity covers prosecutorial acts preliminary to the initiation of a prosecution and prosecutorial acts apart from the courtroom. Id. at 272, 113 S.Ct. 2606 (citing Imbler v. Pachtman, 424 U.S. 409, 431 n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Acts in connection with a bail application are part of the initiation and presentation of a prosecution and therefore are shielded by absolute immunity. Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir.1983); see also Brodnicki v. City of Omaha, 75 F.3d 1261, 1267-68 (8th Cir.1996); Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2nd Cir. 1995); Burns v. County of King, 883 F.2d 819, 823-24 (9th Cir.1989).
In this case, after Judge Brazil initially set bail at $10,000 cash or surety bond, Beagley endeavored to change the bond to release Wilson on his own recognizance. Her secretary prepared the bond, took it to the police station, obtained the signatures of Wilson and Lassman, and delivered the form to Judge Brazil. These actions taken in connection with a bail application are within the ambit of absolute immunity.
Plaintiffs argue that Beagley's acts constituted legal advice to the police because Rausch contacted Beagley regarding Wilson's condition and Beagley told him that she would get the bond changed so that Wilson could be released. Absolute immunity has been held inapplicable to legal advice to police during pretrial investigations. Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 507, 139 L.Ed.2d 471 (1997) (discussing Burns v. Reed, 500 U.S. 478, 492-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). In Burns, the Supreme Court rejected the notion that "advising the police in the investigative phase of a criminal case is so `intimately associated with the judicial phase of the criminal process.' that it qualifies for absolute immunity." 500 U.S. at 493, 111 S.Ct. 1934 (quoting *1215 Imbler, 424 U.S. at 430, 96 S.Ct. 984). Absolute protection is unavailable in such circumstances because the prosecutor is involved in the investigative role of the police, not in the prosecutorial function. See Kalina 118 S.Ct. at 507. To the extent that Beagley gave legal advice, however, the advice concerned her advocacy of bail  not an investigative functionand therefore was intimately associated with the judicial process. See Lerwill, 712 F.2d at 438 (advocating bail is part of presentation of a prosecution under Imbler).
Plaintiffs also contend that Beagley's acts were administrative because the acts challenged are the acts of preparing the form and obtaining signatures which led to the release of Wilson. "A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution of for judicial proceedings are not entitled to absolute immunity." Buckley, 509 U.S. at 273, 113 S.Ct. 2606. The court must inquire whether the prosecutor's actions are closely associated with the judicial process. Burns, 500 U.S. at 495, 111 S.Ct. 1934. Beagley's acts in preparing the bond form, whether or not administrative, are integral to her advocation of bail and, therefore, to the prosecution.
Beagley is entitled to absolute immunity. Accordingly, summary judgment is granted to Beagley in her individual capacity on all federal claims. Further, the court declines to exercise supplemental jurisdiction over the remaining state law claims against Beagley. See 28 U.S.C. § 1367(c)(3) (court may decline to exercise jurisdiction over supplemental state law claims if original jurisdiction claims are dismissed); Bauchman v. West High School, 132 F.3d 542, 549 (10th Cir.1997) (court should decline to exercise supplemental jurisdiction over state law claims if federal claims are dismissed before trial), cert. denied, ___ U.S. ___, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998).

E. Claims against Neosho County[5]
Plaintiffs assert that Neosho County is liable for Beagley's actions as Neosho County Attorney. The county counters that county liability is inappropriate because Beagley's actions at issue in this case were taken on behalf of the state of Kansas, not Neosho County. The court agrees.
A prerequisite to local government liability under § 1983 is that the local government's policy caused the constitutional wrong. McMillian v. Monroe County, Alabama, 520 U.S. 781, 117 S.Ct. 1734, 1736, 138 L.Ed.2d 1 (1997) (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The court must therefore identify the officials who have final policymaking authority for the county concerning the actions alleged to have caused the constitutional deprivation. Id. Here, as in McMillian, there is no doubt regarding who has final policymaking authority with respect to advocating bond terms and conditions, but the issue is whether that authority is exercised on behalf of the state or the county. See id. at 1736-37. If Beagley acted on behalf of the state with respect to the conduct at issue in this case, the county is not liable.
The court need not address whether the official acts on behalf of the state or county in an "all or nothing" sense, but must determine "whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue." Id. at 1737. The inquiry is dependent on state law. Id.
"In Kansas, county district attorneys are officers of the state." Oltremari v. Kansas Social & Rehabilitative Service, 871 *1216 F.Supp. 1331, 1347 (D.Kan.1994) (citing State v. Baker, 249 Kan. 431, 444, 819 P.2d 1173 (1991); State v. Berg, 236 Kan. 562, 567, 694 P.2d 427 (1985)). "The philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor." Berg, 236 Kan. at 565, 694 P.2d 427 (quoting State ex rel. Rome v. Fountain, 234 Kan. 943, 945, 678 P.2d 146 (1984)). "The prosecutor is an officer of the state ... who is charged with seeing that the criminal laws of the state are honestly and impartially administered." Id. at 567, 694 P.2d 427.
Several provisions of the Kansas Code of Criminal Procedure confirm that the county attorney acts on behalf of the state in criminal prosecutions. See K.S.A. 19-702 (county attorney has duty to appear and prosecute on behalf of the State); 19-703 (same); 19-711 (in absence, sickness, or disability of county attorney, court may appoint acting county attorney); 19-715 (judges may appoint temporary county attorney for their district); 22-2104 (criminal prosecutions to be brought in the name of the State of Kansas); 22-2202(19) ("prosecuting attorney" defined as one authorized by law to appear on behalf of the State). Plaintiff argues that because the county attorney is paid from the county treasury, she acts on behalf of the county with respect to the issues in this case. The United States Supreme Court, however, has rejected the salary source as the definitive factor in cases involving an individual that makes policy for more than one entity. See McMillian, 117 S.Ct. at 1740. The court finds that Beagley was a final policymaker for the state with respect to prosecuting criminal actions in Neosho County. Because Neosho County cannot be held liable for Beagley's actions in this case, summary judgment is granted to Neosho County on the federal claims. The court declines to exercise supplemental jurisdiction over the remaining state law claims against Neosho County. See § 1367(c)(3); Bauchman, 132 F.3d at 549.

F. Conspiracy Claim
Plaintiffs assert a § 1983 conspiracy claim against Benard, Rausch, and Beagley. "A § 1983 conspiracy claim may arise when a private actor conspires with state actor to deprive a person of a constitutional right under color of state law ... [or] when a plaintiff does not wish to rely exclusively on § 1985(3) with its requirement of class-based, discriminatory animus ..., but could prove a conspiracy to deprive the plaintiff of civil rights under color of state law." Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1449 n. 6 (10th Cir.1990). "Provided that there is an underlying constitutional deprivation, the conspiracy claim allows for imputed liability; a plaintiff may be able to impose liability on one defendant for the actions of another performed in the course of the conspiracy." Id.
As previously stated, Beagley is entitled to absolute immunity from liability under § 1983 and therefore the conspiracy claim is dismissed with respect to her. See Dennis v. Sparks, 449 U.S. 24, 26-27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (absolute immunity protects regardless of conspiracy); Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir.1994) (absolute immunity covers conspiracy claim); Norton v. Liddel, 620 F.2d 1375, 1378-81 (10th Cir.1980) (prosecutor absolutely immune from conspiracy claim). Benard and Rausch, however, do not share the shield of Beagley's prosecutorial immunity. See Norton, 620 F.2d at 1382.
Defendants argue that there is insufficient evidence for a reasonable jury to conclude that Benard, Rausch, and Beagley conspired to deny Wilson his constitutional rights. The court disagrees. The evidence of communication between Benard and Rausch, and Rausch and Beagley is sufficient to create an inference that the three had agreed to deprive Wilson of his substantive due process rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 155, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (presence of officer and sequence of events that followed sufficient to infer conspiracy). *1217 Accordingly, summary judgment is granted to Beagley with respect to the conspiracy claim, and denied to Benard and Rausch.
IT IS, THEREFORE, BY THE COURT ORDERED that defendants City of Chanute, Michael A. Benard, John Rausch, James R. Cotton, and Sam Budreau's motion (Doc. 89) for summary judgment is granted with respect to plaintiffs' Fourth Amendment claim against Michael Benard and John Rausch. The motion is denied in all other respects.
IT IS FURTHER ORDERED that defendants Sheryl Beagley and Board of County Commissioners of Neosho County's motion (Doc. 91) for summary judgment is granted with respect to all of the federal claims. The court dismisses without prejudice the remaining state law claims against Beagley and Neosho County.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.
NOTES
[1]  Because there can be no liability on the part of a governmental unit in the absence of any constitutional violation by a government official, the city is also entitled to summary judgment on this claim. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir.1993).
[2]  The court recognizes that Cotton admirably attempted to save Wilson's life after Wilson was out of custody, but such effort is irrelevant to whether he was deliberately indifferent to Wilson's medical needs while Wilson was in custody.
[3]  It was also clearly established that supervisor liability would result from "actual knowledge and acquiescence." See Woodward, 977 F.2d 1392, 1400 (10th Cir.1992).
[4]  Here, the court considers claims against the city and against the city employees in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (official capacity suits are same as suits against government entity itself); Watson v. City of Kansas City, Kan., 857 F.2d 690, 695 (10th Cir.1988) (same).
[5]  Here, the court considers claims against the county and against Beagley in her official capacity. See Graham, 473 U.S. at 165, 105 S.Ct. 3099 (official capacity suits are same as suits against government entity itself); Watson, 857 F.2d at 695 (same).


124 S.W.3d 350 (2003)
Mary SANCHEZ, Appellant,
v.
MATAGORDA COUNTY, Appellee.
No. 13-01-869-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
December 18, 2003.
*351 Lynn J. Klement, Angleton, for appellant.
Larry G. Black, Austin, for appellee.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and DORSEY.[1]

OPINION
Opinion by Justice RODRIGUEZ.
This is a wrongful-death action. Mary Sanchez appeals from a summary judgment predicated on the sovereign immunity of appellee, Matagorda County (the County). By a single point of error, appellant generally contends the trial court erred in granting the summary judgment because the County waived its immunity under the Texas Tort Claims Act (the Act) when it added planks to the bridge and created a special defect which allegedly caused the death of her husband, Edward Sanchez. We affirm.

I. Background
Mr. Sanchez drowned on December 27, 1997, when the car he was driving went off a wooden, one-lane bridge over Caney Creek on Farm to Market Road 457 in Matagorda County. The County built the bridge before 1970 by laying boards perpendicular to the roadway. After 1970, the County redesigned the bridge by adding planks running longitudinally to the road. The new design allowed for additional load-bearing capacity. The planks placed over the perpendicular planks did not, however, extend over the entire width of the bridge. This resulted in less than a three inch drop off on the edge of the driving surface. Cost was one of the factors considered by the County when it decided that it would not extend the longitudinal planks the entire width of the bridge.
Following the death of her husband, appellant sued the County alleging the bridge was defective and that the condition of the bridge caused his death. The County moved for a traditional summary judgment urging that the alleged defects in the bridge were not special defects; the elements of a premises cause of action could not be proven; and all claims were barred by sovereign immunity. In granting the County's summary judgment motion, the trial court found that:
1. The bridge in question in this case was constructed before January 1, 1970, therefore, the TEXAS [TORT] CLAIMS ACT did not apply to the claims of alleged defects which existed in the bridge before that date;
2. The alleged defects in the bridge are premise defects and not special defects as defined by the law; and

*352 3. Any claims based upon design changes in the bridge made or which the [C]ounty failed to make after January 1, 1970, are barred under TEX. CIV. PRAC. & REM.CODE § 101.056, because they are discretionary acts for which sovereign immunity has not been waived.
Judgment was entered against appellant, and this appeal ensued.

II. Standard of Review
In the appeal of a traditional summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action or whether the defendant has conclusively established all elements of his affirmative defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Crain v. Smith, 22 S.W.3d 58, 59 (Tex.App.-Corpus Christi 2000, no pet.); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant's favor. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985). The propriety of a summary judgment is a question of law; therefore, we review the trial court's granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex.App.-Corpus Christi 2000, pet. denied).

III. Immunity
By her sole point of error, appellant first contends that the addition of the planks to the bridge was not a discretionary act within the scope of section 101.056. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 1997). As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex.1994). Whether a particular claim is excepted from the general doctrine of sovereign immunity is entirely dependant on the statutory language. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). The Texas Tort Claims Act, for example, provides that government units are liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1997).[2]
Sovereign immunity is not waived under the Act, however, for acts of a governmental unit "if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." Id. § 101.056(2) (Vernon 1997). The supreme court has explicitly held that the "[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions." State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999).
Appellant argues that the County was negligent in the implementation of its decision to add wood plank runners to the *353 roadway portion of the bridge but not to extend them the entire width of the bridge.[3] However, County Commissioner George Deshotels testified that the decision not to lay the planks to the edge of the bridge was part of the bridge design and was based partially on the increased cost that would have been incurred. This decision of a governing body to choose one design over another is the essence of the exercise of discretion. See id. This is not a situation where a governmental employee negligently performed the task he was ordered to do, so as to possibly create governmental liability. See State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979); see also City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994); J. Bonner Dorsey, Whither the Texas Tort Claims Act: What Remains after Official Immunity?, 33 St. Mary's Law Journal 235 (2002). Therefore, taking as true all evidence favorable to appellant and indulging every reasonable inference in her favor, we conclude the addition of the longitudinal planks to the bridge, a significant redesign and repair of the bridge after 1970, was a discretionary act of a county government for which its sovereign immunity has not been waived. See Cathey, 900 S.W.2d at 341. The County has conclusively established its affirmative defense of immunity. See Velsicol Chem. Corp., 956 S.W.2d at 530; Crain, 22 S.W.3d at 59.
IV. Defect Claims
To circumvent the County's sovereign immunity, appellant contends the addition of the planks created either a special defect or a premises defect. However, while the Act waives immunity from suit under certain circumstances, including some premises and special defect claims,[4] the waiver does not extend to damages arising from governmental discretionary conduct. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056(2) (Vernon 1997). Under section 101.056, the County retained its immunity for the bridge design. See id.; Rodriguez, 985 S.W.2d at 86 (citing Villarreal v. State, 810 S.W.2d 419, 422 (Tex. App.-Dallas 1991, writ denied)). The design of the bridge involved policy-level decisions and, as such, was the result of the County's discretionary judgment, thus, a discretionary act. See Rodriguez, 985 S.W.2d at 86. Therefore, neither appellant's special defect theory nor her premises *354 defect theory can bypass the County's immunity for discretionary roadway design under section 101.056 of the Act.[5]
We conclude, therefore, the trial court did not err in granting the County summary judgment against appellant on her special defect and premises defect claims. Accordingly, we overrule appellant's point of error.

V. Conclusion
The judgment of the trial court is affirmed.
Retired Justice DORSEY not participating.
NOTES
[1]  Retired Justice J. Bonner Dorsey, who had been assigned to this Court by the Supreme Court of Texas pursuant to section 74.003 of the government code, and whose assignment expired on August 31, 2003, did not participate in this decision. See Tex. Gov't Code Ann. § 74.003 (Vernon Supp.2004).
[2]  It is undisputed that Matagorda County is a "government unit" as defined by the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(B) (Vernon Supp.2004).
[3]  The Act specifically provides: "This chapter does not apply to a claim based on an act or omission that occurred before January 1, 1970." Tex. Civ. Prac. & Rem.Code Ann. § 101.061 (Vernon 1997). Although the original bridge was built before 1970, appellant contends the Act applies, nonetheless, because the addition of the longitudinal planks was a modification made to the bridge after 1970 that altered the bridge in a way that was material to the accident. We agree, and the County does not dispute, that the Act applies to this modification. Cf. Shives v. State, 743 S.W.2d 714, 716 (Tex.App.-El Paso 1987, writ denied) (court held redesigned roadway was left materially and substantially the same and did not alter structure in way material to accident, thus, no waiver of immunity). We need not address appellant's complaints, if any, regarding the bridge railings because they were part of the original bridge design prior to 1970 and were not modified. See Tex. Civ. Prac. Rem.Code Ann. § 101.061 (Vernon 1997).
[4]  Section 101.022 provides:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by section 101.060.
TEX. CIV. PRAC. & REM.CODE ANN. § 101.022 (Vernon 1997).
[5]  During oral argument appellant advised this Court she was not urging waiver pursuant to section 101.060. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(1), (c) (Vernon 1997) (duty to warn of special defects). Therefore, we express no opinion regarding whether the County waived immunity for discretionary warning sign placement on the basis that the alleged defect was a special defect.


785 F.2d 317
U.S.v.Chira
85-5015
United States Court of Appeals,Ninth Circuit.
2/13/86

1
C.D.Cal.

AFFIRMED