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"But He's an Illegal Immigrant" Argument Held Prejudicial by Texas Supreme Court

By Michael W. Fox, Esq.

Given that President Obama turned his attention to immigration reform this week, see NYT story, it is somewhat ironic that the issue also surfaced in a more unlikely place, the Texas Supreme Court. The issue before the Court -- whether or not a jury should be informed (repeatedly) that the driver involved in a fatal collision was an illegal immigrant. The underlying suit was against his employer for negligent entrustment.

In TXI Transportation Company v. Hughes, (Tx 3.12.10) [pdf]  the Court held that such information was not only inadmissible, but was in fact prejudicial so that its admission was not harmless error and required a retrial.

The Court's holding was no doubt influenced by the fact that plaintiff had made the illegal status, and in fact the issue of illegal immigration, a central part of its trial theme.

Justice Medina wrote for the Court:

Hughes [the plaintiff] faced a difficult conceptual burden. He had to convince a jury that a collision involving on-coming traffic, that unquestionably occurred in the eastbound lane of Highway 114, was the fault of Rodriguez, the eastbound driver. The task was all the more difficult because Rodriguez possessed a clean driving record and commercial driver?s licenses from both Texas and Mexico. Hughes had some evidence of how Rodriguez might have been at fault for the collision in his lane, but the issue was hotly contested.

The record indicates that Hughes sought to hedge his theory by calling attention to Rodriguez?s illegal immigration status whenever he could....

That "hedge" including calling Rodriguez as the very first witness and the first questions were about his immigration statuts. As the Court noted that was followed by:

over forty references to Rodriguez?s status, including thirty-five to his status as an ?illegal immigrant? and seven to his prior deportation.

And it was not just questions to him, TXI representatives were also cross-examined regarding whether they owed a ?duty? to the public to prevent an ?illegal? from driving a TXI truck:

• ?Do you think he is entitled to drive here if he?s illegally here??
• ?And you don?t think you owe any duty . . . to the public . . . to the people who are driving up and down [Highway] 114 . . . to decide whether he?s illegal or not??
•  ?Mr. Rodriguez is still illegal in the United States, is he not? . . . Will anybody ever turn him in, or will he just continue to drive for TXI??

In fact, there was a lot of evidence that was available about Rodriguez, since he:

•  was an undocumented Mexican alien who had illegally entered the United States on multiple occasions;
• invented a false Social Security number, which he used to apply for a Texas commercial driver?s license; 
• falsely answered ?no? in his deposition when asked if he had ever lied to obtain a Texas driver?s license; 
• falsely answered ?yes? on his TXI employment application when asked if he had the legal right to work in the United States;
• pleaded guilty to and was convicted of a misdemeanor immigration violation, serving four months in jail; and
• was previously deported and ordered not to return to the United States for ten years.

Still the Supreme Court rejected the use of such evidence both on substantive grounds and for impeachment. Under the substantive law of negligent entrustment it was not relevant, since his illegal status had not caused the collision.

By its holding that it was also improper impeachment evidence, the Court has made it a case of broader importance.

Justice Medina concluded forcefully for the eight members of the court who participated in the decision:

Such appeals to racial and ethnic prejudices, whether 'explicit and brazen' or 'veiled and subtle,' cannot be tolerated because they undermine the very basis of our judicial process.

Hard to argue with that.

Ironically, in this case the ruling bailed out an employer, but from an employment law context it is employers who are most likely to feel stymied by its reach.

Full post as published by Jottings By An Employer's Lawyer on March 12, 2010 (boomark / email).