Why DPS is seeking a retrial after ex-Texas trooper, Army Reserve captain won $2.5M suit

John C. Moritz, Austin American-Statesman
Updated ·3 min read

The Texas Department of Public Safety is seeking a retrial after being ordered by a jury to pay $2.5 million in lost wages to a former DPS trooper who became sick from toxic burn pit exposure during his Army Reserve unit's deployment to Iraq in 2007 and 2008.

The former trooper, Le Roy Torres, an Army Reserve captain from the Coastal Bend community of Robstown, won the judgment in a unanimous decision by a Nueces County jury Sept. 30 after a protracted court battle over whether the DPS was obligated to reemploy him in a role that accommodated his service-related illness.

The Texas attorney general's office on April 17, however, filed a motion with the Nueces County Court-at-Law asking for a retrial and listing several reasons for why it contends the jury's decision was wrongfully reached and that "justice will not be properly served unless a new trial is granted." The attorney general's office represents the DPS in the lawsuit.

Le Roy and Rosie Torres sit at their kitchen table in Robstown, where they began their nonprofit veterans organization, Burn Pits 360. After a legal fight that went all the way to the U.S. Supreme Court, Le Roy Torres won a lawsuit in which a jury ordered the Texas Department of Public Safety to pay $2.5 million in lost wages to the DPS trooper. But the DPS is now seeking a retrial in that suit.

Torres' lawyer, Stephen Jeffrey Chapman of Corpus Christi, told the American-Statesman in an email that no response to the state's motion is needed unless the court sets a hearing on the matter. A hearing has not yet been set.

The retrial motion asserts that Torres — who along with his wife, Rosie, have become national leaders in the successful effort to classify as service-related any illnesses associated with exposure to toxic burn pits used to incinerate tons of military waste during the Iraq and Afghanistan wars — is not entitled to compensation for the loss of his job as a DPS highway patrol officer.

And even if he had been reinstated in a role at the DPS that accommodated his physical limitations caused by a nonreversible respiratory system ailment, his wages would have been far less than those he would have earned as a law enforcement officer.

More: How a former Amy Reservist and his wife 'changed course of history' for sick, injured veterans

"The court erroneously awarded (Torres) lost wages based on his commissioned Trooper position instead of the position for which he requested to be placed as an accommodation, namely, a non-commissioned driver license examiner position in DPS’ Driver’s License office, which without dispute pays less or substantially less than a commissioned Trooper position," the motion states. "Hence, the award of lost wages set forth in the Modified Final Judgment was manifestly too large."

The attorney general's motion also argues that during Torres' effort to be reemployed with less strenuous duties, he resigned from the DPS while taking leave. Torres spent much of his time after returning from the war seeking a diagnosis and treatment for his illness, which was later determined to be constrictive bronchiolitis, a life-threatening lung disease.

Le Roy Torres holds a photograph of himself from 2008 during his tour as an Army Reserve captain in Iraq, where he was exposed to toxic burn pits.
Le Roy Torres holds a photograph of himself from 2008 during his tour as an Army Reserve captain in Iraq, where he was exposed to toxic burn pits.

The motion also said that Torres was called a "war hero" by his legal team at trial even though he was not a combat soldier, which "unfairly tipped the scales in his favor" in jurors' minds.

More: What are burn pits? How toxic blazes endangered Iraq, Afghanistan military veterans

Torres was stationed at Iraq's Joint Base Balad, one of the largest war zone U.S. installations, during his one-year deployment when he first noticed his respiratory symptoms. Because burn pit exposure was not a recognized cause for service-related illness by the Department of Veterans Affairs at the time, he and his wife formed an organization called Burn Pits 360, which reached out to other suffering former service members to call attention to their cause.

It took more than a dozen years, but their advocacy finally helped lead to the 2022 passage by Congress of the PACT Act, which set in place a process for veterans to obtain government benefits for burn pit-related illnesses.

At the same time, the Torres' effort to bring the lawsuit against the DPS was thwarted until the U.S. Supreme Court last year ruled that the legal action could go forward, leading up to the $2.5 million judgment.

This article originally appeared on Austin American-Statesman: Ex-Texas trooper, war veteran won $2.5M judgement. DPS wants retrial.