Opinion
No. 04-07-00403-CV
Delivered and Filed: October 10, 2007.
Appeal from the County Court at Law No. 1, Webb County, Texas, Trial Court No. 2003-CVQ-000236-C1, Honorable Alvino J. Morales, Judge Presiding.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
Sitting: CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Laredo Police Officer Ruben Nunez, in his individual capacity, appeals the trial court's denial of his motion for summary judgment based on grounds of official and statutory immunity. We affirm in part and reverse and render in part.
Factual and Procedural Background
On February 18, 2001, Idalia Jimenez entered the Heights Meat Market in Laredo, Texas. According to Jimenez, she took her six children, who ranged in age from thirteen to one, into the store with her. Another store patron, Sylvia De La Garza, allegedly witnessed Jimenez strike her thirteen-year-old son, pull the hair of one of her daughters, and punch another son in the head. Garza called 911 to report the alleged abuse. Laredo Police Officer Jesus Munoz was dispatched to the store to investigate. According to Officer Munoz, when he arrived he was met by De La Garza who stated she had seen a woman in a blue sweater "beating" one of her children. Officer Munoz approached the woman in the blue sweater, subsequently identified as Jimenez, and asked her to step out of the store. As she left the store, Jimenez began yelling and cursing at De La Garza. Laredo Police Officer Ruben Nunez was dispatched to assist Officer Munoz. When he arrived, he spoke with De La Garza who again recounted her observations of abuse. Officer Nunez heard Jimenez cursing and screaming at De La Garza. He also claimed to have observed a black Ford Bronco in the parking lot with two unaccompanied minors inside-one of whom was later determined to be only one year of age. In his report he stated that at one point, all six children were left in the vehicle without adult supervision. Officer Nunez claimed the vehicle was parked next to a busy roadway and he believed there was potential for one of the children to put the vehicle in gear causing it to enter the busy roadway. He believed this could have resulted in injury to the children. When Officer Nunez approached Jimenez, he advised her to calm down and lower her voice and asked her "what the problem was." In response, Jimenez screamed at Officer Nunez, De La Garza, other officers, and bystanders. Officer Nunez arrested Jimenez. She was ultimately charged with three counts of injury to a child and six counts of child endangerment. There is nothing in the record showing the disposition of the criminal charges.
Jimenez subsequently filed a civil suit against Officer Nunez in his official and individual capacities and De La Garza alleging false imprisonment and defamation. In her First Amended Original Petition, Jimenez alleged false imprisonment and a second cause of action stating "defendants were grossly negligent and breached the duty owed to plaintiff not to falsely allege facts which were untrue." Neither Officer Nunez nor De La Garza specially excepted to this petition. When a pleading is not challenged by special exceptions, courts construe it liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). The court should look to the pleader's intent and supply every fact "that can reasonably be inferred from what is specifically stated." Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). Based on these standards, we construe Jimenez's second cause of action as a claim for defamation, more specifically libel, based upon written statements contained in Officer Nunez's report.
Officer Nunez argues the First Amended Petition should not be considered because it was not properly served before the summary judgment hearing, which denied him an opportunity to object to it pursuant to Rule 63 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 63 (stating any pleadings, responses, or pleas offered for filing within seven days of date of trial shall be filed only after leave of court). Even assuming Officer Nunez is correct, which we do not decide, our analysis would not change because Jimenez made an identical claim in her Original Petition and Officer Nunez failed to specially except to that allegation.
The City of Laredo and Officer Nunez filed a plea to the jurisdiction alleging sovereign immunity based on the Texas Tort Claims Act. See Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 2005). The trial court granted the plea with regard to the City of Laredo and Officer Nunez in his official capacity. This left Jimenez's claims against Officer Nunez in his individual capacity and against De La Garza. Both filed motions for summary judgment pursuant to Rule 166a(c). Officer Nunez's motion was based on common law official immunity and statutory immunity under the Texas Family Code. De La Garza's motion was also based on statutory immunity under the Family Code. Jimenez did not file a response to either motion. After a hearing, the trial court took the matter under advisement but subsequently denied both motions. Officer Nunez, as permitted by section 51.014(a)(5) of the Civil Practice and Remedies Code, filed this interlocutory appeal challenging the trial court's denial of his motion for summary judgment. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2006) (permitting appeal from interlocutory order that "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.").
A suit against an official in his official capacity is not a suit against the official; rather, it is a suit against the governmental entity he represents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). In this case, by suing Officer Nunez in his official capacity, Jimenez was actually bringing suit against the City of Laredo. See id.
Burden of Proof and Standard of Review
To obtain summary judgment, the movant must establish there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Tex. R. Civ. P. 166a(c). When a defendant moves for summary judgment on an affirmative defense, he must conclusively establish each essential element of that affirmative defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). Once a defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to produce controverting evidence raising a fact issue as to the established defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Romo v. Tex. Dep't. of Transp., 48 S.W.3d 265, 269 (Tex.App.-San Antonio 2001, no pet.).
On appeal, we review motions for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Romo, 48 S.W.3d at 269. In deciding whether there is a disputed issue of material fact precluding summary judgment, "we take as true all competent evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
Substantive Law Official Immunity
Official immunity is an affirmative defense. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004); Telthorster v. Tennell, 92 S.W.3d 457, 460 (Tex. 2002). To be entitled to official immunity, the public official or government employee must prove he was (1) acting within the scope of his authority (2) in performing a discretionary duty (3) in good faith. Id.; City of San Antonio v. Trevino, 217 S.W.3d 591, 593 (Tex.App.-San Antonio 2006, no pet.).
A public official acts within the scope of his authority if he is discharging duties that are generally assigned to him. Ballantyne, 144 S.W.3d at 424; Tex. Dep't. of Pub. Safety v. Tanner, 928 S.W.2d 731, 735 (Tex.App.-San Antonio 1996, no writ). When a police officer enforces the law, i.e., performs his official duties, he is acting within the course and scope of his employment as a police officer. Morgan v. City of Alvin, 175 S.W.3d 408, 417 (Tex.App.-Houston [1st Dist.] 2004, no pet.). This court has specifically held that an officer making an arrest or conducting an investigation is acting within the scope of his authority. Tanner, 928 S.W.2d at 735 (investigation); Gray v. Harrison, No. 04-95-00384-CV, 1996 WL 425974, *3 (Tex.App.-San Antonio Jul. 31, 1996, no writ) (not designated for publication) (arrest). We have also held that an officer is acting within the scope of his authority when he responds to a dispatcher's call for police intervention and takes action upon arrival. Vasquez v. Hernandez, 844 S.W.2d 802, 805 (Tex.App.-San Antonio 1992, writ dism'd w.o.j.). The fact that a specific act that forms the basis of the civil suit may have been wrongly or negligently performed does not take it outside the scope of authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); Tanner, 928 S.W.2d at 735.
Whether an act is discretionary or ministerial depends upon whether it involves personal deliberation or simple adherence to an order. Ballantyne, 144 S.W.3d at 425. "Ministerial acts are those for which `the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.'" Id. (quoting Comm'r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). If the public official has no choice but to obey an order, the act is ministerial. Ballantyne, 144 S.W.3d at 425. However, if the act involves personal deliberation, decision, and judgment, it is discretionary. Id.
Many acts performed by police officers are discretionary. Deciding whether to make an arrest and how to effectuate the arrest are typically discretionary. Kistner v. Pfannstiel, 107 S.W.3d 7, 11 (Tex.App.-San Antonio 2002, no pet.) (deciding to arrest); City of San Antonio v. Duncan, 936 S.W.2d 63, 65 (Tex.App.-San Antonio 1996, writ dism'd w.o.j.) (deciding when and how to arrest). While the law prescribes and defines offenses that may result in an arrest, determining whether probable cause exists to support an arrest involves personal deliberation and judgment. Antu v. Eddy, 914 S.W.2d 166, 171 (Tex.App.-San Antonio 1995, no writ).
Similarly, an officer's determination of how to investigate and to what extent before arresting or seeking a warrant are discretionary. City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex.App.-Houston [1st Dist.] 1995, no writ). Moreover, duties undertaken incident to a criminal investigation are discretionary. See Austin v. Hale, 711 S.W.2d 64, 67-68 (Tex.App.-Waco 1986, no writ) (Department of Human Resources employees' collection of facts about child abuse report and actions based on those facts were discretionary). The decision to file a criminal complaint and charge a person with a crime is a discretionary act. Kistner, 107 S.W.3d at 11-12.
The final element a government employee must prove to be entitled to immunity is good faith. See Ballantyne, 144 S.W.3d at 424; Trevino, 217 S.W.3d at 593. To determine whether a police officer or other public official acted in good faith, courts ask whether a reasonably prudent officer, under the same or similar circumstances could have believed his conduct was justified based the information he possessed when the conduct occurred. Ballantyne, 144 S.W.3d at 426; Kistner, 107 S.W.3d at 12. An officer need not prove it would have been unreasonable not to engage in the conduct, or that all reasonably prudent officers would have engaged in the same conduct. Telthorster, 92 S.W.3d at 465. Once an officer meets this burden, the plaintiff must offer evidence that no officer in the defendant's position could have believed the facts justified his conduct. Telthorster, 92 S.W.3d at 465.
When the plaintiff's case is based on an allegedly improper arrest, the question of good faith turns on whether there was probable cause for the arrest. Lang v. City of Nacogdoches, 942 S.W.2d 752, 764 (Tex.App.-Tyler 1997, writ denied); see Antu, 914 S.W.2d at 173. We recognize that in this case Jimenez has technically brought a claim for false imprisonment rather than false arrest. This, however, is substantively of no moment. As the Fifth Circuit has recognized, a false arrest is tantamount to effecting a false imprisonment. Whirl v. Kern, 407 F.2d 781, 790 (5th Cir. 1968), cert. denied, 396 U.S. 901 (1969). Although Jimenez alleged false imprisonment in her petition, her complaint is actually one of false arrest as the justness of the resulting imprisonment depends on whether the officers had probable cause to arrest. See id. Moreover, courts in this state have recognized the elements of the two claims are identical. See, e.g., Bertuca v. Martinez, No. 04-04-00926-CV, 2006 WL 397904, *5 (Tex.App.-San Antonio Feb. 22, 2006, no pet.) (mem. op.) (holding elements of false arrest or false imprisonment are (1) willful detention, (2) without consent of detainee, and (3) without authority of law).
To establish either claim, a plaintiff must show a willful detention, without the consent of the detainee, without authority of the law. Villegas v. Griffin Indus., 975 S.W.2d 745, 754 (Tex.App.-Corpus Christi 1998, pet. denied). Probable cause for arrest exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe a person has committed or is committing an offense. Padilla v. Mason, 169 S.W.3d 493, 503 (Tex.App.-El Paso 2005, pet. denied) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975) and Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991)). Pursuant to the Code of Criminal Procedure, and relevant to this case, any peace officer may arrest, without a warrant, "an offender . . . for any offense committed in his presence or within his view," and "persons who the peace officer has probable cause to believe have committed an offense involving family violence." Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 2005), article 14.03(a)(4) (Vernon Supp. 2006). Statutory Immunity
For purposes of article 14.03(a)(4), "family violence" means, with regard to this case:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of that family or household.
Tex. Fam. Code Ann. § 71.004(1), (2) (Vernon 2002); see Tex. Code Crim. Proc. Ann. art. 4.03(f) (Vernon Supp. 2006). "Abuse," as it is relevant to this case, means "physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child." Tex. Fam. Code Ann. § 261.001(1)(C) (Vernon Supp. 2006). "Neglect," as it pertains to this case, means "placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child." Id. § 261.001(4)(B)(i).
Section 261.106 of the Family Code provides immunity from civil or criminal liability for those who act in "good faith" in reporting child abuse or neglect. Tex. Fam. Code Ann. § 261.106(a) (Vernon 2002). This court has interpreted "good faith" under section 261.106(a) to be the same as good faith in the context of official immunity for police officers. See Chaney v. Corona, 103 S.W.3d 608, 611 (Tex.App.-San Antonio 2003, pet. denied). That is, the person seeking protection based on 261.106(a) must establish that a reasonably prudent person under the same or similar circumstances could have believed that reporting the abuse was justified based on the information possessed. Id. (citing Telthorster, 92 S.W.3d at 465). "Good faith" is the only element of immunity under section 261.106(a); the statute does not require, as does official immunity, that a government employee prove he was acting within the scope of his authority in performing a discretionary duty. See Tex. Fam. Code Ann. § 261.106(a) (Vernon 2002). Like official immunity, immunity under section 261.106(a) is an affirmative defense. Chaney, 103 S.W.3d at 610-11.
Analysis
Jimenez brought two causes of action, false imprisonment and defamation. Jimenez alleged Officer Nunez falsely imprisoned her and defamed her by (1) arresting her and writing a report alleging she committed injury to a child, and (2) arresting her and writing a report alleging she committed child endangerment. Thus, to be entitled to summary judgment, Officer Nunez needed to establish he was entitled to immunity for false imprisonment and defamation with regard to each criminal charge asserted against Jimenez. Officer Nunez, however, did not segregate his claims of immunity based on the two distinct criminal charges for which Jimenez was arrested; rather, he simply asserted he was "entitled to official immunity from Plaintiff's claims because at all times relevant . . . [he] was acting objectively reasonably, in good faith and within the scope of his discretionary authority as a Laredo Police Officer" and was "entitled to statutory immunity from Plaintiff's claims, because at all times relevant . . . [he] was acting in good faith and within his law enforcement authority by investigating a report of alleged child abuse or neglect." Based on the summary judgment evidence, we find it necessary to make this distinction in our review.
Injury to a Child Scope of Authority
The summary judgment evidence produced by Officer Nunez established as a matter of law he was acting within the scope of his authority with regard to arresting, reporting, and charging Jimenez with three counts of injury to a child. In his affidavit, he states that at all relevant times he was a licensed peace officer and a police officer for the City of Laredo, Texas. Officer Nunez averred that he responded to a call to assist another officer regarding a report of child abuse. This is supported by the affidavit of De La Garza wherein she states that she called 911 to report child abuse. When he arrived at the location, he spoke to De La Garza, who allegedly witnessed Jimenez abusing three of her children. He also spoke to at least one other witness and to Jimenez.
In responding to a call to assist another officer with regard to a report of child abuse, Officer Nunez was clearly discharging duties assigned to him as a police officer, and thus acting within the scope of his authority. See Vasquez, 844 S.W.2d at 805 (holding officer responding to dispatcher's call for police intervention was acting within scope of authority). The subsequent investigation and arrest were also within Officer Nunez's scope of authority. See Tanner, 928 S.W.2d at 735 (holding officer conducting investigation was acting with scope of authority); Gray, 1996 WL at *3 (holding officer arresting suspect was within scope of authority). He was also acting within his scope of authority when he completed his reports based on the incident and ultimately charged Jimenez with injury to a child. See Ballantyne, 144 S.W.3d at 424.
Discretionary Duty
The summary judgment evidence proves Officer Nunez was dispatched to assist in the investigation of alleged child abuse. When he arrived, he conducted an investigation by observing the scene, speaking to witnesses, and talking to Jimenez. These acts were discretionary. See Kmiec, 902 S.W.2d at 121 (holding officer's determination of how to investigate and to what extent before arrest was discretionary); Austin, 711 S.W.2d at 67-68 (holding collection of facts about child abuse report was discretionary). After investigating, Officer Nunez arrested Jimenez and later charged her with three counts of injury to a child. These acts were also discretionary. See Kistner, 107 S.W.2d at 11-12 (holding officer's decision to arrest and charge was discretionary).
Good Faith
Having established he was in the scope of his authority and performing discretionary acts when he arrested, detained, reported, and ultimately charged Jimenez with injury to a child, Officer Nunez needed only to establish he was acting in good faith to entitle him to official and statutory immunity. See Ballantyne, 144 S.W.3d at 424; Chaney, 103 S.W.3d at 611. To establish good faith, Officer Nunez needed to prove as a matter of law that he had probable cause to arrest and detain Jimenez for the crime of injury to a child, the basis of her false imprisonment claim, which per force resulted in his reporting her criminal activity, the basis of her defamation claim.
The summary judgment evidence established Officer Munoz was dispatched to investigate a report that "a female was beating her children." Officer Nunez was subsequently dispatched to assist Officer Munoz. When Officer Nunez arrived, De La Garza told him she had witnessed Jimenez strike her thirteen-year-old son, pull the hair of her eight-year-old daughter, and punch one of her other minor sons in the head. This comported with what De La Garza had told Officer Munoz. Officer Nunez advised a screaming Jimenez to lower her voice, but she screamed at him, other officers, bystanders, and continued to scream at De La Garza.
According to the Texas Penal Code, a person commits the offense of injury to a child if he "intentionally, knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . . (3) bodily injury." Tex. Penal Code Ann. § 22.04(a) (Vernon 2006). Thus, Officer Nunez had probable cause to arrest Jimenez for three counts of injury to a child if he had sufficient, trustworthy facts and circumstances in his knowledge to warrant his belief that Jimenez had intentionally, knowingly, or recklessly caused bodily injury to three of her children. See id; Padilla, 169 S.W.3d at 503. Based upon the information provided by De La Garza, Officer Nunez had the necessary information to support probable cause to arrest Jimenez for three counts of injury to a child and was entitled to do so without a warrant; he acted in good faith. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(4) (permitting warrantless arrest where peace officer has probable cause to believe person has committed offense involving family violence); Tex. Fam. Code Ann. § 71.004(2) (defining family violence to include abuse by a family member toward a child of the family).
The Texas Penal Code defines "bodily injury" to include "physical pain." Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2006).
Conclusion
Because Officer Nunez proved as a matter of law he was acting within the scope of his authority in performing a discretionary duty in good faith when he arrested Jimenez for three counts of injury to a child, and subsequently reported that information, he was entitled to official and statutory immunity unless Jimenez produced evidence to controvert his affirmative defense. However, Jimenez did not file a response nor in any way controvert Officer Nunez's defenses of official and statutory immunity. Accordingly, Officer Nunez was entitled to summary judgment as to Jimenez's claims for false imprisonment and defamation with regard to the arrest and reporting of the crimes of injury to a child. Child Abandonment or Endangerment
Scope of Authority and Discretionary Duty
The same summary judgment evidence produced by Officer Nunez that established he was acting within the scope of his authority and performing discretionary duties with regard to arresting, reporting, and charging Jimenez with three counts of injury to a child supports that he was acting within the scope of his authority and performing discretionary duties with regard to arresting, reporting, and charging Jimenez with six counts of child abandonment or endangerment.
Good Faith
Having established he was in the scope of his authority and performing discretionary acts when he arrested, detained, reported, and ultimately charged Jimenez with child abandonment or endangerment, Officer Nunez needed only to establish as a matter of law he had probable cause to arrest on this charge to entitle him to official and statutory immunity. The summary judgment evidence produced by Officer Nunez showed De La Garza told him that as Jimenez was striking her children she was yelling at the children and asking them why they got out of the truck and ordering them back outside. While he was talking to De La Garza, he "noticed what turned out to be Jimenez's black Ford Bronco with two of her unaccompanied minor children inside, including 1 year-old daughter Jackeline." Officer Nunez stated in his affidavit that the truck was parked next to "a busy roadway." He believed there was potential danger in leaving the children in the truck because one of them might inadvertently put the truck in gear, causing it to roll into the busy roadway where it might collide with another vehicle. Officer Nunez believed this could result in injury to children in the truck.
According to Officer Nunez, he also spoke to the store owner, Marissa Garcia, who told him she had seen Jimenez's thirteen-year-old son strike Jimenez's eight-year-old daughter outside the store while Jimenez was inside the store. When the eight-year-old went inside the store and complained to Jimenez, Jimenez told her she deserved it for getting out of the truck. Neither De La Garza nor Garcia ever mentioned seeing one-year-old Jackeline inside the store.
Child abandonment or endangerment occurs when:
(b) A person . . . having custody, care, or control of a child younger than 15 years . . . intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(c) A person . . . intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.
Tex. Penal Code Ann. § 22.041(b), (c) (Vernon 2006).
Based upon his own observations and the witnesses' statements, Officer Nunez believed he had probable cause to arrest Jimenez for six counts of child abandonment or endangerment and to include the information in his report. To support his motion for summary judgment, Officer Nunez included evidence establishing his observations and those of the witnesses. However, Officer Nunez also attached to his motion for summary judgment the following excerpts from Jimenez's deposition:
Q. Who was with you in the store? Were you by yourself or did you have any of your children with you.
A. All of my children were there.
Q. The six children?
A. Yes.
Q. Were they all inside of the store with you?
A. Yes.
* * *
Q. What was the first thing the police officer told you?
A. To come outside right to the door because he wanted to talk to me.
Q. Now when he said that, where were your children?
A. Inside of the store.
Q. The six of them?
A. Yes.
Q. Are you sure about that?
A. Yes.
This evidence completely contradicts the summary judgment evidence provided by Officer Nunez. Taking Jimenez's deposition testimony as true, and indulging every reasonable inference in her favor as we must, we cannot say as a matter of law that Officer Nunez acted in good faith when he arrested Jimenez for child abandonment or endangerment and then reported the matter. See Rubio, 185 S.W.3d at 846. Officer Nunez stated that when he arrived at least two children were alone in the truck and in danger. However, Jimenez testified that when she was asked to come outside-at the time Officer Nunez apparently observed two children alone in the truck-all six of her children were inside the store. Thus, there is a direct conflict, creating a fact issue, as to whether Jimenez left her children alone in the truck and as to whether Officer Nunez saw any of the children alone in the truck. Because Officer Nunez's alleged observation of the children alone in the truck is the basis of his defense that he acted in good faith in arresting, reporting, and charging Jimenez with child abandonment or endangerment, his motion for summary judgment on this ground was properly denied.
Conclusion
Based upon our analysis of the law and the evidence, we hold: (1) the trial court erred in denying Officer Nunez's motion for summary judgment as to Jimenez's claims for false imprisonment and defamation to the extent those claims are based on the arrest and report for three counts of injury to a child; and (2) the trial court did not err in denying Officer Nunez's motion for summary judgment as to Jimenez's claims for false imprisonment and defamation to the extent those claims are based on the arrest and report for six counts of child abandonment or endangerment. Accordingly, we affirm in part and reverse and render in part.
Steven C. Hilbig, Justice