Opinion
04-21-00178-CV
03-30-2022
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. Joseph B. SALINAS, Appellee
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-19512 Honorable Mary Lou Alvarez, Judge Presiding
Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
REVERSED AND RENDERED
Appellant Texas Department of Public Safety appeals the trial court's April 19, 2021 order denying its plea to the jurisdiction. We reverse the trial court's order and render judgment dismissing appellee Joseph B. Salinas's claims against DPS.
Background
On August 8, 2017, DPS Special Agent John Wallace Vincent was assisting with the execution of an arrest warrant at a hotel in San Antonio. Vincent, who was part of a team assigned to secure the perimeter around the hotel, was watching the target room from an unmarked vehicle in a parking lot across the street. When the team assigned to execute the warrant began approaching the target room, Vincent decided to move his vehicle across the street to be closer to the hotel.
Vincent testified that before he exited the parking lot, he made a full stop, looked both ways for oncoming traffic, and believed he had confirmed his path was clear. Nevertheless, when Vincent entered the roadway, he turned into the path of Salinas's vehicle. Salinas was unable to stop in time to avoid a collision. The officer who responded to the crash identified Vincent's failure to yield the right of way to Salinas as a "contributing factor" in the collision. Vincent testified that he had no objection to that finding, and the internal DPS Vehicle Accident Report indicated Vincent was at fault for the collision.
On October 9, 2018, Salinas sued DPS, alleging that Vincent's negligence had caused the collision and Salinas had been injured as a result. Salinas also alleged that the Texas Tort Claims Act waived DPS's immunity from suit. On March 12, 2021, DPS filed a plea to the jurisdiction, arguing that it was immune from Salinas's lawsuit under both the emergency exception to the TTCA and the doctrine of official immunity. Salinas responded, and DPS filed a reply. After a hearing, the trial court signed an order denying DPS's plea to the jurisdiction. This appeal followed.
Analysis
Standard of Review
A plea to the jurisdiction is a dilatory plea that will defeat a claim regardless of the claim's merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Anderson v. City of San Antonio, 120 S.W.3d 5, 7 (Tex. App.-San Antonio 2003, pet. denied). We review a trial court's ruling on a plea to the jurisdiction de novo. San Antonio Water Sys. v. Smith, 451 S.W.3d 442, 445 (Tex. App.-San Antonio 2014, no pet.). When a plea to the jurisdiction challenges the existence of jurisdictional facts, our review mirrors that of a traditional summary judgment. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). "We take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor." Suarez v. City of Tex. City, 465 S.W.3d 623, 633 (Tex. 2015). If the evidence is undisputed or does not raise a fact question, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228. However, if the evidence raises a fact question on the jurisdictional issue, "then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Id. at 227-28.
Sovereign Immunity and the TTCA Generally
As a governmental unit, DPS is immune from suit unless the legislature expressly waives immunity. See Tex. Gov't Code Ann. § 411.002(a) (identifying DPS as a state agency); Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(a) (defining "governmental unit" to include state agencies); Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 926 (Tex. 2015). The TTCA waives immunity for certain tort actions against governmental units, including claims for personal injury "proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if" the personal injury "arises from the operation or use of a motor-driven vehicle" and "the employee would be personally liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
DPS does not dispute that Salinas's claims arise out of Vincent's allegedly negligent operation or use of a motor vehicle. See id. However, it argues it retains immunity from those claims for two reasons. First, DPS contends the TTCA's waiver of immunity does not apply here because Vincent was "reacting to an emergency situation" and his actions were "in compliance with the laws and ordinances applicable to emergency action." Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2). Second, it contends that even if the TTCA's waiver of immunity applies, that waiver has not been triggered because Vincent has official immunity and therefore would not "be personally liable to [Salinas] according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(1). Because it is dispositive, we consider DPS's second issue first.
Official Immunity
Applicable Law
"A governmental employee is entitled to official immunity for the good-faith performance of discretionary duties within the scope of the employee's authority." Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642-43 (Tex. 2015) (per curiam). "If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant and the government retains its sovereign immunity" from claims brought under the TTCA. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995).
Application
The parties agree that at the time of the collision, Vincent was acting in the course and scope of his employment with DPS. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) ("An official acts within the scope of her authority if she is discharging the duties generally assigned to her."). Accordingly, we must consider whether DPS established: (1) Vincent's challenged actions were discretionary rather than ministerial; and (2) Vincent acted in good faith. See Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). If DPS satisfied that burden, we must then consider whether Salinas identified evidence that raised a genuine issue of material fact as to either element. See Miranda, 133 S.W.3d at 227-28.
A. Discretionary Act
For the purposes of evaluating official immunity, an act is discretionary if it "involves personal deliberation, decision and judgment[.]" Chambers, 883 S.W.2d at 654. In contrast, an act that "require[s] obedience to orders or the performance of a duty to which the actor has no choice" is ministerial and cannot support a claim of official immunity. Id. This inquiry focuses solely on whether the governmental employee was performing a discretionary function, not on whether he engaged in allegedly wrongful acts while performing that function. Id. at 653; see also City of Dallas v. Brooks, 349 S.W.3d 219, 225 (Tex. App.-Dallas 2011, no pet.) ("If a government employee is performing a discretionary function, then he is protected by official immunity, regardless of whether he was negligent in the exercise of his public duties.").
In support of its plea to the jurisdiction, DPS presented Vincent's affidavit, which explained that his duties on the day of the collision included "assisting with securing the outer perimeter of the hotel during the execution of the arrest warrant to ensure no suspects escaped." Vincent stated, "Upon observing the U.S. Marshals approach the hotel room to execute the arrest warrant, I made the discretionary decision to begin making my approach to the outer perimeter of the hotel to maintain eyesight on the room." Vincent's supervisor, Lieutenant Stacey Schwab, testified that when law enforcement officers work as a team to maintain a perimeter, "There's a lot of unknown factors, so the closer you are to being able to respond . . . that's our training and our experience." Schwab further explained:
[T]here is other movements where when things are happening, you can't be on the radio or having to instruct teams, I need you to move closer; hey, you over there. There is basically a knowledge base and experience from previous experiences that this is what you do. Upon this happening, I need to move up without further instructions. . . . [A] discretionary movement would be he knew that was the proper way without being advised by supervision or other team members to-to do a particular movement.
Schwab also averred that because Vincent "was the officer who was positioned where he had the best vantage point on the door of the target room, he was in the best position to monitor movement related to the target room, and his visual observations were essential for the operation."
This evidence shows that Vincent's actions in moving his vehicle involved his "personal deliberation, decision and judgment" about how best to secure the perimeter of an active warrant execution. See Chambers, 883 S.W.2d at 654. Accordingly, this evidence satisfied DPS's burden to establish that Vincent's actions were discretionary. See id. We must therefore consider whether Salinas identified evidence that raised a genuine issue of material fact on this element.
Salinas did not present any evidence that Vincent was required to perform his duties from any particular location or that he was prohibited from moving his vehicle. See id. (defining ministerial acts); see also Collins v. City of Houston, No. 14-13-00533-CV, 2014 WL 3051231, at *4 (Tex. App.-Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.). Instead, in both his response to DPS's plea and his brief in this court, Salinas argues Vincent's movement of his vehicle was not discretionary because "[s]imple, nonemergency driving by a police officer while on official business is a ministerial act that does not entitle the officer to official immunity." See, e.g., City of Houston v. Hatton, No. 01-11-01068-CV, 2012 WL 3528003, at *3 (Tex. App.- Houston [1st Dist.] 2012, pet. denied) (mem. op.).
We agree with Salinas that, as a general rule, law enforcement officers on non-emergency business have a ministerial duty to comply with traffic laws, just like any other driver. See, e.g., Harless v. Niles, 100 S.W.3d 390, 397 (Tex. App.-San Antonio 2002, no pet.); Harris County v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.-Houston [14th Dist.] 2004, no pet.). However, that general rule applies only in the absence of "special circumstances that suggest the officer was performing a discretionary function[.]" Gibbons, 150 S.W.3d at 886; Woods v. Moody, 933 S.W.2d 306, 308 (Tex. App.-Houston [14th Dist.] 1996, no writ). "[C]ase law teaches that an officer may perform a discretionary act while driving even in circumstances that do not rise to the level of an emergency." See Collins, 2014 WL 3051231, at *4.
DPS presented evidence of such "special circumstances" here. It is undisputed that at the time of the collision, Vincent was securing the perimeter of an active warrant execution. See Harless, 100 S.W.3d at 397 (noting instances in which officers retain "official immunity in the operation of their motor vehicles include when they are involved in a high speed chase, an investigation, or a traffic stop"). The evidence shows that when the warrant team began to approach the target room, Vincent decided to move his vehicle because he believed it was "necessary that [he] secure the perimeter of the hotel as soon as possible to ensure no suspects escaped while the arrest warrant was being executed." See id. at 398. And, as noted above, Schwab testified that law enforcement officers often need to rely on their own discretion, rather than explicit instructions, to determine the best response to a changing situation. See Chambers, 883 S.W.2d at 654-55. Other than his contention that Vincent was not responding to an emergency, Salinas did not present any evidence to refute this testimony. See Collins, 2014 WL 3051231, at *4 (rejecting assertion "that an officer's operation of a vehicle never can be discretionary if there is no emergency"). Under these circumstances, we conclude Vincent was engaged in a discretionary action at the time of the collision. See Harless, 100 S.W.3d at 398.
Salinas testified that after the collision, he saw "the U.S. Marshals [were] right there servicing a warrant, they're busting a door down."
B. Good Faith
To show Vincent was entitled to official immunity-and, by extension, that DPS retains sovereign immunity-DPS must also demonstrate that Vincent acted in good faith. See Telthorster v. Tennell, 92 S.W.3d 457, 461-62 (Tex. 2002); Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). "Good faith is a test of objective legal reasonableness." Bonilla, 481 S.W.3d at 643. In this context, "the good-faith standard is analogous to an abuse-of-discretion standard that protects all but the plainly incompetent or those who knowingly violate the law." Id. (internal quotation marks omitted).
A police officer whose challenged conduct arose out of a high-speed pursuit or emergency response can establish her good faith by showing that a reasonably prudent officer under the same or similar circumstances could have believed the need to take the action outweighed the risk of harm that action posed to the public. See Wadewitz, 951 S.W.2d at 466; see also Clark, 38 S.W.3d at 581. In a non-emergency situation where "the public-safety concerns underlying [the Wadewitz] assessment are not implicated," the good-faith analysis requires a showing "that a reasonably prudent officer, under the same or similar circumstances, could have believed that the disputed conduct was justified based on the information the officer possessed when the conduct occurred." Telthorster, 92 S.W.3d at 459-60. In place of Wadewitz's need/risk assessment, the Telthorster "non-emergency" test for good faith aims to strike a balance between "the societal benefits that unflinching law enforcement provides and the right of citizens to recover for injuries arising from unreasonable conduct." Id. at 464.
Under either test, "[t]he appropriate focus is what a reasonable officer could have believed, and the determinative inquiry is whether any reasonably prudent officer possessed of the same information could have determined the [officer's] actions were justified." Bonilla, 481 S.W.3d at 644 (emphasis in original, footnote omitted); see also Telthorster, 92 S.W.3d at 465. If the governmental entity "produces competent evidence of good faith, the official immunity defense is established unless the plaintiff shows that no reasonable person in the officer's position could have thought the facts justified the officer's actions." City of Houston v. Collins, 515 S.W.3d 467, 473 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (citing Bonilla, 481 S.W.3d at 643).
Here, the evidence shows Vincent believed he needed to move his vehicle closer to the hotel because the agents serving the warrant were relying on him to secure the perimeter. He stated that he "believed that the arrest of the suspect and surrounding circumstances created a serious risk of harm to the public and to the safety of the officers involved in the operation which necessitated [his] immediate response" and that it was necessary for him to move closer "to ensure that no suspects escaped while the arrest warrant was being executed." Similarly, Schwab averred that Vincent "began moving his vehicle closer to the target location to be able to assist with securing the perimeter and provide assistance with the arrest if necessary." He concurred with Vincent that "there was a risk of flight of the suspect, and there was a risk of harm to nearby civilians and to the officers involved with the operation."
Vincent averred that he "constantly evaluated the totality of the circumstances, including" the need and benefit to apprehend the suspects, his proximity to the location of the warrant execution, alternative routes to reach his intended location, and the fact that the warrant team had already "moved in to execute the arrest warrant" before he began moving his vehicle. He considered "the fact that the weather was clear and the roadway was dry; [he] saw no vehicles approaching before [he] entered the road, and that [his] speed was within the speed limit for the location." He stated that before he left the parking lot, he stopped and "looked left and right for approaching vehicles" and that he did not enter the roadway until he believed he had "confirm[ed] no vehicles were approaching." He also stated that a reasonable and prudent officer in the same or similar circumstances could have believed that the need for his actions "outweighed any clear risk of harm to the public[.]" Like Vincent, Schwab averred that under these circumstances, a reasonable and prudent officer "could have believed that the need to enter the roadway to get closer to the arrest location to assist with securing the perimeter and assist with the arrest as necessary outweighed any clear risk of harm to the public[.]"
This evidence was sufficient to satisfy DPS's burden under either the Wadewitz or Telthorster tests. See Telthorster, 92 S.W.3d at 466-67; Wadewitz, 951 S.W.2d at 467. Accordingly, the burden shifted to Salinas to present evidence showing that no reasonably prudent officer "possessed of the same information" could have believed Vincent's actions were justified under these circumstances. See Bonilla, 481 S.W.3d at 644. After reviewing the record, we conclude Salinas did not meet this burden. While Salinas's expert witness opined that Vincent was not responding to an emergency and that his actions violated the Texas Transportation Code and DPS's policy manual, he did not opine that no reasonable officer in Vincent's position could have believed Vincent's conduct was justified. See Telthorster, 92 S.W.3d at 466-67. While Salinas's evidence may show Vincent acted negligently, the Texas Supreme Court has held that an officer's negligence "will not defeat good faith." Id. at 465; see also Collins, 2014 WL 3051231, at *5 ("[E]vidence of negligence alone is insufficient to controvert competent evidence of good faith.").
Based on binding Texas Supreme Court authority, we conclude the evidence shows Vincent is entitled to official immunity and, as a result, that the TTCA does not waive DPS's immunity for Salinas's claims. Accordingly, we have no choice but to sustain DPS's second issue. Because our resolution of DPS's second issue is dispositive of this appeal, we need not consider its first issue regarding the emergency exception to the TTCA. Tex.R.App.P. 47.1.
Conclusion
We reverse the trial court's order denying DPS's plea to the jurisdiction and render judgment dismissing Salinas's lawsuit.