Texas Department of Public Safety v. Hugo Rodriguez and Maria Rodriguez

Opinion issued

May 19, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

———————————

NO. 01-10-00602-CV

———————————

Texas Department of Public Safety , Appellant

V.

Hugo

Rodriguez and Maria Rodriguez , Appellee

On Appeal from the 215th District

Court

Harris County, Texas

Trial Court Case No. 2008-42092

O P

I N I O N

This

interlocutory appeal arises from a personal injury lawsuit brought

by Hugo Rodriguez and Maria Rodriguez as a result of an automobile collision

with a vehicle driven by an officer of the Texas Department of Public

Safety. The trial court denied

DPS’s plea to the jurisdiction, which was based on the defense of official

immunity for its officer, Sergeant Parker.

On appeal, DPS contends that

Sergeant Parker did not have to satisfy the heightened need/risk assessment elaborated

in Wadewitz v.

Montgomery , 951 S.W.2d

464, 467 (Tex. 1997), for determining whether a public official acts in good

faith for purposes of the official immunity defense for police pursuit cases. Under Wadewitz ,

the good faith determination utilizes a two-part

test that balances the seriousness of the situation, as well as the

alternatives available to the official, against the risks created by the

conduct. Scott v. Britton , 16 S.W.3d 173, 179 (Tex. App.—Houston [1st Dist.]

2000, no pet.) . DPS argues that this

Court should instead utilize the more general good faith test described in Telthorster

v. Tennell , 92 S.W.3d 457, 462 (Tex. 2002) . DPS asserts that this general test, which

does not require a specific assessment of need/risk of the officer’s

decision-making, applies in a lawsuit arising from a vehicular accident

resulting from moving surveillance of potential criminal activity.

For reasons

explained below, we conclude that the need/risk analysis of Wadewitz applies. We hold that DPS did not conclusively

establish Sergeant Parker’s good faith under that test. We therefore affirm.

Factual Background

DPS

Ser geant Parker was part of a

team of police officers conducting ongoing surveillance of a person suspected

of criminal drug activity. The drug

investigation began after the suspect made several deposits of more than

$10,000 into a local financial institution, generating a suspicious activity report

from the IRS. Both Sergeant Parker and h is

supervising officer, Lieutenant Webb, stated the purpose of

the surveillance was “documenting the activities of a subject under

investigation.”

Sergeant

Parker was part of a 7 to 10 member team of officers participating in the moving

surveillance. Lieutenant Webb was

traveling behind the suspect’s vehicle, and Sergeant Parker followed Lieutenant

Webb in an unmarked van. Shortly before

noon, Sergeant Parker was traveling south in the middle lane of Kirby Drive

approaching Old Spanish T rail in Houston , Texas . Both Kirby and Old

Spanish Trail are divided two-way streets with multiple lanes of traffic in

both directions. Each street had a speed limit of 40 miles per hour. This is an intersection with a high volume of

traffic.

As

Sergeant Parker reached the intersection, he saw the suspect’s vehicle proceed

through a yellow light. The light

changed to red before he reached the intersection. Lieutenant Webb successfully ran the red

light but Parker s topped his vehicle. After

checking approaching traffic in all lanes , he concluded that it was safe to drive through the intersection . According to his deposition and affidavit, Sergeant Parker

cautiously moved into the intersection acro ss Old Spani sh Tra il. One vehicle, however,

was stopped in the middle lane of the eastbound traffic on Old Spanish Trail,

obstructing his view of traffic in the outside lane of Old Spanish Trail.

Hugo

Rodriguez was unfortunately traveling

eastbound in that outside lane and therefore was not seen by Parker as he

attempted to pass through the intersection. Rodriguez collided with Sergeant Parker in the

intersection. According to Sergeant

Parker’s affidavit, the collision occurred “at a very low speed.” Hugo and his wife Maria were injured. Both vehicles were driven from the

scene by their respective drivers.

The Fleet

Safety Board investigated the accident. The

board determined that the collision was preventable, that Sergeant Parker’s

disregard of the red light was the major contributing factor to the collision,

and that Sergeant Parker failed to do everything reasonable to prevent the

collision.

Procedural Background

The

Rodriguezes sued DPS, but did not sue Sergeant Parker individually. The Rodriguezes claimed, among other acts of

negligence, that Sergeant Parker disregarded the traffic light, failed to

maneuver his vehicle so as to avoid the collision, and engaged in faulty

evasive action. The Rodriguezes also

included a claim for gross negligence.

In a single

pleading, DPS filed a plea to the jurisdiction, motion for summary judgment and

motion to dismiss. DPS asserted the

affirmative defenses of sovereign and official immunity. The plea was supported by the affidavits of

Sergeant Parker and Lieutenant Webb.

Neither of these affidavits provided details about why Parker, as a

member of the surveillance team, needed to continue through the intersection on

a red light. Parker did not testify that

the suspect had been speeding or driving recklessly so that it would be

difficult or dangerous to catch up to Lieutenant Webb.

In response,

the Rodriguezes filed portions of the deposition of Sergeant Parker and the

letter from the Fleet Safety Board concluding that the accident was preventable. They did not offer any affidavit from an

expert.

The trial

court denied the plea to the jurisdiction, motion for summary judgment, and

motion to dismiss. DPS timely

appealed. We have jurisdiction over this

interlocutory appeal pursuant to sections 51.014(a)(5) and (8) of the Texas

Civil Practice and Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann . § 51.014(a)(5), (8) (West 2008); City of Houston v. Kilburn , 849 S.W.2d

810, 812 (Tex. 1993).

Standard of Review

We

review a trial court’s ruling on a plea to the jurisdiction de novo. Tex.

Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v.

IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002). When

reviewing a trial court’s ruling on a plea, “we first look to the pleadings to

determine if jurisdiction is proper, construing them liberally in favor of the

plaintiffs and looking to the pleader’s intent.” City of

Waco v. Kirwan , 298 S.W.3d 618 , 621–22 (Tex. 2009).

A

defendant’s plea may challenge either the plaintiffs’ pleadings or the

existence of jurisdictional facts. See Miranda , 133 S.W.3d at 226­–27. When, as here, the defendant

challenges the existence of jurisdictional facts, “we consider relevant

evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised.” Id. at 227; see also Tex. Natural Res.

Conservation Comm’n v. White ,

46 S.W.3d 864, 868 (Tex. 2001) . If that evidence

raises a fact issue as to jurisdiction, the defendant’s plea must be denied. Miranda , 133 S.W.3d at 227­–28. If,

however, the relevant evidence is undisputed or does not present a

jurisdictional fact issue, the plea should be granted. Id. at 228.

The standard

of review for a plea to the jurisdiction “generally mirrors that of a summary judgment

under Texas Rule of Civil Procedure 166a(c).” Id. Therefore, the governmental unit asserting an

official immunity affirmative defense must meet the summary judgment standard

of proof as a movant. Ross v. Linebarger, Goggan, Blair &

Sampson, L.L.P . , 333 S.W.3d 736, 744 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

Once it meets its burden of proof, the plaintiff must show that a

disputed material fact exists. Id.

In considering the evidence, we “take as true all evidence favorable to

the nonmovant” and “indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.” Miranda , 133 S.W.3d at 228 . “In deciding a plea to the jurisdiction, a court may not

consider the merits of the case, but only the plaintiff's pleadings and the

evidence pertinent to the jurisdictional inquiry.” Ross , 333 S.W.3d at 744 (citing Cnty.

of Cameron v. Brown , 80

S.W.3d 549, 555 (Tex. 2002)).

Claims against DPS

Under the

doctrine of sovereign immunity, DPS is not liable for the torts of its officers

unless there is a waiver of immunity. Mount

Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 211 (Tex. 1989). Section 101.021 of the Texas Tort Claims Act

grants a limited waiver of sovereign immunity for personal injuries proximately

caused by “the negligence of an employee acting within the scope of his employment”

if the injuries “arise[] from the operation or use of a motor-driven vehicle.” Tex.

Civ. Prac. & Rem. Code Ann . § 101.021(1)(A) (West 2011).

Waiver of

immunity under this section of the Texas Tort Claims Act also

requires proof that “the employee would be personally liable to the claimant

according to Texas law . . . .” Tex. Civ. Prac. & Rem. Code Ann .

§ 101.021(1)(B) (West 2011). Conversely,

if the employee is protected from liability because of official immunity, then

the governmental entity is shielded from liability due to its sovereign

immunity. Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex. 2000); Dewitt v. Harris Cnty. , 904 S.W.2d 650,

653 (Tex. 1995); Kilburn , 849 S.W.2d

at 812 . In other words, if Sergeant

Parker is immune from tort liability under the official immunity doctrine, DPS is also immune. See Tex.

Civ. Prac. & Rem. Code Ann . § 101.021(1)(B); see Clark , 38 S.W.3d at 580 .

Official Immunity

Government

officials are entitled to official immunity [1]

for (1) the performance of their discretionary duties (2) conducted within the

scope of their authority (3) provided they act in good faith. Telthorster ,

923 S.W.3d at 461; City of Lancaster v. Chambers , 883 S.W.2d 650,

653 (Tex. 1994). The Rodriguezes do not

contest that Sergeant Parker acted within the scope of his authority or that

his actions were discretionary. Thus, it

is the third element, good faith, that is in dispute here. Only when the defendant conclusively

establishes each of the three elements of qualified immunity does a plaintiff

have to rebut the qualified immunity with proof of bad faith. See

Telthorster , 92 S.W.3d at 461 ; Kassen

v. Hatley , 887 S.W.2d 4 , 8–9 (Tex. 1994).

If the government official does not prove each element of official

immunity, the burden never shifts to the plaintiff to come forward with

controverting evidence. City of

Pasadena v. Belle , 297 S.W.3d 525, 531 (Tex.

App.—Houston [14th Dist.] 2009, no pet.); see

also Telthorster , 92 S.W.3d at

465 .

We must first

determine the proper test for evaluating whether Sergeant Parker acted in good

faith. The Rodriguezes assert that the

heightened need/risk analysis of Wadewitz should apply. DPS asserts that this Court should utilize

the more general good faith test described in Telthorster .

As discussed below, we must address this issue because if Wadewitz applies, DPS has a higher burden

of proof to establish Sergeant Parker’s good faith.

A. Introduction

Because it is

difficult to determine the contours of the good faith inquiry that is part of

the official immunity defense, we begin with a discussion of the policies

behind official immunity and its historical development. See Chambers ,

883 S.W.2d at 656 . Official immunity is

an affirmative defense that an official must plead and prove. Clark ,

38 S.W.3d at 580 ; Wadewitz , 951

S.W.2d at 465 . The official immunity

doctrine protects public officers from civil liability for conduct that would

otherwise be actionable. Chambers , 883 S.W.2d. at 654 . The Texas Supreme Court has noted that the

official immunity

doctrine requires “a fair balance between the competing interests at stake.” Chambers ,

883 S.W.2d at 656 ; see also Telthorster , 92 S.W.3d at 461 ; Clark , 88 S.W.3d at 580–81. The court in Chambers

identified the competing interests as “(1) there is the injustice, particularly in the absence

of bad faith, of subjecting to liability an officer who is required , by the legal obli gations of his position , to exercise discretion ; and (2) the danger that the

threat of such liabilit y would deter his willingness to execute his office with the decisiveness and the judgment

required by the public good.” Chambers , 883 S.W.2d at 656 . The

purpose of official immunity was further explained by the Texas Supreme Court

in Kassen v. Hatley :

The purpose of official immunity is to insulate the

functioning of government from the harassment of litigation, not to protect

erring officials. The public would

suffer if government officers, who must exercise judgment and discretion in

their jobs, were subject to civil lawsuits that second-guessed their decisions.

Official immunity increases the

efficiency of employees because they need not spend time defending frivolous charges.

887 S.W.2d at 8 (c itations

omitted); see also Ballantyne v. Champion Builders, Inc. , 144 S.W.3d

417, 424 (Tex. 2004) (stating that official immunity’s purpose is to ensure

public officials “act in the public interest with confidence and without the

hesitation that could arise from having their judgment continually questioned

by extended litigation”); Travis

v. City of M esquite ,

830 S .W.2d 94 , 102 n.4 (Tex. 1992) (observing that official immunity serves the following important public

policies: avoiding inhibition of discretionary action, minimizing deterrence of

qualified people from government service , avoiding costs of unnecessary trial, and insulating officials

from burdensome disco very).

B. Good faith: an objective test

Good

faith for official immunity is not measured by the official’s subjective

intent. [2] Chambers ,

following the lead of federal courts, rejected a subjective standard because it

would make summary judgments difficult to obtain and would largely eviscerate

the important public policy reasons for qualified immunity. The court instead adopted a test of “objective

legal reasonableness.” Chambers , 883 S.W.2d at 656 (quoting Swint v. City of Wadley , 5 F.3d 1435 ,

1441–42 (11th Cir. 1993)). By adopting

an objective test, the court defined good faith “in a counter-intuitive

fashion” but also made it easier for a public official to obtain summary

judgment. See Belle , 297 S.W.3d at 530 .

The Court preferred an objective

standard because it “gives ample room for mistaken

judgments” by protecting “all but the plainly incompetent or those who

knowingly violate the law.” Chambers , 883 S.W.2d at 656 (quoting Swint , 5 F.3d at 1441–42). This accommodation for reasonable error

exists because “officials should not err always on the side of caution” out of

a fear of being sued. Hunter v. Bryant , 502 U.S. 224, 229 , 112

S. Ct. 534, 537 (1991) (citations omitted). Official

immunity protects public officials from personal liability for “mistaken

judgment.” Ballantyne , 144 S.W.3d

at 423 . Official immunity is based on

the recognition “that the risk of some error is preferable to intimidation from

action at all.” Id. at 424 .

The objective

good faith element of the official immunity defense requires the defendant

official to prove that a reasonable official under the same or similar

circumstances could have believed the defendant’s conduct was justified.

Chambers , 883 S.W.2d at 656–57.

The test is “analogous to the abuse of discretion standard of review.” Clark ,

38 S.W.3d at 581 . Applying that general

test to a high-speed pursuit, the court stated that in such a case, the officer

acts in good faith if “a reasonably prudent officer, under the same or similar

circumstances, could have believed that the need to immediately apprehend the

suspect outweighed a clear risk of harm to the public in continuing the

pursuit.” Chambers , 883 S.W.2d at 656 .

The test does not require the officer to

prove what a reasonably prudent officer should or should not have done. Id. ;

Belle , 297 S.W.3d at 531 . [3] Chambers ,

therefore, gives public officials the

“benefit of the doubt” in close cases because if officers of reasonable

competence could disagree, immunity applies.

883 S.W.2d at 656–57; Chapa v.

Aguilar , 962 S.W.2d 111, 114 (Tex. App.—Houston [1st Dist.] 1997, no writ).

In response

to evidence of objective good faith, the nonmovant must meet “an elevated

standard of proof” to defeat the official immunity defense. Chambers ,

883 S.W.2d at 656 . It is insufficient

for the nonmovant to show merely that other alternative courses of action would

have also been reasonable or preferable.

Ballantyne , 144 S.W.3d at 426 (stating that the test “is not

what was the best course of action”). It

is likewise insufficient for the nonmovant to show merely that the individual

defendant “did not act as a reasonably prudent official,” because proof of

negligence does not satisfy the objective good faith required by Chambers . Beatty

v. Charles , 936 S.W.2d 28 , 31 n.2 (Tex. App.—San Antonio 1996, no writ). [4]

Instead, the nonmovant must show that “no

reasonable official could have thought that

the facts were such that they justified the official’s conduct.” Chambers ,

883 S.W.2d at 657 ; Kassen ,

887 S.W. 2d at 9 . Stated differently,

the nonmovant must show that a public official in the same position “could not

have reasonably reached the decision in question.” Chambers ,

883 S.W.2d at 657 n.7.

Additionally,

the official’s actions are reviewed based on the facts known at the time rather

than subsequent evidence. In other words,

the focus is on whether a reasonable official in light of the information

possessed by the defendants at the time they acted could have believed the

actions were justified. Ballantyne , 144 S.W.3d at 426 ; Wadewitz , 951 S.W.2d at 467 ; Chambers , 883 S.W.2d at 656 ; Rhodes v. Torres , 901 S.W.2d 794, 800

(Tex. App.—Houston [14th Dist.] 1995, no writ).

C. The specificity required for balancing

need vs. risk in an emergency pursuit

In

Wadewitz , the Court adhered to Chambers ’ general good-faith framework

but also “elaborated on the need and risk elements and applied them” to an

emergency response by a police officer traveling to the scene of a reported

burglary. Telthorster , 92 S.W.3d at 461 (discussing Wadewitz ).

Wadewitz explained that the need aspect

of the balancing test refers to the urgency of the circumstances requiring

police intervention and requires an evaluation of the following factors: (1)

the seriousness of the crime or accident to which the officer is responding,

(2) whether the officer’s immediate presence is necessary to prevent injury or

loss of life or to apprehend a suspect, and (3) what alternative courses of

action, if any, are available to achieve a comparable result. Id. The risk aspect

refers to the countervailing public safety concerns and requires an evaluation

of the following factors: (1) the nature and severity of the harm the officer’s

actions could cause, (2) the likelihood that any harm would occur, and (3)

whether the risk of harm would be clear to a reasonably prudent officer. Wadewitz ,

951 S.W.2d at 467 . [5] In addition, the

facts of the case may require the expert to provide a continuing assessment of

the “need” and “risk” factors because emergency responses and police pursuits

may involve rapidly changing circumstances.

Id.

D. Official immunity in an arrest

DPS contends

that a need/risk balancing test does not need to be satisfied in lawsuits

against police officers that do not arise from a high-speed pursuit but from moving surveillance.

Rather, DPS argues that we should follow Telthorster , in which the Texas

Supreme Court held that such an analysis was unnecessary in a claim arising out

of an arrest. 92 S.W.3d at 462 .

As an initial matter, DPS points out that t he Court in Telthorster

emphasized that the Chambers “could

have believed” test balanced the need to apprehend a suspect against the risk

of harm applied “ in a pursuit case ,” and

therefore has no application to this case.

See Telthorster , 92 S.W.3d at

461 (emphasis in original).

The Court

in Telthorster , however, did not base

its decision on the label used to describe the police conduct in the case;

rather, it analyzed the rationale underlying the balancing test including whether

the requirement of a detailed need/risk analysis would effectuate the policy

concerns implicated in an arrest. Id. at 462 . The Court noted a particular need to provide

immunity to protect police officers. Id. at 463 .

“Nowhere else in public service is official immunity more

appropriate or necessary than in police work. In their routine work, police officers must be

free to make split-second judgments . . . based on their experience and

training, without fear of personal liability.” If police officers were subject to liability

for every mistake, the constant threat of suit could “dampen the ardor of all

but the most resolute, or the most irresponsible” officers.

Id. (citations omitted). [6] The official immunity

doctrine is shaped in part by the public policy concern of avoiding

“overdeterrence of energetic law enforcement.”

Id. (quoting Rowland v. Perry , 41 F.3d 177 , 172 (4th

Cir. 1994)).

With

respect to high-speed driving, other specific policy concerns are implicated. The first reason for adopting a risk/need

analysis in high speed pursuits is to improve protection of bystanders or other

innocent persons who might be injured.

Second, requiring an officer “to particularly and meaningfully balance”

the need for and risk created by high speed pursuits ensures that the officer’s

consideration was more than “merely pro forma.”

Id. at 464.

Finally, the Court

compared the policy concerns impacted by a high-speed pursuit with those in an

arrest. The “inherent risk to the

general public” created during an arrest are “not as substantial” as police

action causing injuries during a high-speed cha se . Id. During arrest situations ,

officers routinely are forced to make

split-second judgments in circumstances that are “tense, uncertain , and rapidly

evolving.” Id. at 463. The risk of liability might cause arresting

officers to act hesitantly when immediate action is required, subjecting

themselves and the public to unnecessary risks.

Id. at 464 . Thus, when

an officer is engaged in an arrest that results in injury to the suspect , a particularized

need /risk a ssessment i s not necessary. Id.

Instead,

the arresting officer must satisfy the

general requirements of Chambers

without the specific need/risk analysis.

The officer must demonstrate “that a reasonably prudent officer, under

the same or similar circumstances, could have believed that his conduct was

justified based on the information he possessed when the conduct occurred.” Id.

at 465.

If

the arresting officer satisfies this burden, the nonmovant must likewise follow

the general standards set forth in Chambers . The nonmovant in its response must offer

evidence that no reasonable officer

in the same or a similar situation “could have believed that the facts were

such that they justified his conduct.” Id. at 460. “‘[I]f officers of reasonable competence could disagree

on this issue,’ the officer acted in good faith as a matter of law.” Id.

at 465 (quoting Malley v. Briggs , 475

U.S. 335, 341 , 106 s. Ct. 1092, 1096 (1986)). [7]

Conclusion on the Standard for Good Faith

We conclude,

after examining the policies underlying immunity generally and the specific

policy concerns implicated in claims arising from pursuit cases that involve

violation of traffic laws, that Wadewitz ’s

requirement for a specific need/risk assessment applies in this case.

First, the general policies

underlying immunity are not undercut by applying Wadewitz here. The focus of

official immunity “must remain upon the facts of the individual case and the

underlying policies promoted by official immunity.” Kassen ,

887 S.W.2d at 12 . The Wadewitz standard does not impose a

heavy burden on an officer and maintains the balance of the interests

implicated by the good faith standard for official immunity. Requiring an officer to satisfy the need/risk

analysis when the officer violates traffic laws while pursuing a suspect during

moving surveillance does not overly deter “energetic law enforcement,” Telthorster ,

92 S.W.3d at 463 (quoting Rowland , 41

F.3d at 172), or make officers overly cautious in deciding whether to disregard

a red light. In determining whether no

reasonable officer could have believed it was safe to violate a particular

traffic law under particular circumstances present at the time in question

based on the knowledge possessed at that time, the officer necessarily must

consider both the need to violate that law and the benefits of taking that

action. The Wadewitz standard will still protect officers from lawsuits arising

from moving surveillance by giving them the benefit of the doubt in close

cases, excusing officer’s conduct that is not “legally correct” but is

“colorable,” and providing immunity for mere negligence. See

Ballantyne , 144 S.W.3d at 426 ; Chambers , 883 S.W.2d at 657 . Under that standard, when a public official

considers two courses of action that could reasonably be believed to be

justified, and selects one, he satisfies the good faith “prong of official

immunity as a matter of law.” Ballantyne , 144 S.W.3d at 426 . And the limitation that the

could-have-believed test focuses on the officer’s knowledge at the time in

question underscores the policy objective that the officer’s decision should

not be “second-guessed.” Kassen , 887 S.W.2d at 8 .

Second, utilizing the Wadewitz standard also aids courts by

ensuring that officers attempting to establish official immunity do not submit

conclusory affidavits to satisfy their burden of proof but instead address the

specific needs and risks implicated by a traffic law violation. Wadewitz ,

951 S.W.2d at 466 ; Medina Cnty. Comm’rs

Court v. Integrity Grp., Inc. , 944 S.W.2d 6, 10 (Tex. App.—San Antonio

1996, no writ); cf. Chapa , 962 S.W.2d

at 115 (recognizing that trial courts “struggle routinely with the adequacy of

affidavits in governmental immunity cases”).

The officer must address the particular circumstances present in order

to avoid submitting conclusory proof. Wadewitz , 951 S.W.2d at 466 . Wadewitz simply identifies the factors that an officer “particularly

and meaningfully balance” in assessing the need for police intervention in a

given case, factors that are inherent in the Chambers balancing test. See Telthorster , 92 S.W.3d at 464 ; Clark , 38 S.W.3d at 582 . In the end, the requirement that the officer

address the need and benefit of his course of action when he violates a traffic

law during moving surveillance requires merely the elaboration of the facts

underlying what an officer could have believed was justified under the

circumstances. Given the public safety concerns discussed below, it is not too

much to ask officers to provide such proof.

Third, the public safety concerns

implicated in accidents arising from police pursuit and emergency responses are

applicable to accidents arising from moving surveillance. Official immunity balances the benefit to

society of protecting police officers against the need to provide compensation

for government imposed injuries. The

risk to the general public is the same here, in Chambers , in Wadewitz ,

and in Clark . See

Clark , 38 S.W.3d at 583 (pursuing a suspect and responding to an emergency

involve the same general risk to the public—“a collision with a third

party”). As in Chambers and Clark , this

case involves an officer’s violation of traffic laws while operating a vehicle

in “pursuit” of a suspect.

The safety

concerns implicated in an arrest are far different than those in moving

surveillance. The Court, in deciding

that the Wadewitz need/risk analysis

did not apply to the arrest in Telthorster ,

contrasted the significant differences in the risks inherent in the two

activities. In Chambers , the risk was “[t]he inherent risk to the general public

that high-speed driving causes.” Telthorster , 92 S.W3d at 464. In Telthorster ,

there was no “evidence that the circumstances surrounding [the suspect’s]

arrest created a risk to bystanders or the public in general.” Id. In this case, the decision to violate traffic

laws by running a red light, like the decision to violate a speed limit or

other traffic laws during a pursuit or emergency response, puts bystanders and

the general public at risk.

Finally, the

general policies underlying immunity and unflinching law enforcement are

particularly applicable in arrests. In

an arrest situation,

[a]rresting officers often confront at close range

suspects whose violent intentions and capabilities may not be readily

apparent. A high risk of liability in

such a situation would likely compel arresting officers to act hesitantly when

immediate action is required, subjecting themselves and the public to

unnecessary “risks, and seriously hamper[ing] their efforts to apprehend

dangerous criminal suspects.”

Id. (quoting United States v. Merritt , 695 F.2d 1263,

1274 (10th Cir. 1982)). The Court in Telthorster also noted that official immunity’s

underlying purpose, “in the context of street-level police work” protects

officers in situations that “frequently require[] quick and decisive action in

the face of volatile and changing circumstances.” Id. In contrast, in this case, the officers were

following—not confronting—a suspect.

There is no evidence in this case that the situation was “volatile” or

involved the immediate potential danger of violence present in the arrest in Telthorster .

Because the

policy concerns in this case are more similar to Wadewitz than to Telthorster ,

we conclude that the need/risk assessment of the good faith inquiry in Wadewitz and Clark should apply. Thus, to

establish good faith, DPS must conclusively prove that a reasonably prudent

officer in the same or similar circumstances could have believed the need to

run the red light to continue the surveillance outweighed the risk of harm to

the public, taking into consideration all the Wadewitz factors. Clark , 38 S.W.3d at 583 . That proof should address each of the need

and risk factors identified in Wadewitz . See

951 S.W.2d at 464 .

Application of that Standard to the Facts in this Case

We must now

decide whether DPS’s evidence established that a reasonable police officer under

the same or similar circumstances as Sergeant Parker could have believed the decision

to proceed through the red light was justified.

DPS offered two affidavits to satisfy its burden of proof on what a

reasonable officer could have believed.

Although it is unnecessary to “use the exact language Wadewitz employs,” the movant’s summary

judgment evidence must “establish facts upon which the court could have based

its legal conclusion.” Clark , 38 S.W.3d at 585–86; see also Telthorster , 92 S.W.3d at 465 (“[g]ood

faith is not mechanical inquiry, but rather turns on the particular facts

presented”).

A. Sergeant Parker’s affidavit

Sergeant

Parker’s affidavit states in pertinent part:

I exercised my discretion and determined that the need to

protect the physical safety of the other investigating officers; the need to

maintain contact with the known suspect and the need to protect the public at

large from a suspected criminal activity, outweighed the minimal risk to the

public that would be created by continuing with the investigation and possibly

being involved in an accident while traveling to the suspected crime in

progress, therefore, I proceeded to follow the subject of our criminal

investigation. Based upon all of my experience

and training in law enforcement, I can state that I acted in “good faith” as a

reasonable and prudent peace officer in making my decision to continue my

investigation. Further, based upon all

of my experience and training in law enforcement, I can, and do, state that

another reasonably prudent peace officer, under the same or similar

circumstances, could have believed that the need to continue the moving

surveillance of the suspect, outweighed the minimal risk of harm to the public,

of a potential traffic accident, that would be created by the peace officer

traveling to the location of the reported crime in progress. Based upon my experience and training as a

peace officer, I can, and do, state that I acted in “good faith” as a

reasonably prudent peace officer in the manner in which I drove my vehicle on

Kirby Drive in Houston, Texas. Further,

based upon my training and experience as a peace officer, I can, and do, state

that another reasonably prudent peace officer, under the same or similar circumstances,

could have operated his vehicle in the same manner as I did; and, could have

determined that the need to continue the ongoing surveillance created a minimal

risk of harm to others at the intersection of Kirby Drive and Old Spanish

Trail.

B. Lieutenant Webb’s affidavit

In his affidavit, Lieutenant Webb states

in pertinent part:

I believe that Sergeant Parker acted as a reasonably

prudent Sergeant under circumstances he observed at the time. Sergeant Parker was fully justified in

concluding to continue his surveillance of the target’s vehicle and justified

in slowly and cautiously entering the intersection of Kirby Drive and Old

Spanish Tr[ai]l to do so. Furthermore,

in my judgment and experience, I believe that a reasonably prudent peace

officer could have considered that surveillance and maintaining visual contact

with the suspect necessary to protect other officers, the public at large and

to continue his efforts at gathering relevant information for future

apprehension. I believe Sergeant Parker

acted as a reasonably prudent officer would have acted given those

circumstances.

Lieutenant

Webb also states there were a “limited number of DPS vehicles able to maintain

visual contact with the surveillance target.”

C. Conclusion

The

affidavits, to the extent that they contain assertions that Sergeant Parker had

a “need” to run the red light to continue surveillance, do not explain the need

in terms similar to the needs identified in Wadewitz . The need factors

include: (1) the seriousness of the crime or accident to which the officer is

responding, (2) whether the officer’s immediate presence is necessary to

prevent injury or loss of life or to apprehend a suspect, and (3) what

alternative courses of action, if any, are available to achieve a comparable

result. The “seriousness of the

crime or accident to which the officer responds” was not discussed; in fact,

there was only a suspected crime and no evidence of an emergency or an intent

to arrest or detain the suspect. Both

Parker’s and Webb’s affidavits confirm that they were following the suspect for

the purpose of “documenting the [suspect’s] activities.” Although both officers assert that Sergeant

Parker’s presence was necessary and allude to danger to other officers or the

public, no facts are detailed to support that conclusion that Parker’s

“immediate presence [was] necessary to prevent injury or loss of life or to

apprehend a suspect.” See Wadewitz , 951 S.W.2d at 467

(conclusory affidavit is not sufficient to support summary judgment). Neither officer suggests that the suspect was

armed or had a violent history or that the suspect was driving recklessly. Neither officer addresses whether other

alternatives were available to Parker to remain part of the surveillance team,

such as staying in contact with Lieutenant Webb by radio to determine the

suspect’s location and catching up on other streets. See Belle ,

297 S.W.3d at 533 (citing Clark , 38

S.W.3d at 583 ) (noting affidavit that failed to address alternative course of

action as required by Wadewitz is

insufficient).

While Sergeant Parker averred in

his affidavit that there were “a limited number of vehicles able to maintain

visible contact with the surveillance target vehicle,” he testified in his

deposition that “7 to 10” vehicles were involved in the surveillance. Sergeant Parker did not offer evidence about

the number of DPS vehicles that passed safely through the intersection ahead of

him or the location of the other vehicles. [8] His affidavit suggests that there was no plan

to confront or arrest the suspect.

Sergeant Parker did not suggest that the suspect knew of the

surveillance or might try to take evasive action if Parker was delayed at the

red light. He also did not address the

need to maintain continuous surveillance on that particular date or explain the

consequences of losing visual surveillance if Lieutenant Webb were also to lose

contact with the suspect.

Neither officer specifically

addresses the risk factors identified in Wadewitz .

The risk

factors include: (1) the nature and severity of the harm the officer’s actions

could cause, (2) the likelihood that any harm would occur, and (3) whether the

risk of harm would be clear to a reasonably prudent officer. Wadewitz , 951 S.W.2d at 466 . Sergeant

Parker describes the risk as “minimal” but does not explain the basis for this

conclusion except that he stopped and looked.

There is no evidence from the two affidavits regarding the amount of the

traffic, the weather, road conditions, or visual obstructions. [9]

Finally, the

required standard of review requires us to view the evidence in favor of the

Rodriguezes and draw all reasonable inferences in their favor. There is no statement by Sergeant Parker or

Lieutenant Webb, or any other evidence, to establish that the “physical safety”

of the other officers was at risk. There

is no evidence that Sergeant Parker, one vehicle out of a team of “7 to 10”

officers, was necessary to maintain contact with the suspect that they were

investigating or the location of the other officers. Indeed, the evidence establishes that

Lieutenant Webb made it through the red light, and a reasonable inference from

that evidence is that he was able to maintain contact with the suspect. There is no evidence that there was a

“reported crime in progress.” Nor is

there any evidence that the surveillance could not be conducted without

Sergeant Parker. The evidence before us

shows that Lieutenant Webb made it through the red light but, after the

accident with the Rodriguezes, returned to the scene. A reasonable inference in favor of the Rodriguezes is that

other officers were available to continue the surveillance or that the need to

continue the surveillance was not so great that Lieutenant Webb could not stop

it to return to the scene of what DPS describes as a “low speed” accident. These facts and the reasonable

inferences from these facts do not conclusively establish that a reasonable police

officer under the same or similar circumstances as Sergeant Parker could have

believed the decision to proceed through the red light was justified.

Because the

affidavits do not address all the Wadewitz

factors and do not state the facts upon which the conclusions are based, we

hold that the DPS did not establish Sergeant Parker’s objective good faith [10]

as a matter of law under the Wadewitz

standard.

We overrule

the DPS’s sole issue.

Conclusion

We affirm the trial court’s order

denying DPS’s plea to the jurisdiction, motion for summary judgment and

motion to dismiss.

Harvey

Brown

Justice

Panel consists of Justices Jennings, Higley,

and Brown.

[1]

Official immunity is also

sometimes referred to as qualified immunity. City of

Houston v. Daniels , 66 S.W.3d 420, 424 (Tex. App.—Houston [14th Dist.]

2001, no pet.); City of Hempstead v. Kmiec ,

902 S.W.2d 118 , 120 n.1 (Tex. App.—Houston [1st Dist.] 1995, no writ); see Travis

v. City of Mesquite , 830 S.W.2d 94 , 100 n.2 (Tex. 1994) (Cornyn, J.,

concurring); see also Brand v. Savage , 920 S.W.2d 672, 674

(Tex. App.—Houston [1st Dist.] 1995, no writ).

As we noted in Kmiec , “the

term ‘official immunity’ is confusing because official immunity covers acts

performed by a government official in the person’s individual capacity, not in

the person’s official capacity.” 902

S.W.2d at 120 n.1. The phrase “qualified

immunity” underscores that the immunity is not absolute.

[2] Indeed,

if a defendant only produces evidence of his or her subjective good faith,

summary judgment is inappropriate. See Tex. Dep’t of Public Safety v. Tanner ,

928 S.W.2d 731, 736 (Tex. App.—San Antonio 1996, no writ). The subjective feelings of the public

official, whether they demonstrate subjective good faith or bad faith, are not

relevant to qualified immunity. Ballantyne , 144 S.W.3d at 427–28 ; Thomas v. Collins , 960 S.W.2d 106, 111

(Tex. App.—Houston [1st Dist.] 1997, pet. denied); Rhodes , 901 S.W.2d at 798 ;

Tanner , 928 S.W.2d at 736 .

[3] See also Clark , 38 S.W.3d at 581 (nonmovant’s response is insufficient if it

demonstrates merely that a reasonable officer could have decided not to take

the same action); Chapa v. Aguilar ,

962 S.W.2d 111, 114 (Tex. App.—Houston [1st Dist.] 1997, no writ) (proof of the

actions that an official could have taken

rather than what a reasonable officer could

have believed is insufficient).

[4] Although it has some concepts that overlap with

negligence principles (t he objective good faith of the official is

reviewed under a standard that includes two elements similar to a general

negligence test—the “reasonable person” and “the same or similar circumstances”),

the good-faith standard is not the equivalent of a general

negligence test, which addresses what a reasonable person would have done. Wadewitz , 951 S.W.2d

at 467 . “The standard of good faith as

an element of official immunity is not a test of carelessness or negligence, or

a measure of an official’s motivation.” Joe

v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 164 (Tex. 2004). To allow official immunity to be overcome by proof

of mere negligence would defeat the purposes of official immunity for

public officials who exercise broad discretion in their tasks. See Belle , 297 S.W.3d at 531 ; see also Chambers , 883 S.W.2d at 655

(“The complex policy judgment reflected by the doctrine of official immunity,

if it is to mean anything, protects officers from suit even if they acted

negligently.”).

[5] After Wadewitz and before Telthorster ,

the Supreme Court rejected a governmental entity’s argument that the Wadewitz factors only apply to an

emergency response and do not apply to a police pursuit case. Clark ,

38 S.W.3d at 582 . The court held that

the general considerations leading to the adoption of the need/risk analysis

set forth in Wadewitz applied equally

to a police pursuit case.

[6] One reason that police officers have broad discretion

is that they often make decisions “in an atmosphere of confusion, ambiguity and

swiftly moving events.” Scheuer v. Rhodes , 416 U.S. 232, 242 , 94

S. Ct. 1683 , 1691–92 (1974). Police

officers have a ‘broad range of duties and authority” and “must often act

swiftly and firmly.” Id. at 246 . Moreover, “police officers . . . . routinely

make close decisions in the exercise of the broad authority that necessarily is

delegated to them” and “are subject to a plethora of rules ‘often so

voluminous, and ambiguous, and contradictory, and in such flux that officials

can only comply with or enforce them selectively.’” Davis

v. Scherer , 468 U.S. 183, 196 , 104 S. Ct. 3012, 3020 (U.S. 1984).

[7] Since Telthorster ,

the Texas Supreme Court has utilized this general standard in claims

against city council and zoning board members. Joe , 145 S.W.3d at 164 ; Ballantyne , 144 S.W.3d

at 426 .

[8] The

fact that Sergeant Parker was the second vehicle behind the suspect, following

Lieutenant Webb, is disclosed in the deposition excerpt offered by the

Rodriguezes. Neither party presented

evidence concerning the location of any of the rest of the “7 to 10” officers

involved in the surveillance.

[9] The

evidence on the high traffic volume was submitted by the Rodriguezes.

[10] Sergeant

Parker’s conclusion that “I can, and do, state that I acted in ‘good faith,’”

to the extent it expresses his subjective state of mind, is irrelevant to the objective

good faith inquiry. Ballantyne , 144 S.W.3d at 427–28.