Elmer Rivera, Kassandra Morales Rodriguez and Isreal Morales v. City of Houston and Veronica Romero

Opinion issued December 22, 2020

In The

Court of Appeals

For The

First District of Texas

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NO. 01-19-00629-CV

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ELMER RIVERA, KASSANDRA MORALES RODRIGUEZ, AND ISREAL

MORALES, Appellants

V.

CITY OF HOUSTON, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2018-87546

MEMORANDUM OPINION

This appeal arises from a car accident and centers on whether a City of

Houston police offer held official immunity when she drove her police vehicle

through an intersection—having no idea that she had a red light—on her way to pick

up a co-worker because she planned, after that, to stop by a police event to which

she had neither been assigned nor instructed to go. The City argued she held official

immunity, and the trial court granted the City’s summary-judgment motion, ruling

that the City established its affirmative defense.

In four issues, the other vehicle’s driver, Elmer Rivera, and his passengers,

Kassandra Morales Rodriguez and Israel Morales, (collectively, Rivera) contend that

(1) they raised a genuine issue of material fact to defeat the City’s summary-

judgment motion on immunity, (2-3) the trial court abused its discretion on two

evidentiary rulings related to the parties’ summary-judgment evidence, and (4) the

trial court abused its discretion in denying their motion to continue the summary-

judgment hearing, given that they did not get the chance to depose the two officers

whose affidavits the City relied on in support of its summary-judgment motion. As

explained below, we conclude that Rivera raised a fact issue on the officer’s official

immunity, which requires a reversal unless the ruling was correct on other grounds.

The City argues it was. It contends that the summary-judgment should have

been granted on its alternative theory that the emergency exception to governmental-

immunity waiver applied and the trial court erred when it denied the summary-

judgment motion on that separate ground. Because the trial court did not err in

denying summary judgment on that ground, we overrule the City’s sole appellate

issue.

We reverse.

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Background

At around midnight, Officer V. Romero was driving outside of her regular

patrol area on her way to the Beechnut Station to pick up her partner. After picking

up her partner, she planned to go to a non-emergency priority-three call on an auto

theft. While on her way to the Beechnut Station, she heard a radio announcement of

an emergency priority-two call involving a suspect with a weapon. At the time,

Romero was 10 to 15 minutes from that location, which was in her regular patrol

area. Romero was not assigned to the priority-two call. She was not asked to back

that call up either.

Priority-two calls are emergency calls. The standard response to such a call,

according to Lieutenant C. Chen, who supervises patrol officers, is to “run silent

without emergency lights and siren” with a response time of “under five minutes.”

But if the situation “clearly warrants” the use of emergency equipment (meaning

lights and a siren), then an officer has the discretion to use that mode.”

Even through Romero was 10 or more minutes away, had not been assigned

to the call, and planned to pick up her partner before doing anything else, Romero

decided to “check by” the priority-two call after going to the Beechnut Station. At

that point, before getting to the Beechnut Station, she engaged her emergency

equipment as she drove to pick up her partner.

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Recognizing that the law permits police officers who are responding to an

emergency to violate certain traffic laws,1 Romero reached the first intersection after

turning on her emergency equipment, noted that her light was red, “came to a

complete stop to ensure the intersection was clear,” saw that the other vehicles were

yielding her the right of way even though she had the red light, and drove through

that intersection.

She quickly approached the next intersection. There, she slowed down as she

approached the intersection but did not stop. As she was typing a message to the

dispatcher on her mobile data terminal (MDT) device about checking by the priority-

two call later, she entered that intersection. Romero later admitted she had no idea

whether her light was red or green when she entered the intersection typing on her

MDT. As she entered the intersection, her police car struck another car that was

traveling along the intersecting roadway. The undisputed summary-judgment

evidence is that Romero, in fact, had a red light, even though she was not aware she

did, and that the other driver, Elmer Rivera, had a green light.

In December 2018, Rivera and his passengers sued Officer Romero and the

City of Houston for damages for injuries suffered in the wreck. The next month, the

1

See TEX. TRANSP. CODE § 545.151(a)(1)(A) (requiring a motorist to stop at an

official traffic-control device); id. § 546.001(2) (authorizing police officers to

“proceed past a red or stop signal or stop sign, after slowing as necessary for safe

operation”).

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City answered and moved to dismiss Officer Romero from the suit under the Texas

Tort Claims Act, leaving just the City as the defendant. The motion was fully briefed

by both sides and set for hearing in February 2019. The trial court granted the motion

that month.

Two months later, the City filed a motion for summary judgment on two

immunity grounds: (1) official immunity for Romero’s actions and (2) the

emergency exception to the Tort Claims Act’s governmental immunity waiver

provision. See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (official immunity); id.

§ 101.055(2) (emergency exception). In support of its motion, the City attached the

affidavits of Officer Romero and her supervisor, Lieutenant Chen. The motion was

set for May 2019.

Rivera responded in several ways. First, he moved to compel the City to

respond to pending discovery and to strike various objections the City had raised to

his discovery requests. That motion was set to be heard in May 2019. Second, he

filed a verified motion to continue the summary-judgment hearing, arguing that

discovery was not complete and depositions still needed to be taken. Romero had

not been deposed yet because the City had not given any dates for her availability.

Also, the case had not been set for trial. Third, he noticed Romero’s deposition for

May 28, 2019.

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Before the May 28 deposition date, the trial court denied Rivera’s motion to

continue the summary-judgment hearing and granted the City’s summary-judgment

motion.

Governmental Immunity

A. Standard of Review

Governmental immunity protects political subdivisions of the State, including

municipalities, from suit, unless immunity from suit has been waived. Gen. Servs.

Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). When a

governmental unit raises the affirmative defense of governmental immunity through

a summary-judgment motion, it must establish the affirmative defense as a matter of

law. See TEX. R. CIV. P. 166a(c); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536,

542 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

If the movant conclusively establishes the affirmative defense of immunity,

the burden of production shifts to the nonmovant to present evidence sufficient to

create a fact issue on at least one element of either the movant’s affirmative defense

or an exception to that defense. Oakbend, 515 S.W.3d at 542; Zeifman v. Nowlin,

322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.). If the movant cannot and

suit is barred because of a governmental unit’s immunity, summary judgment is

proper. Oakbend, 515 S.W.3d at 542; See Shives v. State, 743 S.W.2d 714, 715 (Tex.

App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be

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based on a showing that the cause of action is barred as a matter of law by the

affirmative defense of governmental immunity.”); cf. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004) (standard of review for

jurisdictional plea based on evidence generally mirrors traditional summary-

judgment standard).

B. Whether the City established immunity as matter of law based on good-

faith performance of a discretionary act

Rivera sued the City for the actions of its employee, Officer Romero, in

causing the car wreck and resulting injuries. Political subdivisions, including

municipalities, cannot be held liable for the actions of their employees unless a

constitutional provision or statute waives governmental immunity. Little-Tex

Insulation, 39 S.W.3d at 594. The Texas Tort Claims Act waives governmental

immunity in certain circumstances. Dallas Cty. Mental Health Mental Retardation

v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998). One of those involves injuries that

result from the governmental employee’s use of a vehicle. Section 101.021 of the

Act waives a governmental unit’s immunity for, among other things, property

damage and personal injuries proximately caused by the negligence of an employee

acting within her scope of employment if (1) the damage and injuries arise from the

operation or use of a motor vehicle and (2) the “employee would be personally liable

to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE §

101.021(1).

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The second half of the waiver criteria implicates official immunity because a

governmental employee who holds official immunity for her actions or omissions,

would not be “personally liable under Texas law.” See DeWitt v. Harris Cty., 904

S.W.2d 650, 653 (Tex. 1995) (“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” under § 101.021(1)); see also Mem’l Villages Police

Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 18, 2011, no pet.). “A governmental employee is entitled

to official immunity: (1) for the performance of discretionary duties; (2) within the

scope of the employee’s authority; (3) provided the employee acts in good faith.”

Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); see City of Lancaster v.

Chambers, 883 S.W.2d 650, 654 (Tex. 1994).

1. Discretionary duty

Generally, nonemergency driving by a police officer while on official

business is not a discretionary duty; it is, instead, a ministerial act that does not entitle

an officer to official immunity. City of Houston v. Hatton, No. 01-11-01068-CV,

2012 WL 3528003, at *3 (Tex. App.—Houston [1st Dist.] Aug. 16, 2012, pet.

denied); Harris Cty. v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). But, when the officer’s operation of a vehicle involves personal

deliberation or the exercise of the officer’s professional expertise, decision, or

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judgment, then the manner of driving may become a discretionary act. Hatton, 2012

WL 3528003, at *3. For example, an officer’s manner of driving, including violating

certain traffic laws, when the officer is trying to quickly reach the scene of suspected

criminal activity and assist another officer has been held to be a discretionary act.

See Harless v. Niles, 100 S.W.3d 390, 398 (Tex. App.—San Antonio 2002, no pet.).

2. Good faith

If the officer’s driving qualifies as the performance of a discretionary act, the

officer still must act in good faith to qualify for official immunity. See Clark, 38

S.W.3d at 580. We measure the “good faith” requirement against a standard of

objective legal reasonableness, without regard to the officer’s subjective state of

mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997).

Because official immunity is part of the City’s affirmative defense of

governmental immunity raised in its motion for summary judgment, the City had the

burden to prove that a reasonably prudent police officer, under the same or similar

circumstances, “could have believed his actions were justified based on the

information he possessed at the time.” Gomez v. City of Houston, 587 S.W.3d 891,

897 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Telthorster v.

Tennell, 92 S.W.3d 457, 465 (Tex. 2002)).

This “could have believed” evaluation does not raise a question of

unreasonableness. Rather, it is a test of good faith analogous to an abuse-of-

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discretion standard that protects “all but the plainly incompetent or those who

knowingly violate the law.” Id. (quoting Texas Dep’t of Pub. Safety v. Bonilla, 481

S.W.3d 640, 643 (Tex. 2015) (per curiam) (internal quotation marks omitted). In

other words, the City need not prove it would have been unreasonable not to take the

actions that Officer Romero took or that a reasonable officer would have taken the

same actions as her; instead, it is enough to prove that a reasonable officer under the

same or similar circumstances might have reached the same decision she did. Id.;

Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 491 (Tex. App.—Houston

[1st Dist.] 2011, no pet.).

The evaluation of good faith compares the need to act against the risks of the

officer’s actions based on the facts at the time. Wadewitz, 951 S.W.2d at 467. Need,

in the context of an emergency response, is evaluated based on factors such as (1)

the seriousness of the crime or accident the officer is responding to, (2) the need for

the officer’s immediate presence to prevent injury or loss of life or to apprehend a

suspect, and (3) the availability of alternative courses of action, if any, to achieve a

comparable result. Id.

Risk evaluates countervailing public-safety concerns by examining (1) the

nature and severity of harm that the officer’s actions could cause, including injuries

to bystanders as well as the possibility that a vehicle accident might prevent the

officer from reaching the scene of the emergency that drew the action, (2) the

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likelihood that harm would occur, and (3) whether any risk of harm would be clear

to a reasonably prudent officer based on the officer’s perception of the facts at the

time. See id.; Gomez, 587 S.W.3d at 898.

If the City meets this “good faith” summary-judgment burden, then, to raise a

fact issue to defeat summary judgment, Rivera must offer evidence that no

reasonable officer in Romero’s position could have believed that the facts justified

her conduct. Gomez, 587 S.W.3d at 898.

3. The City did not establish these elements conclusively

In support of its summary-judgment motion and to conclusively establish

official immunity, the City relies on the affidavits of Officer Romero and Lieutenant

C. Chen, who was Officer Romero’s supervisor on the day of the wreck. The City

argues that these affidavits establish that Officer Romero was performing a

discretionary act and acting in good faith at the time of the wreck. In doing so, the

City focuses on the fact that Romero had engaged her emergency equipment

consistent with responding to an emergency because Romero intended to “check by”

the priority-two call after picking up her partner. And the City focuses on Officer

Romero’s explanation that it was reasonable for her to type on her MDT as she drove

through the intersection where the collision occurred because she wanted to let the

radio operator know that she intended to check by the priority-two call and her

“preference is to enter that information into the MDT, rather than reporting via the

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radio to leave the air open in case the officer needs assistance.” Her supervisor

agreed that her actions were reasonable.

But other evidence called into question the reasonableness of these actions.

First, Lieutenant Chen claimed that the standard response to a priority-two call is to

“run silent without emergency light and siren” but an officer “has discretion to use

that mode” if the situation “clearly warrants the use of emergency equipment.” There

is no summary-judgment evidence that this situation warranted emergency

equipment. While Romero claimed that typically “two units respond” to such a call

“unless the primary unit is a two-man unit,” making her decision to check by the

unassigned call align with police department practices, there is no summary-

judgment evidence that the unit assigned to the call was a one-man unit for which

another unit would be warranted. This is thus no evidence that the standard practice

for this call was for her unit to go as well. Moreover, Lieutenant Chen claimed that

the standard response to a priority-two call is “under five minutes.” Romero, who

was not assigned to the call, claimed that she was 10-15 minutes away and still

planned to pick up her partner before going to the call.

Even if we were to assume that,

—the City established that Officer Romero’s decision to “check by” a

call that was more than 10 minutes away, with no evidence the call met

the criteria for her unit’s participation, and for which she had not been

assigned to appear was a discretionary act,

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—the City established that choosing to check by a priority-two call that

was not within 5 minutes of her location and to use emergency

equipment to do so—even though Romero was 10-15 minutes away and

planned to go pick up her partner from the Beechnut Station before

going there—was “clearly warrant[ed],” and

—the City established that Romero’s actions in typing on her MDT

while driving through an intersection against a red light could be

considered a good faith action,

we still must conclude that no reasonable officer could have concluded it was

reasonable to do these things without first confirming that the light was green or, at

a minimum, having some idea whether it was red.

Neither of the affidavits the City relies on addresses or acknowledges what

the summary-judgment evidence establishes: Officer Romero entered the

intersection having no idea whether she had a red light or green light. Rivera

submitted the Texas Peace Officer’s Crash Report for the wreck as summary-

judgment evidence. The report contains the verbatim text of Officer Romero’s

written statement, which included the concession: “I didn’t realize I had the red light

at the intersection at S. Braeswood.”

That Romero did not know the status of the traffic light as she entered an

intersection is dispositive: it is not objectively reasonable to drive into an

intersection, while actively typing on a machine, without having any idea that the

traffic light controlling traffic from that direction was red, meaning there could be

cross-traffic entering the intersection on a green light. Because Romero did not know

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whether she had a red light when she entered that intersection typing on her MDT,

she could not properly evaluate the risks of her actions against any need to check by

the priority-two call, thereby taking her actions outside the realm of a good-faith

performance of a discretionary act. See Jarpe v. City of Lubbock, No. 07-17-00316-

CV, 2019 WL 2529670, at *5–6 (Tex. App.—Amarillo June 19, 2019, pet. denied)

(rendering judgment against City on immunity claim, concluding no reasonably

prudent officer could have determined it reasonable to speed to a call to which the

officer was not assigned, at night, without emergency equipment activated, and

while looking down at the MDT instead of the road and other vehicles in the

vicinity); Gomez, 587 S.W.3d at 899 (holding that city failed to establish good faith

where affidavits discussed good faith under assumed facts and provided no evidence

of good faith under version of facts most favorable to nonmovant); Rodriguez, 344

S.W.3d at 497 (concluding officer and lieutenant’s affidavits did not establish good

faith in driving through red light).

Because Rivera raised a fact issue on official immunity,2 we sustain Rivera’s

first issue.

2

The City argues that Rivera is unable to raise a fact issue without expert evidence,

citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466–67 (Tex. 1997) and Harris

Cty. v. Avila, No. 14-18-00182-CV, 2019 WL 1030332, at *6 (Tex. App.—Houston

[14th Dist.] Mar. 5, 2019, no pet.). Neither case supports the City’s position. Neither

case addresses whether, much less holds that, expert testimony is required to raise a

fact issue on official immunity. See Wadewitz, 951 S.W.3d at 467 (concluding that

the expert testimony offered on the subject of good faith was conclusory and

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C. The evidentiary rulings and the continuance ruling are moot

In his remaining three issues, Rivera challenges two evidentiary rulings on the

summary-judgment evidence and another ruling to deny a continuance of the

summary-judgment hearing. We conclude that all three of these issues are mooted

by our holding that the trial court erred in granting the summary-judgment motion,

which returns this case to the trial court’s docket for additional proceedings and

evidentiary development.

D. Whether the City established immunity as matter of law based on the

emergency exception to immunity waiver

The City contends that, even if the trial court erred in granting it summary

judgment on official immunity arising out of a good-faith performance of a

discretionary act, the summary judgment may still be upheld on the alternative

theory that the emergency exception to immunity waiver applies here. The trial court

explicitly rejected this argument, and we do as well.

Under the emergency exception, the Texas Tort Claims Act’s immunity

waiver will not apply to a claim arising from “the action of an employee while

responding to an emergency call or reacting to an emergency situation if [1] the

action is in compliance with the laws and ordinances applicable to emergency action,

or in the absence of such a law or ordinance, if [2] the action is not taken with

therefore no evidence); Avila, 2019 WL 1030332, at *7 (stating that Avila “failed

to present any controverting proof,” not simply expert opinion testimony).

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conscious indifference or reckless disregard for the safety of others . . . .” TEX. CIV.

PRAC. & REM. CODE § 101.055(2).

The laws on operating an emergency vehicle are in the Transportation Code.

See TEX. TRANSP. CODE §§ 546.001–.006; Perez v. Webb County, 511 S.W.3d 233,

236 (Tex. App.—San Antonio 2015, pet. denied). Section 546.005 provides that an

emergency vehicle driver must drive “with appropriate regard for the safety of all

persons” and is not relieved of the “consequences of reckless disregard for the safety

of others.” Id. § 546.005. A person commits the offense of reckless driving if “the

person drives a vehicle in willful or wanton disregard for the safety of persons or

property.” Id. § 545.401(a). A violation of this provision requires a showing that the

driver committed an act he knew or should have known posed a high degree of risk

of serious injury. City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—

Houston [1st Dist.] 2008, no pet.); Perez, 511 S.W.3d at 236. This is a recklessness

standard. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006)

(“conscious indifference” and “reckless disregard” have been interpreted to require

proof that a party knew the relevant facts but did not care about the result).

An operator approaching an intersection “shall stop, yield, and grant

immediate use of the intersection . . . in obedience to an official traffic-control

device.” TEX. TRANSP. CODE § 545.151(a)(1)(A). It is permissible for an authorized

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emergency vehicle to “proceed past a red [light] after slowing as necessary for safe

operation.” Id. § 546.001(2).

The City points to Romero’s affidavit in which she states she slowed down

before entering the intersection where the wreck occurred. But the statute requires

more than that she slow down: it requires “slowing as necessary for safe operation”

through the intersection. See id.

Here, Romero slowed her vehicle, but she did not look to see if she had a red

light to evaluate the risk of proceeding through the intersection. In fact, she had no

idea if she had the right of way or if other traffic did, yet she proceeded through the

intersection looking—not at the road, but—at her MDT.

Rivera raised an issue of fact about whether Romero acted with reckless

disregard for him and other drivers in the area by failing to observe, appreciate, or

weigh the risk of entering this intersection against a red light and with her eyes

diverted. See Perez, 511 S.W.3d at 237.

This Court’s holding in Kuhn is distinguishable. There, an officer was

responding to a house fire emergency. Kuhn, 260 S.W.3d at 95. He activated his

emergency lights and approached an intersection. Id. at 98. He recognized he had a

red light, he slowed down or possibly stopped and evaluated whether the intersection

appeared clear to cross, and he entered the intersection. Id. at 99–100. There was a

blind spot at that intersection, the officer did not see another car coming, and the two

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collided in the intersection. Id. This Court held that there was no evidence of reckless

disregard because the officer slowed as necessary and the existence of a blind spot

was not determinative. See id. at 100–01.

Here, on the other hand, Romero entered the intersection having failed to

determine whether she had a red light and she did so while distracted by typing on

her MDT. She slowed her vehicle, but she did not slow to the degree necessary to

evaluate whether she was traveling against a red light and, based on that information,

to evaluate the risks of proceeding through the intersection while typing on her

MDT.

The City did not establish a right to summary-judgment on the emergency

exception on this evidence, and the trial court was correct to deny the motion on this

ground.

We overrule the City’s sole issue.

Conclusion

We reverse and remand for additional proceedings.

Sarah Beth Landau

Justice

Panel consists of Justices Keyes, Lloyd, and Landau.

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