The opinion
J. HARVEY HUDSON, Justice,
dissenting.
I cannot agree with the majority’s conclusion that the appellee did not prove, as a matter of law, that he acted in good faith during the appellant’s arrest.
Government employees are entitled to official immunity from suit arising from their actions if the injury arose while the employees were (1) exercising discretionary duties; (2) in good faith; (3) that were *7 within the scope of their authority. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Here, the parties agree that at the time of the injury, the appellee was exercising a discretionary duty within the scope of his authority. The parties disagree only on whether he acted in good faith.
In the context of a police response, “good faith” depends upon how a reasonably prudent officer could have assessed the need to respond and the risks associated with the officer’s action. See Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.1997). Here, the appellee supported his motion for summary judgment with deposition testimony and the affidavit of Michael Patton, Director of the Gus George Law Enforcement Academy which is operated by the Fort Bend County Sheriffs Department. In assessing the need of the appellee to respond by drawing his weapon, Patton states:
Mr. Tennell’s own sworn testimony as well as that of all of the officers involved in the events relevant to this suit, establish that, on the night of May 18, 1996, Mr. Tennell attempted to evade police arrest by engaging Navasota and Bryan Police officers, including Officer Telthor-ster, in a high speed police chase. When the chase ended, the officers could not have immediately known what motivated Mr. Tennell to attempt to evade them or whether Mr. Tennell might immediately attempt to cause them injury in order to continue his demonstrated resistance to arrest or for any other reason. In fact, a reasonable officer would be well advised — and actually instructed — to consider the likelihood the need to use force to subdue the suspect under such circumstances. An officer could reasonably assume that Mr. Ten-nell was attempting to flee the police because of a fear that he might be arrested for a serious crime.
In assessing the risks associated with subduing a fleeing suspect while holding an unholstered firearm, Patton states:
Under the circumstances presented by Mr. Tennefl’s own actions, a reasonable officer would consider it appropriate for the police officers present to draw and have ready their firearms for the safety of the officers, the general public and Mr. Tennell. Indeed, at least one officer should, under such circumstances, keep a firearm unholstered and ready up until the time Mr. Tennell was secured by handcuffs or any other form of restraint and was searched for a weapon incidental to his arrest.
The majority suggests the appellee failed to assess the nature, severity, likelihood, and obvious risks associated with trying to subdue a suspect while holding a firearm. However, the Supreme Court has recognized that, “depending on the circumstances, an officer may not be able to thoroughly analyze each need or risk factor, and ... this alone should not prevent the officer from establishing good faith.” See University of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000). Here, Patton summarized his conclusions as follows:
Specifically, Officer Telthorster’s use of his gun under the facts of this incident was a reasonable exercise of his discretion, in accordance with standard officer safety training, and prevailing Texas and constitutional law. These actions were made incidental to the discretion all officers have to ensure his own safety as well as that of others under the circumstances presented by Mr. Tennell’s actions. Officer Telthorster’s decision to keep his firearm drawn up until Mr. Tennell was handcuffed and searched for weapons was appropriate. A reasonable police officer in Officer Telthor- *8 ster’s position — presented with the facts he knew at the time — could reasonably believe that such action was appropriate and not in violation of any clearly established law.
All of the information which I have reviewed demonstrates that the discharge of his firearm was an inadvertent and unexpected mistake which seems to have been caused during the struggle to handcuff the suspect. Although this accident caused some injury to Mr. Ten-nell, the occurrence of that accident does not demonstrate any impropriety in Officer Telthorster’s conduct.
I believe the appellee has properly addressed both the need and risk factors associated with his conduct. In response, the appellant did not rebut the aforementioned summary judgment proof with affidavits or other summary judgment proof showing that no reasonable police officer would, under the same or similar circumstances, have attempted to subdue the appellant while holding a firearm.
Accordingly, I respectfully dissent.