Galveston County v. Victoria Leach and Stacie Habetz

Affirmed and Opinion filed December 9, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00181-CV

GALVESTON COUNTY, Appellant

V.

VICTORIA LEACH AND STACIE HABETZ, Appellees

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 19-CV-0027

OPINION

In this interlocutory appeal from the denial of a plea to the jurisdiction,

Galveston County argues that its governmental immunity was not waived under the

Texas Tort Claims Act1 because the personal injuries alleged did not arise from a

governmental employee’s “operation or use of a motor-driven vehicle.”2 As to one

1

TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109.

2

See id. § 101.021.

of the two plaintiffs, the County also contends that it had neither formal notice nor

actual knowledge of its alleged fault. The plaintiffs—two pedestrians who were

struck by a car operated by an unlicensed driver—maintain that the County

effectively operated or used the car because the unlicensed driver acted under the

deputy’s control, and that the formal notice provided by one plaintiff gave the

County actual knowledge of its alleged fault in causing or contributing to the other

plaintiff’s injury. Because the conflicting evidence creates questions of fact on these

jurisdictional issues, we affirm.

I. BACKGROUND

In May 2018, an event called “Go Topless Jeep Weekend” was held on Crystal

Beach in Galveston County. Among the estimated 100,000 attendees were Jazzmine

Chin, Craig Bell, Victoria Leach, and Stacie Habetz.

Chin decided to leave the event and Bell agreed to give her a lift in his Dodge

Charger. Bell attempted to exit the beach via Monkhouse Road, which runs north

and south perpendicular to the beach, but his car became stuck in the sand, blocking

the traffic traveling east and west on the beach. Bell and Chin got out to check the

car, then Chin sat in the car’s driver’s seat with the engine running and the air

conditioner on. Chin, however, was not licensed to drive.

Meanwhile, Sergeant Brent Cooley and Corporal Rowlands, both of the

Galveston County Sheriff’s Office, had arrested a suspect for a weapons violation

and were in a pickup truck heading east on the beach toward South Monkhouse Road

to take the arrestee to the Crystal Beach substation. Rowlands was driving the truck,

and Cooley was in the passenger seat. When the officers were between fifty and

seventy-five yards from the intersection at South Monkhouse Road, traffic became

gridlocked, and Cooley saw that the vehicle in front of Bell’s Dodge was stuck in

the sand at the intersection and three or four people were trying to dig the vehicle

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out. Behind that vehicle, Bell’s Dodge was blocking the intersection, bringing east-

west traffic on the beach to a halt.

After telling Rowlands he was going to try to clear the intersection, Cooley

walked to the Dodge and told Chin to move the car. Hearing this, Bell approached

and told Cooley it was his, Bell’s, car and that he would move it, but Cooley placed

his hand on his gun and told Bell to shut up and back up. Chin told Cooley she did

not have a driver’s license, but Cooley again told her to move the car. Because Chin

had previously had a learner’s permit, she “thought [she] could handle it.” But as

she testified, “I’ve never driven a fast car like that before. And I wasn’t used to the

sound of the car and everything. So when I tapped the gas, I got scared, and my foot

went down, and it just backed all the way up.” Bell stated that the car “was spinning

when it got out.” The car continued in reverse, striking two pedestrians and a parked

Jeep.

Leach had been standing in front of the parked Jeep, and she attempted to

jump out of the way but one of her hands was caught between the Jeep and the

Dodge. The reversing Dodge struck Habetz, too, but the parties do not describe

Habetz’s location or injuries.

Leach and Habetz sued the County for negligence in ordering an unlicensed

driver to move a vehicle and in refusing to let the vehicle’s owner move the car.3

The County filed a plea to the jurisdiction on the ground of governmental immunity

and lack of statutorily required notice, but the trial court denied the plea.

In two issues, the County argues that the trial court lacks subject-matter

jurisdiction because (a) governmental immunity bars Leach’s and Habetz’s claims;

3

Leach and Habetz dismissed their claims against the County for negligent hiring, training,

and supervision. Habetz’s husband also had sued the County for loss of consortium but later

dismissed his claim.

3

and (b) as to Habetz’s claims only, the County neither received pre-suit notice nor

had actual notice of the claims.

II. STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law that is

properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224 (Tex. 2004). We review the trial court’s ruling on a

plea to the jurisdiction de novo. Chambers-Liberty Ctys. Navigation Dist. v. State,

575 S.W.3d 339, 345 (Tex. 2019). Parties may submit evidence supporting or

opposing the plea, which we review under the same standard applicable to a

traditional motion for summary judgment. Id. (citing Sampson v. Univ. of Tex. at

Austin, 500 S.W.3d 380, 384 (Tex. 2016)). We take as true all evidence favorable to

the plaintiff, indulging every reasonable inference and resolving any doubts in the

plaintiff’s favor. Sampson, 500 S.W.3d at 384. If the relevant evidence fails to raise

a fact question on the jurisdictional issue, the court rules on the plea as a matter of

law. Miranda, 133 S.W.3d at 228. But if the evidence creates a fact question

regarding the jurisdictional issue, then the trial court must deny the plea to the

jurisdiction and allow the factfinder to resolve the issue. Id. at 227–28.

III. THE TEXAS TORT CLAIMS ACT

The state generally has sovereign immunity from suit and liability. See

Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429–30 (Tex. 2016).

When political subdivisions of the state act in a governmental capacity, they share

in the state’s immunity, which is then referred to as governmental immunity. See id.

Unless waived, governmental immunity from suit defeats a trial court’s subject-

matter jurisdiction. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

4

The Texas Tort Claims Act provides a limited waiver of governmental

immunity if certain conditions are met. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021, 101.025. Under these provisions, governmental immunity from suit and

liability is waived for, among other things, personal injury proximately caused by

the wrongful act or omission or the negligence of a governmental employee acting

within the 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.” Id. § 101.021(1).

Given the limited nature of the immunity waiver, courts strictly construe the

operation-or-use requirement. See, e.g., Ryder Integrated Logistics, Inc. v. Fayette

County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam); LeLeaux v. Hamshire–

Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). “Operation” means “a

doing or performing of practical work.” Mount Pleasant Indep. Sch. Dist. v. Estate

of Lindburg ex rel. Lindburg, 766 S.W.2d 208, 211 (Tex. 1989) (quoting Jackson v.

City of Corpus Christi, 484 S.W.2d 806, 809 (Tex. App.—Corpus Christi 1972, writ

ref’d n.r.e.)). “Use” “means ‘to put or bring into action or service; to employ for or

apply to a given purpose.’” Id. (quoting Beggs v. Tex. Dep’t of Mental Health &

Mental Retardation, 496 S.W.2d 252, 254 (Tex. App.—San Antonio 1973, writ

ref’d)). The Supreme Court of Texas has further explained that “the required

operation or use is that of the employee. This requirement is consistent with the clear

intent of the Act that the waiver of sovereign immunity be limited.” LeLeaux, 835

S.W.2d at 51; accord, San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.

2004) (section 101.021’s waiver applies “only when the governmental unit is itself

the user”).

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IV. OPERATION OR USE OF A MOTOR-DRIVEN VEHICLE

In the first half of the County’s first issue, the County argues that this case

falls outside the Texas Tort Claims Act’s waiver of immunity because Cooley did

not operate or use the vehicle that struck Leach and Habetz. Leach and Habetz,

however, maintain that Chin acted under Cooley’s direction such that Cooley must

be considered to have been controlling her actions, and thus, operating or using the

vehicle himself. The differing sides understandably rely on differing authorities,

which we will attempt to reconcile.

A. The County’s Authorities

In its first appellate argument, the County maintains that, under the facts in

this case, Cooley did not operate or use the vehicle that struck Leach and Habetz

because “operation” and “use” do not include law-enforcement officers’ direction

and control of traffic. In addition, the County argues that Cooley did not retain

control over the vehicle Chin operated because Chin was free to disobey his

instructions and she chose the vehicle’s path and speed. In support of its position,

the County relies primarily on three cases: Jackson v. Corpus Christi, 484 S.W.2d

806 (Tex. App.—Corpus Christi 1972, writ ref’d n.r.e.), Townsend v. City of Alvin,

No. 14-05-00915-CV, 2006 WL 2345922 (Tex. App.—Houston [14th Dist.] Aug.

15, 2006, no pet.) (mem. op.), and City of Sugar Land v. Gaytan, No. 01-18-01083-

CV, 2020 WL 2026374 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.)

(mem. op.).

1. Jackson v. Corpus Christi

In Jackson, the plaintiffs’ car struck a stalled vehicle that had been left

unattended in the left lane of traffic. Jackson, 484 S.W.2d at 807. The stalled

vehicle’s lights were off, and there were no flares or other warning devices. Id. The

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plaintiffs alleged that two city police officers were negligent in failing to direct

traffic and have the vehicle towed and in leaving the scene unattended or failing to

make arrangements for someone else to stay with the stalled vehicle. Id. at 807–08.

The trial court granted the city summary judgment on the ground of governmental

immunity, and the appellate court affirmed, stating that a municipality retains

immunity for the negligent acts or omissions of its employees, agents, or officials in

“the regulation, direction and control of traffic on, over and across a public street or

highway.” Id. at 808. The court concluded that the plaintiffs’ “allegations of

negligence related directly to the control of traffic” and “do not in any way arise

from the operation or use of a motor vehicle.” Id. at 809.

Jackson, however, is factually distinguishable in that the plaintiffs in that case

offered neither allegations nor evidence that a law-enforcement officer used or

operated the vehicle at issue, whether directly or by controlling the actions of the

vehicle’s driver. To the contrary, the plaintiffs’ complaint in Jackson was that the

officers failed to take any action concerning the stalled vehicle.

The County, however, does not rely so much on the facts of Jackson as on that

court’s statement, “It has long been the rule in this State that the regulation, direction

and control of traffic on, over and across a public street or highway is a governmental

function . . . , and that while engaged in such function a city is not liable in

damages.” Id. at 808. In support of that statement, the Jackson court relied

exclusively on cases predating the Texas Tort Claims Act,4 when a municipality

could be held liable for its agents’ negligence only in performing proprietary

functions, not governmental functions.5 Nevertheless, the court acknowledged that

4

The Texas Tort Claims Act became effective on January 1, 1970. Texas Tort Claims Act,

61st Leg., R.S., ch. 292, § 22, 1969 TEX. GEN. LAWS 874, 879 (eff. Jan. 1, 1970).

5

See, e.g., Scroggins v. City of Harlingen, 131 Tex. 237, 247, 112 S.W.2d 1035, 1040

(1938) (“The rule is well settled that a municipal corporation is not liable for the negligence of its

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the Texas Tort Claims Act provides exceptions to a municipality’s immunity, even

when performing a governmental function. Id. at 808. The allegations in that case

simply did not involve the police officers’ operation or use—even indirectly—of a

motor-driven vehicle.

2. Townsend v. City of Alvin

In Townsend, a city police officer stopped Michael Leroux for speeding and

discovered that Leroux was unlicensed and untrained and that the vehicle was

uninsured. Townsend, 2006 WL 2345922, at *1. The officer told Leroux to drive

home. Id. Minutes later, Leroux ran a red light, broadsiding another car and killing

its driver. Id. The decedent’s survivors sued the city, alleging that the officer

“exercised control” over Leroux’s vehicle when the officer “commanded Leroux to

drive straight home.” Id. We disagreed, explaining that the officer “retained no

control over Leroux’s vehicle, and Leroux would suffer no consequence for

disobeying” the officer. Id. at *3. We further pointed out that the officer had released

Leroux with an admonishment, “trusted that Leroux would comply, and was not

present when the accident occurred.” Id. Thus, we concluded that the city retained

its immunity.

agents and employees in the performance of purely governmental matters solely for the public

benefit.”), judgment set aside on reh’g, 131 Tex. 237, 114 S.W.2d 853 (1938); City of Abilene v.

Woodlock, 282 S.W.2d 736, 738 (Tex. App.—Eastland 1955, writ ref’d) (“[A municipality] has

the duty under its police power to make proper regulations for the convenience and protection of

the public.”); Parson v. Tex. City, 259 S.W.2d 333, 334 (Tex. App.—Fort Worth 1953, writ ref’d)

(“It is well settled that a city, in the exercise of a governmental as distinguished from a proprietary

or corporate function, is exempt from liability for damages occasioned by its negligence in carrying

out such function.”). Since the enactment of Texas Civil Practice and Remedies Code § 101.0215,

however, a municipality can be liable for damages arising from its governmental functions. See

TEX. CIV. PRAC. & REM. CODE ANN. §101.0215(a).

It is also worth noting that the distinction between governmental and proprietary functions

applies only to municipalities, not to counties, and thus, can have no application in this case.

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3. City of Sugar Land v. Gaytan

The Gaytan court relied on both Jackson and Townsend. In Gaytan, the

plaintiff was injured while participating in a triathlon. 2020 WL 2026374, at *1. Two

city law-enforcement officers were directing traffic related to the event, and as

Gaytan biked toward an intersection, one of the officers signaled motorist Daksha

Shah, who was driving on an intersecting street, “to proceed through the intersection

to make her left hand turn.” Id. Gaytan alleged that Shah entered the intersection but

then paused in the traffic lane, causing Gaytan to strike her car. Id. According to

Gaytan, the officers were “negligent in instructing [Shah] to enter the [intersection]

without sufficient time to pass through the intersection and avoid the oncoming

[triathlon] participants.” Id. (alterations in original). The city asserted governmental

immunity, but the trial court denied the jurisdictional plea. Id. at *2.

In his response to the city’s appeal, Gaytan argued that the officers directing

traffic at this location were “in complete control of the use or operation of the

vehicles [, including Shah’s car,] at the intersection.” Id. at *4 (alterations in

original). After discussing Jackson and Townsend, among other cases, the reviewing

court concluded that Gaytan did not allege facts demonstrating that the “officers’

direction or control of traffic constituted ‘operation’ or ‘use’ of a motor-driven

vehicle.” Id. at *6. The court did not explain the factors supporting this conclusion.

In a more detailed alternative holding, the Gaytan court added that even if the

officers’ act of directing traffic constituted the operation or use of a motor vehicle,

Gaytan had alleged that the collision occurred because Shah paused her vehicle in

the traffic lane, and he did not allege that the officers directed her to pause her

vehicle. Id. at *6. Thus, the court reasoned that Gaytan’s injuries did not arise from

the officers’ operation or use of a motor-driven vehicle as required by the statute,

but from an action by Shah that the officers did not instruct her to do. See id. at *6–

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7. For each of these independent reasons, the court held that the city retained

immunity from Gaytan’s claims.

B. Leach and Habetz’s Authorities

Leach and Habetz respond that, in effect, Cooley operated or used the vehicle

that Chin drove because Chin acted under Cooley’s control. In support of this

position, Leach and Habetz rely primarily on County of Galveston v. Morgan, 882

S.W.2d 485 (Tex. App.—Houston [14th Dist.] 1994, writ denied), and City of

Socorro v. Hernandez, 508 S.W.3d 1 (Tex. App.—El Paso 2015, pet. denied).

1. County of Galveston v. Morgan

In Morgan, private tractor-trailer rigs with dump beds were used to spread

gypsum on a road. Morgan, 882 S.W.2d at 487. As a truck slowly moved forward,

a hydraulic ram gradually raised the truck’s dump bed so that gypsum would be

spread evenly behind it. Id. at 487–88. County employees acted as spotters to watch

for overhead obstructions and to signal the driver when to move forward or stop. Id.

at 488. The front spotter directed a driver to move a truck so that the top of the raised

dump bed was less than two feet from a live power line. See id. Morgan climbed the

trailer to see if the dump bed could be safely lowered and received an indirect electric

shock that knocked him to the ground, injuring him. See id. A jury found the county

and Morgan equally liable, id. at 487, and on appeal, the county argued that there

was legally and factually insufficient evidence that the accident arose from a county

employee’s operation or use of a motor-driven vehicle. Id. at 490. This court

explained,

[The spotters] were a necessary part of the job. The spotters told the

truck driver when to move forward, how far to move, when to raise his

bed, how far to raise it, when to lower his bed, and when to stop. The

movement of the truck and the laying of the gypsum was within the

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spotters’ sole discretion. If a driver moved his truck contrary to the

spotters’ direction, he could be fired.

Id. We therefore rejected the county’s argument, instead concluding that county

employees “‘used or operated’ the trucks by exercising complete control over their

‘use or operation.’” Id.

2. City of Socorro v. Hernandez

In Hernandez, the authoring court similarly held that two injured plaintiffs

adequately alleged that a governmental employee operated or used a motor-driven

vehicle, though the employee himself had never driven it. In that case, plaintiffs

Hernandez and Maldonado were involved in a collision on a dark road, leaving

Hernandez’s car and hazard lights inoperable. Hernandez, 508 S.W.3d at 3. A city

police officer parked his patrol car on a side street, activated his overhead flashing

lights, and ordered the two men to push Hernandez’s car out of the street. Id. Another

driver, distracted by the patrol car’s lights, crashed into Hernandez, Maldonado, and

the police officer, severely injuring them. Id. The Hernandez court concluded that

in Morgan and similar cases,6 “there were allegations and evidence that a

governmental employee ‘used’ or ‘operated’ a vehicle by directly controlling the

actions of the actual operator.” Id. at 10. The Hernandez court held that the plaintiffs’

allegations in the case before it satisfied that test, and thus, the city’s immunity was

waived.

C. Reconciling the Authorities

Leaving aside Jackson, which, as we stated, is distinguishable, the cases on

which each side relies concern claims that a governmental employee operated or

6

See City of El Campo v. Rubio, 980 S.W.2d 943, 945–46 (Tex. App.—Corpus Christi

1998, pet. dism’d w.o.j.); City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 170 (Tex. App.—El

Paso 1997, pet. denied).

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used a motor vehicle not by personally exercising physical control of the vehicle,

but by directing the actions of those who did.7 In Townsend, Gaytan, Morgan, and

Hernandez, each authoring court engaged in a fact-specific inquiry to determine

whether the claimed indirect control amounted to the operation or use of the motor

vehicle by a governmental employee.

The differing outcomes seem to have turned on whether the drivers in each

case had complied with, or were in the act of complying with, the directions of a

governmental employee who was present when the accident occurred. In Townsend,

there is no indication whether the unlicensed driver complied with the officer’s

instruction to “drive straight home,” but we do know that the officer was not present

at the accident. See Townsend, 2006 WL 2345922, at *3. In Gaytan, the officers who

directed the driver were present when the accident occurred, but the driver acted

independently in pausing the vehicle rather than proceeding to turn as the officers

directed. 2020 WL 2026374, at *6. But in both Morgan and Hernandez,

governmental employees were present when the accident occurred, and under the

facts alleged, compliance with the governmental actor’s directives at the scene

allegedly was a proximate cause of the plaintiffs’ injuries. In Hernandez, a police

officer “ordered Hernandez and Maldonado to push [Hernandez’s] stalled vehicle

out of the road,” and they complied. Hernandez, 508 S.W.3d at 3. Hernandez “was

on the driver’s side of the vehicle with the driver’s door open, simultaneously

pushing the vehicle while steering it off the roadway with his right hand, when [a

distracted driver] ran into him.” Id. at 9. The reviewing court stated that the officer’s

7

There is a split of authority among Texas appellate courts about whether a governmental

employee can constructively “operate” or “use” a vehicle if the employee is not the vehicle’s actual

driver. See Townsend v. City of Alvin, No. 14-05-00915-CV, 2006 WL 2345922, at *2 nn. 4 & 5

(Tex. App.—Houston [14th Dist.] Aug. 15, 2006, no pet.) (mem. op.) (collecting cases). As

Morgan illustrates, this Court has recognized such constructive operation or use.

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action in ordering the men to push the car out of the street “led directly to the

injuries” and the court concluded that the officer “used” or “operated” Hernandez’s

vehicle. Id. at 11. Thus, the Hernandez court concluded that immunity was waived.

In Morgan, governmental employees exercised “complete control” over the

movement of the trucks dumping gypsum on a road, and directed the compliant

driver of the truck too close to a power line. Morgan, 882 S.W.2d at 490. We

concluded that immunity was waived.

We see the same principle in City of El Camp v. Rubio, 980 S.W.2d 943 (Tex.

App.—Corpus Christi 1998, pet. dism’d w.o.j.), a case that is factually more like this

case than the cases cited by the parties. In that case, David Rubio was driving with

his wife Pascuala Torres and their two minor children at approximately midnight

when he was stopped and arrested for driving with a suspended license. Id. at 944.

None of the vehicle’s other occupants was licensed to drive. Id. The officer allegedly

ordered Rubio’s wife to follow the patrol car to the police station and said he would

activate the patrol car’s emergency flashers to clear the road. Id. The officer pulled

onto the highway and started making a U-turn, and as Torres pulled the family’s van

onto the highway to follow, an oncoming vehicle struck the van. Id. The Thirteenth

Court of Appeals held that, given the allegations that “Torres was acting under

‘direct orders’ from [the officer],” the trial court did not err in denying the municipal

defendant’s plea to the jurisdiction. Id. at 946–47.

Here, Leach and Habetz pleaded and offered evidence that, as in Rubio, a law-

enforcement officer ordered an unlicensed driver to drive a motor vehicle she was

not qualified to operate safely, and that the accident was the result of her attempt to

comply with the officer’s directions. Although there is conflicting evidence on

several points—including whether Cooley knew Chin was unlicensed—there is at

least a question of fact as to whether Cooley exercised such control as to be

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considered the operator or user of the motor vehicle. We overrule the remainder of

the County’s first issue.

V. OFFICIAL IMMUNITY

The provision of the Texas Tort Claims Act at issue waives immunity for

personal injury from the operation or use of a motor-driven vehicle only if the

governmental “employee would be personally liable to the claimant according to

Texas law.” Id. § 101.021(1). In the remainder of its first issue, the County contends

that the waiver does not apply because Cooley is entitled to official immunity, and

thus, he would not be personally liable to Leach and Habetz. See Hous. Belt &

Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 164 n.7 (Tex. 2016) (official

immunity may protect an officer sued in the officer’s personal capacity).

Official immunity is an affirmative defense that applies to a governmental

employee’s good-faith performance of a discretionary function within the scope of

the employee’s authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.

1994). Here, only Cooley’s good faith is disputed.

To establish Cooley’s good faith, the County was required to show 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. See Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002).

The County need not prove that it would have been unreasonable not to engage in

the conduct or that all reasonably prudent officers would have acted as Cooley did.

See id. The County was required to establish “only that a reasonably prudent officer,

under similar circumstances, might have reached the same decision.” Id. A witness’s

opinion that a law-enforcement officer acted in good faith does not meet this

standard if the witness reached this conclusion by assuming the truth of disputed

facts.

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The County presented no evidence of good faith. Although the County relied

on Cooley’s testimony, he offered no opinion about what a reasonably prudent

officer might have believed, instead testifying about his subjective state of mind and

his version of events. He testified that he has seen vehicles of all kinds become stuck

in the sand in the intersections leaving the beach, because as one moves inland, the

sand “becomes softer and much deeper and more difficult to navigate and cars often

times, if not always, get stuck.” He also stated that “traffic at a standstill becomes

very, very dangerous on the beach,” because fights arise between entire groups of

people, and law-enforcement officers “can’t navigate and respond to such fights

that . . . sometimes involve weapons.” He considered it important to clear the

intersection not only for these reasons but also so that he and Rowlands could

continue transporting their prisoner.

Moreover, his version of events is disputed. He testified that the Dodge was

not stuck in the sand; that Chin did not tell him she was unlicensed; and that he

learned after the accident that Bell owned the vehicle. Given the disputed evidence,

we must assume that the Cooley knew the Dodge was stuck in the sand; that he knew

Chin was unlicensed to drive; that he knew Bell owned the car and had asked to

move it himself; and that, despite knowledge of all these facts—and without clearing

pedestrians from the area behind the vehicle—he insisted that Chin move the car

herself. There is no evidence that a reasonably prudent officer might have believed

Cooley’s decision justified under these circumstances; thus, there is no evidence that

Cooley would be entitled to official immunity so as to place Leach’s and Habetz’s

claims against County outside of the Texas Tort Claims Act’s waiver of

governmental immunity.

We overrule the County’s first issue.

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VI. ACTUAL NOTICE

Within six months of an incident giving rise to a claim against a governmental

unit, the governmental unit must receive notice reasonably describing the damage or

injury claimed, the time and place of the incident, and the incident itself. TEX. CIV.

PRAC. & REM. CODE ANN. § 101.101(a). Formal notice is not required “if the

governmental unit has actual notice that death has occurred, that the claimant has

received some injury, or that the claimant’s property has been damaged.” Id.

§ 101.101(c). The requirement of formal notice or actual knowledge is jurisdictional.

See TEX. GOV’T CODE ANN. § 311.034.

Because Habetz failed to provide formal notice, the trial court has jurisdiction

over her personal-injury claim only if the County had actual knowledge, that is,

knowledge of (a) the injury, (b) the County’s “alleged fault producing or

contributing to” the injury, and (c) the identity of the parties involved. Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). Whether a governmental unit

has actual notice is a fact question when the evidence is disputed, but it is a question

of law when the evidence is undisputed. City of San Antonio v. Tenorio, 543 S.W.3d

772, 776 (Tex. 2018).

The County asserted in its plea to the jurisdiction that it received no formal

pre-suit notice from Habetz and that the County first learned of Habetz’s claim when

she was added as a plaintiff in an amended petition filed more than nineteen months

after the accident. The County stated that it previously had no “actual notice

that . . . Habetz had received some injury.”

As evidence of the County’s actual knowledge, Habetz relied on an attorney’s

letter providing timely formal notice of Leach’s claim and enclosing Cooley’s crash

report. In the letter, the attorney stated that at about 4:45 p.m. on May 19, 2018,

Cooley observed Chin in the driver’s seat of a vehicle blocking the intersection of

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the beach and South Monkhouse Road. According to the attorney, Cooley ordered

Chin to move the vehicle, and though she initially resisted, she complied when

Cooley “demanded immediate action.” The attorney wrote that Chin “accelerated

the vehicle in reverse and struck another vehicle and two pedestrians, including

Victoria Leach.” The attorney also stated, “After Ms. Chine [sic] crashed the car,

Sgt. Cooley discovered that Ms. Chine [sic] did not possess a driver’s license.”8 The

attorney described how Leach’s right hand was injured, and he wrote that Leach

asserts Cooley “was negligent in demanding that Chin drive a vehicle she was not

qualified to drive.”

In the enclosed crash report, Cooley identified Chin as the driver of the Dodge,

which is referred to in the report as Unit 1. He referred to the parked Jeep as Unit 2

and Leach and Habetz as, respectively, Units 3 and 4. Cooley described the incident

as follows:

Unit 1 was stopped in the intersection of the beach and S Monkhouse

Rd, blocking traffic. Unit 1 driver was instructed to back up to clear the

intersection. Unit 1 driver accelerated in reverse, striking Units 2, 3 and

4. Unit 2 sustained minor damage. Units 3 and 4 both sustained injuries

and required medical transport to UTMB-GALVESTON by PEMSI.

Unit 1 driver was found to be unlicensed and arrested for the same.

The crash report therefore describes the incident, the parties involved, and the fact

of Habetz’s injury.

In response to this evidence, the County argued that the second element of

actual knowledge was unmet because there is no evidence that the County “had

subjective awareness that it was in some manner at fault in connection with the

collision.” Tenorio, 543 S.W.3d at 778. To provide a causal link between the County

and the injuries, the attorney representing Leach alleged that Cooley caused Leach’s

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Emphasis added.

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injures by negligently demanding that Chin drive a vehicle she was not qualified to

operate; however, the attorney stated that Cooley discovered after the crash that Chin

was unlicensed. There is nothing in the letter or the crash report suggesting that, at

the time Cooley insisted Chin move the vehicle, he had any reason to suspect that

Chin, the apparent driver of the vehicle, was unqualified to do so.

But, the letter and crash report are not the only evidence relevant to actual

notice. Although Cooley and Chin both testified that it was only after the crash that

Chin told the officer she was unlicensed, Bell testified that Chin disclosed this to

Cooley before moving the car. Bell further testified that he identified himself to

Cooley as the vehicle’s owner and said he would move the car, but Cooley angrily

refused. Bell also testified that the Dodge was stuck in the sand when Cooley told

Chin to move the car, and when she did so, it was “spinning” before “catch[ing]

grip” and backing up. Finally, although all witnesses agreed that the beach was

unusually crowded that day, Cooley could not recall telling pedestrians to clear the

area behind the car before ordering it reversed out of the intersection. Construing the

conflicting jurisdictional evidence in Habetz’s favor, Cooley encountered a vehicle

stuck in the sand on a crowded beach but refused to allow the car’s owner to move

it, and without clearing pedestrians from the area, insisted that an unlicensed driver

move the car. In attempting to comply with Cooley’s commands, Chin struck and

injured Leach and Habetz.

Against this backdrop, there is at least a question of fact as to whether the

attorney’s letter placed the County on notice that “the connection had been made”

between the pedestrian’ injuries and Cooley’s insistence that an unlicensed driver

move the vehicle. See Worsdale v. City of Killeen, 578 S.W.3d 57, 66 (Tex. 2019)

(actual notice requires that the governmental agency either “made the connection

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between injury and responsibility as alleged, or had knowledge that the connection

had been made”).

We overrule the County’s second issue.

VII. CONCLUSION

Having reviewed the allegations and the jurisdictional evidence, we hold there

is no reversible error in the trial court’s denial of the County’s amended plea to the

jurisdiction. We affirm the trial court’s order.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Spain and Wilson.

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