the City of Austin v. Noel Powell

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00146-CV

The City of Austin, Appellant

v.

Noel Powell, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-19-002316,

THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

Noel Powell sued The City of Austin for damages resulting from injuries that

Powell sustained in an automobile collision with Austin Police Department (APD) officers

Brandon Bender and Michael Bullock. The City filed a plea to the jurisdiction, asserting

governmental immunity. The district court denied the plea. We conclude that there is at least a

fact issue regarding jurisdiction and will therefore affirm the district court’s order.

BACKGROUND

Powell alleges that on September 17, 2018, he was stopped at a stop sign on

Brandt Road in southeast Austin, waiting to turn onto Bluff Springs Road, when two police

vehicles, one operated by Officer Brandon Bender and one operated by Officer Michael Bullock,

crashed into his vehicle with such force that the collision caused Powell’s vehicle to turn 180

degrees. When the collision occurred, Bullock and Bender were in pursuit of a fleeing suspect,

with Bullock’s vehicle following immediately behind Bender’s vehicle.

Bullock and Bender were part of a team of officers who had been dispatched to

respond to reports of “shots fired.” In a report of the incident submitted to APD, Officer Bender

explained that he was responding to a “check welfare urgent call” at 2102 Nogales Trail when he

heard “a series of approximately 6 or 7 gunshots . . . just northwest of where [the officers] were

located.” According to Officer Bullock, there was an FJ Cruiser “near the scene of a call to

investigate gunshots fired.” When Bullock “instructed the driver of the vehicle to stop, the

driver fled at a high speed.” Bullock was “called in as back-up to assist in detaining the

suspect.” Bullock’s “job was to catch up to the fleeing vehicle in order to detain the subject and

assist officers engaged in a pursuit with the fleeing suspect.” Bullock was “driving with [his]

lights and sirens activated” and “obtained authorization to catch up to the suspect, who was

headed to Slaughter Lane.” Bullock described the collision as follows:

Officer Bender, who was driving ahead of me, turned right onto Brandt Drive

from Bluff Springs Drive to close the distance between the suspect and himself. I

was unable to slow in time and my vehicle struck Officer Bender’s vehicle on the

passenger’s side, as I swerved to try to avoid colliding [with] his vehicle. My

vehicle collided with Officer Bender’s vehicle, then with a fence post and stop

sign, and slid into the gray minivan [Powell’s vehicle].

Bender averred that “a shots fired call is usually, and on the night in question was

a Priority 1 call.” He explained that “Priority 0 is the highest level call which warrants an

emergency police response, while a priority 3 is the lowest priority and does not warrant an

emergency response.” Bender was one of the initial officers on the scene and “broke from the

area to assist in detaining” the fleeing suspect. To catch up to the suspect, Bender “operated

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Code 3,” which means “to operate [the] police unit with emergency lights and siren activated.”

In his affidavit, Bender described the collision as follows:

I decided to make a right turn onto Brandt Drive from Bluff Springs Drive to

close the distance. In the process of turning right, Officer Michael Bullock’s

patrol vehicle struck my vehicle on the passenger’s side. I did not see Officer

Bullock’s vehicle collide with the gray minivan but did realize after exiting my

vehicle that [Bullock’s] vehicle also collided with the minivan.

In the report of the incident submitted to APD, Bender provided additional information regarding

the collision:

While attempting to make a right hand turn onto Brandt Rd from southbound

Bluff Springs Rd . . . I was struck by Officer Bullock’s patrol vehicle on the

passenger side. I was turned parallel to Bluff Springs again and our units were

semi-stuck together. I could see the hood of a Taurus police vehicle [Bullock’s

vehicle] ahead of mine. I did not see the secondary collision of the Taurus into

the silver van at the intersection but remember running over the stop sign and

seeing Officer Bullock’s vehicle come to a stop against a tree. I estimate my

speed at the time of the collision to be around 20 MPH +/-5 MPH.

Another APD officer, Shay Sawyer, came upon the scene of the collision after it

occurred and provided a report to APD summarizing her observations at the scene and her

interviews with Bender, Bullock, Powell, and Nakrya Thornhill, a passenger in Powell’s vehicle.

In her report, Sawyer wrote the following:

I stopped and went to check on the officers who I found to be Officer Bender and

Officer Bullock.

Officer Bullock had blood dripping down the front of his face from an apparent

head injury. I checked the area for Officer Bender who was still seated in his

patrol vehicle and calling in the crash to dispatch. When I checked on Officer

Bender, he advised he was ok.

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At this time, I observed an additional vehicle that was involved in the crash. I

made contact with the driver (Powell) who stated that he was feeling pain on his

head and shoulders as a result of the crash. There was also a passenger in the

back left seat (Thornhill) who stated that her head hurt as a result of the crash.

I interviewed Powell further about the incident and he stated the following:

Powell was stationary at the stop sign on Brandt Rd / Bluff Springs Dr (facing

eastbound) when he observed two police cars driving toward him at a high rate of

speed (SB on Bluff Springs). While the police cars were driving towards him, the

police car in the back (2nd unit, Officer Bullock) lost control and crashed into his

vehicle. It was difficult for Powell to recall specifics about the incident.

Thornhill was unable to recall anything about the crash.

....

I spoke to Officer Bender who stated the following:

Officer Bender was driving a marked APD Patrol Unit # 7964 (SUV) and stated

that he was traveling southbound on Bluff Springs Rd. He stated that he decided

to make a right-hand turn at Brandt Rd after the pursuit started to head west on

Slaughter Ln. from Bluff Springs Rd. Officer Bender stated that there was a Gray

/ Silver colored van that was facing East at the intersection and was at a complete

stop. Officer Bender stated that he slowed down and started making the turn at

which time he was struck on the passenger side by the second patrol unit which

was being operated by Officer Bullock.

I then spoke to Officer Bullock who stated the following:

Officer Bullock was driving behind Officer Bender in marked APD Patrol Unit #

8766 southbound on Bluff Springs when Officer Bender slowed down to make a

right hand turn onto Brandt Dr. Officer Bullock was unable to slow down in time

due to Officer Bender slowing down quickly to make the turn. Officer Bullock

then stated that he turned his car to the right in an effort to avoid crashing into

Officer Bender which was unsuccessful. Officer Bullock stated that he first

crashed into Officer Bender’s vehicle (side [s]wipe), and then crashed into the

front of Powell’s van.

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The Texas Peace Officer’s Crash Report, completed by APD, provided the

following description and diagram of the collision:

Unit 1 [Bullock] and 2 [Bender] were responding lights and siren southbound on

Bluff Springs Rd, Unit 3 [Powell] was stopped at the stop sign waiting to turn

onto Bluff Springs Rd from Brandt Rd.

[Bender] stated he slowed to turn westbound on Brandt Rd and was struck on the

passenger side, causing him to continue to travel southwest crossing Brandt Rd

and striking a fence and stop sign on the southwest corner of the intersection.

[Bullock] stated he was following [Bender] and was unable to slow in time when

[Bender] started [his] turn, and [Bullock] struck [Bender] on the passenger side[.]

[T]he two units then traveled into the eastbound lane of Brandt Rd striking

[Powell], causing [Powell] to spin around facing westbound in the eastbound lane.

The crash report listed Bullock’s “driver inattention” and “failure to control speed” as

“contributing factors” in the collision.

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Powell subsequently sued the two officers involved in the collision and the City

for negligence. The City filed a plea to the jurisdiction, asserting that the City was immune from

suit under the “emergency exception” to the Texas Tort Claims Act (TTCA). 1 See Tex. Civ.

Prac. & Rem. Code § 101.055(2). Following a hearing, the district court denied the plea. This

appeal followed.

STANDARD OF REVIEW

“Governmental units are immune from suit unless immunity is waived by state

law.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022) (citing Dallas Area

Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)). “Because governmental immunity

is jurisdictional, it is properly raised through a plea to the jurisdiction, which we review de

novo.” Id. (citing State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007)). “The party suing the

governmental unit bears the burden of affirmatively showing waiver of immunity.” Id. (citing

University of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019)).

“To determine whether the party has met this burden, we may consider the facts alleged by the

plaintiff and the evidence submitted by the parties.” Id.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, as

it does here, “we consider relevant evidence submitted by the parties when necessary to resolve

the jurisdictional issues raised, as the trial court is required to do.” Texas Dep’t of Parks and

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see Bacon v. Texas Hist. Comm’n,

411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.); Hendee v. Dewhurst, 228 S.W.3d 354,

1 The City also filed a motion to dismiss the individual officers from the suit under the

“Election of Remedies” provisions of the TTCA. See Tex. Civ. Prac. & Rem. Code

§ 101.106(a), (e). At the time this appeal was filed, that motion remained pending in the

district court.

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366–67 (Tex. App.—Austin 2007, pet. denied). If the challenged jurisdictional facts overlap

with the merits of the plaintiff’s claims, as they do here, “the party asserting the plea to the

jurisdiction must overcome a traditional-summary-judgment-like burden and conclusively

negate” those facts. Bacon, 411 S.W.3d at 171 (citing Miranda, 133 S.W.3d at 228; Hendee,

228 S.W.3d at 367). “To that end, in evaluating the parties’ 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.” Maspero, 640 S.W.3d at 528–29 (citing Miranda,

133 S.W.3d at 228). “When the pleadings and evidence generate a ‘fact question on

jurisdiction,’ dismissal on a plea to the jurisdiction is improper.” Id. at 529 (quoting University

of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)); see also Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (noting that “the proper function of a dilatory plea does

not authorize an inquiry so far into the substance of the claims presented that plaintiffs are

required to put on their case simply to establish jurisdiction”). “However, ‘if the evidence is

undisputed or fails to raise a fact question,’ the plea must be granted.” Maspero, 640 S.W.3d at

529 (quoting Hayes, 327 S.W.3d at 116). “Our ultimate inquiry is whether the particular facts

presented, as determined by the foregoing review of the pleadings and any evidence,

affirmatively demonstrate a claim within the trial court’s subject-matter jurisdiction.” Bacon,

411 S.W.3d at 171.

DISCUSSION

The TTCA waives immunity for “personal injury . . . proximately caused by the

wrongful act or omission or the negligence of an employee acting within his scope of

employment if the . . . personal injury . . . arises from the operation or use of a motor-driven

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vehicle or motor-driven equipment, and the employee would be personally liable to the claimant

according to Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021(1). However, the TTCA does

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 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 the

action is not taken with conscious indifference or reckless disregard for the safety of others.” Id.

§ 101.055(2).

“The plaintiff bears the burden of negating Section 101.055’s applicability.”

Maspero, 640 S.W.3d at 529 (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex.

2006)). To satisfy this burden, the plaintiff must show either that (1) the employee was not

responding or reacting to an emergency, or (2) the response or reaction was not in compliance

with the laws and ordinances applicable to emergency action, or in the absence of such a law or

ordinance, the action was taken with conscious indifference or reckless disregard for the safety

of others. See id.; Hartman, 201 S.W.3d at 672.

Emergency response

The TTCA does not define the terms “emergency call” or “emergency situation,”

but Texas courts have interpreted the term “emergency” broadly. See, e.g., Hartman,

201 S.W.3d at 672-73 (city’s reaction to roadway flooding constituted emergency); City of San

Antonio v. Smith, 562 S.W.3d 75, 84 (Tex. App.—San Antonio 2018, pet. denied) (city’s

response to downed light pole blocking roadway was emergency); Pakdimounivong v. City of

Arlington, 219 S.W.3d 401, 410–11 (Tex. App.—Fort Worth 2006, pet. denied) (suspect’s

escape from back of patrol car while being transported to jail constituted emergency).

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Emergencies can include police responses to dangerous situations. See, e.g., Quested v. City of

Houston, 440 S.W.3d 275, 284–85 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (officer was

responding to emergency when he was ordered to immediately “proceed to the scene of an

incident involving shots fired by a dangerous armed suspect who had barricaded himself in a

house with several hostages”); Texas Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (officer was responding to emergency when he was

dispatched to “10-99” call, which “signified that an officer requested assistance with a wanted

person”); see also City of Houston v. Davis, No. 01–13–00600–CV, 2014 WL 1678907, at *5

(Tex. App.—Houston [1st Dist.] Apr. 24, 2014, pet. denied) (mem. op.) (officer was responding

to emergency when he initiated traffic stop on vehicle that had endangered motorists by trying to

run another vehicle off road).

In this case, the collision occurred while Officers Bender and Bullock were

pursuing a fleeing suspect in response to a “shots fired” call. Bender averred that “a shots fired

call is usually, and on the night in question was a Priority 1 call.” A Priority 1 call is the second-

highest-priority call after Priority 0, which Bender described as “the highest-level call which

warrants an emergency police response.” To catch up to the suspect, Bender “operated Code 3,”

which means “to operate [the] police unit with emergency lights and siren activated.” Bullock

also pursued the suspect with his emergency lights and sirens activated. Additionally, Powell

provided no evidence that pursuing a fleeing suspect in response to a “shots fired” call was not

an emergency. On this record, there is no fact issue as to whether the officers were responding to

an emergency at the time of the collision. 2 See Quested, 440 S.W.3d at 284–85.

2 At the hearing on the plea to the jurisdiction, Powell did not contest that the officers

were responding to an emergency. However, in a footnote in his brief, Powell asserts that

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Applicable laws and ordinances / recklessness

Because there is no fact issue as to whether the officers were responding to an

emergency, Powell must show that there is a fact issue as to whether the response was not in

compliance with the laws and ordinances applicable to emergency action, or in the absence of

such a law or ordinance, the action was taken with conscious indifference or reckless disregard

for the safety of others. 3 On this record, we conclude that he has.

The Transportation Code permits operators of authorized emergency vehicles to

disregard certain rules of the road, such as speed limits, under certain circumstances, including

when responding to an emergency call or pursuing a fleeing suspect. See Tex. Transp. Code

§§ 546.001–.004. However, the Transportation Code “does not relieve the operator of an

authorized emergency vehicle from the duty to operate the vehicle with appropriate regard for

the safety of all persons or the consequences of reckless disregard for the safety of others.” Id.

§ 546.005. The Transportation Code “imposes a duty to drive with due regard for others by

avoiding negligent behavior,” but “it only imposes liability for reckless conduct.” City of

“[t]here is a fact question as to the timing of the termination of the high-speed pursuit” and that

“[i]t is possible that the pursuit was terminated before Officer Bullock collided with Mr. Powell.”

However, even if other officers had ended the pursuit before the collision occurred, Powell

presented no evidence that either Bender or Bullock were made aware of that fact prior to the

collision. See Texas Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (explaining that officer’s knowledge of situation at time of collision

determines if officer is responding to emergency).

3 The Texas Supreme Court has recently explained that “[b]ased on the structure and

language of the pertinent statutory provisions governing emergency response, the distinction

between these inquiries largely collapses” into one inquiry concerning recklessness. City of San

Antonio v. Maspero, 640 S.W.3d 523, 529 (Tex. 2022). This is because the laws applicable to

emergency action involving emergency vehicles, including Transportation Code section 546.005

in this case, “do[] not relieve the operator of an authorized emergency vehicle from the duty to

operate the vehicle with appropriate regard for the safety of all persons or the consequences of

reckless disregard for the safety of others.” Tex. Transp. Code § 546.005.

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Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998). In other words, the Transportation Code

does not waive immunity for “mere negligence.” Id. at 430. A showing of recklessness is

required. Id.

“Under the Transportation Code, reckless driving consists of driving a vehicle in

‘willful or wanton disregard for the safety of persons or property.’” Maspero, 640 S.W.3d at 531

(quoting Tex. Transp. Code § 545.401(a)). “[T]his standard requires ‘conscious indifference,’ or

‘subjective awareness of an extreme risk.’” Id. (quoting Tarrant Cnty. v. Bonner, 574 S.W.3d 893,

902 (Tex. 2019)). “Further, recklessness reflects more than a ‘momentary judgment lapse’ and

instead ‘requires a showing that the driver committed an act he knew or should have known

posed a high degree of risk of serious injury.’” Id. (quoting Perez v. Webb Cnty., 511 S.W.3d 233,

236 (Tex. App.—San Antonio 2015, pet. denied)). However, “proof of evil or malicious intent”

is not required. City of San Antonio v. Schneider, 787 S.W.2d 459, 465 (Tex. App.—San

Antonio 1990, writ denied) (quoting White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort

Worth 1983, pet. ref’d)). The plaintiff must prove instead that the driver “knew the relevant

facts but did not care about the result.” Hartman, 201 S.W.3d at 672 n.19.

Whether an officer drove recklessly may be inferred from the totality of facts and

circumstances surrounding the collision. See, e.g., Gomez v. City of Houston, 587 S.W.3d 891,

902–03 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (concluding that there was fact

issue as to recklessness when officer failed to slow his speed to compensate for wet conditions,

might not have used his emergency lights and siren, and applied his brakes as he approached

intersection but was unable to stop his patrol car before entering intersection, where his car slid

into path of another vehicle); Perez, 511 S.W.3d at 237–38 (determining that there was fact issue

as to recklessness when officer ran through red light at intersection, started to brake before

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entering intersection but then accelerated through it, and entered intersection even though he had

blind spot that blocked his view of oncoming traffic); Texas Dep’t of Pub. Safety v. Bonilla,

481 S.W.3d 646, 654–55 (Tex. App.—El Paso 2014) (deciding that there was fact issue as to

recklessness when circumstances included officer driving at unsafe speed, failing to remove foot

from accelerator until .5 seconds before impact, and not being “fully aware of his

surroundings”), rev’d on other grounds, 481 S.W.3d 640 (Tex. 2015); Kaufman Cnty. v. Legget,

396 S.W.3d 24, 31–32 (Tex. App.—Dallas 2012, pet. denied) (concluding that there was fact

issue as to recklessness when circumstances included that officer’s speed was “‘too fast’ in

relation to his ‘closeness’ to” motorcycle in front of him, that motorcycle in front of officer did

not stop “abruptly” so as to cause collision, that officer was “unable to control his speed before

he hit” motorcycle, and that officer’s vehicle skidded onto shoulder of road as he tried to stop);

see also City of Killeen v. Terry, No. 03-20-00071-CV, 2022 WL 221240, at *3–4 (Tex. App.—

Austin Jan. 26, 2022, pet. filed) (mem. op.) (concluding that there was fact issue as to

recklessness when circumstances included officer driving through intersection against red light at

excessive rate of speed, with other traffic present, and city review board investigation finding

that “collision was preventable”); City of Killeen Police Dep’t v. Fonseca, No. 03-19-00898-CV,

2021 WL 6105569, at *4-5 (Tex. App.—Austin Dec. 23, 2021, pet. filed) (mem. op.)

(concluding that there was fact issue as to recklessness when circumstances included that officer

was traveling above speed limit on wet roads with heavy traffic and police department

investigation finding that officer “had executed a ‘faulty evasive action’ that led to the collision

and that the collision could have been prevented”); City of San Antonio v. Torres,

No. 04-17-00309–CV, 2017 WL 5472537, at *4 (Tex. App.—San Antonio Nov. 15, 2017,

no pet.) (mem. op.) (listing facts and circumstances that courts consider in analysis of whether

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there is fact issue as to recklessness, including speed limit and speed officer was driving, whether

officer used lights and sirens, appearance of and traffic control signs at intersection, amount of

oncoming traffic and degree to which officer could see it, whether and where officer looked for

traffic, and whether and when he slowed before entering intersection).

The facts and circumstances of the collision in this case are as follows. Officers

Bender and Bullock were driving southbound on Bluff Springs Road, pursuing a suspect.

Bullock, who was following behind Bender, described his role in the pursuit as “to catch up to

the fleeing vehicle in order to detain the subject and assist officers engaged in a pursuit with the

fleeing suspect.” As Bender and Bullock approached the intersection of Bluff Springs Road and

Brandt Road, Powell was at the intersection, stationary at a stop sign on Brandt Road, in the

eastbound lane of traffic. It appears that there was a clear line of sight between the police

vehicles and Powell’s vehicle, as Bender could see Powell’s vehicle stopped at the stop sign, and

Powell could see the two police cars driving toward him at “a high rate of speed.” Powell

recalled that the second vehicle, operated by Bullock, “lost control” and crashed into his vehicle.

Before crashing into Powell’s vehicle, Bullock collided with Bender’s vehicle,

which was slowing down to turn right onto Brandt Road. Bender estimated that his speed at the

time of the collision was “around 20 mph +/- 5 mph.” Bullock, by his own admission, “was

unable to slow in time” in response to Bender slowing his vehicle, and Bullock “struck Officer

Bender’s vehicle on the passenger’s side, as [he] swerved to try to avoid colliding [with] his

vehicle.” This evasive action was unsuccessful, as Bullock “collided with Officer Bender’s

vehicle, then with a fence post and stop sign, and slid into” the front of Powell’s vehicle.

Bender recalled that after being struck, he was “turned parallel to Bluff Springs

again” and that his unit and Bullock’s unit “were semi-stuck together.” According to the crash

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report, the collision caused the two police units to “travel[] into the eastbound lane of Brandt Rd

striking” Powell’s vehicle, which caused that vehicle to turn 180 degrees, i.e., “to spin around

facing westbound in the eastbound lane.” Following the collision, Powell, Bender, and Bullock

were all transported to the hospital via EMS. The crash report listed Bullock’s “driver

inattention” and “failure to control speed” as “contributing factors” in the collision.

Transportation Code Section 545.062 requires a driver who is following another

vehicle to “maintain an assured clear distance between the two vehicles so that, considering the

speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop

without colliding with the preceding vehicle or veering into another vehicle, object, or person on

or near the highway.” Tex. Transp. Code § 545.062(a). This provision contains no exception for

emergency vehicles such as police cars. 4 Thus, Bullock was required to comply with that statute

during the pursuit. The manner in which the collision occurred, with Bullock striking the

passenger side of Bender’s vehicle as it was turning right and then colliding with Powell’s

vehicle, causing Powell’s vehicle to turn in the opposite direction, is some evidence that Bullock

was failing to maintain a safe following distance behind Bender, thereby violating Transportation

Code section 545.062(a). At this stage of the proceedings, we cannot know if Bullock’s actions

4 In fact, APD pursuit procedures include similar requirements. See Austin, Tex., Austin

Police Department General Orders, Vehicle Pursuits § 214.3.4(a) (Sep. 10, 2018) (“Officers will

space themselves from other involved vehicles, in consideration of their driving skills and

vehicle performance capabilities, so they are able to see and avoid hazards or react safely to

maneuvers by the fleeing vehicle and other police units.”); see also id. § 214.5.2(b) (“The

secondary unit should remain at a safe distance behind the primary unit unless directed to assume

the role of primary unit.”). However, to the extent Powell argues that the officers’ actions

violated APD policies and procedures applicable to emergency action, the Texas Supreme Court

has recently held that “a police department’s internal policies, in and of themselves, are not

‘laws’ or ‘ordinances’” and that noncompliance with such policies “does not by itself amount to

a violation of ‘laws and ordinances applicable to emergency action.’” Maspero, 640 S.W.3d at

530 (quoting Tex. Civ. Prac. & Rem. Code 101.055(2)).

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rose to the level of recklessness or were merely negligent, but considering the totality of the

circumstances summarized above, there is at least a fact issue as to whether his actions

were reckless.

Officer Bullock knew that he was engaged in a high-speed pursuit with a suspect,

and he knew that he was following directly behind another police vehicle engaged in that same

pursuit. From this evidence, it could be reasonably inferred that Bullock knew or should have

known that during the pursuit, the lead vehicle in front of him might need to suddenly change

directions, reduce its speed, or engage in other emergency maneuvers and that such maneuvers

might require Bullock to react quickly to avoid colliding with the lead vehicle or other

surrounding traffic. Despite this knowledge, there is evidence in the record that Bullock was

inattentive, failed to control his speed, and failed to maintain a safe following distance, resulting

in a serious collision with Bender’s vehicle and Powell’s vehicle. Taking as true all evidence

favorable to Powell and indulging every reasonable inference and resolving any doubts in his

favor, we conclude that the evidence raises at least a fact issue as to whether Bullock “knew or

should have known” that his actions during the pursuit “posed a high degree of risk of serious

injury” and were thus reckless. See Gomez, 587 S.W.3d at 902–03; Legget, 396 S.W.3d at

31-32; see also Terry, 2022 WL 221240, at *3–4; Fonseca, 2021 WL 6105569, at *4–5.

Accordingly, the district court did not err in denying the plea to the jurisdiction.

CONCLUSION

We affirm the district court’s order.

__________________________________________

Gisela D. Triana, Justice

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Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: May 13, 2022

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