The City of Houston v. Frank Nicolai and Debora Nicolai as Parents of Caroline Nicolai

Opinion issued April 6, 2023

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-20-00327-CV

———————————

CITY OF HOUSTON, Appellant

V.

FRANK NICOLAI AND DEBORA NICOLAI, AS PARENTS OF

CAROLINE NICOLAI, DECEASED, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2013-75121

OPINION ON EN BANC RECONSIDERATION

Frank Nicolai and Debora Nicolai, as parents of Caroline Nicolai, deceased,

have moved for en banc reconsideration of our March 31, 2022, opinion and

judgment. See TEX. R. APP. P. 49.5. A majority of the Court voted to grant en banc

reconsideration. We withdraw our opinion of March 31, 2022, vacate our judgment

of the same date, and issue this en banc opinion and judgment in their stead.

This is the City of Houston’s second interlocutory appeal in the Nicolais’ suit

alleging that the City is vicariously liable for its police officer’s negligence in

operating a patrol car that proximately caused the death of their daughter. The trial

court denied the City’s motion for summary judgment, which asserted the trial court

lacks jurisdiction because there is no waiver of governmental immunity under the

Texas Tort Claims Act.1 On appeal, the City contends the TTCA waives

governmental immunity in suits arising from the negligent operation of a motor

vehicle by a government employee acting within the scope of her employment only

if she would be personally liable under Texas law. And here, according to the City,

the police officer is shielded from personal liability by official immunity. Because

we conclude the City did not establish the police officer’s official immunity as a

matter of law, we affirm.

Background

Houston Police Department Officer R. Gonzales, while on patrol, responded

to a call involving a suspected intoxicated driver. When she arrived, Officer

Gonzales found Caroline Nicolai sitting on a curb next to her car. Caroline appeared

to be intoxicated and could not stand without falling. Officer Gonzales did not arrest

1

See TEX. CIV. PRAC. & REM. CODE §§ 101.001–.009; see also id. § 51.014(a)(5).

2

Caroline. Instead, for Caroline’s safety, Officer Gonzales placed Caroline in

handcuffs and into the back seat of the patrol car. She decided to take Caroline to

the sobering center in downtown Houston, instead of to jail.

While driving Caroline to the sobering center, around 3:30 a.m., Officer

Gonzales’s patrol car was struck by another car driven by N. Moser, who was

intoxicated. Officer Gonzales had never been to the sobering center before and had

to stop several times to check the map on her mobile data terminal. Officer Gonzales

was driving “very slowly” to look for the sobering center when the accident

happened. As Officer Gonzales entered the intersection of Chartres Street and Texas

Avenue, where she had the green light, the car driven by Moser, who failed to stop

at the red light, “violently” struck the patrol car’s left side. Caroline was ejected from

the patrol car and sustained fatal injuries. According to an HPD investigation,

Caroline was not seat belted in the back of the patrol car.

The Nicolais, Caroline’s parents, filed a negligence and wrongful death suit

alleging that the City was vicariously liable for Officer Gonzales’s negligence in:

• failing to use, misusing, or improperly using the patrol car’s seat belt;

• failing to keep a proper lookout;

• failing to slow down or speed up to avoid the collision;

• failing to properly brake;

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• failing to take appropriate evasive action to avoid the collision or lessen

impact;

• handcuffing Caroline in the back seat when Caroline “did not appear to

be under arrest or need to be handcuffed”;

• failing to provide proper police protection; and

• failing to follow HPD policies and procedures for seat belt use.

The Nicolais pleaded that the TTCA waived the City’s governmental

immunity because Caroline’s death was caused by Officer Gonzales’s operation or

use of a police vehicle or use of tangible personal property: handcuffs and a seatbelt.

See TEX. CIV. PRAC. & REM. CODE § 101.021(1)–(2).

The City answered and filed a plea to the jurisdiction. The City intitally

argued, among other things, that the TTCA did not waive its governmental immunity

because (1) the Nicolais’ claims did not arise from Officer Gonzales’s operation or

use of a motor vehicle but instead derived from Moser’s tortious conduct; (2) the use

or non-use of a seat belt is not part of the operation or use of a motor vehicle; and

(3) Officer Gonzales’s failure to seat-belt Caroline constituted “non-use” of personal

property. The trial court denied the plea to the jurisdiction, and this Court affirmed.

See City of Hous. v. Nicolai, 539 S.W.3d 378, 381 (Tex. App.—Houston [1st Dist.]

2017, pet. denied). Relevant here, the Court determined:

• “Officer Gonzales was actively operating, i.e., driving, her patrol car at

the time of the collision and using it to transport [Caroline] to the

Sobering Center, and not just as a place to hold her”;

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• “[T]he evidence of Officer Gonzales’s ‘omission’ or ‘negligence’ in

transporting [Caroline] in the back of the patrol car without a seat belt,

in violation of HPD policy and state law, ‘relate[d] to the operation of

the vehicle itself,’ and not to ‘some other aspect of [her] conduct’”; and

• The Nicolais had raised a fact issue on waiver of the City’s immunity

for claims arising from an employee’s operation of a motor vehicle.2

Id. at 389–90, 391–92.

On remand, the City challenged the trial court’s jurisdiction a second time on

a new ground. In a traditional motion for summary judgment, the City argued that it

retained governmental immunity under the TTCA because Officer Gonzales would

not be personally liable for her allegedly negligent operation or use of the patrol car.

According to the City, Officer Gonzales was entitled to official immunity because

she was performing a discretionary duty when the collision occurred—transporting

Caroline, an intoxicated person, to the sobering center. The City’s

summary-judgment evidence included, among other things, deposition testimony

from the Nicolais’ police-practices expert about officers’ discretion under HPD’s

policies to effect arrests, handle intoxicated people, and transport people.

The Nicolais responded that Officer Gonzales was not performing a

discretionary duty but instead was engaged in a ministerial act because (1) HPD

policy and Texas law required her to secure Caroline, a handcuffed passenger, with

2

In reaching this holding, the Court rejected the City’s contention that seat belts

constitute “tangible property” that are not a part of the “operation or use of a

motor-driven vehicle.” City of Hous. v. Nicolai, 539 S.W.3d 378, 391–92 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied).

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the patrol car’s seat belt, and (2) she was driving under ordinary, nonemergency

circumstances when the collision occurred. The Nicolais’ summary-judgment

evidence included, among other things, certain HPD General Orders, affidavit or

deposition testimony from their police-practices and accident-reconstruction

experts,3 and deposition testimony from Officer Gonzales and other HPD officers,

including officers who reconstructed the crash.

The trial court denied the City’s summary-judgment motion, and the City

appeals that order.

Discussion

The City argues that the trial court erred by denying its summary-judgment

motion because the evidence established Officer Gonzales’s official immunity, and

thus the City retains its governmental immunity as a matter of law.

I. Standard of Review

A plaintiff has the burden to show the trial court’s subject-matter jurisdiction.

Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). That burden

includes an obligation to show a waiver of sovereign immunity or its counterpart,

3

We note the City objected to some of the Nicolais’ summary-judgment evidence,

including the affidavit of the Nicolais’ police-practices expert. To the extent the City

complains on appeal that the trial court refused to rule on its objections or that the

expert’s affidavit should not be considered, we do not reach that complaint. It is

unnecessary to do so given our ultimate holding that the City did not establish its

entitlement to judgment as a matter of law. See TEX. R. APP. P. 47.1.

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governmental immunity, in suits against the State and its political subdivisions,

including cities. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex.

2019); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol.

Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323–24 (Tex. 2016)

(explaining that governmental immunity extends to political subdivisions of State,

such as counties, cities, and school districts). A governmental unit may raise an

immunity defense in a summary-judgment motion challenging the trial court’s

jurisdiction. See Town of Shady Shores, 590 S.W.3d at 551; Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

We review the trial court’s decision on a summary-judgment motion de novo.

See Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017). To obtain a traditional

summary judgment, the movant must produce evidence showing that no genuine

issue of material fact exists and that it is entitled to judgment as a matter of law. See

TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). A defendant who moves for a traditional summary

judgment on an affirmative defense must conclusively establish each element of the

defense. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

Evidence is conclusive only if reasonable people could not differ in their

conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the

defendant establishes its right to summary judgment as a matter of law, the burden

7

shifts to the plaintiff to present evidence raising a genuine issue of material fact.

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

II. Governmental Immunity

In its sole issue, the City argues that the trial court erred by denying its

summary-judgment motion because the evidence established Officer Gonzales’s

official immunity, and thus the City retains its governmental immunity.

The City, as a municipality and political subdivision of the State, cannot be

vicariously liable for the actions of its employees unless its governmental immunity

has been waived. See, e.g., City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex.

2011); Gomez v. City of Hous., 587 S.W.3d 891, 896 (Tex. App.—Houston [14th

Dist.] 2019, pet. denied). The TTCA waives governmental immunity in limited

circumstances. See Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex.

2001). Section 101.021(1) of the TTCA provides:

A governmental unit in the state is liable for property damage, personal

injury, and death proximately caused by the wrongful act or omission

or the negligence of an employee acting within his scope of

employment if:

(A) the property damage, personal injury, or death arises from the

operation or use of a motor-driven vehicle or motor-driven equipment;

and

(B) 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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Because the Act provides that a governmental unit may only be liable when

“the [negligent] employee would be personally liable to the claimant,” whether the

employee is entitled to official immunity also affects whether the Act’s limited

waiver of governmental immunity applies. See id.; DeWitt v. Harris Cnty., 904

S.W.2d 650, 653 (Tex. 1995); see also TEX. CIV. PRAC. & REM. CODE § 101.025

(immunity to suit waived to extent of liability created by TTCA). “If the employee

is protected from liability by official immunity, the employee is not personally liable

to the claimant and the government retains its [governmental] immunity under

[Section 101.021(1)].” DeWitt, 904 S.W.2d at 653. “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 Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); Ramos v. Tex.

Dep’t of Pub. Safety, 35 S.W.3d 723, 726 (Tex. App.—Houston [1st Dist.] 2000,

pet. denied). Because official immunity is an affirmative defense, the City must

prove each element of the defense. Clark, 38 S.W.3d at 580.

This Court previously determined that Officer Gonzales’s “‘omission’ or

‘negligence’ in transporting [Caroline] in the back of the patrol car without a seat

belt” is relevant to the TTCA’s waiver of immunity for operation of a motor vehicle,

see Nicolai, 539 S.W.3d at 390–92, and there is no dispute that Officer Gonzales

was acting in the scope of her authority when the collision occurred. The controlling

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question is whether Officer Gonzales’s alleged injury-producing conduct was

discretionary or ministerial.

If a governmental employee, such as a law enforcement officer, is performing

a discretionary act within the scope of her public duties and in good faith, she is

protected by official immunity, no matter if she was negligent in the exercise of those

duties. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); City of

Dall. v. Brooks, 349 S.W.3d 219, 225 (Tex. App.—Dallas 2011, no pet.). An action

is discretionary if it involves personal deliberation, decision, and judgment. Ramos,

35 S.W.3d at 727 (citing Chambers, 883 S.W.2d at 654). But an action that requires

obedience to orders or the performance of a duty for which the employee has no

choice is ministerial. Id. The distinction between discretionary and ministerial acts

can be narrow because any official act that is ministerial will still require the

employee’s discretion to execute it. Id. In determining whether an act is

discretionary, the focus is on whether an employee was performing a discretionary

function—not whether the employee had the discretion to do an allegedly wrongful

act while discharging that function, or whether the job description at issue includes

discretionary duties. Id.

Sometimes, an officer’s operation of a motor vehicle “involves personal

deliberation or the exercise of professional expertise, decision, or judgment.”

Brooks, 349 S.W.3d at 225. Examples of an officer’s discretionary activities include

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high-speed chases, investigations, traffic stops, and the decision to violate traffic

laws to quickly reach the scene of suspected criminal activity or assist another officer

there. See, e.g., Chambers, 883 S.W.2d at 655 (engaging in high-speed chase was

discretionary act); Webb County v. Lino, No. 04-19-00891-CV, 2020 WL 4218714,

at *5 (Tex. App.—San Antonio July 22, 2020, no pet.) (mem. op.) (initiating routine

traffic stop was discretionary act); Brooks, 349 S.W.3d at 226–27 (responding at

high rate of speed to call for back-up involving combative and suicidal person was

discretionary act); Collins v. City of Hous., No. 14-13-00533-CV, 2014 WL

3051231, at *5 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.)

(responding quickly to call for assistance to apprehend reckless motorist was

discretionary act); City of Hous. v. Hatton, No. 01-11-01068-CV, 2012 WL

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

(responding to “Priority One” call for assistance and using emergency lights and

sirens was discretionary act when accident occurred); Harless v. Niles, 100 S.W.3d

390, 397–98 (Tex. App.—San Antonio 2002, no pet.) (officer’s decision to violate

traffic laws to quickly reach scene of suspected criminal activity and assist another

officer was discretionary act).

In emergency or other evolving situations, officers retain official immunity

because of their performance of discretionary acts, so long as the other immunity

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elements are met. Hulick v. City of Hous., No. 14-20-00424-CV, 2022 WL 288096,

at *3 (Tex. App.—Houston [14th Dist.] Feb. 1, 2022, pet. denied) (mem. op.).

But absent these special circumstances, “[s]imple, nonemergency driving by

a police officer while on official business is a ministerial act that does not entitle the

officer to official immunity.” Hatton, 2012 WL 3528003, at *3. This is because

ordinary driving, unlike the pursuit and apprehension of suspects or an urgent

backup-call response, does not require an officer to perform law enforcement

functions involving discretion and judgment that affect how she uses her police

vehicle. See City of Austin v. Albarran, No. 03-10-00328-CV, 2011 WL 2533751,

at *4–6 (Tex. App.—Austin June 23, 2011, no pet.) (mem. op.) (officer’s decision

to respond to emergency call without full emergency protocols, opting instead to use

protocols that required officer to obey traffic laws, created fact issue on whether

officer was performing discretionary or ministerial act).

A line of authority from our sister appeals court helps illustrate the difference.

See Hulick, 2022 WL 288096, at *4; City of Hous. v. Jenkins, 363 S.W.3d 808, 817

(Tex. App.—Houston [1st Dist.] 2012, pet. denied); Harris Cnty. v. Gibbons, 150

S.W.3d 877, 880 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Woods v. Moody,

933 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.] 1996, no writ). In Woods,

the court held that an officer who struck another driver’s car from behind while on

duty and en route to “Harris County business” was not entitled to official immunity

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because he was engaged in the ministerial act of operating his police car. Id. This

was so despite the officer’s statement that the accident happened when his foot

slipped off the brake as he was picking up a clipboard from the car’s floorboard to

avoid the clipboard becoming dangerously lodged under the brake pedal. Woods,

933 S.W.2d at 307–08. Even if the act of picking up the clipboard was discretionary,

the court explained:

Unlike high[-]speed chases or traffic stops, operating a car in a

non-emergency situation does not involve personal deliberation or the

exercise of professional expertise, decision, or judgment. To the

contrary, driving a car is ministerial because it requires a person to

“perform[] in a given state of facts and in a prescribed manner in

obedience to the method of legal authority, without regard to . . . the

propriety of the act being done.” Thus, absent special circumstances

that suggest the officer was performing a discretionary function, such

as engaging in a high[-]speed chase, we hold that an officer driving a

motor vehicle while on official, non-emergency business is performing

a ministerial act.

Id. at 308 (internal citations omitted).

In Gibbons, an officer rear-ended the plaintiff while at a stop light as he was

checking his on-board computer terminal to determine whether a nearby vehicle had

been stolen. Gibbons, 150 S.W.3d at 880. When the officer looked down to see the

results of his query, his police vehicle moved forward, hitting the plaintiff’s car from

behind. Id. The court determined that the officer was performing the ministerial act

of driving a police vehicle when he struck the plaintiff’s car because his “negligent

operation of his vehicle was separate and apart from his action of checking the

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license plate.” Id. at 886. And because the officer was operating his vehicle in a

nonemergency situation, “he was obligated to operate his patrol car in a safe manner

in accordance with traffic laws and was performing a ministerial function.” Id.

In Hulick, an officer responded to a service call involving a suspect causing a

disturbance outside of a business. Hulick, 2022 WL 288096, at *1. While driving in

his police vehicle to search for the suspect, the officer failed to yield to oncoming

traffic in making a left turn and struck a motorcyclist. Id. The court held the officer

was not entitled to official immunity because he was engaged in the ministerial duty

of driving. Id. at *4. The court reasoned: “Although [the officer] may have been

investigating a disturbance when the accident occurred, that fact does not necessarily

mean that even the ministerial operation of his vehicle during the investigative

process is protected by immunity.” Id. In arguing that the officer’s performance of

an investigative function made his use of the police vehicle a discretionary act, the

City “fail[ed] to focus on the nature of [the officer’s] conduct that allegedly caused

[the motorcyclist’s] injury—his failure to yield the right-of-way to oncoming

traffic[.]” Id. The court noted there were no “governmental or investigative concerns

that played any role in how [the officer] should have operated his vehicle in simply

making a turn.” Id.

Though it involves a different subsection of the TTCA’s limited waiver of

immunity, the court’s analysis in Jenkins is also instructive. There, the court

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determined whether a K9 officer was engaged in a discretionary or ministerial act

when his police dog attacked another officer after a search. Jenkins, 363 S.W.3d at

811–12. The court held that the officer had a ministerial duty to restrain the police

dog while taking him away from the search site. Id. at 818–19. To explain its holding,

the court compared the officer’s handling of the police dog to driving a police

vehicle:

[L]ike the handling of a vehicle, different rules apply to the handling of

a dog when it is being used by a governmental employee in the

performance of a discretionary act—like pursuing a suspect. But as

Gibbons illustrates, the use of the same tool can be discretionary in

some circumstances and ministerial in others. An officer can exercise

discretion in deciding when and how to use a potentially dangerous

tool, and still have a ministerial duty in using the tool under other

circumstances.

Id. at 818 (internal citations omitted).

Here, the City contends that Officer Gonzales was performing a discretionary

duty at the time of the collision because she was transporting Caroline to the sobering

center. But, as in the examples above, there is no evidence of any special

circumstance affecting the transport. When the accident happened, Officer Gonzales

was driving “very slowly,” and there is no evidence the patrol car’s emergency lights

or siren were on. There is also no evidence that Caroline’s condition or behavior

required Officer Gonzales to violate traffic laws to quickly reach the sobering center.

Officer Gonzales testified that Caroline was cooperative and did not resist being

handcuffed or placed in the patrol car. When asked whether she recalled Caroline

15

“being disrespectful,” “kicking the seat,” or “doing anything to be disruptive while

in the back of [the patrol car],” Officer Gonzales responded: “No, I do not.” HPD’s

investigator and crash reconstructionist was asked whether there was “anything

about that night that made Officer Gonzales feel the need to urgently get” Caroline

to the sobering center, such as “any medical conditions” or “health risks.” He

answered “[n]o.” He also saw no evidence in his investigation that Caroline was

“being belligerent or uncooperative in any way.” Officer Gonzales’s act of merely

navigating her patrol car on official, nonemergency business enroute to the sobering

center did not involve any quickly evolving situation that required fast decisions or

training-informed reactions. Her operation of the patrol car was therefore a

ministerial act. See Woods, 933 S.W.2d at 308.

To be clear, we do not hold that an officer’s operation of a police vehicle can

never be discretionary if there is no emergency. “[C]ase law teaches that an officer

may perform a discretionary act while driving even in circumstances that do not rise

to the level of an emergency.” Collins, 2014 WL 3051231, at *4. But the City has

not shown that is the case here.

The City directs us to several cases for the proposition that law enforcement

officers perform discretionary acts when transporting prisoners. Those cases are

inapposite because the injury-causing act did not involve the use of a motor vehicle.

Instead, they involve injuries sustained while extracting a prisoner from a cell,

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during a breakdown of transportation, and while unloading prisoners, all of which

are discretionary and distinguishable. See Gonzales v. Kelley, No. 01-10-00109-CV,

2010 WL 2650615, at *1–3 (Tex. App.—Houston [1st Dist.] July 1, 2020, no pet.)

(mem. op.) (officers performed discretionary duties when extracting aggressive

inmate from cell and transporting him to prison mental health unit on gurney with

officer sitting on him after tasing him); Wheelock v. Behrens, No. 04-01-00312-CV,

2002 WL 112545, at *2 (Tex. App.—San Antonio Jan. 30, 2002, no pet.) (not

designated for publication) (officer performed discretionary duty when unloading

prisoner who fell after exiting transport van as he tried to step onto sidewalk); Tex.

Dep’t of Crim. Just. v. Watt, 949 S.W.2d 561, 566 (Tex. App.—Waco 1997, no writ)

(officers were performing discretionary act when moving prisoner from one cell to

another).

Still, the City urges that “[t]he inherent risks associated with transporting

unpredictable, and potentially violent individuals in the close quarters of a moving

vehicle are documented in the TTCA cases,” pointing to this Court’s decisions in

City of Sugarland v. Ballard, 174 S.W.3d 259 (Tex. App.—Houston [1st Dist.] 2005,

no pet.), and Rivas v. City of Houston, 19 S.W.3d 901 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied). But in each of those cases, something happened during the

transport that required an exercise of discretion. That something is missing here. In

Ballard, an officer was transporting a juvenile who escaped the moving police

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vehicle.4 Ballard, 174 S.W.3d at 263. In Rivas, a paramedic was transporting a

patient who was “becoming increasingly belligerent and would not remain in his

restraints.” Rivas, 19 S.W.3d at 902. In contrast, the City presented no evidence that

Caroline tried to escape Officer Gonzales’s patrol car or was an immediate danger

to Officer Gonzales.

The City also argues that the ministerial act of ordinary driving was

transformed into a discretionary act when we look back in time to the decision that

placed Officer Gonzales at the intersection where the accident happened—the

decision to take Caroline to the sobering center instead of to jail. According to the

City, HPD General Order 500-11 and Texas Code of Criminal Procedure article

14.031, leave that decision to Officer Gonzales’s discretion.

HPD General Order 500-11 confers an officer with certain discretion in

handling publicly intoxicated persons. It states in pertinent part:

When appropriate and available, officers are encouraged to use

approved alternatives for handling persons who are in violation of

Texas Penal Code, Section 49.02, Public Intoxication.[5] When

circumstances meet the criteria outlined in this General Order, officers

should divert publicly intoxicated individuals to the custody of a

4

In addition, Ballard is not an official immunity case. See City of Sugarland v.

Ballard, 174 S.W.3d 259, 264–67 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

5

A person commits the offense of public intoxication if “the person appears in a

public place while intoxicated to the degree that the person may endanger [herself]

or another.” TEX. PENAL CODE § 49.02(a).

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responsible adult or the Houston Center for Sobriety (herein referred to

as the “Center”) as an alternative to arrest.

...

Public intoxication should not serve as the sole justification for

incarceration and every effort should be made to divert eligible

intoxicated persons to the custody of a responsible adult or the

Center. . . .

Some persons may not be transported to the sobering center, even if they are

intoxicated, but General Order 500-11 allows the law enforcement officer to

determine whether an intoxicated person falls into any of the categories.6

As authority for its policy of allowing officers to determine how to handle an

intoxicated person, General Order 500-11 cites Texas Code of Criminal Procedure

article 14.031, which provides:

In lieu of arresting an individual who is not a child . . . and who

commits an offense under Section 49.02, Penal Code, a peace officer

may release the individual if: (1) the officer believes detention in a

penal facility is unnecessary for the protection of the individual or

others; and (2) the individual: (A) is released to the care of an adult who

agrees to assume responsibility for the individual. . . .

Act of May 21, 2009, 81st Leg. R.S., ch. 311, 2009 Tex. Gen. Laws 832 (amended

2019) (current version at TEX. CODE CRIM. PROC. art. 14.031(a)). According to

General Order 500-11, the sobering center in downtown Houston “is able to serve

as the responsible adult” under article 14.031(a).

6

There is no dispute that HPD’s General Orders also leave to the officer’s discretion

the determination of the “safest, most direct route” to transport people to the

sobering center.

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Looking back in time, Officer Gonzales encountered Caroline in an impaired

but compliant condition. While we agree that Officer Gonzales had discretion to

decide whether to take Caroline to jail or to the sobering center, we disagree that

Officer Gonzales’s decision to take Caroline to the sobering center insulates every

ministerial act that followed. That argument does not find support in the law.

As noted, in Gibbons, the accident occurred when the officer was

investigating whether a nearby vehicle was stolen, but the court explained that the

officer’s “negligent operation of his vehicle was separate and apart from his action

of checking the license plate.” Gibbons, 150 S.W.3d at 886. And as in Hulick, the

City’s argument fails to focus on Officer Gonzales’s conduct that allegedly caused

Caroline’s death—her failure to seat belt Caroline—focusing instead on the exercise

of her discretion in deciding whether to take Caroline to jail or to the sobering center.

See Hulick, 2022 WL 288096, at *4. That discretion had already been exercised and

did not affect the performance of the transport. See Boyattia v. Hinojosa, 18 S.W.3d

729, 734–35 (Tex. App.—Dallas 2000, pet. denied) (deputy constable who was

serving court papers could not convert that ministerial function into discretionary

function by pointing to discretionary aspects of his task: “The accident did not occur

as a result of the manner in which Hinojosa chose to serve court papers. Instead, it

arose out of the manner in which he chose to park his county-owned car.”). The City

does not dispute that Officer Gonzales lacked discretion not to fasten Caroline’s seat

20

belt under HPD policy and Texas law. See Garza v. Harris Cnty., No. 14-10-00764-

CV, 2011 WL 345651, at *3 (Tex. App.—Houston [14th Dist.] Feb. 1, 2011, pet.

denied) (mem. op.) (where policy did not allow pursuit, choosing to pursue was

ministerial act because there was no opportunity to deliberate or decide to pursue;

the only choice was to obey orders).

The City’s approach would create nearly blanket immunity for officers

driving while on duty, contrary to the TTCA and the cases interpreting it. Limiting

our focus to any decisions requiring some judgment before an accident would make

a viable claim under the TTCA nearly impossible; it would, “in effect, merge the

discretionary function element of the official immunity defense into the third

element of the defense, whether the employee was acting within the scope of [her]

authority. An official cannot be immune simply because [s]he is on duty.” Woods,

933 S.W.2d at 308; see also Hulick, 2022 WL 288096, at *4.

For these reasons, we cannot agree that the City met its burden to establish

that Officer Gonzales was entitled to official immunity. Consequently, the City

failed to show as a matter of law that its governmental immunity remains intact, and

we hold that the trial court did not err in denying the City’s summary-judgment

motion.

We overrule the City’s sole issue.

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Conclusion

We affirm the trial court’s summary judgment order denying dismissal of the

Nicolais’ claim.

Sarah Beth Landau

Justice

On original submission, panel consisted of Justices Landau and Countiss and former

Chief Justice Radack.

En banc reconsideration was requested. TEX. R. APP. P. 49.5.

The en banc court consists of Chief Justice Adams and Justices Kelly, Goodman,

Landau, Hightower, Countiss, Rivas-Molloy, Guerra, Farris, and Radack.7

A majority of the justices of this Court voted in favor of reconsidering the case en

banc.

Justice Landau, writing for the majority of the en banc court, joined by Justices

Kelly, Goodman, Hightower, Rivas-Molloy, Guerra, and Farris.

Justice Countiss, dissenting with separate opinion, joined by Chief Justice Adams

and Justice Radack.

7

The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of

Texas at Houston, sitting by assignment. See TEX. R. APP. P. 41.2(a).

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