# Telthorster v. Tennell

> Texas Supreme Court · June 27, 2002 · 45 Tex. Sup. Ct. J. 948

URL: https://www.frixlaw.com/law-library/cases/9858488

## Case

- **Full name:** Mark Andrew TELTHORSTER, Petitioner, v. Ollie Lee TENNELL, Respondent
- **Court:** Texas Supreme Court
- **Decided:** June 27, 2002
- **Citations:** 45 Tex. Sup. Ct. J. 948; 92 S.W.3d 457; 2002 Tex. LEXIS 97; 2001 WL 1898483
- **Precedential status:** Published
- **Opinion:** Concurrence by Enoch
- **Judges:** O'Neill, Phillips, Owen, Hankinson, Jefferson, Rodriguez, Enoch, Hecht, Baker
- **Cited by:** 230 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858488

## How later opinions describe it (automated extraction)

- recognizing need/risk analysis from Chambers was “crafted in an attempt to tailor a test that would better weigh the risks that high-speed chases and responses pose to the general public” and holding inherent risk to general public previously considered in cases involving high…
- holding officer acted in good faith when his drawn gun inadvertently discharged and injured suspect and noting that the court of appeals’ “focus on the fact that [the suspect] turned out to be unarmed and thus presented no risk of harm” was “unduly informed by hindsight”
- holding plaintiff did not controvert good faith where evidence was conclusory and did not establish that no reasonable officer would have been concerned for his safety under the particular facts of the case
- noting that in University of Houston v. Clark “[w]e held that a police officer’s summary judgment proof does not offer a suitable basis for determining good faith unless it sufficiently assesses the Wadewitz need/risk factors” (citing 38 S.W.3d 578, 584-85 (Tex. 2000))
- noting that governmental employee is entitled to official immunity from personal liability "for (1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that the employee acts in good faith"

## Opinion text

Justice ENOCH
filed a concurring opinion, in which Justice HECHT and Justice BAKER joined.
The sole issue in this official immunity case is whether Officer Mark Telthorster established as a matter of law that he acted in good faith when arresting Ollie Tennell. While I agree with the Court’s conclusion that Telthorster did establish as a matter of law that he acted in good faith, I disagree with the Court’s reasoning. I accordingly write separately, though I agree with the Court’s judgment.
*468 While Telthorster and another officer were arresting Tennell after a high-speed pursuit of Tennell had just ended, Telthor-ster’s firearm accidentally discharged. The bullet from Telthorster’s firearm ricocheted off the other officer’s hand and into TennelTs back. Fortunately, Tennell was not seriously injured in the incident. Ten-nell nevertheless sued Telthorster for negligently handling the firearm; Tennell also alleged that Telthorster acted with malice.
Telthorster moved for summary judgment on Tennell’s claims, asserting that he was entitled to official immunity. A governmental employee is entitled to official immunity for (1) the performance of discretionary duties, (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith. 1 Tennell does not dispute that, at the time of the incident, Telthorster was exercising a discretionary duty within the scope of his authority. Tennell contends only that Tel-thorster failed to establish as a matter of law that he acted in good faith in effecting the arrest.
Today, the Court holds that the need/ risk assessment set forth in Wademtz v. Montgomery 2 is not required for determining whether an officer acted in good faith in arresting a fleeing suspect. 3 I fully agree with that part of the Court’s opinion. The Court, however, goes on to articulate a test for determining an officer’s good faith based on City of Lancaster v. Chamb ers, 4 a case in which we sought to protect bystanders and other innocent parties from injuries sustained during an officer’s high-speed pursuit of a suspect. 5 Based on Chambers, the Court holds that, to establish good faith in the arrest context, an officer must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that the disputed conduct was justified based on the information the officer possessed when the conduct occurred. 6
The Court’s articulation of its test demonstrates the flaw in its reasoning. The Court fails to distinguish between when an arresting officer acts with negligence and when an arresting officer acts with intent. I don’t think that the Court’s test applies where the officer acts negligently. The Court relies on Chambers for its test. But Chambers based its good-faith test on federal cases discussing an officer’s qualified immunity to claims brought under 42 U.S.C. § 1983 . 7 And negligent conduct alone, absent any intentional government conduct, cannot form the basis of a section 1983 claim. 8 Accordingly, the cases Chambers relied on involved more than merely negligent conduct by the officer, thereby implicating qualified immunity.
I recognize that the Chambers case involved negligence claims, and the Court applied the official immunity doctrine there. But the suspect was not the one asserting those claims. As mentioned, the Chambers Court was concerned about protecting bystanders and other innocent par *469 ties during high-speed police pursuits. 9 As the Court today correctly recognizes, those concerns are not implicated here. 10
I would hold that when a suspect contends only that an officer’s conduct in effecting an arrest is negligent, the officer’s good faith is established as a matter of law. This is consistent with the position taken by the Restatement (Second) of Torts. Section 118 of the Restatement (Second) of Torts provides: “The use of force against another for the purpose of effecting his arrest and the arrest thereby effected are privileged if all the conditions stated in §§ 119-132, in so far as they are applicable, exist.” 11 Of those sections, only section 132 is relevant here, because it considers the amount of force an officer uses. Section 132 provides:
The use of force against another for the purpose of effecting the arrest or recapture of the other, or for maintaining the actor’s custody of him, is not privileged if the means employed are in excess of those which the actor reasonably believes to be necessary. 12
While this section suggests a subjective standard for determining whether an arresting officer used excessive force. I think it more consistent to require the Chambers standard that the officer’s good faith be established by objectively reasonable behavior. But, regardless of the standard applied, sections 118 and 132, read together, demonstrate that when the suspect fails to allege that the officer used excessive force in effecting the suspect’s arrest, the officer’s use of force is privileged. It follows from that premise that, unless the suspect contends that the officer used excessive force in effecting the arrest, the officer’s good faith in arresting the suspect is established as a matter of law.
Here, Tennell does not contend that Tel-thorster used excessive force, but only that he acted negligently, which resulted in his firearm accidentally discharging. Although Tennell alleges that Telthorster acted with malice, malice generally requires specific intent. 13 Tennell included his malice allegation within his petition’s single negligence count. Tennell did not allege that Telthorster engaged in intentional misconduct during the arrest and, in fact, concedes that Telthorster accidentally discharged his firearm. Because an intentional tort requires that the actor have a specific intent to inflict injury, 14 and Ten-nell concedes that the shooting was accidental, I conclude that Tennell’s claims against Telthorster are limited to negligence claims. Tennell does not contend otherwise.
I would hold, under these circumstances, that Telthorster’s good faith is established as a matter of law. Therefore, the Court’s discussion about whether a reasonably prudent officer, under the same or similar circumstances, could have believed that the disputed conduct was justified based on the information the officer possessed when the conduct occurred is unnecessary. While that may be the test that applies when the suspect contends that the officer used excessive force or committed another intentional tort, we are not presented with such claims here.
*470 For these reasons, I concur in the Court’s judgment.
. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000); City of Lancaster v. Cham bers,. 883 S.W.2d 650, 653 (Tex.1994).
. 951 S.W.2d 464, 466-67 (Tex.1997).
. -S.W.3d-.
. 883 S.W.2d at 656 .
. Id.
. —S.W.3d-.
. Chambers, 883 S.W.2d at 656 .
. See Daniels v. Williams, 474 U.S. 327, 331-34 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986); Brooks v. Ctr. for Healthcare Servs., 981 S.W.2d 279, 284 (Tex.App.-San Antonio 1998, no writ); Emerson v. Borland, 927 S.W.2d 709, 718 (Tex.App.-Austin 1996, writ denied).
. Chambers, 883 S.W.2d at 656 .
. -S.W.3d-.
. Restatement (Second) of Torts § 118 (1965).
. Id. § 132.
. See, e.g., Tex. Civ. Prac. & Rem.Code § 41.001(7).
. See, e.g., Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858488. Public record. Not legal advice.