Opinion
NUMBER 13-15-00167-CV
03-30-2017
HIDALGO COUNTY, TEXAS, Appellant, v. DORA HERRERA, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF REYNALDO HERRERA, DECEASED, ERIC HERRERA, EFREN HERRERA, MICHAEL HERRERA, JESSICA HERRERA RODRIGUEZ, CELIA HERRERA, VANESSA HERRERA, VERONICA HERRERA RODRIGUEZ HERRERA, AND REY HERRERA, Appellees.
On appeal from the 370th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Hidalgo County (the County), appeals from the trial court's denial of its plea to the jurisdiction. Appellees, Dora Herrera, Individually, and as Representative of the Estate of Reynaldo Herrera, deceased, Eric Herrera, Efren Herrera, Michael Herrera, Jessica Herrera Rodriguez, Celia Herrera, Vanessa Herrera, Veronica Herrera Rodriguez Herrera, and Rey Herrera, sued the County under the Texas Tort Claims Act for negligence in causing the death of Reynaldo Herrera. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (West, Westlaw through 2015 R.S.). By four issues, the County contends that the trial court erred in denying its plea to the jurisdiction based on government immunity. We reverse and render.
I. BACKGROUND
On May 26, 2010, a police officer with the city of Pharr, Emilio Gonzalez, attempted to conduct a traffic stop of a Ford Expedition for a violation of the Texas Transportation Code. The Expedition, which was driven by Rafael Carro Quintero, failed to stop, and Officer Gonzalez pursued the vehicle into the city of Alamo, Texas. Officers from the County, including Deputy John Ortega, joined the pursuit of the Expedition, which traveled at a high rate of speed.
Sometime thereafter, Officer Gonzalez disengaged the pursuit at the intersection of Tower and Trenton Roads, but he did not advise the other agencies to disengage the pursuit. While Deputy Ortega pursued the Expedition on a dirt road, the Expedition hit Reynaldo Herrera's vehicle. Herrera passed away as a result of his injuries.
Appellees filed suit against the County alleging negligence. The trial court denied the County's plea to the jurisdiction. This interlocutory appeal followed.
II. Discussion
By its second issue, which is dispositive for purposes of this appeal, the County contends that the trial court erred in denying its plea to the jurisdiction based on its immunity from suit under section 101.055(2) of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) (West, Westlaw through 2015 R.S.).
A. Standard of Review
A plea to the jurisdiction challenges the trial court's jurisdiction over the subject-matter of a claim. See Tex. Dept. of Pub. Safety v. Sparks, 347 S.W.3d 834, 837 (Tex. App.—Corpus Christi 2011, no pet.). The government's assertion of immunity is properly brought through a plea to the jurisdiction because it challenges the trial court's subject-matter jurisdiction. Id.
We review de novo a trial court's ruling on a plea to the jurisdiction alleging government immunity. Id. We assume the truth of the jurisdictional facts alleged in the plaintiff's pleadings unless the defendant-government presents evidence to negate their existence. Id. If the defendant-government provides evidence supporting immunity, the burden shifts to the plaintiff to show that a material fact is in dispute regarding the issue of immunity. Id. If the plaintiff provides evidence raising a fact question on the issue of immunity, then the issue of immunity cannot be decided by the trial court on a plea to the jurisdiction but instead must be taken to the fact-finder for resolution. Id. For this reason, it has been said that the standard for reviewing a plea to the jurisdiction "generally mirrors" that of a traditional motion for summary judgment. See id.; see also TEX. R. CIV. P. 166a(c) (providing that the existence of a genuine material fact issue precludes summary judgment on a claim or affirmative defense).
B. Applicable Law
The government is generally immune from suits brought against it by private citizens to recover for the negligence of its employees. See Sparks, 347 S.W.3d at 837. However, section 101.055(2) removes the government's cloak of immunity in the following circumstance:
1. the death "arises from" a government employee's operation of a motor vehicle while reacting to an "emergency situation"; and
2. the employee's action:
TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2); see id. §101.021(1)(a).a. violates the law "applicable to the emergency situation"; or
b. in the absence of such a law, is taken with "conscious indifference or reckless disregard for the safety of others."
C. Analysis
For purposes of this opinion only, we assume without deciding that Herrera's death "arises from" Deputy Ortega's operation of a motor vehicle and that the need to apprehend Quintero, a suspect who fled from police, presented an "emergency situation" under section 101.055(2). However, even assuming these things, the County's immunity from suit remained intact unless Deputy Ortega violated the "law applicable to the emergency situation," or absent such law, acted with "conscious indifference or reckless disregard for the safety of others." Id. § 101.055(2).
Appellees do not dispute that Deputy Ortega was responding to an emergency situation when he pursued Quintero.
The law generally applicable to this emergency situation is section 546.005 of the Texas Transportation Code, under which Deputy Ortega had a duty to act "with appropriate regard for the safety of all persons," and under which Deputy Ortega was not relieved of the consequences of "reckless disregard for the safety of others." TEX. TRANSP. CODE ANN. § 546.005(1)-(2) (West, Westlaw through 2015 R.S.). "Conscious indifference" or "reckless disregard" would describe Deputy Ortega's state of mind in pursuing Quintero if Deputy Ortega knew that his actions threatened the safety of others but did not care about the result. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006); see also 4Front Eng'r Sols., Inc. v. Rosales, 505 S.W.3d 905, 911 (Tex. 2016) (describing as "reckless" someone who has "intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences").
Before we turn to the evidence in this case, we start with the observation that when a police officer pursues a fleeing criminal suspect in a motor vehicle, such an endeavor almost invariably creates some degree of risk to the public of a collision. See City of Amarillo v. Martin, 971 S.W.2d 426, 432 (Tex. 1998) (acknowledging the "frequency with which emergency vehicles, particularly police cars in hot pursuit of criminal suspects, are associated with injurious or fatal traffic accidents"). However, if a police officer's pursuit of a fleeing criminal suspect in a motor vehicle, ipso facto, evidenced a reckless disregard for the safety of others, then the government's assertion of immunity under section 101.055(2) would always fail at the plea-to-the-jurisdiction stage in an emergency pursuit case where injury or death arises from such pursuit. See Sparks, 347 S.W.3d at 837 (recognizing that a plaintiff defeats the government's assertion of immunity at the plea-to the-jurisdiction stage by offering some evidence that raises a material fact question on the issue of immunity under section 101.055(2)). In enacting section 101.055(2), we believe that the legislature did not intend to categorically expose the government to liability in every case in which injury or death arises from an emergency situation involving police pursuit of a fleeing criminal suspect, particularly because the statute was designed to allow suits against to the government to move forward only upon a showing of recklessness. See Martin, 971 S.W.2d at 430 (interpreting section 101.055(2)'s predecessor statute to bar claims against the government unless upon a showing of recklessness on the part of the government employee in an emergency situation). To hold otherwise would be to render meaningless, at the plea-to-the-jurisdiction stage, the government's assertion of immunity under section 101.055(2) in emergency police pursuit cases. See TEX. GOV'T CODE ANN. § 311.023 (West, Westlaw through 2015 R.S.) (directing courts in construing a statute to consider the "object sought to be attained" as well as the "consequences of a particular construction," among other things); Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265, 270 (Tex. App.—Houston [14th Dist.] 2011, pet. dism'd) (observing that courts construing a statute should not adopt a construction that renders its provisions meaningless). With this observation in mind, we review the evidence in this case to determine whether a material fact issue exists regarding the government's assertion of immunity under section 101.055(2). See Hartman, 201 S.W.3d at 672 n.19.
Although the video equipment on Deputy Ortega's police vehicle did not capture the pursuit, Deputy Ortega recounted the pursuit in a sworn affidavit. Deputy Ortega stated that his involvement in the pursuit started when the dispatcher advised that officers with the Pharr Police Department were pursuing a black Ford Expedition that was heading into his area of patrol. Quintero was later identified as the driver of the Expedition. Dispatch further advised that Quintero was "possibly transporting narcotics (dope). . . ." Coming from a distance, Deputy Ortega observed "the red/blue emergency lights and wig wags of the [police] units involved in the pursuit." Quintero then drove past Deputy Ortega, "traveling at a very high rate of speed[.]" Deputy Ortega activated his lights and siren, but Quintero continued down the road. There is no evidence that Deputy Ortega knew that police units with the Pharr Police Department had disengaged the pursuit. Deputy Ortega averred that he had to perform a U-turn in order to pursue Quintero, and by the time he completed the U-turn, Quintero was already passing through an intersecting road about a half mile ahead. According to Deputy Ortega's affidavit, by the time he reached the intersecting road, Quintero had widened his distance from a half mile to 7/10ths of a mile and was heading westbound on another intersecting road. By the time Deputy Ortega reached that intersecting road, Quintero was nowhere in sight. Deputy Ortega stated that, before heading westbound in the direction where Quintero was last seen, he came to a complete stop at the intersection. Deputy Ortega averred that he followed a trail of dust that Quintero's Expedition lifted from the road, which was described as a "rough terrain" road with pot holes. Deputy Ortega stated that, at this point, he began to drive "slowly" because the road was in poor condition and because Quintero was no longer in sight. Deputy Ortega stated that he came to a complete stop at the next intersecting road to observe traffic. Approaching the intersection of Curve Road and Cesar Chavez Road, Deputy Ortega came upon the scene of the accident involving Quintero's Expedition and Herrera's vehicle. To establish the relative physical and temporal separation between Deputy Ortega and Quintero, the County attached sworn statements from witnesses to the accident, who averred that the accident occurred at least two minutes before police officers arrived to the scene.
Deputy Ortega's affidavit references the road names during the pursuit. He does not describe the exact distance between each road, as we have done here. However, we take judicial notice of the distance between each road based on a geographical map included in the County's appellate brief, the accuracy of which appellees do not question. See TEX. R. EVID. 201(b) (providing that a court may judicially notice a fact that is "not subject to reasonable dispute because it. . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"); see also In re J.M.H., 414 S.W.3d 860, 863 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (observing that courts have properly taken judicial notice of geographical facts, such as the location of cities, counties, boundaries, dimensions, and distances).
At this point, County Deputy Javier Lopez followed behind Deputy Ortega in a marked police unit.
Based on the forgoing evidence, we conclude that the County alleged and successfully introduced evidence showing that Deputy Ortega pursued Quintero with "appropriate regard for the safety of all persons" and did not otherwise act with "conscious indifference or reckless disregard for the safety of others." TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). As such, the burden shifted to appellees to raise a genuine issue of material fact in response to the County's assertion of immunity under section 101.055(2). See Sparks, 347 S.W.3d at 842. We now review the evidence appellees offered to meet their burden. See id.
Appellees offered a report prepared by Richard Weinblatt, an expert in police procedure. In his report, Weinblatt addressed the participation of several police officers involved in the pursuit, beginning with Officer Gonzalez who initiated the pursuit and ending with Deputy Ortega who continued it. As relevant here, Weinblatt stated that Officer Gonzalez acted in accordance with proper police practices to initiate a traffic stop on Quintero for a violation of Texas's window-tint law. See TEX. TRANSP. CODE ANN. § 547.613 (West, Westlaw through 2015 R.S.). However, Weinblatt opined that Officer Gonzalez should have never pursued Quintero when he refused to stop because Quintero had only committed, at worst, a minor traffic infraction—not a "forcible felony" such as "shooting at a dwelling" or "forcible criminal sexual penetration." As such, Weinblatt described the justification for the pursuit in this case as "weak, legally faulty, or non-existent." Weinblatt's report then addressed Deputy Ortega's involvement in the pursuit. Specifically, Weinblatt opined that Deputy Ortega evidenced a "reckless disregard for the public's safety" when he joined the pursuit without any knowledge that it started because of a minor traffic infraction. Nevertheless, Weinblatt described Deputy Ortega's decision to join the pursuit as "disturbing" even if he knew that it started because of a traffic infraction. Weinblatt concluded his report by stating, among other things, that the "chase should not have been commenced, continued, or assisted with to begin with. Doing so constituted a conscious disregard for public safety."
Having reviewed and considered Weinblatt's report, we find that it offers only conclusory opinions in response to the County's assertion of immunity under section 101.055(2). The report posits that Deputy Ortega should have allowed Quintero to flee because he was not committing a forcible felony. However, beyond stating his opinion that the pursuit was not justified, the report does not adequately explain any particular way in which Deputy Ortega's or any other County officer's pursuit of Quintero demonstrated "conscious indifference or reckless disregard" or a lack of "appropriate regard for the safety of all persons." TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). For example, the report states: "In reviewing the dash camera video from other [County] vehicles . . . , it appears that the units are operating in emergency mode (with lights and sirens activated at high rates of speed, and disregarding normal operator traffic laws). . . ." However, the law authorized those responses during the pursuit. See TEX. TRANSP. CODE ANN. § 546.003 (West, Westlaw through 2015 R.S.) (requiring the operator of an emergency vehicle to use audible or visual signals); Id. § 546.001(3)-(4) (allowing the operator of an emergency vehicle to exceed the maximum speed limit as long as doing so does not endanger life or property and to disregard regulations governing the flow of traffic); Id. § 546.002 (providing that section 546.001 applies when the operator of an emergency vehicle is pursuing an actual or suspected violator of the law). Furthermore, Weinblatt's report does not specify which traffic laws were disregarded and does not elaborate on why the police response in this case demonstrated recklessness or endangered the public beyond the mere fact of the pursuit itself.
We conclude that appellees failed to raise a genuine issue of material fact in response to the County's assertion of immunity under section 101.055(2). See Sparks, 347 S.W.3d at 842. We therefore sustain the County's second issue.
Because we have sustained the County's second issue, we need not address its other issues, as they are not dispositive of this appeal. See TEX. R. APP. P. 47.1.
III. Conclusion
We reverse the trial court's judgment, and we render judgment dismissing the case for lack of subject-matter jurisdiction.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 30th day of March, 2017.