Affirmed and Opinion filed July 25, 2017.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00615-CV

                            REY GARZA, Appellant
                                        V.
   ROXANA REGALADO HARRISON AND JOSEPH SANTELLANA,
 INDIVIDUALLY AND AS RESPRESENTATIVES OF THE ESTATE OF
    JONATHEN ANTHONY SANTELLANA, DECEASED, Appellees

                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-32961


                                 OPINION

      This is an interlocutory appeal from the trial court’s order denying appellant
Rey Garza’s motion to dismiss filed pursuant to Texas Civil Practice and Remedies
Code section 101.106(f). The principal issue presented is whether Garza, a police
officer for a city in Grimes County, was acting within the scope of his employment
when he fatally shot a suspect in Harris County while attempting to arrest him.
Because Garza’s actions outside of his geographic jurisdiction did not constitute the
performance of a duty lawfully assigned to him by his employer, we affirm the trial
court’s order.

                                   BACKGROUND

      At all times relevant to the underlying events, Garza was employed as a peace
officer by the City of Navasota Police Department in Grimes County. Garza entered
into an agreement with an apartment complex to serve as a “courtesy officer” in
exchange for free rent. The apartment complex is located in Harris County.

      As part of his agreement with the apartment complex, Garza signed the
apartment complex’s “Courtesy Officers’ Policy and Procedures.” The Courtesy
Officers’ Policy and Procedures state that “[i]f a law is violated, Courtesy Patrol
Officers are NOT required, nor are they authorized, to pursue and apprehend the
person responsible.” It further states:

      How are Courtesy Patrol Officers DIFFERENT from police officers?
      Courtesy Patrol Officers DO NOT have:
           The same job duties as police officers
           The same powers as police officers, according to the law[.]
The Courtesy Officers’ Policy and Procedures provide that a courtesy patrol officer
should “NOT charge in” if he observes an offense, and that courtesy patrol officers
should call local law enforcement regarding any offenses. The Courtesy Officers’
Policy and Procedures also include an acknowledgement stating, “I understand
that[,] while providing the services herein, I am acting at the company’s authority in
the capacity of a Patrol/Courtesy Officer and not as an active/off[-]duty Police
Officer in the State of Texas.” Garza signed the Courtesy Officers’ Policy and
Procedures and agreed to abide by these restrictions in exchange for his rent
concession.

                                          2
      Garza was off-duty as a peace officer on the afternoon of November 13, 2013.
Around mid-afternoon, Garza ran an errand at a bank near the apartment complex.
Upon returning to the apartment complex, Garza encountered an individual he did
not recognize. The individual, Jonathen Santellana, was leaving Building 19;
according to Garza, “there had been a lot of drug activity” at Building 19. Garza
observed that Santellana was “holding something in his hands and was looking down
at whatever it was,” but Garza could not identify the object.

      Suspecting that Santellana had just purchased drugs, Garza went up to his
apartment to retrieve his personal firearm.       Coming back outside, Garza saw
Santellana sitting in a parked car with a female in the passenger seat. Garza
approached the car.

      Glancing inside the car, Garza observed Santellana putting marijuana into a
prescription bottle. Garza, who was wearing a t-shirt, gym shorts, and sandals,
displayed his police ID and badge and requested that Santellana step out of the car.

      Santellana allegedly ignored the request and attempted to start the car. Garza
opened Santellana’s car door and again stated, “Police, step out.”        Santellana
continued ignoring Garza and trying to start the car. Garza reached into the car and
attempted to remove the key from the ignition but was unsuccessful. Santellana
started the car, put it in reverse, and began to back out.

      Garza found himself trapped between Santellana’s car on one side, his own
vehicle (parked immediately next to Santellana’s) on the other, and the open driver’s
door in front of him. When Santellana began backing up, the open driver’s door
scraped along Garza’s vehicle and forced Garza to backpedal with Santellana’s car.
Allegedly fearing he would be run over, Garza drew his personal firearm and fired
into Santellana’s car seven times, killing Santellana.


                                           3
      Santellana’s parents — appellees here — sued Garza in his individual capacity
for Santellana’s wrongful death. Garza filed a motion to dismiss under section
101.106(f) of the Texas Tort Claims Act contending his actions were within the
scope of his employment and that his governmental employer, the City of Navasota,
was the proper defendant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.002,
101.106(f) (Vernon 2011). The trial court signed an order denying Garza’s motion
to dismiss on July 19, 2016. In its order denying the motion to dismiss, the trial
court stated:

      The court finds that there is a question of fact for the jury as to whether
      Defendant, Rey Garza was acting within the authorized course and
      scope of a police officer or as an employee of Defendant, CH
      Condominiums GP, L.L.C. at the time of the occurrence at issue.
Garza timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(5) (Vernon Supp. 2016) (permitting interlocutory appeal from the denial
of a motion for summary judgment based on an assertion of immunity by an officer
or employee of the State or a political subdivision of the State); Singleton v. Casteel,
267 S.W.3d 547, 549-50 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(motion to dismiss filed pursuant to section 101.106 may be treated as a motion for
summary judgment for purposes of appellate jurisdiction, despite defendant’s use of
incorrect procedural vehicle).

                                      ANALYSIS

      Garza contends that the trial court erred in denying his motion to dismiss
because (1) he was acting within the general scope of his employment as a police
officer when he fatally shot Santellana; and (2) appellees’ suit could have been
brought against Garza’s governmental employer, the City of Navasota, under the




                                           4
Texas Tort Claims Act. As a result, Garza contends dismissal was the proper remedy
pursuant to the election-of-remedies provision in section 101.106(f).1

I.     Standard of Review

       A motion to dismiss filed by an employee pursuant to section 101.106(f) is a
challenge to the trial court’s subject-matter jurisdiction, which we review de novo.
Moscrip v. Kraus, No. 04-15-00734-CV, 2016 WL 1690320, at *2 (Tex. App.—San
Antonio Apr. 27, 2016, no pet.) (mem. op.); Singleton, 267 S.W.3d at 550. Likewise,
we review matters of statutory construction under a de novo standard. ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per curiam).

II.    Texas Tort Claims Act’s Election-Of-Remedies Provision

       Sovereign immunity and governmental immunity protect the State and its
political subdivisions, respectively, from lawsuits and liability. See Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655, 655 n.2 (Tex. 2008). The Texas
Tort Claims Act provides a limited waiver of that immunity for certain suits against
governmental entities. Id. at 655; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021 (Vernon 2011). After the Texas Tort Claims Act’s enactment, “plaintiffs
often sought to avoid the Act’s damages cap or other strictures by suing
governmental employees, since claims against them were not always subject to the
Act.” Garcia, 253 S.W.3d at 656.

       To prevent such circumvention and to protect governmental employees, the
Texas Tort Claims Act was amended in 2003 to include an election-of-remedies
provision. Id.; Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL 6277409, at
*3 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.); see also

       1
       Garza’s appeal is premised only on immunity available through Texas Civil Practice and
Remedies Code section 101.106. He does not assert that common law official immunity applies
here.

                                             5
generally Tex. Civ. Prac. & Rem. Code Ann. § 101.106. The election-of-remedies
provision “force[s] a plaintiff to decide at the outset whether an employee acted
independently and is thus solely liable, or acted within the general scope of his or
her employment such that the governmental unit is vicariously liable, thereby
reducing the resources that the government and its employees must use in defending
redundant litigation and alternative theories of recovery.” Garcia, 253 S.W.3d at
657. Relevant to this lawsuit, the election-of-remedies statute provides:

       If a suit is filed against an employee of a governmental unit based on
       conduct within the general scope of that employee’s employment and
       if it could have been brought under [the Texas Tort Claims Act] against
       the governmental unit, the suit is considered to be against the employee
       in the employee’s official capacity only. On the employee’s motion,
       the suit against the employee shall be dismissed unless the plaintiff files
       amended pleadings dismissing the employee and naming the
       governmental unit as defendant on or before the 30th day after the date
       the motion is filed.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). In other words, an individual
defendant is entitled to dismissal upon proof that the plaintiff’s suit is (1) based on
conduct within the scope of the defendant’s employment with a governmental unit,
and (2) could have been brought against the governmental unit under the Texas Tort
Claims Act.2 See Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017).

       Here, the parties do not dispute that the City of Navasota is a governmental
unit that employed Garza at all times relevant to this suit. Nor do the parties appear
to dispute that appellees’ claims could have been brought against the City of
Navasota under the Texas Tort Claims Act. The only disputed issue on appeal is



       2
         Dismissal under section 101.106(f) does not preclude a plaintiff from subsequently
pursuing a claim against the governmental unit. See Tex. Adjutant Gen.’s Office v. Ngakoue, 408
S.W.3d 350, 359 (Tex. 2013).

                                              6
whether Garza acted within the scope of his employment when he fatally shot
Santellana while attempting to arrest him.

III.   Scope of Employment

       The Texas Tort Claims Act defines the term “scope of employment” as “the
performance for a governmental unit of the duties of an employee’s office or
employment and includes being in or about the performance of a task lawfully
assigned to an employee by competent authority.” Tex. Civ. Prac. & Rem. Code
Ann. § 101.001(5) (Vernon Supp. 2016). Providing additional clarification to
describe conduct falling within the scope of employment, the Texas Supreme Court
has adopted the Restatement of Agency’s negative definition: “[A]n employee’s act
is not within the scope of employment when it occurs within an independent course
of conduct not intended by the employee to serve any purposes of the employer.”
Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (per curiam) (quoting
Restatement (Third) of Agency § 7.07(2) (2006)).

       Determining whether an employee was acting within the scope of
employment “calls for an objective assessment of whether the employee was doing
her job when she committed an alleged tort, not her state of mind when she was
doing it.” Laverie, 517 S.W.3d at 753. “The scope-of-employment analysis,
therefore, remains fundamentally objective: Is there a connection between the
employee’s job duties and the alleged tortious conduct? The answer may be yes
even if the employee performs negligently or is motivated by ulterior motives or
personal animus so long as the conduct itself was pursuant to her job
responsibilities.” Id.




                                         7
IV.    Discussion

       Although he was off-duty and present in Harris County at the time of the
shooting, Garza nonetheless contends that his actions in conducting an investigation
and attempting to make an arrest fall within the scope of employment for the City of
Navasota because they constitute “conduct within the general scope of a police
officer’s customary duties.”

       Appellees contend that Garza was not acting within the scope of employment
because he was acting only as a courtesy patrol officer for the apartment complex at
the time of the incident.

       We conclude that the trial court correctly denied Garza’s motion to dismiss,
but not for the reason asserted by appellees.3

       The key inquiry here focuses on whether Garza was performing a duty of his
employment or a task lawfully assigned to him. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.001(5). In that regard, we must distinguish between two potentially

       3
          It is unclear whether Garza was acting as a peace officer when he attempted to arrest
Santellana. Although dressed in plain clothes, Garza allegedly displayed his police ID and badge
and requested that Santellana step out of the car. When Santellana allegedly ignored the request
and attempted to start the car, Garza opened Santellana’s car door and allegedly again stated,
“Police, step out.” If true, such actions generally have been sufficient to demonstrate that an officer
assumed the role of a peace officer. See, e.g., Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111, 118
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (“CNC’s evidence proved that Deputy Gordon had
assumed the role of a public-safety officer prior to shooting Deputy Thomas. . . . Deputy Gordon
wore a ‘raid jacket’ and his badge and verbally identified himself as ‘Sheriff’s Department’ while
attempting to detain the suspect of the suspected stolen vehicle. In criminal cases, these actions
reflect that an officer is acting in his official capacity.”); Mansfield v. C.F. Bent Tree Apartment
Ltd. P’ship, 37 S.W.3d 145, 149 (Tex. App.—Austin 2001, no pet.) (officer was acting in his
official capacity when he “showed his badge and identified himself as a police officer when he
asked Mansfield to lay on the ground”). Appellees dispute these allegations and contend that
Garza never showed a badge or otherwise identified himself as a peace officer. We need not decide
the issue because the fact that Garza may have been acting under statutory authority as a peace
officer (as discussed below) is not determinative in this instance of whether Garza was carrying
out duties assigned to him by the City of Navasota for purposes of dismissal from suit under section
101.106(f).

                                                  8
overlapping concepts: (1) an employee’s authority to perform an action; and (2) his
duty to perform an action he has been given authority to perform. The distinction is
important in this case because a governmental employee’s authority to perform some
action under a statute is not the same as a duty imposed upon the employee to
undertake that authorized action. The performance of a duty requires authority to
carry out the duty, but the inverse is not necessarily true — authority to act does not
necessarily imply a duty to use the granted authority.

      As this court has stated several times in the criminal context, a peace officer
is a peace officer only while in his jurisdiction; when the officer leaves his
jurisdiction, he cannot perform the functions of his office. See Halili v. State, 430
S.W.3d 549, 552 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Garcia v. State,
296 S.W.3d 180, 184 (Tex. App.—Houston [14th Dist.] 2009, no pet.). A peace
officer’s jurisdiction — the geographical area of his authority — is controlled by
common law if not specified by statute. Halili, 430 S.W.3d at 552. Under the
common law, a city police officer’s jurisdiction extends to the city limits. Id.

      Statutory exceptions to this general rule have “greatly expanded a city police
officer’s authority to make warrantless arrests outside the officer’s jurisdiction.” Id.
at 552 n.4; see also Garcia, 296 S.W.3d at 184. For example, article 14.03(d) of the
Code of Criminal Procedure provides that “[a] peace officer who is outside his
jurisdiction may arrest, without warrant, a person who commits an offense within
the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or
49, Penal Code, or a breach of the peace.” Tex. Code Crim. Proc. Ann. art. 14.03(d)
(Vernon Supp. 2016). Likewise, article 14.03(g)(2) provides that “[a] peace officer
[of an incorporated city] who is . . . outside of the officer’s jurisdiction may arrest
without a warrant a person who commits any offense within the officer’s presence
or view, except that an officer described in this subdivision who is outside of that

                                           9
officer’s jurisdiction may arrest a person for a violation of [the Rules of the Road in
the] Transportation Code . . . only if the offense is committed in the county or
counties in which the municipality employing the peace officer is located.” Tex.
Code Crim. Proc. Ann. art. 14.03(g)(2).

      The statutes discussed above relate to a peace officer’s authority to act. See
Tex. Code Crim. Proc. Ann. art. 14.03(d), (g)(2) (both using “may arrest”); see also
generally Tex. Code Crim. Proc. Ann. art. 14.03 (titled “Authority of peace
officers”). Those statutes do not impose a duty to act. See, e.g., In re Tarrant Cty.,
345 S.W.3d 784, 785-86 (Tex. App.—Dallas 2011, orig. proceeding) (“[T]he Code
Construction Act provides that the legislature’s use of the word ‘may’ creates
discretionary authority or grants permission or a power while the word ‘shall’
imposes a duty . . . .”) (citing Tex. Gov’t Code Ann. § 311.016). When the legislature
intends to impose a duty on officers to act with the authority they possess, it has used
clear language to do so. See, e.g., Tex. Code Crim. Proc. Ann. art. 6.06 (Vernon
2015) (“Whenever, in the presence of a peace officer, or within his view, one person
is about to commit an offense against the person or property of another, including
the person or property of his spouse, or injure himself, it is his duty to prevent it.”).

      Our determination regarding whether Garza’s actions were within the scope
of his employment turns upon whether he was performing a duty assigned by his
governmental employer — not on whether he was acting under general statutory
authority. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5); City of Laredo v.
Saenz, No. 04-05-00188-CV, 2006 WL 286006, at *3 (Tex. App.—San Antonio Feb.
8, 2006, no pet.) (mem. op.) (“Whether a police officer is acting within his scope of
employment is generally tied to the officer’s duty under the law.”). We have found
no case law construing the statutory exceptions identified in article 14.03 to expand
an officer’s duty to act outside his jurisdiction. To the contrary, “[i]t is the duty of

                                           10
every peace officer to preserve the peace within the officer’s jurisdiction.” See Tex.
Code Crim. Proc. Ann. art. 2.13(a) (Vernon 2005) (emphasis added); see also
Blackwell v. Harris Cty., 909 S.W.2d 135, 139 (Tex. App.—Houston [14th Dist.]
1995, writ denied) (same). A plain reading of article 2.13(a) explicitly limits an
officer’s duty to preserve the peace to his jurisdiction. See Tex. Code Crim. Proc.
Ann. art. 2.13(a).

      Garza’s investigation and attempted arrest of Santellana may have been
actions that Garza had statutory authority to undertake. See Tex. Code Crim. Proc.
Ann. art. 14.03(g)(2); Garcia, 296 S.W.3d at 184 (“The provisions of article 14.03
also apply when an officer, outside of his jurisdiction, makes an investigative
detention or Terry stop based on reasonable suspicion.”); Leonard v. State, 135
S.W.3d 98, 103 (Tex. App.—Texarkana 2004, pet. ref’d) (“If a police officer acting
outside the officer’s home jurisdiction has knowledge, that when combined with the
officer’s personal observations, ‘cause an officer to believe that an offense is being
committed in the officer’s presence,’ then the officer may lawfully detain or arrest
that suspect.”) (quoting Thomas v. State, 864 S.W.2d 193, 196 (Tex. App.—
Texarkana 1993, pet. ref’d)).

      But, as discussed above, statutory authority to act is not the same as an
assigned duty to act. Regardless of whether Garza was permitted by statute to
investigate and attempt to arrest Santellana, his actions did not involve “the
performance of a task lawfully assigned to [Garza] by [the City of Navasota].” See
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5). Stated differently, Garza’s
attempted arrest of Santellana in Harris County was not a duty generally assigned to
him by his governmental employer because the City of Navasota had no authority to
assign Garza to investigate suspects and conduct warrantless arrests outside of the



                                         11
city limits, much less outside of Grimes County.4 See City of Balch Springs v.
Austin, 315 S.W.3d 219, 226 (Tex. App.—Dallas 2010, no pet.) (“In determining
whether a police officer is acting within the scope of his employment, it is necessary
to consider whether the officer is discharging a duty generally assigned to him by
his government employer.”) (citing City of Lancaster v. Chambers, 883 S.W.2d 650,
658 (Tex. 1994)). Because Garza was not performing a duty assigned by the City of
Navasota when he attempted to arrest and shot Santellana in another county, Garza’s
actions were not within the general scope of his employment as a police officer for
the City of Navasota.5 See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5).

       Garza argues that his actions were within the scope of his employment by the
City of Navasota because (1) an off-duty officer becomes an on-duty officer when
he observes a crime, and (2) when an officer is performing a public duty, such as


       4
           Section 362.002 of the Texas Local Government Code provides that a county or
municipality may enter into an agreement with a neighboring contiguous county to form a mutual
aid law enforcement task force to cooperate in criminal investigations and law enforcement. See
Tex. Loc. Gov’t Code Ann. § 362.002(b) (Vernon 2005). There is no evidence before us that such
a task force agreement existed allowing the City of Navasota to assign Garza to investigate matters
in a different county, or that the City of Navasota actually did so.
       5
           The Police Chief for the Navasota Police Department testified in a deposition as follows:
       Q.        Okay. At the time of the shooting, was Officer Garza working on behalf of
                 the Navasota Police Department?
       A.        No, he was off-duty.
                                                * * *
       Q.        . . . Is there a policy — was there a policy at the time that allowed Navasota
                 police officers to conduct or arrest individuals outside of the Navasota
                 jurisdiction?
       A.        That should be under Chapter 14 of the criminal code of procedure.
       Q.        Okay. So that’s regulated by state law, is that what you’re saying?
       A.        Yes, sir.
The Police Chief did not testify regarding any Navasota Police Department policy requiring Garza
to act outside of Grimes County.

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enforcement of general laws, he is acting in the course and scope of his employment
as a police officer. See Harris Cty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—
Houston [14th Dist.] 2004, no pet.); Cherqui v. Westheimer St. Festival Corp., 116
S.W.3d 337, 344 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Garza further
contends that “engaging in an arrest is conduct that is generally within an officer’s
scope of employment; it is not an independent course of conduct that fails to serve
any purpose of the employer.” See Fink v. Anderson, 477 S.W.3d 460, 467 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (summarizing Texas Supreme Court’s
holding in Alexander, 435 S.W.3d at 792).

      We do not dispute the general propositions of law espoused in those cases, but
those cases did not involve an officer’s extra-jurisdictional actions. As we have
noted above, an officer has a duty to preserve the peace within his or her jurisdiction,
whether on-duty or off-duty.          See Tex. Code Crim. Proc. Ann. art. 2.13(a).
Accordingly, an officer’s actions in enforcing the peace within his or her jurisdiction,
including engaging in an arrest, involve the satisfaction of a duty and fall within the
scope of employment. This case presents a deviation from that general rule because
Garza’s actions took place outside of his jurisdiction and Garza had no duty to
attempt an arrest of Santellana.

      Our conclusion that Garza’s actions fell outside the general scope of his
employment by the City of Navasota should not be misconstrued as holding that an
off-duty peace officer acting outside of his or her jurisdiction never has immunity
from suit under section 101.106(f). We make no such holding. Rather, we hold that
determining whether the officer is immune is a context-specific inquiry that depends
on the circumstances of the particular case and whether those circumstances dictate
that the officer had a duty to act.



                                            13
      The circumstances here arose when Garza was designated as an apartment
complex “courtesy officer” who was off-duty and present outside of the geographic
jurisdiction of his employment as a City of Navasota police officer. He initially
observed no crime — he only saw Santellana “holding something in his hands” and
leaving an area that Garza associated with drug sales. At that point, Garza went to
his apartment and retrieved his firearm. Garza returned to the parking lot with his
firearm to investigate further, at which point he observed Santellana sitting in a car
in possession of an unknown amount of marijuana. Garza then instigated the
encounter that resulted in him fatally shooting Santellana. Texas law recognizes
certain circumstances under which an officer outside of his or her jurisdiction has a
duty to act. See, e.g., Tex. Code Crim. Proc. Ann. art. 6.06 (officers are duty-bound
to prevent the commission of an offense against the person or property of another).
We are not aware of any statutory duty to act that would apply to the specific facts
of this case, and Garza has not directed us to authority establishing such a duty.
These circumstances therefore do not give rise to immunity.

      Having concluded that Garza’s actions were not conducted within the general
scope of Garza’s employment by the City of Navasota, we conclude that the trial
court did not err in denying Garza’s motion to dismiss under section 101.106(f). See
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).




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                                  CONCLUSION

      The trial court’s order denying Garza’s motion to dismiss is affirmed.




                                      /s/    William J. Boyce
                                             Justice



Panel consists of Justices Boyce, Jamison, and Brown.




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