      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-02-00769-CV



        Jovon Lemont Reed and the Texas Department of Public Safety, Appellants

                                                v.

Kristy Lynn Villesca; Carrie Dawn Melcher, Individually and as Personal Representatives
            of the Estate of Carolyn Weiser Galbreath, Deceased, Appellees




       FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
         NO. 11976, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This case concerns a fatal traffic accident involving a Texas Department of Public

Safety vehicle. The Texas Department of Public Safety and Highway Trooper Jovon Lemont Reed

bring this interlocutory appeal to challenge the denial of their joint motion for summary judgment

based on an official-immunity affirmative defense. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(5) (West Supp. 2003). The issue on appeal is whether Trooper Reed conclusively

established the elements of his official-immunity defense, thereby shielding himself and the

Department from liability. Because the Department and Trooper Reed failed to establish, as a matter

of law, that Trooper Reed was performing a discretionary function at the time of the accident, we

affirm the trial court’s denial of summary judgment.
                                         BACKGROUND

               In February 2000, Carolyn Weiser Galbreath was waiting to turn left off of westbound

U.S. Highway 290 when her car was struck from behind by a car driven by Jimmy Scott Mancille.

Immediately following the first collision, Mancille’s car was struck from behind by a Department

patrol car, driven by Trooper Reed. This second impact caused Mancille’s vehicle to collide with

Galbreath’s vehicle a second time. Galbreath died at the scene as a result of her injuries. At the time

of the accident, Trooper Reed and his passenger, fellow officer Trooper Kevin James, were on their

way to a traffic-accident reconstruction course at the Department of Public Safety Academy in

Austin.

               About two months after the accident, Kristy Lynn Villesca and Carrie Dawn Melcher

(collectively “Villesca”), Galbreath’s surviving children, brought suit against Mancille, both

individually and as personal representatives of Galbreath’s estate. The petition was later amended

to include Trooper Reed and the Department as defendants. Trooper Reed and the Department then

filed a joint motion for summary judgment based on the doctrine of official immunity, which the trial

court denied. Trooper Reed and the Department appeal, asserting that the elements of the affirmative

defense of official immunity were established as a matter of law.


                                           DISCUSSION

               This Court’s jurisdiction to consider Trooper Reed’s interlocutory appeal derives

from section 51.014(a)(5) of the civil practices and remedies code. See id. (“A person may appeal

from an interlocutory order . . . that denies a motion for summary judgment that is based on an




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assertion of immunity by an individual who is an officer or employee of the state or a political

subdivision of the state.”).

               The same standard of review that governs the granting of a summary judgment applies

to the denial of a summary judgment. See San Antonio Express News v. Dracos, 922 S.W.2d 242,

247 (Tex. App.—San Antonio 1996, no writ); Harris County v. Ochoa, 881 S.W.2d 884, 886 (Tex.

App.—Houston [14th Dist.] 1994, writ denied). The standards for reviewing a motion for summary

judgment are: (1) the movant has the burden of showing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed

material-fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken

as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any

doubts resolved in its favor. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

A defendant who conclusively establishes all of the elements of an affirmative defense is entitled to

summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

               Official immunity is an affirmative defense that protects government employees from

personal liability. University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A government

employee is entitled to official immunity from suit for conduct arising from the performance of (1)

discretionary duties, (2) performed in good faith, as long as the actions were (3) within the scope of

the employee’s authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). If it

is determined that Trooper Reed is entitled to official immunity, then the Department will be

immune from vicarious liability through its sovereign immunity. See DeWitt v. Harris County, 904

S.W.2d 650, 654 (Tex. 1995) (“It would serve no legislative purpose to declare a waiver of sovereign



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immunity when the basis of liability is respondeat superior and the acts of the employee are covered

by official immunity.”). Villesca concedes that Trooper Reed was acting within the scope of his

authority at the time of the wreck. Therefore, we must examine whether a genuine issue of material

fact exists as to whether Trooper Reed has met either the “discretionary” element or the “good faith”

element of his affirmative defense.

               An action is discretionary if it involves personal deliberation, decision, and judgment;

an action is ministerial if it requires obedience to orders or the performance of a duty to which the

actor has no choice. Chambers, 883 S.W.2d at 654. Absent special circumstances that suggest an

officer was performing a discretionary function, such as engaging in a high-speed chase, an officer

driving a motor vehicle while on official, non-emergency business is performing a ministerial act.

Texas Dep’t of Pub. Safety v. Cordes, 85 S.W.3d 342, 345 (Tex. App.—Austin 2002, no pet.) (denial

of summary judgment based on official immunity affirmed where there was some evidence to show

that officer was not responding to emergency); City of Houston v. Daniels, 66 S.W.3d 420, 425 (Tex.

App.—Houston [14th Dist.] 2001, no pet.) (summary judgment for police officer denied because a

fact issue existed concerning whether domestic-violence call required an emergency response).

               The appellants offer Trooper Reed’s affidavit as evidence that, at the time of the

accident, he was performing a discretionary act. In his affidavit, Trooper Reed states that, just prior

to the accident, he was in pursuit of Mancille’s red sedan because it was being driven in a reckless

manner. Trooper Reed asserts that Mancille made a series of unsafe lane changes and posed an

immediate threat of injury to other motorists. The appellants contend that Trooper Reed’s decision




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to follow Mancille at a close proximity was a discretionary act made with the purpose of remedying

an emergency situation, by either pulling Mancille over or taking some other action.

               Villesca responds that Trooper Reed was not in an emergency situation at the time

of the accident. In fact, Villesca points to evidence which indicates that Trooper Reed might not

have been in pursuit of Mancille at all when the accident occurred. In his affidavit, Mancille asserts

that he was not driving recklessly and that he had not made any abrupt lane changes. Mancille also

states that Trooper Reed’s patrol car was traveling behind him “for a significant period of time, and

at no time were any of his emergency lights activated.” Mancille’s testimony is supported by an

affidavit submitted by Troy James Evanovich, a witness to the accident and the events leading up

to it. Evanovich states that Mancille was not driving recklessly or changing lanes and that Trooper

Reed was following Mancille very closely for a minute to a minute and a half.

               Villesca also notes that Trooper Reed failed to mention that he was in pursuit of

Mancille when questioned on the night of the accident. According to the deposition of Trooper

Casey Goetz, the officer in charge of the accident scene, Trooper Reed did not indicate that he was

responding to an emergency when questioned about the accident. In addition, Trooper Reed and

Trooper James failed to mention that they were in pursuit of Mancille in their written statements

from the night of the accident.

               Villesca argues that, even if Trooper Reed was following Mancille, it was not an

emergency situation, and his actions, therefore, were not discretionary. The affidavits of Mancille

and Evanovich indicate that Trooper Reed had plenty of time to activate his emergency lights in

order to pull Mancille over or at least get his attention; however, the summary-judgment proof



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suggests that Trooper Reed never did so. In addition, Trooper James indicates in his deposition that

he did not consider trying to catch up to Mancille’s vehicle to be an emergency situation.

               Indulging every reasonable inference and resolving any doubts in Villesca’s favor,

we cannot say that Trooper Reed met his burden to establish, as a matter of law, that he was

performing a discretionary function, such as participating in a high-speed chase or responding to an

emergency. See Cordes, 85 S.W.3d at 345.

               Because we have determined that a genuine issue of material fact exists as to whether

Trooper Reed has met the discretionary element of his official-immunity affirmative defense, we

need not consider whether Trooper Reed was acting in good faith as a matter of law.


                                         CONCLUSION

               Because the Department and Trooper Reed have failed to conclusively prove all of

the elements of the official-immunity affirmative defense, we affirm the trial court’s order denying

the motion for summary judgment.




                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: June 19, 2003




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