                               Fourth Court of Appeals
                                      San Antonio, Texas
                                     DISSENTING OPINION
                                          No. 04-14-00275-CV

                                          Adriana P. PEREZ,
                                               Appellant

                                                    v.

                                           WEBB COUNTY,
                                              Appellee

                      From the 111th Judicial District Court, Webb County, Texas
                                 Trial Court No. 2011CVT000305 D2
                            Honorable Monica Z. Notzon, Judge Presiding

Opinion by: Luz Elena D. Chapa, Chief Justice
Concurring Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 3, 2015

           I respectfully dissent because I believe (1) in responding to a “domestic call in progress,”

Corporal Horacio Yzaguirre was reacting to an emergency situation and Adriana Perez did not

raise a fact issue on this question, and (2) Yzaguirre’s actions were, at most, negligent and/or

merely a “momentary judgment lapse” and Perez did not raise a fact issue regarding whether

Officer Yzaguirre’s actions were taken with “reckless disregard for the safety of others.”

Therefore, I would affirm the trial court’s order granting Webb County’s motion to dismiss.
Dissenting Opinion                                                                    04-14-00275-CV


                                          EMERGENCY

        The Texas Tort Claims Act (“TTCA”) does not define the terms “emergency call” or

“emergency situation,” but the Texas Supreme Court has interpreted the term “emergency”

broadly. See City of San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006). The Hartman

court held that “because the Act creates governmental liability where it would not otherwise exist,

we cannot construe section 101.055(2) to exclude emergencies the Legislature might have intended

to include.” Id. at 672-73 (city was reacting to an emergency where, among other things, there

was imminent threat of severe injury, loss of life or property due to city-wide flooding); see also

Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410-11 (Tex. App.—Fort Worth 2006, pet.

denied) (officers were reacting to emergency situation where suspect in back of patrol car tried to

escape through window while being transported to jail); see also Jefferson Cnty. v. Hudson, No.

09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem.

op.) (“emergency” refers to unforeseen circumstances requiring immediate action).

        Perez contends Officer Yzaguirre was not responding to an emergency because (1) he was

not dispatched to the scene; instead, he took it upon himself to respond; (2) the Webb County

Sheriff’s Office Standard Operating Procedures (“SOPs”) characterize seven types of calls as

“emergency calls,” and a domestic disturbance is not among those listed; and (3) he was in heavy

traffic seven miles away when he decided to respond as a Code 3 even though the call was only a

Code 2. Perez also notes the evidence is conflicting on whether the call was a Code 2 or a Code

3. Perez contends that, although Officer Yzaguirre characterized the call as a Code 2 at the hearing

on Webb County’s motion to dismiss, he had earlier characterized it as a Code 3, which requires

the use of both lights and siren.

        Officer Yzaguirre testified he was in his patrol car working as a patrol and field supervisor

when he heard a radio dispatch “for a domestic call in progress in Los Botines out of Highway
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Dissenting Opinion                                                                          04-14-00275-CV


359.” 1 Because he knew the officer assigned to the area of the call was on another case and because

Officer Yzaguirre was only about seven miles from the location of the call, Officer Yzaguirre

decided to respond to the call. Officer Yzaguirre testified that, as a supervisor, the Webb County

Sheriff’s Office Standard Operating Procedures (“SOPs”) provide he could respond to emergency

calls even though not dispatched. Therefore, although not dispatched to the scene, Officer

Yzaguirre decided to respond. Officer Yzaguirre said a domestic violence call, such as the one

here, is classified as “high priority” because “[i]t changes quickly, needs immediate attention due

to the fact that it was an assault in progress, so you respond as quickly as possible.”

           The SOPs do not specifically list “domestic violence” as an “emergency call,” but they do

include “assault in progress with weapons involved,” which is the call Officer Yzaguirre said he

was responding to, although he admitted he did not know if a weapon was involved, but he

assumed the potential of a weapon. The SOPS also include, among the list of “emergency calls,”

“other felony in progress,” and Officer Yzaguirre believed that applied as well because if the

suspect had a weapon the charge could be increased to an aggravated assault, “domestic violence

would be more severe.” Officer Yzaguirre also testified that the audio version of his dashboard

camera indicated he needed to get to the scene quickly because there was “an actual call . . . [that

a] suspect was on the scene still - - where officers were running urgent to the call. They were

running faster, trying to get there quicker.” There is also no dispute that, as a patrol supervisor,

Officer Yzaguirre had the discretion to respond to the call even if he was not dispatched. He also

said that because he is a supervisor, he is not required to inform dispatch whether he is “in a [Code]

3 or 2 or 1, as long as I make it to the call.”




1
    The record does not contain a recording or transcription of the actual dispatch call.

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Dissenting Opinion                                                                     04-14-00275-CV


        The TTCA governs immunity for claims arising from a governmental employee’s actions

while “responding to an emergency call,” as well as the employee’s reactions to an “emergency

situation.” See TEX. CIV. PRAC. & REM. CODE § 101.055(2). Officer Yzaguirre was reacting to “a

domestic call in progress,” and he explained, without contradiction, that these calls are considered

an emergency or high priority “due to the fact of the nature of the violence of the call.” See Tex.

Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (officer responded to dispatch call requesting assistance with a wanted person, officer testified

without contradiction that law enforcement officers consider such requests to be an emergency).

        The fact that the SOPs do not expressly list “domestic violence” as an “emergency call,”

does not alter the undisputed facts regarding the reason Officer Yzaguirre responded to the call

and the information to which he was reacting. See, e.g., Little, 259 S.W.3d at 239 (where officer

did not learn that emergency situation did not exist until later, but was responding to mis-coded

emergency call, no fact issue was raised regarding whether emergency exception applied). Nor

does the fact that Officer Yzaguirre was seven miles away from the domestic violence incident

alter the nature of the call as an “emergency.” See Hartman, 201 S.W.3d at 673 (“The Hartmans

argue that the City had at least six hours to place a barricade on the west side of the Rigsby flood,

a period they deem too long to constitute an emergency. But we cannot restrict our review to

Rigsby Avenue, any more than the City could. The statute exempts governments reacting to an

emergency situation, which necessarily includes prioritizing some risks over others. Under the

statute, evidence that the City had time to do more at Rigsby Avenue is not evidence that the City

was no longer reacting to an emergency situation.”).

        Finally, I do not believe how the SOPs would define a Code 2 or Code 3 or whether the

call was a Code 2 or a Code 3 raises a fact issue on whether Officer Yzaguirre was reacting to an

emergency situation. According to Officer Yzaguirre, a Code 1 is for normal traffic, such as
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Dissenting Opinion                                                                     04-14-00275-CV


stopping at stop signs, yielding to oncoming traffic, maintaining the speed limit, and abiding by

all traffic codes. A Code 2 is for using the overhead lights with either the siren or air horn. Officer

Yzaguirre stated a Code 2 does not necessarily mean you have to use lights and sirens. However,

he said department policy allows for driving “a little bit over the speed limit” with a Code 2, usually

for burglaries in progress, some domestic violence calls, and other calls. Officer Yzaguirre stated

a Code 3 is “pretty much everything that the car can give you.” He said the difference between a

Code 2 and a Code 3 is the use of lights and sirens. However, the SOPs give officers some

discretion to use either lights or audibles: “Officers may activate emergency signal devices on their

own volition, if determined that the technology will aid in a crisis, emergency or perceived problem

situation.” Therefore, I do not believe whether the call was a Code 2 or a Code 3 raises a fact issue

because there is no dispute that Officer Yzaguirre was using his emergency lights and air horn

while responding to a “domestic call in progress,” which I believe, under the circumstances here,

was an emergency situation.

        For these reasons, I conclude the County established Officer Yzaguirre was reacting to an

emergency situation and Perez did not raise a fact issue on this question.

         COMPLIANCE WITH APPLICABLE LAWS/RECKLESS DISREGARD

        The Texas Transportation Code allows the driver of an authorized emergency vehicle to

proceed passed a red light and exceed the maximum speed limit, after slowing where necessary

and so long as the driver does not endanger life or property.            TEX. TRANSP. CODE ANN.

§ 546.001(2), (3) (West 2011). With certain exceptions, the Transportation Code also provides

that the operator of an authorized emergency vehicle engaging in conduct permitted by section

546.001 “shall use, at the discretion of the operator in accordance with policies of the department

or the local government that employs the operator, audible or visual signals that meet the pertinent



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Dissenting Opinion                                                                                      04-14-00275-CV


requirements of Sections 547.305 and 547.702.” 2 Id. § 546.003 (emphasis added). “A police

officer may operate an authorized emergency vehicle for a law enforcement purpose without using

the audible or visual signals required by Section 546.003 if the officer is . . . complying with a

written regulation relating to the use of audible or visible signals adopted by the local government

that employs the officer or by the department.” Id. § 546.004(c)(2) (emphasis added). These, and

other, sections of the Transportation Code impose a duty on drivers of authorized emergency

vehicles to “operate the vehicle with appropriate regard for the safety of all persons.” Id.

§ 546.005(1); see also City of Amarillo v. Martin, 971 S.W.2d 426, 434 (Tex. 1998) (holding

predecessor to section 546.005 “imposes a duty to drive with due regard for others by avoiding

negligent behavior”). The SOPs also require a driver to activate emergency signal devices and

headlights “as required by law.” Similar to the Transportation Code, the SOPs impose a duty on

drivers of emergency vehicles, when “executing maneuvers contrary to the Transportation Code

. . . ‘to drive with due regard for the safety of all persons.’”

           However, although a driver of an emergency vehicle is under a duty to act “with appropriate

regard for the safety of all persons,” he is subject to liability only for “the consequences of reckless

disregard for the safety of others.” Id. § 546.005(2) (emphasis added); see also Martin, 971

S.W.2d at 434 (holding same under predecessor statute); TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.055(2) (West 2011) (waiver of immunity does not apply, inter alia, “if the action is not taken

with conscious indifference or reckless disregard for the safety of others”). Similarly, the SOPs

provide that “the exceptions exempting the drivers of emergency vehicles from provisions of the

Transportation Code do not protect the driver ‘from the consequences of his reckless disregard for

the safety of others.’”


2
    Sections 547.305 and 547.702 deal with the physical requirements of the lights, and are not at issue in this appeal.


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Dissenting Opinion                                                                   04-14-00275-CV


        A person commits the offense of reckless driving if “the person drives a vehicle in wilful

or wanton disregard for the safety of persons or property.” Id. § 545.401(a). “Conscious

indifference” and “reckless disregard” are not defined in the statute; but, those terms have been

interpreted to require proof that a party knew the relevant facts but did not care about the result.

Hartman, 201 S.W.3d at 672 n.19. Thus, a governmental entity is liable for damages resulting

from the operation of an emergency vehicle only if the operator acted recklessly; that is, only if

the operator “committed an act that the operator knew or should have known posed a high degree

of risk of serious injury” but did not care about the result. Martin, 971 S.W.2d at 430; Smith v.

Janda, 126 S.W.3d 543, 545 (Tex. App.—San Antonio 2003, no pet.). Under this standard, Perez

was required to raise a fact issue on whether Officer Yzaguirre committed an act he knew or should

have known posed a high degree of risk of serious injury, as opposed to a mere momentary

judgment lapse. Martin, 971 S.W.2d at 430; City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). I do not believe a fact issue was raised.

        As explained above, the SOPs provide for the use of lights and/or audibles based, to some

degree, on whether the call is characterized as a Code 1, 2, or 3. There is conflicting evidence on

whether Officer Yzaguirre was responding to a Code 2 call or a Code 3 call. At the hearing, he

stated he was on a Code 2 call, which does not require the use of a siren. However, Officer

Yzaguirre was confronted with his testimony before the Accident Review Board during which he

characterized the call as a Code 3. Under the SOPs, a Code 3 call requires the use of red and blue

emergency lights and sirens. The SOPs do not mention Code 2 calls, but according to Officer

Yzaguirre, a Code 2 call requires the use of overhead red and blue lights with either an air horn or

a siren. Because there is a fact issue on whether Officer Yzaguirre was responding to Code 2,

which does not require the use of a siren, I assume, without deciding, that he was responding to a



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Dissenting Opinion                                                                    04-14-00275-CV


Code 3 call, which does require the use of a siren. Nevertheless, this alone is not determinative of

whether Perez raised a fact issue sufficient to satisfy her burden.

        The evidence in the light most favorable to Perez reveals Officer Yzaguirre was unable to

see Perez before he entered the intersection, he was driving at a speed over the posted limit, he

drove through the red light at the intersection, and he had not activated the siren on his vehicle.

However, I do not believe this evidence raises a fact issue on whether Officer Yzaguirre acted with

conscious indifference or reckless disregard for the safety of others.

        Officer Yzaguirre testified he did everything he could to be cautious, he slowed down as

necessary, he used audible signals as necessary to alert citizens to his presence, and he braked and

did not accelerate through an intersection. He also stated he checked in both directions as he

entered an intersection. When asked his normal procedure for approaching an intersection when

responding to an emergency, Officer Yzaguirre responded as follows:

                I try to use as much caution as possible, slow down at the intersection, using
        my overheads, my air horn, siren, depending on the nature of the call, the time of
        day, the road conditions, also to distinguish what I would use. Mostly, I would use
        caution.
                                                         ...
                Checking. Checking for pedestrian or other vehicles not listening to the
        emergency vehicle, checking left, checking right, using caution. Go slowly, as slow
        as possible, but still trying to answer the call with adequate time.
                                                         ...
                … So, I mean, you have numerous things going on in the car. You have the
        radio going on. You’re trying to use different audibles to alert different types of
        people. You have your air horn going off as you’re approaching intersections. I
        try to do everything possible to alert the community that I’m trying to get through
        to an emergency.

        Officer Yzaguirre testified that, as a field supervisor, he has some discretion as to what

type of equipment he may use when responding to an emergency. Officer Yzaguirre testified that

in this instance, he looked both ways before entering the Chihuahua/Bartlett intersection against

the red light. As indicated by the information from Officer Yzaguirre’s dashboard camera, the


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Dissenting Opinion                                                                    04-14-00275-CV


impact between his vehicle and Perez’s occurred at the 08:17:26 timer mark. The triggers on the

camera screen indicate he had turned on his emergency lights, used his air horn three or four times,

and hit his brakes at the timer mark of 08:17:23 as he approached the Chihuahua/Bartlett

intersection. His foot is still on the brakes at 08:17:24, but off the brakes at 08:17:25—one second

before impact. Although he had slowed to about sixteen miles per hour at the prior intersection,

Officer Yzaguirre was apparently travelling at approximately thirty-six miles per hour when he

entered the Chihuahua/Bartlett intersection.

        The use of his emergency lights and air horn, his testimony that he looked both ways before

entering the Chihuahua/Bartlett intersection, his travelling at only about six miles over the speed

limit, and the fact that his foot was on the brake until one second before impact indicates Officer

Yzaguirre was aware of the dangers to others as he responded to the call and he was not consciously

indifferent to or acting with reckless disregard for the safety of others. See City of Laredo v.

Varela, 2011 WL 1852439, *4-5 (Tex. App.—San Antonio May 11, 2011, pet. denied)

(“According to the clock on the video, the accident took place less than one second after the officer

stopped applying his brakes, which indicates the officer was relatively close to the intersection

when he stopped applying his brakes. The use of his siren, emergency lights and vehicle brakes

are acts that indicate Officer Cortinas was aware of the dangers to others as he responded to the

emergency call and he was not consciously indifferent to the plight of other drivers. . . . .

Moreover, the use of his siren, emergency lights and vehicle brakes, indicate Officer Cortinas took

precautions to avoid a risk of harm to others.”).

        Although Officer Yzaguirre may have been negligent, I do not believe Perez raised a fact

question on whether he committed an act he knew or should have known posed a high degree of

risk of serious injury, as opposed to a mere momentary lapse in judgment. Martin, 971 S.W.2d at

430.
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Dissenting Opinion                                                                  04-14-00275-CV


                                        CONCLUSION

        Officer Yzaguirre was driving an authorized emergency vehicle while responding to an

emergency situation with his lights activated and while using his air horn. Therefore, Webb

County met its burden to establish lack of subject matter jurisdiction. The burden then shifted to

Perez to raise a material question of fact on whether Officer Yzaguirre was responding to an

emergency call/emergency situation or whether he acted with conscious indifference to or reckless

disregard for the safety of others. I do not believe she satisfied her burden; therefore, I would

affirm the trial court’s order granting Webb County’s motion to dismiss for lack of jurisdiction.


                                                  Sandee Bryan Marion, Chief Justice




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