                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-249-CV


CITY OF ARLINGTON, TEXAS                                          APPELLANT

                                              V.

CHARLES BARNES, RYAN MATTHEW
ROBINSON, AND CAROLYN WARREN                                       APPELLEES

                                          ------------

           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

                                     Introduction

      Appellant City of Arlington, Texas, brings this interlocutory appeal from

the trial court’s judgment denying its plea to the jurisdiction and motions for

summary judgment. In its sole issue, appellant argues that appellees failed to

establish a waiver of governmental immunity. We reverse and render.


      1
          … See T EX. R. A PP. P. 47.4.
                              Background Facts

      Officer Dace Warren of the Arlington Police Department was driving

northbound on Fielder Road in an emergency situation 2 with the lights and

sirens activated in his police car as he approached the intersection of Fielder

Road and Randol Mill Road.3      Appellee Charles Barnes, who was driving

southbound on Fielder Road and was stopped at the red light at the intersection

of Fielder Road and Randol Mill Road, saw Officer Warren’s lights and heard the

sirens. Appellee Ryan Matthew Robinson was driving westbound on Randol Mill

Road when he came to the intersection of Randol Mill Road and Fielder Road.

Robinson did not hear Officer Warren’s siren or see his lights but continued

through the intersection at the same speed, which was about forty miles per

hour, as the light turned from green to yellow.

      As Officer Warren approached the intersection, he changed his siren pitch

to alert oncoming traffic, slowed down to allow a white car to go through the

intersection, and checked in both directions for additional traffic. Because he

did not see any more cars, Officer Warren entered the intersection with a red




      2
       … Officer Warren had received a “shots fired” call and was headed to
that location when the accident occurred.
      3
      … Officer Warren’s mother, Carolyn Warren, was riding with her son and
seated in the front passenger seat.

                                      2
light as Robinson also entered the intersection with a yellow light. In deposition

testimony, Barnes stated that Robinson did not appear to be speeding; however

he heard a loud acceleration from the pipes of Robinson’s truck. As soon as

Officer Warren saw Robinson, he accelerated and tried to get as much speed

as he could to get through the intersection; according to Officer Warren, “there

was no time for any other reaction.” Robinson’s truck hit the right rear of

Officer Warren’s car behind the passenger door, causing the police car to spin

into Barnes’s car. Barnes received injuries to his knee, left wrist, and neck. 4

      In the personal injury suit 5 that followed, appellant filed a plea to the

jurisdiction, summary judgment, and no-evidence motions for summary

judgment claiming that it had immunity from appellees’ lawsuit and that Officer

Warren’s conduct fell within one of the exceptions to the Texas Tort Claims Act

(TTCA).    The trial court denied appellant’s motions.        Appellant filed an

interlocutory appeal under section 51.014(a)(8) of the civil practice and




      4
      … The record indicates that neither Officer Warren, Carolyn Warren, nor
Robinson were injured.
      5
       … Barnes sued appellant and Robinson for his injuries. Robinson filed a
general denial with an affirmative defense, claiming that the accident resulted
from Officer Warren’s negligence. Subsequently, Carolyn Warren intervened
and sued Robinson. Robinson filed a general denial and cross-claim against
appellant for contribution and indemnity on Carolyn Warren’s claims.

                                        3
remedies code.6 T EX. C IV. P RAC. & R EM . C ODE A NN. § 51.014(a)(8) (Vernon

Supp. 2007).

                                 Standard of Review

      In its sole issue, appellant complains that the trial court erred by denying

its plea to the jurisdiction and traditional and no-evidence motions for summary

judgment because appellees failed to establish a waiver of immunity by

appellant. Specifically, appellant contends that the evidence shows that Officer

Warren’s actions were, at most, negligent, which is insufficient to waive

immunity. Because a plea to the jurisdiction implicates the trial court’s subject

matter jurisdiction, we will address it first.

1.    Plea to the Jurisdiction

      A plea to the jurisdiction challenges the trial court’s authority to determine

the subject matter of the action. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d

636, 638 (Tex. 1999); see also Tex. Dep’t of Transp. v. Andrews, 155 S.W.3d

351, 355 (Tex. App.— Fort Worth 2004, pet. denied). We review the trial

court’s ruling on a plea to the jurisdiction based on governmental immunity from

suit under a de novo standard of review. Tex. Dep’t of Parks & Wildlife v.




      6
      … All parties are subject to the appeal except intervenor Carolyn Warren
who did not assert a claim against appellant and disclaimed any interest in the
appeal.

                                         4
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Andrews, 155 S.W.3d

at 355. It is the plaintiff’s burden to allege facts that affirmatively establish the

trial court’s subject matter jurisdiction.   See Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see Andrews, 155 S.W.3d at

355. In determining whether the plaintiff has met this burden, we look to the

allegations in the plaintiff’s pleadings, accept them as true, and construe them

in favor of the plaintiff. Miranda, 133 S.W.3d at 228; see also Sanders v. City

of Grapevine, 218 S.W.3d 772, 777 (Tex. App.—Fort Worth 2007, pet.

denied); see also Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex.

App.—Fort Worth 2003, pet. denied).

      W e must also consider evidence relevant to jurisdiction when it is

necessary to resolve the jurisdictional issue raised.       Bland ISD v. Blue, 34

S.W.3d 547, 555 (Tex. 2000); Andrews, 155 S.W.3d at 355. If the evidence

creates a fact question regarding the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by

the fact-finder. Miranda, 133 S.W.3d at 227-28; Andrews, 155 S.W.3d at

355. However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdiction issue, the trial court rules on the plea to the

jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; Andrews, 155

                                         5
S.W.3d at 355. This procedure generally mirrors that of a summary judgment

under Texas Rule of Civil Procedure 166a(c), and the burden is on the

government to meet the summary judgment standard of proof. Miranda, 133

S.W.3d at 228; Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 408

(Tex. App.—Fort Worth 2006, pet. denied).

2.    Immunity and the Texas Tort Claims Act

      In Texas, sovereign immunity 7 deprives a trial court of subject matter

jurisdiction for lawsuits in which the State or certain governmental units have

been sued unless the State consents to suit. Miranda, 133 S.W.3d at 225-26;

Teague v. City of Jacksboro, 190 S.W.3d 813, 816 (Tex. App.—Fort Worth

2006, pet. denied).     The TTCA, however, provides a limited waiver of

immunity, allowing suits to be brought against governmental units in certain


      7
       … Sovereign immunity refers to the State’s immunity while governmental
immunity refers to the immunity of political subdivisions of the State, including
counties, cities, and school districts. See Ben Bolt-Palito Blanco Consol. ISD v.
Tex. Political Subdiv. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 n.2
(Tex. 2006); Sanders, 218 S.W.3d at 775-76 n.1.




                                       6
narrowly-defined circumstances. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.021

(Vernon 2005); Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587

(Tex. 2001); Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341-42 (Tex.

1998); see also Sanders, 218 S.W.3d at 778.                  Under the TTCA, a

governmental unit’s immunity from suit is waived to the extent that the TTCA

allows liability. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.025(a); Denton County

v. Beynon, 242 S.W.3d 169, 173 (Tex. App.—Fort Worth 2007, pet. filed).

For instance, a city waives its immunity for claims arising from the use of a

motor driven vehicle by a governmental unit’s employee, such as a police

officer driving a patrol car. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.021(1)(A);

see Sanders, 218 S.W.3d at 778; see also Pakdimounivong, 219 S.W.3d at

410; Smith v. Janda, 126 S.W.3d 543, 545 (Tex. App.—San Antonio 2003,

no pet.). However, the governmental unit retains its immunity from suit if one

of the exceptions to the waiver of immunity in the TTCA applies.                See

Pakdimounivong, 219 S.W.3d at 410; see also Smith, 126 S.W.3d at 545.

      One exception to the waiver of governmental immunity contained in

section 101.055(2) provides that the TTCA “does not apply to a claim arising

. . . from the action of an employee while responding to an emergency call or

reacting to an emergency situation if the action is in compliance with the laws

and ordinances applicable to emergency action.” T EX. C IV. P RAC. & R EM. C ODE

                                         7
A NN. § 101.055(2) (Vernon 2005); Lipan ISD v. Bigler, 187 S.W.3d 747, 750

(Tex. App.—Fort Worth 2006, pet. denied); Smith, 126 S.W.3d at 545. The

laws regarding the operation of an emergency vehicle are located in the Texas

Transportation Code. See T EX. T RANSP. C ODE A NN. §§ 546.001-.006 (Vernon

1999 and Supp. 2007).          Section 546.001 allows the operation of an

emergency vehicle to proceed past a red light after slowing as necessary for

safe operation when the operator is responding to an emergency call.8 Id. at

§ 546.001(2).     Section 546.005 provides that, although the driver of an

emergency vehicle must drive “with appropriate regard for the safety of all

persons,” he is not relieved of “the consequences of reckless disregard for the

safety of others.” Id. at § 546.005; see Smith, 126 S.W.3d at 545; see also

Hale v. Pena, 991 S.W.2d 942, 948 (Tex. App.—Fort Worth 1999, no pet.).

Interpreting the uncodified predecessor of section 546.005, the Texas Supreme

Court held that this provision “imposes a duty to drive with due regard for

others by avoiding negligent behavior, but it only imposes liability for reckless

conduct.”   City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998).

Thus, a governmental entity is liable for damages resulting from the emergency




      8
        … The city policy that applies in this case obligates officers to follow all
traffic rules and regulations, including Texas Transportation Code sections
546.002 and 546.005. Arlington Police Dep’t General Order 402.02.

                                         8
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. Id. at 430. Because under the TTCA, a governmental entity’s immunity

from suit is waived only to the extent the TTCA authorizes liability, a

governmental entity is immune from suits resulting from the emergency

operation of an emergency vehicle unless the operator acted recklessly. T EX.

C IV. P RAC. & R EM. C ODE A NN. § 101.025; Smith, 126 S.W.3d at 545.

                                    Analysis

      In its plea to the jurisdiction, appellant alleged that Officer Warren was

not reckless as a matter of law, and therefore appellant retained its

governmental immunity. Appellees, however, contend that the evidence raises

a fact issue as to whether Officer Warren acted with reckless disregard for the

safety of others when he entered into the intersection. See T EX. T RANSP. C ODE

A NN. § 546.005(2). We must thus address whether any evidence shows that

Officer Warren’s actions were taken with reckless disregard for the safety of

others.   See T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.055(2); see also

Pakdimounivong, 219 S.W.3d at 410.

1.    Arlington Police Department Accident Review Board’s Findings are not
      Evidence of Recklessness


                                       9
     Appellees contend that a written reprimand of Officer W arren by the

Arlington Police Department Accident Review Board (Review Board) creates a

fact issue regarding whether Officer Warren’s actions were reckless.

     After conducting an investigation into whether Officer Warren’s actions

were in compliance with city ordinances and state law, the Review Board

determined that Officer Warren “failed to exercise due care in entering an

intersection during emergency response to an emergency call.”       It issued a

written reprimand that reads as follows:

     CHARGE Conduct constituting violation of City of Arlington
     Personnel Policies Section 201.02.B Violation of Rules, specifically
     Section 109.04. Operation of Vehicles, which states in part: “. . .
     4. An employee shall operate any vehicle used for city business in
     a careful and prudent manner and shall obey the . . . policies . . .
     of the city . . .” To wit: Arlington Police Department General Order
     402.02, which states in part:

     A. Obedience to Laws and Regulations.   Employees of this
     department must observe and adhere to all traffic laws and
     regulations except when permitted to do otherwise by this
     directive.

     B. Statutory Authority to Disobey Regulations.                Texas
     Transportation Code Sec. 546.002 permits disregard of certain
     traffic regulations when an authorized emergency vehicle is in
     response to an emergency call or in pursuit. Sec. 546.005
     specifically provides that these authorizations “do not relieve the
     operator . . . from the duty to operate the vehicle with appropriate
     regard for the safety of all persons or the consequences of reckless
     disregard for the safety of others.”




                                     10
The reprimand then concluded that Officer Warren “entered the intersection

when it was unsafe to do so” and ordered him to “refrain from further

misconduct of this nature.”

      Although Officer Warren was charged with failure to comply with section

546.005 of the transportation code, the Review Board did not make any

findings that he was reckless.     Its sole conclusion was that he “failed to

exercise due care in entering an intersection during emergency response to an

emergency call” in compliance with Arlington Police Department’s internal

policies. Appellant’s internal disciplinary documents are thus evidence only that

Officer Warren acted negligently in entering the intersection; they are not

evidence that he committed an act that he knew or should have known posed

a high degree of risk or serious injury. See City of Amarillo, 971 S.W.2d at

430. The written reprimand is not evidence raising a fact issue as to whether

he acted with reckless disregard for the safety of others because the Review

Board determined only that he was negligent; nothing in the written reprimand

changes or adds to the Review Board’s findings that he failed to exercise due

care only. See id. at 429.

      Thus, even when viewed together, this evidence does not raise a fact

issue as to whether Officer Warren was reckless as a matter of law; there is

still only evidence of his negligence, which does not waive immunity.

                                       11
Accordingly, we hold that the Review Board’s findings and reprimand do not

create a fact issue as to whether Officer Warren’s actions were taken with

reckless disregard for the safety of Robinson or Barnes. T EX. C IV. P RAC. & R EM.

C ODE A NN. § 101.055(2); see also City of Amarillo, 971 S.W.2d at 430.

2.    Other Evidence

      We must next determine if any other evidence raises a fact issue as to

whether Officer Warren’s actions were taken with reckless disregard for the

safety of others. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.055(2).

      The evidence shows that Officer Warren was driving his police car in an

emergency situation with the lights and sirens activated when he entered the

intersection.   At the intersection, Officer Warren slowed down and looked

around. Then, seeing that traffic had stopped or yielded to him, he proceeded

into the intersection without coming to a complete stop. Officer Warren did not

see Robinson’s truck until after he had entered the intersection; he then

accelerated to try to clear the intersection and to avoid a collision with

Robinson.9 Robinson, however, hit the rear passenger side of the police car

driven by Officer Warren, and the police car hit Barnes’s car.




      9
       … Appellees urge that Officer Warren’s full acceleration was evidence of
recklessness; however, Officer Warren testified that he accelerated to get as
much speed as possible to clear the intersection.

                                        12
      Appellees did not present any evidence or plead any other facts, which

when taken as true, raise a fact issue as to whether Officer Warren knew or

should have known that entering the intersection posed a high degree of risk

of serious injury, yet proceeded without caring about this high degree of risk.

Therefore, we hold that appellant met its burden to establish as a matter of law

that Officer Warren was not reckless and that appellant’s immunity was not

waived. We sustain appellant’s sole issue.10

                                  Conclusion

      Having sustained appellant’s sole issue, we reverse the trial court’s

judgment denying appellant’s plea to the jurisdiction and render judgment

dismissing appellees’ claims against appellant for lack of subject matter

jurisdiction.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL A:        CAYCE, C.J.; LIVINGSTON, and MCCOY, JJ.

DELIVERED: March 27, 2008


      10
         … Because we hold that the trial court did not have subject matter
jurisdiction, we need not address appellant’s challenges to the denial of its
motions for summary judgment. T EX. R. A PP. P. 47.1; see Nat’l Sports & Spirit,
Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 84 (Tex. App.—Fort Worth 2003, no
pet.).

                                      13
