                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                                 ________________

                                NO. 09-13-00039-CV
                                 ________________

                        AMANDA LAFFERTY, Appellant

                                          V.

        JASPER COUNTY SHERIFF’S DEPARTMENT, Appellee
 _________________________________________________________________

                 On Appeal from the 1st District Court
                        Jasper County, Texas
                        Trial Cause No. 31119
__________________________________________________________________

                            MEMORANDUM OPINION

      In three issues, appellant Amanda Lafferty challenges the trial court’s order

granting a no-evidence summary judgment in favor of appellee Jasper County Sheriff’s

Department (“Jasper County”). We affirm the trial court’s judgment.

                                   BACKGROUND

      Lafferty filed a negligence action against Jasper County for personal injuries,

which Lafferty contends she sustained when a vehicle operated by an employee of Jasper

County struck a four-wheeler on which she was a passenger, causing Lafferty to be

thrown from the four-wheeler. Jasper County filed a no-evidence motion for summary
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judgment, in which it asserted that because Lafferty had no evidence that it violated any

state laws or local emergency response laws while reacting to an emergency situation,

Jasper County’s governmental immunity from suit was not waived by the Texas Tort

Claims Act. In its motion, Jasper County alleged that Deputy Louis Berry heard and then

observed a four-wheeler without headlights or a license plate “being driven north on CR

725[,]” so Deputy Berry activated his emergency lights to initiate a traffic stop.

According to Jasper County, the driver of the four-wheeler did not pull over and stop, so

Deputy Berry activated the siren on his patrol car. Jasper County asserted that the driver

still did not stop, but began driving faster. Jasper County alleged that Deputy Berry then

“reported an emergency situation, ‘in pursuit’, of the fleeing four-wheeler to dispatch and

continued to operate his patrol car in emergency mode, with lights and siren activated, to

warn the public of the danger created by the driver of the unlit four-wheeler.”

       According to Jasper County’s motion, the subsequent pursuit covered

approximately seven miles and involved both paved and unpaved roads and publicly-

traveled County Roads. Jasper County alleged that the driver of the four-wheeler ran a

stop sign and crossed Highway 96, turned around multiple times to look at Deputy

Berry’s patrol unit; endangered himself, Lafferty, “and the general public by continuing

to drive faster and recklessly away from the patrol unit[;]” threw beer cans and a cooler

from the four-wheeler; drove through a ditch to evade a road block created by another

patrol unit; drove the four-wheeler side to side on dirt roads, causing thick dust and low


                                             2
visibility; and made multiple last-minute turns. Jasper County also alleged that “[t]he

pursuit ended when the driver of the four-wheeler braked suddenly causing the four-

wheeler to come to an abrupt stop, flip forward and eject Lafferty, then land upside down

on the driver.”

       Jasper County attached Deputy Berry’s probable cause affidavit as an exhibit to its

no-evidence motion for summary judgment. Deputy Berry’s affidavit states that at

approximately 11:45 p.m., he heard and then saw a four-wheeler traveling on CR 725,

and he observed that the four-wheeler’s headlights were not on. Deputy Berry observed

that two people were on the four-wheeler, and he turned on his patrol car’s overhead

lights, followed by the siren, in an attempt to stop the four-wheeler. The driver

accelerated, turned to look back at Deputy Berry’s patrol car, and continued driving.

According to Deputy Berry, as the four-wheeler approached Highway 96, the driver again

turned to look at the patrol car. As the four-wheeler approached CR 640, the driver threw

containers and beer cans. Deputy Berry averred that as the four-wheeler approached the

end of CR 640, Deputy Berry “noticed that Deputy Mike Smith had stop[p]ed his patrol

unit at the intersection to try to get the four[-]wheeler driver to stop[,]” and Deputy Smith

had gotten out of his vehicle to try to stop the four-wheeler. According to Deputy Berry,

the four-wheeler drove through the ditch and evaded Deputy Smith and then turned onto

CR 639 and continued to drive faster.




                                             3
       In his affidavit, Deputy Smith averred that the driver of the four-wheeler

continued driving at a high rate of speed until the driver reached CR 646, when the driver

hit his brakes very quickly and turned onto CR 646. The driver “continued to look back”

at Deputy Smith’s patrol car but refused to stop. According to Deputy Smith, as the

driver continued down CR 646, the driver came to a sharp curve that “becomes very

dusty[,]” and it became difficult to see the four-wheeler because its lights were still off.

The driver continued to throw beer cans and also threw a plastic container, and he then

braked “very hard[,]” turned onto a dirt road, and began to sway the four-wheeler back

and forth, “causing very thick dust and low visibility.” Deputy Smith averred that he had

to slow his patrol unit down to maintain his own safety, as well as that of the driver’s

passenger. The driver continued to drive at a high rate of speed, but Deputy Smith

eventually caught up with him when the four-wheeler turned onto a paved road.

According to Deputy Smith, the driver continued to look back at the patrol unit and throw

beer cans, and the driver still refused to stop.

       Deputy Smith continued pursuing the four-wheeler as it again turned onto a dirt

road and visibility decreased, but the driver continued to evade the patrol units and look

back at them. The driver approached another street, hit his brakes, turned, continued

driving at a high rate of speed, and again hit his brakes “very hard” and then turned. The

driver continued down the road, again looking back at the patrol units behind him.

Deputy Smith averred that after the driver looked side to side, the driver again hit the


                                               4
brakes, and the four-wheeler then left the ground and flipped forward, throwing the

passenger over the top of the driver, and the four-wheeler ultimately landed on both the

driver and the passenger.

        Jasper County attached excerpts from the deposition of the driver of the four-

wheeler, Tommy Shivers. In the deposition, Shivers admitted that he tested at double the

legal limit when his blood alcohol level was checked at the hospital following the

accident. Shivers testified that he did not stop for the sheriff’s deputy because he had

previous convictions for driving while intoxicated, so he knew that he could go to jail.

Shivers admitted that he saw the flashing lights and heard the sirens on the police

vehicles and he was driving in the dark without headlights, and he explained that he did

not have his headlights on because he thought the police “wouldn’t see me or get behind

me or follow me.” In addition, Shivers admitted that he tried to evade the police, and that

although Lafferty was screaming for him to stop the four-wheeler, he did not stop

because he feared he would be arrested. Shivers also admitted that he threw beer cans,

drove through a ditch to evade a patrol car that had blocked the road, and deliberately

caused the four-wheeler to weave from side to side on a dirt road in an attempt to reduce

visibility.

        Jasper County also attached excerpts from Lafferty’s deposition. Lafferty testified

that Shivers did not have the four-wheeler’s headlights turned on because he had seen a

police car. Lafferty testified that she was aware Shivers had prior convictions for driving


                                             5
while intoxicated, and that Shivers evaded the authorities because he was afraid of getting

arrested. Lafferty explained that a policeman tried to grab her to remove her from the

four-wheeler when the road block was set up, but she was too heavy. When asked

whether she tried to persuade Shivers to pull over, she responded, “[f]rom the top of my

lungs the entire time.” Lafferty explained that she was “[s]creaming frantically” and was

“dying to get off” the four-wheeler. Attached to Lafferty’s response to Jasper County’s

motion for summary judgment were additional excerpts from her deposition testimony. In

those excerpts, Lafferty testified that as the policemen were pursuing Shivers, the

deputies “were coming up on the side of the four-wheeler and bumping it” by hitting the

tires. According to Lafferty, the police car bumped the four-wheeler twice. Lafferty

testified that the policeman stopped the four-wheeler “when he hit the four-wheeler” with

“that black thing” on the front of the vehicle, and she was then thrown from the four-

wheeler. In her second amended petition, which was filed four days before the trial court

signed the summary judgment order, Lafferty alleged that Jasper County was not immune

from suit because Jasper County acted “with conscious indifference to or with reckless

disregard for the rights and safety of others, including . . . Lafferty.”

                                         ANALYSIS

                          Jasper County’s Jurisdictional Challenge

       In its brief, Jasper County contends Lafferty did not timely file her notice of

appeal, and that this Court therefore lacks jurisdiction of her appeal. Because this issue, if


                                               6
sustained, would be dispositive, we address it before proceeding to Lafferty’s issues. The

trial court signed its order granting Jasper County’s motion for no-evidence summary

judgment on October 19, 2012. On November 16, 2012, Lafferty timely filed a motion

for new trial. See Tex. R. Civ. P. 329b(a) (A motion for new trial must be filed within

thirty days after the judgment complained of is signed.). Lafferty’s timely filing of a

motion for new trial gave her ninety days from the date of the summary judgment order

to file a notice of appeal, which in this case was January 17, 2013. See Tex. R. App. P.

26.1(a)(1) (The timely filing of a motion for new trial extends the appellate timetable to

ninety days after the judgment is signed.).

       In response to correspondence from this Court questioning whether her notice of

appeal was timely filed, Lafferty provided proof to the Court via the affidavit of her

attorney’s legal assistant. The legal assistant’s affidavit states that she placed Lafferty’s

notice of appeal in the U.S. mail, first class, on January 17, 2013, addressed to the Jasper

County District Clerk. Lafferty also provided her attorney’s file copy of the cover letter

for the notice of appeal, dated January 17, 2013, which the Jasper County District Clerk

file-stamped on January 22, 2013.

       Rule 9.2 of the Texas Rules of Appellate Procedure provides that a document

received within ten days after the filing deadline is considered timely filed if it was sent

to the proper clerk by U.S. Postal Service by first-class mail, was placed in a properly

addressed and stamped envelope or wrapper, and it was deposited in the mail on or before


                                              7
the last day for filing. Tex. R. App. P. 9.2(b)(1). Rule 9.2(b)(2) provides that the appellate

court will accept as conclusive proof of the date of mailing a legible U.S. Postal Service

postmark, a receipt for registered or certified mail, or a certificate of mailing by the U.S.

Postal Service, but that the appellate court “may consider other proof[.]” Tex. R. App. P.

9.2(b)(2). We accept Lafferty’s documentation as proof that her notice of appeal was

filed in a timely manner as provided by Rule 9.2(b). Accordingly, we overrule Jasper

County’s jurisdictional issue.

                    The No-Evidence Motion for Summary Judgment

       A party may move for a no-evidence summary judgment on the ground that

there is no evidence of one or more of the essential elements of a claim or defense

on which an adverse party would have the burden of proof at trial. See Tex. R. Civ.

P. 166a(i). The trial court may grant a no-evidence motion for summary judgment

unless the nonmovant brings forth more than a scintilla of evidence to raise a

genuine issue of material fact on the elements challenged by the motion. See id.;

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a

scintilla of evidence exists when the evidence rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions. Ridgway, 135

S.W.3d at 601.

       A governmental unit is immune from suit and liability unless the State

consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
                                              8
Governmental immunity from suit defeats a court’s subject-matter jurisdiction. Id.

We review de novo the legal question of whether a trial court has subject-matter

jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “In

a suit against a governmental unit, the plaintiff must affirmatively demonstrate the

court’s jurisdiction by alleging a valid waiver of immunity.” Whitley, 104 S.W.3d

at 542. The Tort Claims Act waives governmental immunity for damages and

injuries caused by the wrongful act or omission or negligence of an employee

operating or using a motor vehicle in the scope of his employment. Tex. Civ. Prac.

& Rem. Code Ann. § 101.021(1)(A) (West 2011). However, the Tort Claims Act

does not waive governmental immunity for 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, or in the
      absence of such a law or ordinance, if the action is not taken with
      conscious indifference or reckless disregard for the safety of others[.]

Id. § 101.055(2) (West 2011). “The action of an emergency-vehicle operator

constitutes a reckless disregard for the safety of others when the operator knows or

should have known that the action in question posed a high risk of serious injury to

others.” City of San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695, 700 (Tex.

App.—Austin 2005, no pet.) (citing Smith v. Janda, 126 S.W.3d 543, 545 (Tex.

App.—San Antonio 2003, no pet.)).

                                         9
      Governmental immunity under section 101.055(2) would bar Lafferty’s suit

if the deputy was reacting to an emergency situation and acted in compliance with

the laws applicable to the emergency situation or, in the absence of such laws, did

not act recklessly or with conscious disregard for the safety of others. Durham v.

Bowie County, 135 S.W.3d 294, 298 (Tex. App.—Texarkana 2004, pet. denied);

see Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2). The Transportation Code

provides that in operating an emergency vehicle while pursuing an actual or

suspected violator of the law, the operator may exceed the maximum speed limit as

long as doing so does not endanger life or property, and the operator may disregard

a regulation governing direction of movement or turning in specified directions.

Tex. Transp. Code Ann. § 546.001(2), (4) (West 2011), § 546.002(b)(2) (West

Supp. 2013). Chapter 546 of the Transportation Code does not relieve the operator

of an emergency vehicle 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. Id. § 546.005 (West 2011). The parties did not provide copies

of any allegedly governing law, nor did they plead that any municipal regulations

or other traffic laws governed Deputy Smith’s operation of the vehicle, and the

Transportation Code provisions cited above do not address “bumping” the tires of

a fleeing vehicle with an emergency vehicle.

                                        10
      The testimony presented by both parties establishes that the deputy was

responding to an emergency situation, i.e., a four-wheeler traveling on publicly-

traveled roads in the dark without a headlight, carrying a passenger who was

screaming to be allowed to get off the vehicle, and being driven by Shivers, who

was trying to evade the authorities by driving with the headlights off, driving at a

high rate of speed, throwing objects from the four-wheeler, swaying from side to

side on a dirt road to create dust and reduce visibility, and driving through a ditch

to evade a road block. See id. § 101.055(2). The only dispute in the summary

judgment evidence appears to be whether Deputy Smith “bumped” the four-

wheeler with his patrol car.

      Having determined that Deputy Smith was responding to an emergency

situation, we must now consider whether Lafferty provided more than a scintilla of

evidence that Deputy Smith acted recklessly or with conscious disregard for her

safety or the safety of others. See id.; Durham, 135 S.W.3d at 298. Viewing the

testimony in the light most favorable to the non-movant, Lafferty, we conclude that

even accepting as true Lafferty’s deposition testimony that Deputy Smith bumped

the wheels of the four-wheeler twice, Lafferty failed to produce more than a

scintilla of evidence that Deputy Smith acted recklessly or with conscious

disregard for the safety of Lafferty or others. See Hudson, 179 S.W.3d at 700.

                                         11
Therefore, the trial court did not err by concluding that governmental immunity

barred Lafferty’s claims and granting summary judgment in favor of Jasper

County. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1)(A), 101.055(2);

Whitley, 104 S.W.3d at 542. Accordingly, we overrule Lafferty’s issues and affirm

the trial court’s order granting no-evidence summary judgment in favor of Jasper

County.

      AFFIRMED.

                                            ______________________________
                                                   STEVE McKEITHEN
                                                      Chief Justice


Submitted on October 31, 2013
Opinion Delivered November 21, 2013

Before McKeithen, C.J., Kreger and Horton, JJ.




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