Opinion filed December 13, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-12-00086-CV
                                        __________

           TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

                                               V.

                             NICHOLAS LOPEZ, Appellee


                          On Appeal from the 118th District Court

                                    Howard County, Texas

                                  Trial Court Cause No. 47504



                           MEMORANDUM OPINION
       The Texas Department of Public Safety filed this interlocutory appeal from the trial
court’s order denying the DPS’s plea to the jurisdiction. We reverse and render.
       Nicholas Lopez sued the DPS as a result of a vehicular accident involving Lopez and
DPS Trooper Jared Bratcher. At the time of the collision, Trooper Bratcher was responding to an
emergency call involving a major accident. Trooper Bratcher, with his lights and siren on,
entered an intersection and attempted to cross it while the light facing him was red. He collided
with Lopez. Lopez alleged in his petition that Trooper Bratcher acted negligently and with
conscious indifference or reckless disregard for the safety of others. The DPS filed a plea to the
jurisdiction, asserting that this suit is barred by sovereign immunity based on either (1) an
exception in the Texas Tort Claims Act1 (TTCA) that applies to governmental employees
responding to an emergency call or (2) Trooper Bratcher’s official immunity. The trial court
denied the plea to the jurisdiction.
         The DPS challenges that denial in two issues on appeal. In its first issue, the DPS
contends that the trial court erred in denying its plea to the jurisdiction because Trooper
Bratcher’s actions in responding to a major rollover crash meet the requirements of the TTCA
emergency exception in Section 101.055(2).2 In the second issue, the DPS relies on Section
101.021(1)(B) of the TTCA, arguing that it is entitled to sovereign immunity because Trooper
Bratcher is entitled to official immunity. We address the merits of the second issue only as our
holding on that issue is dispositive of this appeal. See TEX. R. APP. P. 47.1.
         Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction and is
properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 225–26 (Tex. 2004). After a governmental entity presents evidence that the trial
court lacks subject-matter jurisdiction, the plaintiff must show that there is a disputed material
fact regarding the jurisdictional issue. Id. at 228. When the relevant evidence is undisputed or
fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction is resolved by
the trial court as a matter of law. Id. However, if disputed evidence of jurisdictional facts

         1
             TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (West 2011 & Supp. 2012) (the Texas Tort Claims Act).
         2
             Section 101.055 provides in relevant part:
                    This chapter does not apply to a claim arising:
                              ....
                              (2) 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.
           We note also that, by statute, it is permissible for the operator of an emergency vehicle, while responding to
an emergency call, to disregard various traffic laws. TEX. TRANSP. CODE ANN. §§ 546.001–.002 (West 2011).
Section 546.001(2) specifically provides that an emergency vehicle may “proceed past a red or stop signal or stop
sign, after slowing as necessary for safe operation.” In doing so, however, the operator of the emergency vehicle is
not relieved from “the duty to operate the vehicle with appropriate regard for the safety of all persons” or from “the
consequences of reckless disregard for the safety of others.” Id. § 546.005; see City of Amarillo v. Martin, 971
S.W.2d 426, 428–31 (Tex. 1998) (adopting recklessness and rejecting negligence as the standard for imposing
liability).

                                                            2
implicates the merits of the case, resolution by the factfinder may be required. Id. at 226–28. On
appeal, a challenge to the trial court’s subject-matter jurisdiction is reviewed de novo. Id. at 228.
       The TTCA provides for a limited waiver of sovereign immunity, allowing suits to be
brought against governmental units only in certain narrowly defined circumstances. Tex. Dep’t
of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Lopez asserts that his claims fall
within the waiver of immunity provided for in Section 101.021(1) of the TTCA. Section
101.021(1) provides that a governmental unit in this state is liable for:
              (1) property damage, personal injury, and death proximately caused by the
       wrongful act or omission or the negligence of an employee acting within his
       scope of employment if:
                      (A) the property damage, personal injury, or death arises
               from the operation or use of a motor-driven vehicle or motor-
               driven equipment; and
                      (B) the employee would be personally liable to the claimant
               according to Texas law.
The DPS does not dispute that Lopez’s alleged injuries arose from the operation or use of a
motor-driven vehicle, but it does dispute that Trooper Bratcher would be personally liable to
Lopez. See id. § 101.021(1)(B). The DPS asserts that, because Trooper Bratcher is shielded
from liability by his official immunity, he would not be personally liable to Lopez and that, since
Trooper Bratcher would not be personally liable to Lopez, the DPS remains immune.
       A government employee has official immunity for discretionary acts performed within
the scope of the employee’s authority as long as the employee acted in good faith. Wadewitz v.
Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); City of Lancaster v. Chambers, 883 S.W.2d
650, 653 (Tex. 1994). The defendant has the burden to establish the elements of the affirmative
defense of official immunity. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). The
element of good faith must be assessed upon objective legal reasonableness, not the employee’s
subjective state of mind. Wadewitz, 951 S.W.2d at 466. “Evidence of negligence alone will not
controvert competent evidence of good faith.” Id. at 467 n.1. Applying Chambers, the Wadewitz
court stated that “good faith depends on how a reasonably prudent officer could have assessed
both the need to which an officer responds and the risks of the officer’s course of action, based
on the officer’s perception of the facts at the time of the event.” Id. at 467. In this context,
“need” is determined by factors such as the seriousness of the accident to which the officer is
responding, whether the officer’s immediate presence is necessary to prevent injury or loss of

                                                  3
life, and what alternative courses of action, if any, are available to achieve a comparable result.
The “risk” aspect of good faith refers to countervailing public safety concerns such as the nature
and severity of harm that the officer’s actions could cause, including injuries to bystanders and
the possibility that an accident would prevent the officer from reaching the scene of the
emergency; the likelihood that any harm would occur; and the clarity of the risk of harm to a
reasonably prudent officer. Id.
       Applying “good faith” as set out in Wadewitz, we hold that a reasonably prudent officer,
assessing both the need and the risks based on Trooper Bratcher’s perception of the facts at the
time of the accident, could have believed that his actions were justified. Trooper Bratcher gave
the following reasons for the necessity of his presence at the rollover crash site: the severity of
the crash, which involved one adult and four children and the ejection of at least one child; the
lack of other officers available to respond; the fact that he had had EMS training and might be
needed to assist an injured person; and the fact that the scene needed to be secured to prevent
other traffic accidents and injuries. Trooper Bratcher turned on his lights and siren and headed
toward the rollover crash site. The evidence, which includes video recorded from the trooper’s
vehicle, is undisputed that Trooper Bratcher “cleared and completely stopped at every
intersection” prior to the intersection where he collided with Lopez. After investigating the
incident, Sergeant Thomas W. Moore III concluded that the crash was preventable and was
caused by Trooper Bratcher failing to make sure a busy intersection was clear before entering it
and also by Lopez failing to see or hear the lights and siren of Trooper Bratcher’s patrol car and,
thus, failing to yield to the emergency vehicle. Sergeant Moore’s investigation revealed that
Trooper Bratcher was traveling at about the speed limit of 45 miles per hour on the service road
of FM 700 as he approached the intersection of US 87/Gregg Street, which was a four-lane
highway with a turn lane in the center; that Trooper Bratcher’s light was red; that he braked and
slowed down to 25–30 miles per hour prior to the intersection; that every vehicle to the right of
the intersection was stopped; that there appeared to be no traffic moving; that Trooper Bratcher
let off the brakes and began to accelerate through the intersection, entering the intersection at
approximately 35 miles per hour; that Trooper Bratcher’s attention was focused on the vehicles
to his right; and that he failed to see Lopez’s vehicle. Neither driver took any evasive action
prior to impact. Trooper Bratcher’s vehicle struck Lopez’s vehicle near the rear axle on the



                                                4
passenger’s side. The evidence suggests that a chain link fence or a concrete barricade may have
impeded Trooper Bratcher’s view of Lopez’s vehicle.
       The risks involved in Trooper Bratcher’s actions concern the nature and severity of harm
that his actions could cause, including injuries to bystanders like Lopez and the possibility that
Trooper Bratcher would be prevented from reaching the scene of the emergency. The likelihood
that any harm would occur and whether the risk of harm would be clear to a reasonably prudent
officer are also of concern. There are obvious risks in disregarding a red light—colliding with
other vehicles and causing injuries. Sergeant Moore stated that officers “must expect that not all
drivers will yield to emergency vehicles” and that “a prudent officer should slow down enough
or stop and actually observe the entire intersection” to make sure that it is clear. Trooper
Bratcher slowed prior to reaching the intersection and thought he had cleared the intersection.
Under the circumstances as perceived by Trooper Bratcher, a reasonably prudent officer could
have assessed the needs and risks involved and mirrored Trooper Bratcher’s actions.
       Although the evidence suggests that Trooper Bratcher’s actions were negligent,
negligence is not the appropriate standard for determining good faith in an official immunity
case. To controvert an officer’s proof of good faith, there must be evidence that does “more than
show that a reasonably prudent officer could have decided to stop”; the evidence must show that
“no reasonable person in the defendant’s position could have thought the facts were such that
they justified defendant’s acts.” Chambers, 883 S.W.2d at 657. The court in Chambers noted
that, “if officers of reasonable competence could disagree on this issue, immunity should be
recognized.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The evidence does not
show that no reasonable person in Trooper Bratcher’s position could have believed his acts were
justified. See id.; see also City of San Antonio v. Ytuarte, 229 S.W.3d 318 (Tex. 2007); City of
Dallas v. Brooks, 349 S.W.3d 219, 231–33 (Tex. App.—Dallas 2011, no pet.); City of
San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 704–06 (Tex. App.—Austin 2005, no pet.);
Johnson v. Campbell, 142 S.W.3d 592 (Tex. App.—Texarkana 2004, pet. denied). We conclude
that the DPS established that Trooper Bratcher acted in good faith and that Lopez failed to raise a
fact issue regarding Trooper Bratcher’s good faith.
       Because the evidence shows that Trooper Bratcher was performing a discretionary act
within the scope of his authority as a government employee and that he acted in good faith in
doing so, Trooper Bratcher would be entitled to official immunity. Accordingly, the DPS is

                                                5
entitled to immunity pursuant to Section 101.021(1)(B), and the trial court erred in not granting
the DPS’s plea to the jurisdiction on this basis. We sustain the DPS’s second issue.
       The trial court’s order denying the DPS’s plea to the jurisdiction is reversed, and we
render judgment dismissing the cause for lack of jurisdiction.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


December 13, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                                6
