                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-17-00040-CV


CHRISTOPHER LERON CLEGG                                                 APPELLANT

                                         V.

CITY OF FORT WORTH                                                       APPELLEE



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            FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 048-285247-16

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                           MEMORANDUM OPINION1

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      This is an appeal from the trial court’s granting of a plea to the jurisdiction.

Appellant Christopher Leron Clegg appeals the trial court’s dismissal of his suit




      1
          See Tex. R. App. P. 47.4.
against Appellee the City of Fort Worth (the City).2 Because the trial court did not

err by granting the City’s plea to the jurisdiction, we affirm.

                               I.     BACKGROUND

      At approximately 11:53 p.m. on the evening of May 23, 2014, a car driven

by Mark Madrigal collided with a car driven by Marcy Howell.          The accident

occurred when Madrigal, driving northbound at a high rate of speed, ran a red

light. His car collided with Howell’s eastbound car as she drove through the

intersection. Clegg, a passenger in Madrigal’s car, suffered serious injuries as a

result of the accident.

      While on patrol that night, City of Fort Worth Police Officer Olimpo

Hernandez witnessed the accident.           Officer Hernandez had been heading

eastbound slightly behind Howell’s car when the collision took place.             In

responding to the accident, Officer Hernandez wrote a crash report in which he

stated that he had detected an odor of alcohol on Madrigal’s breath and had

observed multiple containers of beer inside Madrigal’s car. In fact, there is no

dispute that Madrigal and Clegg had been drinking together prior to the accident.

Madrigal had a blood-alcohol level of .10 following the accident and was arrested

for driving while intoxicated and intoxication assault. Also, Clegg admitted that




      2
      We omit Officer Olimpo Hernandez and the City of Fort Worth Police
Department from the style of our opinion because Clegg does not appear to
complain of the trial court’s dismissal of them from the case.


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his own judgment was impaired on the night of the accident after drinking several

alcoholic beverages.

      On May 2, 2016, Clegg filed suit against the City, the City of Fort Worth

Police Department (the Police Department), and Officer Hernandez in the 48th

District Court seeking past and future medical expenses, past and future physical

impairment damages, loss of earnings, and past and future mental anguish

damages.3 In his petition, Clegg alleged that the City, the Police Department,

and Officer Hernandez were negligent. Clegg also alleged that through Officer

Hernandez’s actions and omissions, the City and Police Department violated

sections 101.021 and 101.0215(a)(20) and (21) of the Texas Tort Claims Act

(TTCA); these allegations related to Officer Hernandez’s use of his patrol vehicle

equipped with warning signals and his duty to regulate traffic. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021 (West 2011), § 101.0215(a)(20), (21) (West

Supp. 2017). In addition, Clegg asserted that the City and the Police Department

were liable for Officer Hernandez’s allegedly negligent actions under section

101.106(f) of the TTCA because he was acting within the scope and course of

his employment when the accident took place. See id. § 101.106(f) (West 2011).

      3
        A week later, on May 9, 2016, Clegg filed a separate suit in the 17th
District Court against Madrigal, Pete’s Dueling Piano Bar, and various unknown
employees of the bar for damages caused by their allegedly negligent actions
toward Clegg on the evening of the accident. Specifically, Clegg alleged that
Madrigal was negligent by causing the accident that injured Clegg by driving his
vehicle while intoxicated and that Pete’s Dueling Piano Bar and its employees
were negligent in overserving alcohol to Madrigal when he was obviously
intoxicated.


                                        3
Specifically, Clegg theorized that Officer Hernandez was negligent because he

“took no affirmative action to warn [Clegg] of the impending danger or hazard

created by Mr. Madrigal’s reckless driving, [n]or otherwise t[ook] custody or

control of Mr. Madrigal, and/or regulate[d] the movement of the Madrigal vehicle

prior to the collision.” Stated otherwise, Clegg alleged that the City, the Police

Department, and Officer Hernandez failed to provide adequate police protection

to prevent the accident caused by Madrigal.

      The City first filed a motion to dismiss Officer Hernandez from the lawsuit

under section 101.106(e) of the civil practice and remedies code. See Tex. Civ.

Prac. & Rem. Code Ann. § 1010.106(e) (West 2011) (“If a suit is filed under this

chapter against both a governmental unit and any of its employees, the

employees shall immediately be dismissed on the filing of a motion by the

governmental unit.”). The trial court granted the City’s motion and entered an

order dismissing the claims against Officer Hernandez.4

      The City then filed a plea to the jurisdiction contending that the trial court

was without jurisdiction to adjudicate Clegg’s claims against the Police

Department because it is merely a department of the City and not a jural entity

with a capacity to be sued separately from the City. The City further asserted

that Clegg’s claims against the City should be dismissed for lack of jurisdiction in

      4
       The City also filed a motion for sanctions against Clegg’s attorney,
arguing that the allegations in the lawsuit were groundless and devoid of any
basis in law or fact. The trial court denied that motion, and the City chose not to
challenge that denial on appeal.


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that section 101.021 of the TTCA did not waive the City’s immunity from suit

because Clegg’s injuries were not caused by Officer Hernandez’s use of his

patrol vehicle.   See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A).

Moreover, the City argued that its immunity had not been waived for Clegg’s

claim that Officer Hernandez breached his duty to “protect and serve” by failing to

prevent the accident because, pursuant to section 101.055(3) of the TTCA, there

is no waiver of immunity for claims of negligence arising from the failure to

provide police protection. See id. § 101.055(3) (West 2011).

      In a convoluted response to the plea to the jurisdiction, Clegg argued that

the City waived immunity because Officer Hernandez had a duty to warn Clegg

and others of the impending collision caused by Madrigal’s reckless driving, and

that by failing to warn, Hernandez breached his duty to serve and protect and

thus violated section 101.0215(a)(20) and (21) of the TTCA related to a City’s

liability for damages arising from “warning signals” and “regulation of traffic.” See

id. § 101.0215(a)(20), (21).

      The trial court granted the City’s plea to the jurisdiction and dismissed

Clegg’s claims against the City and the Police Department. At Clegg’s request,

the trial court made findings of fact and conclusions of law. Among other things,

the trial court found: (1) that the vehicles involved in the accident were not

owned by or under the control of the City; (2) that neither driver was an agent or

employee of the City; (3) that Madrigal ran a red light and caused the accident;

(4) that the accident was not caused by the use or condition of tangible personal


                                         5
or real property of the City; and (4) that the collision was not caused by a City

employee’s operation or use of a motor-driven vehicle.         The trial court then

concluded: (1) that Officer Hernandez had been engaged in the governmental

function of police protection; (2) that Clegg’s petition “fail[ed] to allege [a]

negligent act on the part of a City employee in the use of a motor-driven vehicle

or equipment that caused the accident in question”; (3) that Clegg’s “allegations

against the City amount to claims arising out of the alleged failure to provide, or

method of providing, police protection”; and (4) that because Clegg’s “allegations

amount to complaints about the failure to provide, or method of providing police

protection, there is no waiver of governmental immunity in this case.”

                                  II.    ISSUES

      On appeal, Clegg challenges the trial court’s granting of the plea to the

jurisdiction in favor of the City. Although Clegg’s briefing is disorganized and

confusing,5 he does not appear to challenge the trial court’s dismissal of the


      5
        Clegg’s briefing before this court and the trial court can best be described
as a “garbled morass,” and we are mindful that “it is not the Court’s place to
speculate or imagine what the [party’s] claims may be.” Boswell v. Hon.
Governor of Tex., 138 F. Supp. 2d 782, 785–86 (N.D. Tex. 2000) (Mahon, J.)
(citation and internal quotation marks omitted). However, we are also aware that
we should be reluctant to dismiss claims on appeal based on inadequate briefing
or waiver. See First United Pentecostal Church of Beaumont v. Parker,
514 S.W.3d 214, 221–22 (Tex. 2017); Nath v. Tex. Children’s Hosp., 446 S.W.3d
355, 365 (Tex. 2014). Therefore, we attempt to “construe [Clegg’s] briefing
‘reasonably, yet liberally so that his right to appellate review is not lost.’” First
United Pentecostal Church, 514 S.W.3d at 222 (quoting Perry v. Cohen,
272 S.W.3d 585, 587 (Tex. 2008)). “Simply stated, appellate courts should reach
the merits of an appeal whenever reasonably possible.” Perry, 272 S.W.3d at
587.

                                         6
Police Department and Officer Hernandez from the suit. Rather, the three issues

that Clegg appears to raise on appeal are: (1) whether the trial court abused its

discretion in limiting his allegations against the City to claims arising out of an

alleged failure to provide, or method of providing, police protection; (2) whether

the trial court abused its discretion in “granting” immunity to the City under

section 101.021 of the TTCA for conduct arising out of Officer Hernandez’s use

of his patrol vehicle; and (3) whether the trial court abused its discretion in ruling

that it lacked jurisdiction under section 101.0215(a) of TTCA. Cohesively stated,

Clegg in essence contends that the TTCA waived the City’s governmental

immunity, thus allowing him to bring this negligence lawsuit.

                                III.   DISCUSSION

A.    Standard and Scope of Review of Pleas to the Jurisdiction

      We review a trial court’s ruling on a plea to the jurisdiction de novo. City of

Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).              When a plea to the

jurisdiction challenges the plaintiff’s pleadings, a court looks at the allegations in

the plaintiff’s pleadings, accepts them as true, and looks to the plaintiff’s intent.

Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If, however, the

plea to the jurisdiction challenges the existence of jurisdictional facts, a court

must also consider the relevant evidence necessary to resolve the jurisdictional

issues raised. Heckman, 369 S.W.3d at 150; Miranda, 369 S.W.3d at 227.




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      A plaintiff has the burden of alleging facts that affirmatively demonstrate

that the trial court has subject-matter jurisdiction. Heckman, 369 S.W.3d at 150.

Because a governmental unit has immunity from suit, a plaintiff asserting a claim

against a governmental unit must allege facts that affirmatively demonstrate that

the legislature has waived immunity for the claims brought. Univ. of Tex. at

Arlington v. Williams, 455 S.W.3d 640, 643 (Tex. App.—Fort Worth 2013), aff’d,

459 S.W.3d 48 (Tex. 2015). We must grant the plea to the jurisdiction if the

plaintiff’s pleadings affirmatively negate the existence of jurisdiction. Heckman,

369 S.W.3d at 150. If the pleadings do not contain sufficient facts to affirmatively

demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the

plaintiff should be afforded the opportunity to amend. Miranda, 133 S.W.3d at

226–27.

B.    Immunity of Municipalities

      A municipality is entitled to immunity for some but not all of its functions.

Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 388 (Tex.

App.—Fort Worth 2008, no pet.). A municipality is liable for torts arising from the

exercise of its proprietary functions, but it is generally immune from suit and from

liability for torts arising from the exercise of its governmental functions, except for

the limited waiver provided by the TTCA. Id. at 389. In determining whether a

municipality is immune from suit, we first determine whether the governmental

function at issue is governmental or proprietary. Id. TTCA section 101.0215 sets


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out a nonexclusive list of governmental functions. Tex. Civ. Prac. & Rem. Code

Ann. § 101.0215. If a function is governmental, we then determine whether the

TTCA waives the municipality’s immunity. Tex. Bay Cherry Hill, 257 S.W.3d at

388–89. The TTCA waives immunity 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; and

      (2) personal injury and death so caused by a condition or use of
          tangible personal or real property if the governmental unit would,
          were it a private person, be liable to the claimant according to
          Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021.

C.    There is No Waiver of Governmental Immunity under the TTCA for
      Clegg’s Claims.

      1.    The Trial Court Did Not Have Jurisdiction Over Clegg’s Section
            101.0215(a) Claims.

      We first address Clegg’s third issue that the trial court abused its discretion

by ruling that it lacked jurisdiction to hear Clegg’s tort claims arising under

section 101.0215(a) of the TTCA. The City counters that the trial court did not err

in granting the City’s plea to the jurisdiction because section 101.0215 does not

provide an independent basis for a waiver of governmental immunity. In reply,

Clegg argues that he alleged facts that, if true, would demonstrate that Officer



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Hernandez violated TTCA section 101.0215(a), subsections (20) and (21), while

operating a motor-driven vehicle by failing to (1) activate warning flashers on his

police squad car; (2) regulate the movement of the Madrigal vehicle; or

(3) otherwise provide a warning to Clegg and others of an impending collision.

From Clegg’s reply brief, it is unclear whether he argues that section

101.0215 waives immunity for the functions listed in that section or that the acts

listed in subsections (20) and (21) constitute the use of a motor-driven vehicle for

purposes of section 101.021. Because we address the latter argument under his

second issue below, we construe his argument under his third issue as asserting

the former.

      Section 101.0215 provides a list of governmental functions, including, as

Clegg points out, a municipality’s use of warning signals and its regulation of

traffic. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(20), (21). But, the

City is correct that while that section defines certain activities as governmental

functions, it does not waive immunity for those functions. Instead, a municipality

is liable for its performance of one of the functions listed only if the TTCA

otherwise waives immunity for the function. Sarigollu v. City of Arlington, No. 02-

16-00413-CV, 2017 WL 2687537, at *3 (Tex. App.—Fort Worth June 22, 2017,

no pet.) (mem. op.).

      Unfortunately for Clegg, while the TTCA addresses a municipality’s

provision of police protection, rather than waive immunity for such claims, it

excludes them from the TTCA altogether.           Section 101.055 unequivocally


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provides that the TTCA does not apply to a claim arising “from the failure to

provide or the method of providing police or fire protection.” Tex. Civ. Prac.

& Rem. Code Ann. § 101.055 (emphasis added). Clegg’s claim based on section

101.0215 is essentially a claim that Officer Hernandez was negligent when he

failed to provide police protection by failing to use his flashers and by failing to

regulate traffic. The TTCA does not waive immunity for such a claim, and the

trial court therefore did not err by granting the City’s plea to the jurisdiction on

that basis. We consequently overrule Clegg’s third issue.

      2.    The Trial Court Did Not Have Jurisdiction Over Clegg’s Section
            101.021 Claim.

      Clegg contends in his second issue that the trial court abused its discretion

by granting immunity to the City pursuant to section 101.021 of the TTCA for

conduct arising out of a negligent act or omission during the use or operation of

the patrol vehicle driven by Officer Hernandez while he was on routine patrol.

The City responds that Clegg failed to allege negligent acts on the part of a City

employee in the operation of a motor vehicle that caused the accident and,

therefore, there is no waiver of governmental immunity.             Moreover, the

uncontroverted evidence before the trial court clearly showed that no negligent

act of a City employee in the operation of a motor vehicle caused the accident.

We find the City’s arguments to be persuasive.

      The TTCA provides a specific and limited waiver of immunity for

(1) personal injury or property damage resulting from the negligence of a



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government employee in the operation or use of a motor-driven vehicle or

equipment (“the motor-driven vehicle waiver”) and (2) personal injury caused by

the use or condition of personal or real property (“the property waiver”).       Id.

§ 101.021.    Here, Clegg admitted that the accident in question was not

proximately caused by Officer Hernandez’s use or condition of personal or real

property. As a result, the property waiver does not apply, and the ability of Clegg

to pursue his lawsuit is contingent upon whether the motor-driven vehicle waiver

of immunity applies in this case.

      For the motor-driven vehicle waiver to apply, “a nexus must exist between

the operation or use of the motor-driven vehicle and the plaintiff’s injuries.” City

of Sugarland v. Ballard, 174 S.W.3d 259, 265–66 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (relying on Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,

543 (Tex. 2003), and LeLeaux v. Hamshire–Fannett Indep. Sch. Dist.,

835 S.W.2d 49, 51 (Tex. 1992)).         “This nexus requires more than mere

involvement of property . . . . [T]he (vehicle)’s use must have actually caused

the injury.” Id. (quoting Whitley, 104 S.W.3d at 543) (internal quotation marks

omitted). Moreover, the Texas Supreme Court “has never held that non-use of

property can support a claim under the [TTCA]” because it “would be tantamount

to abolishing governmental immunity” and “contrary to the limited waiver the

Legislature clearly intended.” Tex. Natural Res. Conservation Comm’n v. White,

46 S.W.3d 864, 869–70 (Tex. 2001) (internal citations omitted).




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      Here, Clegg made no allegation that any negligent act in the operation or

use of a motor-driven vehicle driven by Officer Hernandez caused the accident.

Rather, Clegg’s petition vaguely alleged, among other things, that Officer

Hernandez failed to prevent the accident because he “took no affirmative action

to warn,” failed to “take custody or control” of Madrigal, failed to “regulate the

movement of [the Madrigal] vehicle,” and failed to “serve and protect” the public.

At no point in Clegg’s petition does he allege a negligent act in the operation or

use of a motor vehicle by a City employee that caused the accident. See City of

Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App.—Houston [14th Dist.] 2004, pet.

denied) (holding that injury of plaintiff—who was detained in negligently parked

patrol car that, along with another patrol car, was struck by third-party vehicle—

did not arise out of use or operation of patrol car within meaning of TTCA’s

motor-vehicle waiver; rather, patrol car merely furnished condition that made

injury possible).   It is thus axiomatic that the motor-vehicle waiver is wholly

inapplicable in these circumstances.     There is simply no nexus between the

accident and Officer Hernandez’s use of his patrol vehicle. We overrule Clegg’s

second issue in its entirety.

      3.     The Trial Court Did Not Abuse Its Discretion by Limiting Clegg’s
             Allegations.

      Finally, in Clegg’s first issue, he bafflingly asserts that the trial court

abused its discretion by limiting his allegations against the City to claims arising

out of an alleged failure to provide, or method of providing, police protection. In



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response, the City argues that the trial court did not err in granting its plea to the

jurisdiction because there is no allegation of any specific negligent act of a City

employee in the operation of a motor vehicle that proximately caused the

accident; Clegg’s allegations are simply complaints of the failure to provide, or

the method of providing, police protection, for which there is no waiver of

immunity under the TTCA.           See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.055 (“This chapter does not apply to a claim arising: . . . from the failure to

provide or the method of providing police or fire protection”); City of Brownsville

v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995) (“‘Thus, if the negligence causing

an injury lies in the formulating of policy—i.e., the determining of the method of

police protection to provide—the government remains immune from liability.’”)

(quoting State v. Terrell, 588 S.W.2d 784, 787–88 (Tex. 1979)).

      In support of his argument that his allegations are not based solely upon

his complaints of the City’s failure to provide, or method of providing, police

protection, Clegg relies heavily upon State v. Terrell, 588 S.W.2d at 787–88. He

then concludes that “if [he] can show that a duty exists to the general public to

sound a warning of an impending automobile collision which is witnessed by a

police officer on routine patrol, then [he] is entitled to have a trier of fact

determine whether Officer Hernandez was negligent.”           In the end, however,

Clegg’s reliance on Terrell is completely misplaced.

      Rather, in Terrell, the issue was “whether the State of Texas [was] subject

to liability for personal injuries resulting from a highway patrol officer’s negligent


                                         14
operation of a motor vehicle.” Id. at 785. There, the Supreme Court of Texas

determined that if the highway patrol officer was negligently carrying out policy

when he pulled his patrol car into a lane of oncoming traffic in a non-emergency

situation and hit a car, then the State was subject to liability for any resulting

injuries. Id. at 785, 788. Here, of course, Clegg is not alleging that Officer

Hernandez was in any way negligent in his operation or use of a motor vehicle or

that he even caused the accident; the only allegation is that Officer Hernandez

was somehow negligent, as a passive observer of an accident, for failing

to warn Clegg that he might be involved in an accident after he chose to be a

passenger in a vehicle with an intoxicated driver.          Without question, this

allegation arises only out of an alleged failure to provide, or the method of

providing, police protection. Thus, there is no waiver of immunity, and the trial

court did not abuse its discretion in granting the City’s plea to the jurisdiction.

Clegg’s argument is frivolous, and we therefore overrule his first issue.

                                IV.    CONCLUSION

      Having overruled Clegg’s three issues, we affirm the trial court’s order

granting the City’s plea to the jurisdiction.




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                                        /s/ Mark T. Pittman
                                        MARK T. PITTMAN
                                        JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DELIVERED: December 14, 2017




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