                           NUMBER 13-14-00506-CV

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


NORMA TORRES,                                                                 Appellant,

                                             v.

CITY OF CORPUS CHRISTI,                                                       Appellee.


                On appeal from the County Court at Law No. 4
                         of Nueces County, Texas.


                           MEMORANDUM OPINION

             Before Justices Benavides, Perkes, and Longoria
                 Memorandum Opinion by Justice Perkes

       Appellant Norma Torres (“Torres”) filed suit against appellee City of Corpus Christi

(the “City”) under the Texas Tort Claims Act (“TTCA”) for injuries arising out of a vehicular

collision with a Corpus Christi police officer. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021, 101.055 (West, Westlaw through 2015 R.S.). The City answered the suit

and later filed a plea to the jurisdiction. The trial court granted the City’s plea, and this
appeal ensued. By one issue, Torres argues that the trial court erred by granting the

plea to the jurisdiction, and contends in support that the City waived sovereign immunity

under the Texas Tort Claims Act. We affirm.

                                         I.      BACKGROUND

      In his deposition, Corpus Christi police officer Robert Walker stated that dispatch

informed him of a fleeing stolen vehicle. He responded to the call and activated his

emergency lights and sirens. According to Officer Walker, he intended to intercept and

disable the fleeing vehicle at a nearby intersection by using a “spike strip.”     As he

rounded an “S” curve in the road, Officer Walker attempted to slow his cruiser but lost

control. Officer Walker admitted he was traveling faster than the posted speed limit. He

explained that his police cruiser’s brakes did not respond as he expected and he lost

traction as he entered the curve. Officer Walker’s vehicle slowed, but slid sideways and

into the path of Torres’s oncoming vehicle where the two vehicles collided.

      Torres sustained injuries from the crash and filed suit against the City, alleging

Officer Walker was negligent. 1 Alternatively, her live pleading alleges, in part, that if

Officer Walker was responding to an emergency, he violated sections 545.103, 545.060,

and 546.005 of the Transportation Code, as well as section 4.04(B)(3) of the Corpus

Christi Police Department’s General Rules Manual. She also accuses Officer Walker of

operating his vehicle with conscious indifference or reckless disregard for the safety of

others. In support of her recklessness allegation, Torres claims Officer Walker failed to




      1   Torres did not include Officer Walker as a defendant in the lawsuit.
                                                     2
keep a proper lookout, failed to timely apply his brakes, failed to avoid the collision, and

drove at a speed greater than a reasonable prudent officer would have driven.

        The City filed a plea to the jurisdiction, claiming sovereign immunity, based upon

the fact that Officer Walker was responding to an emergency call and utilizing the lights

and sirens on his police cruiser. Further, the City contends that Torres did not offer any

evidence of Officer Walker’s conscious indifference or reckless disregard for the safety of

others.     In support of its plea, the city submitted:               (1) Officer Walker’s deposition

testimony; (2) Torres’s deposition testimony; (3) Torres’s responses to the City’s request

for disclosure and medical records; and (5) the accident report.

        In response to the City’s plea, Torres offered: (1) her amended original petition;

(2) Officer Walker’s deposition with exhibits; (3) Lieutenant J.C. Hooper’s deposition with

exhibits; (4) accident reports from two previous crashes involving Officer Walker2; (5) the

accident report from Officer Walker’s crash with Torres; (6) Lieutenant J.C. Hooper’s

disciplinary letter of counsel to Officer Walker3; (7) the City of Corpus Christi’s HR 40.0

Operation of City & Personal Vehicles Driving Rules & Regulations; and (8) chapter 4 of

the Corpus Christi Police Department’s General Rules Manual.

        The trial court granted the City’s plea to the jurisdiction, and denied Torres’s

motions for reconsideration and new trial. This appeal followed.

                                   II.     PLEA TO THE JURISDICTION


        2According to the accident reports, the first crash occurred when Officer Walker lost contact, and
subsequently collided with, a vehicle he was pushing out of the roadway. In the second crash, Officer
Walker was stopped at a traffic signal when he was hit from behind by another driver.

        3 Lieutenant Hooper’s disciplinary letter noted that Officer Walker was “. . . operating a city vehicle

in an unsafe manner resulting in a crash. This is a violation of CCPS General Rules Manual Section
4.40B3.” Officer Walker received written counseling for his role in the accident with Torres.
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      A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject

matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of

law; therefore, when the determinative facts are undisputed, we review the trial court’s

ruling on a plea to the jurisdiction de novo. Id. “Sovereign immunity deprives a trial

court of jurisdiction over lawsuits in which the state or certain governmental units have

been sued, unless the state consents to suit. As a result, immunity is properly asserted

in a plea to the jurisdiction.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d

629, 636 (Tex. 2012).

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

the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit

v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional

facts alleged in the pleadings unless the defendant presents evidence to negate their

existence. Miranda, 133 S.W.3d at 226–27. “In those situations, a trial court’s review

of a plea to the jurisdiction mirrors that of a traditional summary judgment motion.”

Garcia, 372 S.W.3d at 635.

      “Initially, the defendant carries the burden to meet the summary judgment proof

standard for its assertion that the trial court lacks jurisdiction.” Id. If a plea to the

jurisdiction challenges the jurisdictional facts, we consider relevant evidence submitted

by the parties to resolve the jurisdictional issues raised. City of Waco v. Kirwan, 298


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S.W.3d 618, 622 (Tex. 2009) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch.

Dist., 34 S.W.3d at 555. If that evidence creates a fact issue regarding jurisdiction, then

the case is for the fact-finder to decide on the merits. Kirwan, 298 S.W.3d at 622;

Miranda, 133 S.W.3d at 227–28. “However, if the relevant evidence is undisputed or

fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to

the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228. If the defendant

“asserts and supports with evidence that the trial court lacks subject matter jurisdiction,

we simply require the plaintiff, when the facts underlying the merits and subject matter

jurisdiction are intertwined, to show that there is a disputed material fact regarding the

jurisdictional issue.” Id.

       The plea should be decided without delving into the merits of the case. Bland Ind.

Sch. Dist., 34 S.W.3d at 554. The purpose of the plea is not to force a plaintiff to preview

its case on the merits, but to establish why the merits of the claims should never be

reached.    Id.   Although the issues raised by a plea to the jurisdiction often require

hearing evidence, a plea to the jurisdiction does not authorize an inquiry so far into the

substance of the claims presented that the plaintiff is required to put on his case simply

to establish jurisdiction. Id. Whether a determination of subject matter jurisdiction can

be made in a preliminary hearing or should await a fuller development of the merits of the

case must be left to the trial court’s discretion. Id.

                                      III.   DISCUSSION

       By her sole issue, Torres claims the City waived sovereign immunity pursuant to

section 101.021 of the Texas Tort Claims Act for the personal injuries proximately caused


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by Officer Walker’s negligence. Specifically, Torres argues: (1) she properly pled a

statutory waiver of sovereign immunity; 4 (2) the emergency exception does not

apply; (3) Officer Walker failed to comply with the law and ordinances applicable to

emergency action; and (4) Officer Walker’s conduct was consciously indifferent or

reckless.

A.      Applicable Law

        A governmental unit is immune from both suit and liability unless its immunity has

been waived. See Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002).

Under the TTCA, a governmental unit is liable and 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[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; see id. § 101.025.

        However, a TTCA claim may not be brought against the government when the

claim arises

        from the action of a government 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[.]

         4 It is undisputed that Officer Walker was in the course and scope of his employment at the time

of collision. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West, Westlaw through 2015 R.S.).
Therefore, we will limit our analysis to whether Torres’s remaining three arguments demonstrate a waiver
of the City’s sovereign immunity.
                                                   6
Id. § 101.055. Governmental employees who respond to emergency calls in authorized

emergency vehicles, which include police vehicles, are subject to liability under the TTCA

and Transportation Code if their conduct violates the laws and ordinances applicable to

emergency response or is reckless. Kaufman County v. Leggett, 396 S.W.3d 24, 28–29

(Tex. App.—Dallas 2012, pet. denied). For the “emergency exception” to apply, there

must be proof that the employee’s action in responding to an emergency call was “in

compliance with the laws and ordinances applicable to emergency action, or in the

absence of such a law or ordinance . . . the action [was] not taken with conscious

indifference or reckless disregard for the safety of others.”   TEX. CIV. PRAC. & REM. CODE

ANN. § 101.055(2).

       The Transportation Code requires the operator of an emergency vehicle to operate

the vehicle with appropriate regard for safety of all persons or the consequences of

reckless disregard for the safety of others. See TEX. TRANSP. CODE ANN. §§ 546.001,

546.005 (West, Westlaw through 2015 R.S.). Section 546.005 “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)

(interpreting TEX. REV. CIV. STAT. art. 6701d, § 24(b), repealed by Act of May 1, 1995,

74th Leg., R.S., ch. 165, § 1, 1995 TEX. GEN. LAWS 1025 (current version at TEX. TRANSP.

CODE ANN. § 546.001–.005)).

       To establish liability under the TTCA, a plaintiff must show the governmental

employee operated a motor vehicle with “conscious indifference or reckless disregard for

the safety of others”, meaning that “a party knew the relevant facts but did not care about

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the result.” Kaufman County, 396 S.W.3d at 29 (citing Hartman, 201 S.W.3d at 672 n.19;

TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2)). In assessing the operator’s conduct of

a government vehicle when determining whether the vehicle was operated with conscious

indifference or in a reckless manner during an emergency situation for purposes of the

TTCA and the Transportation Code, courts may not engage in judicial second-guessing

for momentary lapses in judgment by emergency personnel responding to emergency

situations. Id.

B.    Analysis

      1.     Emergency Response

      Torres argues that the emergency exception does not apply since there is a fact

issue regarding whether Officer Walker was responding to an actual emergency. Torres

points to Officer Walker’s following deposition testimony which she claims proves he was

not responding to an emergency:

      [TORRES’S COUNSEL]: Okay. Do you agree that if you were driving
                          your vehicle a little slower that day, that you
                          could have prevented yourself from losing
                          control and striking my client’s vehicle?

      [WALKER]:                   I believe if I was driving in a safe and prudent
                                  manner that the collision would not have
                                  occurred.

      [TORRES’S COUNSEL]: Okay. Do you believe that you could have
                          responded to the call in a safe and prudent
                          manner and still been able to arrive at the
                          location that you were trying to reach?

      [WALKER]:                   I—I don’t know.

      [TORRES’S COUNSEL]: Okay. Looking back at everything, do you think
                          that—that the best thing for you to have done at

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                                   the time was to proceed in a safe and prudent
                                   manner so that you could safely and efficiently
                                   get to the intersection to lay down the strips, the
                                   spike strips?

       [WALKER]:                   Yes, sir.

       [TORRES’S COUNSEL]: Okay. Knowing what you know today, would
                           you do thing differently?

       [WALKER]:                   Yes, sir.

       [TORRES’S COUNSEL]: Okay.      How would you have done things
                           differently?

       [WALKER]:                   I—I either wouldn’t have tried to get to that
                                   intersection or I would have went further to a
                                   different location further off so I’d have more
                                   time to set up the spike strips.
       ....

       [TORRES’S COUNSEL]: Do you believe that as a result of violating the
                           rules manual you were not acting as a
                           reasonably prudent police officer should have
                           acted on the day of the collision?

       [WALKER]:                   I don’t believe I was driving at [sic] a reasonable
                                   and prudent manner.

       Officer Walker’s subjective belief that he was not driving in a reasonable and

prudent manner does not change the nature of the call to which he was responding.

According to his deposition testimony, Officer Walker received a call that a stolen vehicle

was approaching his area.       See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2)

(governing 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”) (emphasis added). He explained that when dispatch transmits emergency

radio traffic, police officers in the district where the emergency occurs immediately

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respond. After receiving the call, Officer Walker attempted to intercept the fleeing vehicle

at a nearby intersection.

         Since the Texas Tort Claims Act does not define “emergency,” we look to the

ordinary plain meaning of the term. See Jaster v. Comet II Const., Inc., 438 S.W.3d 556,

563 (Tex. 2014). An “emergency” is an unexpected and usually dangerous situation that

calls for immediate action. See Webster’s New Twentieth Century Dictionary (2nd ed.

1980).     A pursuit of a stolen vehicle, though sadly common, is still unexpected.

Additionally, police pursuits are inherently dangerous. Lieutenant Hooper explained in

his deposition that the pursuit to which Officer Walker responded was ultimately cancelled

due to safety concerns. Viewing the evidence in the light most favorable to Torres, she

did not raise a fact question disputing whether Officer Walker was responding to an

emergency call. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672–73 (Tex.

2006) (holding emergency situation existed as matter of law under section 101.055(2)

when unprecedented flooding was present and city had officially declared a disaster);

Quested v. City of Houston, 440 S.W.3d 275, 285 (Tex. App.—Houston [14th Dist.] 2014,

no pet.) (SWAT officer was responding to emergency call when he drove to hostage

situation and was involved in an accident); Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d

236, 239 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (dispatch call requesting

assistance with wanted person was an emergency call when officer testified without

contradiction that law enforcement officers consider such a request to be an emergency);

see also City of Houston v. Davis, No. 01–13–00600–CV, 2014 WL 1678907, at *5 (Tex.

App.—Houston [1st Dist.] Apr. 24, 2014, no. pet.) (mem. op.) (officer was responding to


                                            10
emergency situation when he pulled over car in response to a report that driver of the car

had tried to run another vehicle off the road). We conclude that the record shows Officer

Walker received an emergency call and responded to an emergency situation.

        2.       Laws and Ordinances

        According to Torres, the evidence is undisputed that Officer Walker failed to act in

compliance with the applicable laws or ordinances that apply to an emergency situation.

Specifically, Torres claims Officer Walker violated sections 546.001(3) and rule 4.04(B)(3)

of the Corpus Christi Police Department’s general rules manual.5

        Section 546.001(3) allows emergency vehicle operators to exceed a maximum

speed limit, except as provided by an ordinance adopted under section 545.365, as long

as the operator does not endanger life or property.                          TEX. TRANSP. CODE ANN.

§ 546.001(3). Torres argues, circularly, that the accident’s occurrence proves Officer

Walker’s operation of his vehicle endangered life or property. We disagree.

        Torres offered no evidence showing Officer Walker’s speed before he entered the

curve and immediately before the accident.6 Moreover, Officer Walker testified that he

did slow down once he entered the curve, though not enough to avoid entering Torres’s

lane. As such, we disagree with Torres’s conclusion that the collision itself demonstrates


         5 Torres also argues that (1) Officer Walker admitted liability for causing the collision; (2) Officer

Walker admitted receiving a citation after the collision; and (3) the City’s Vehicle Accident Review Board’s
assessed penalties against Officer Walker. She concludes, without legal authority or analysis, that each
claim is sufficient to “raise a fact issue regarding the emergency exception.” Torres identifies no allegedly
violated statute or ordinance, but, rather, cites portions of Officer Walker’s deposition testimony to support
her conclusions. These arguments are inadequately briefed. See TEX. R. APP. P. 38.1(h); Johnson v.
Oliver, 250 S.W.3d 182, 187 (Tex. App.—Dallas 2008, no pet.) (issue inadequately briefed when party
presented no authority to support contention or argument).

        6In his deposition testimony, Officer Walker stated that he did not know how fast he was going
when he entered the curve.
                                                     11
a violation of the law. See Tex. Dept. of Public Safety v. Sparks, 347 S.W.3d 834, 842

(Tex. App.—Corpus Christi 2011, no pet.) (evidence of a collision, without more, does not

demonstrate officer violated a statute).

       Rule 4.04(B)(3) states that “[Corpus Christ police officers] shall operate vehicles in

a safe and prudent manner at all times and will be held accountable for carelessness or

negligence. Improper use or operation of a police vehicle may constitute grounds for

disciplinary action.” Although there is some evidence that Officer Walker’s operation of

his vehicle was negligent, we disagree with Torres’s assertion that Rule 4.04(B)(3)

governs the conduct of emergency vehicle operators.              Rather, the manual’s rule

4.04(B)(5) states: “Employees shall not violate the traffic laws except under emergency

circumstances.     Unjustified violations of any traffic law may constitute grounds for

disciplinary action.” Reading these two rules in conjunction, the general rules manual

follows the Transportation Code regarding the operation of emergency vehicles. Having

previously concluded that Officer Walker was responding to an emergency situation, his

conduct was thus governed by the applicable Texas Transportation Code sections. See

TEX. TRANSP. CODE ANN. §§ 546.001–546.005. We hold that Torres failed to provide

evidence of Officer Walker’s violation of any applicable laws or ordinances as applicable

to emergency vehicle operators.

       3.     Reckless Conduct

       According to Torres, Officer Walker’s admission of his alleged failure to operate

his vehicle with due regard for her safety is sufficient to raise a fact issue that his conduct

violated section 546.005 of the Transportation Code.


                                              12
      Section 546.005 “imposes a duty to drive with due regard for others by avoiding

negligent behavior, but it only imposes liability for reckless conduct.” Martin, 971 S.W.2d

at 431 (interpreting TEX. REV. CIV. STAT. art. 6701d, § 24(b), repealed by Act of May 1,

1995, 74th Leg., R.S., ch. 165, § 1, 1995 TEX. GEN. LAWS 1025 (current version at TEX.

TRANSP. CODE ANN. § 546.001–.005)).

      Officer Walker’s subjective belief that he operated his vehicle without “due regard”

does not prove recklessness. Officer Walker testified that he activated his vehicle’s

lights and sirens. He explained that he recognized his speed was too fast for the curve

and attempted to slow the vehicle.     The cruiser did not respond to Officer Walker’s

braking efforts as anticipated and he was unable to effectively control his vehicle as he

entered the curve. The accident report, however, indicated that both vehicles drove

away from the accident. Torres’s airbag did not deploy as a result of the accident and

she did not request an ambulance after the collision. There is no evidence or expert

testimony estimating the speed of the vehicles prior to the collision based on the amount

of damage each vehicle sustained.

      Torres offers no contrary evidence showing that Officer Walker made no attempt

to brake as he entered the curve. Officer Walker’s braking attempt prior to entering the

curve demonstrates a concern for other motorists. See City of San Angelo Fire Dept. v.

Hudson, 179 S.W.3d 695, 700–701 (Tex. App.—Austin 2005, no pet.) (emergency vehicle

driver’s actions demonstrated concern for motorists, precluding finding of recklessness,

where driver slowed and looked both ways before entering the intersection). Indulging




                                            13
all reasonable inferences in Torres’s favor, we conclude the record does not support a

finding that Officer Walker’s conduct was reckless.

      4.     Summary

      The evidence conclusively establishes that Torres’s claim arises from Officer

Walker’s response to an emergency call, that Officer Walker’s actions were in compliance

with the laws and ordinances applicable to the emergency action, and that Officer

Walker’s actions were not reckless.        See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.055(2). Consequently, the waiver of sovereign immunity does not apply. See

Kaufman County, 396 S.W.3d at 29. We overrule appellant’s issue.

                                  IV.     CONCLUSION

      We affirm the judgment of the trial court.



                                                   GREGORY T. PERKES
                                                   Justice
Delivered and filed the
1st day of September, 2016.




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