REVERSED, RENDERED and Opinion Filed December \(g, 1998




                                          In The

                             (Htfuri at Appeals
                     infill iBtsiriri nf Qfexas ai Dallas
                                   No. 05-98-00142-CV



       THE CITY OF COPPELL, TEXAS and ROBERT KUBICEK, Appellants




                   CALVIN WALTMAN, REBECCA WALTMAN, and
          KRISTY HOOVER, AS NEXT FRIEND FOR JOCELYN HOOVER,
                               Appellees


                     On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 97-01540-B



                                     OPINION

                      Before Justices Kinkeade, Wright, and Bridges
                              Opinion By Justice Kinkeade

       The City of Coppell and Robert Kubicek appeal the trial court's denial of a summary

judgment based on claims of official immunity. In three points of error, Officer Kubicek and

the City contend the trial court erred in holding that they were not entitled to summary

judgment on the basis of qualified immunity and in overruling their objections to summary
judgment evidence.    Because we conclude the summary judgment evidence established

Officer Kubicek's official immunity as a matter of law and, therefore, the City is also

entitled to immunity, we reverse the trial court's denial of summary judgment and render

judgment for Officer Kubicek and the City based on official immunity.

                               FACTUAL BACKGROUND


       The facts surrounding this case are virtually undisputed by the parties. On February

20, 1995, Nathan Colby Waltman was arrested on an outstanding burglary warrant and for

possession of drugs. Officer Robert Kubicek, the arresting officer, searched Waltman twice

at the scene of the arrest, and once more when he booked Waltman into the City of

Coppell's holding facility. In accordance with usual procedures, Officer Kubicek provided

Waltman with a blanket when he placed him in the jail cell.

       The City of Coppell holding facility uses a video monitoring system to watch prisoners

in the cells. A city policy specifically requires the communications personnel in the jail to

"constantly" monitor the prisoners by way of a video camera. In addition to the video

monitoring, officers in the jail are to routinely check on prisoners. On the night Waltman

was brought in, the police dispatcher, Cydney Cravens, was responsible for monitoring the

video camera. She testified by affidavit that she sat at her desk within view of the video

monitor and observed Waltman while performing her other duties, including answering the

phone. She further testified that the cell contains a privacy screen so the prisoner may use

the toilet facilities in private. According to Cravens, there was a period of about twenty



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minutes when she does not remember seeing Waltman on the monitor. The evidence shows

that other officers periodically checked on Waltman throughout the evening. The parties

do not disagree that Waltman showed no outward signs of contemplating or planning a

suicide.


       Approximately five hours after being placed in the cell, Waltman tore a strip from

the blanket, stuffed an end of the strip into a hole in the privacy screen, fashioned a noose

out of the other end of the strip and hanged himself by lying on the floor with the noose

around his neck. The record indicates that Waltman's body was not completely obscured

by the privacy screen when he hanged himself. Waltman was taken to the hospital where

he was pronounced dead. A bottle of pills, containing an illegal drug commonly known as

MDMA, was found hidden inside his underwear at the hospital. Traces of the drug were

also found in Waltman's body at the time of the autopsy.

       Calvin Waltman, Rebecca Waltman, and Kristy Hoover as next friend of Jocelyn

Hoover, (the Waltmans) brought this negligence suit as survivors of Waltman, claiming that

the City of Coppell, Officer Kubicek, and Officer Cravens should be liable for their actions

that contributed to the death of Waltman. Officer Cravens, however, was never served or

made a party to the case. The City and Officer Kubicek filed a motion for summary

judgment, asserting official immunity. The trial court denied the motion for summary

judgment. The City and Officer Kubicek appealed.




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                                      JURISDICTION


       Generally, Texas appellate courts have jurisdiction only over final judgments; the

denial of a summary judgment is interlocutory and unappealable unless a statute specifically

authorizes an interlocutory appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980);

Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (orig. proceeding). Section

51.014 of the Texas Civil Practice and Remedies Code specifically allows appeal of some

interlocutory orders, including an order denying a motion for summary judgment based on

an assertion of immunity by an individual who is an officer or employee of the state. Tex.

Crv. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 1998).

       In this case, appellants moved for summary judgment based in part on the official

immunity of Officer Kubicek and Officer Cravens and upon sovereign immunity protecting

the City of Coppell. The City's potential liability depends upon whether Officer Kubicek

and Officer Cravens are liable; if Officer Kubicek and Officer Cravens are protected by

official immunity, the City is immune from liability. SeeDeWitt v. Harris County, 904 S.W.2d

650, 654 (Tex. 1995) (a governmental unit's respondeat superior liability is predicated upon

the liability of its employee; if an employee has no liability because of official immunity, the

governmental unit likewise has no liability).       Therefore, a city may rely on section

51.014(a)(5) to appeal the denial of summary judgment based on sovereign immunity

through its employees' qualified or official immunity. City of Beverly Hills v. Guevara, 904

S.W.2d 655, 656 (Tex. 1995). Thus, the assertion of immunity by Officer Kubicek means




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we have jurisdiction over both the City's and Officer Kubicek's interlocutory appeal.

                          SUMMARY JUDGMENT STANDARD


       The standards for reviewing summary judgments are well established. See Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who

moves for summary judgment must show that the plaintiff has no cause of action by either

disproving at least one essential element of each theory of recovery, or conclusively proving

all elements of an affirmative defense. Mitchell v. City of Dallas, 855 S.W.2d 741, 748 (Tex.

App.-Dallas 1993), affd, 870 S.W.2d 21 (Tex. 1991). If the movant establishes his right

to judgment as a matter of law, the burden shifts to the nonmovant to raise fact issues

precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979).

       In this case, the City and Officer Kubicek asserted official immunity and sovereign

immunity as affirmative defenses. Therefore, they had the burden to conclusively prove all

the essential elements of this defense. See id. If the City and Officer Kubicek carried this

burden, the Waltmans then had to controvert the defendants' proof. See id.

                                  OFFICL\L IMMUNITY


       In their second and third points of error, the City and Officer Kubicek contend the

trial court erred in holding that Officer Kubicek and Officer Cravens were not entitled to

summary judgment on the basis of official immunity.

       Official immunity is an affirmative defense that protects government employees from




                                             O-
personal liability. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Government employees

are entitled to official immunity from suit arising from the performance of (1) their

discretionary duties (2) in good faith, so long as (3) they are acting within the scope of their

authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Kassen, 887

S.W.2d at 9. Where an employee possesses official immunity, the governmental entity does

not have respondeat superior liability under the Texas Tort Claims Act. DeWitt, 904 S.W.2d

at 654.


          The parties do not dispute that Officer Kubicek and Officer Cravens were

government employees acting within the scope of their authority. They disagree on whether

Officer Kubicek and Officer Cravens were performing discretionary functions in good faith.

                                  Discretionary v. Ministerial

          Actions that require personal deliberation, decision, and judgment are discretionary;

actions that require obedience to orders or the performance of a duty regarding which the

actor has no choice are ministerial. See City of Lancaster, 883 S.W.2d at 654.          Official

immunity extends to discretionary actions but not to ministerial ones. Kassen, 887 S.W.2d

at 9.


          The City and Officer Kubicek contend the summary judgment evidence establishes

Officer Kubicek and Officer Cravens were performing discretionary duties the night

Waltman died and, therefore, they are immune from liability for those acts. The Waltmans

argue that both Officer Kubicek and Officer Cravens were performing ministerial acts and




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thus are not protected by immunity.

Officer Kubicek


       The summary judgment evidence shows that Officer Kubicek searched Waltman three

times the night he was arrested, twice at the scene and once more at the jail. The evidence

also shows that, at the time of his death, Waltman was in possession of and had ingested

illegal drugs. The Waltmans argue that Officer Kubicek's failure to find the contraband

violated a ministerial duty because the City had a policy requiring that any contraband on

an arrestee be seized by the arresting officer. They argue that because the officer has no

discretion as to whether to seize the contraband, Officer Kubicek violated his ministerial

duty by not seizing the contraband. While we agree that if Officer Kubicek had found the

contraband, he would have had a ministerial duty to remove it, we conclude the facts of this

case do not give rise to this duty. The record establishes that Officer Kubicek was not aware

Waltman was hiding any drugs when he arrested him. The only way Officer Kubicek could

have found the contraband was through a search of Waltman, which he did more than once.

Because the searches did not reveal the drugs, his ministerial duty to remove the drugs never

arose. Therefore, we focus on whether the searches that could have led to the discovery of

the contraband involved ministerial as opposed to discretionary duties.

        We conclude, and the parties do not dispute, that the manner in which an officer

 performs a search of an arrestee constitutes a discretionary act because it involves personal

deliberation, decision, and judgment. See Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.



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App.--Dallas 1986, writ ref d n.r.e.) (an officer's decision concerning when and how to

arrest a suspect is a discretionary act), cert, denied, 485 U.S. 977 (1988). Therefore, we

conclude Officer Kubicek's actions in searching Waltman were discretionary.

Officer Cravens


       The City and Officer Kubicek argue that the summary judgment evidence establishes

Officer Cravens's act of monitoring the video was a discretionary act. They argue that

although the City's policies require a prisoner be "constantly" monitored, the manner in

which the monitoring is to be carried out is left to the discretion of the dispatcher. The

Waltmans agree that the manner in which the dispatcher does the monitoring is

discretionary, but argue that the requirement the prisoner be "constantly" monitored

imposes a ministerial duty.

       We agree with the City and Officer Kubicek. The term "constantly" is not defined

in the City's policy and could be subject to interpretation under these facts. The video

monitor was placed on the desk in front of the dispatcher, who was to perform other duties

besides monitoring the prisoners, including answering the telephone. Further, the video

camera was situated in a manner to provide the prisoner some limited privacy; the toilet in

the jail cell was placed behind a wall so the prisoner would be out of the view of the camera

while using the toilet facilities. The manner in which the dispatcher monitored the prisoner

while performing her other duties was subject to personal deliberation, decision, and

judgment. We therefore conclude that in monitoring Waltman's activities on the night he




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was arrested, Officer Cravens was performing a discretionary duty.

                                         Good Faith


       The City and Officer Kubicek next argue that the summary judgment evidence

establishes Officer Kubicek and Officer Cravens were acting in good faith while performing

their discretionary duties. The Waltmans contend their summary judgment evidence

controverted the proof of good faith, thereby raising a fact issue as to good faith. We

disagree with the Waltmans.

       A government employee is protected for discretionary acts only if he performed those

acts in good faith. The supreme court has set out the good faith test to be applied in official

immunity cases. See City of Lancaster, 883 S.W.2d at 656. A government employee is said

to have acted in good faith when he can show that a reasonably prudent person in the same

or similar circumstances would have taken the same action. Id. at 655. The official need

not prove it would have been unreasonable to take a different action or that all reasonably

prudent officials would have made the same decision. Id. at 657. An official can act

negligently and still meet the test for good faith. See id. at 655; Murillo v. Vasquez, 949

S.W.2d 13, 16 (Tex. App.-San Antonio 1997, writ denied). Good faith may be established

by the testimony of the defendant officer, if the testimony is clear, positive, direct, otherwise

 credible, free from contradiction, and readily controvertible. City of Galveston v. Bums, 949

 S.W.2d 881, 885 (Tex. App.-Houston [14th Dist.] 1997, no writ).

        Once the defendant presents proof that a reasonably prudent person in the same or



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similar circumstances would have taken the same action, the burden shifts to the plaintiff.

City of Lancaster, 883 S.W.2d at 657. The plaintiff cannot rebut the defendant's defense by

simply showing that a reasonably prudent person would not have taken the same action; the

plaintiff must show that no reasonable person in the defendant's position could have thought

the facts were such that they justified the defendant's acts. Id.; Smith v. Tarrant County, 946

S.W.2d 496, 503 (Tex. App.-Fort Worth 1997, writ denied). If the plaintiff meets this

burden, the question of good faith must go to a jury to resolve the fact issue. Smith, 946

S.W.2d at 503.


       In this case, as part of their summary judgment proof, the City and Officer Kubicek

submitted the affidavits of Officer Kubicek, Officer Cravens, Police Chief David Miller, and

Robert Knowles, the asistant chief deputy in charge of Jail Administration in Dallas County,

an expert in police and jail procedures. In his affidavit. Officer Kubicek testified that upon

arresting Waltman, he conducted two searches of Waltman for both weapons and

contraband. He described a search for weapons while Waltman was lying face-down on the

ground and a thorough pat-down search next to the police car. He further stated that as

part of the book-in process, he conducted a third search where he placed Waltman's hands

against the wall and searched him in a manner similar to the earlier pat-down search.

Officer Kubicek further testified that, according to City policy, a strip search is not

warranted unless the officer believes the arrestee is secreting contraband on his person.

Because he had no reason to believe and did not believe Waltman was hiding contraband,




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he determined a strip search was not necessary.

       In her affidavit, Officer Cravens testified that her duties required her to move

between the video monitor, a computer, and radio and telephone equipment. The video

monitor, however, was constantly on display approximately two feet in front of her face and

slightly to the right. According to Officer Cravens, she observed Waltman on the video

camera and noticed no unusual activity in Waltman's cell the night he was arrested. She

stated she observed him at various times in the evening, sitting on his cot, walking around,

and talking to officers through the bars. She noted that the cell had a privacy screen so the

prisoners could not be viewed while using the bathroom. She testified that, according to her

best recollection, she last observed him walking around about twenty minutes before he was

found to have hanged himself.

       Police Chief Miller's affidavit provides additional evidence of Officer Kubicek's and

Craven's objective good faith. Miller attested that, at his direction, an investigation into

Waltman's death was conducted. The investigation concluded that (1) both Officer Kubicek

and Officer Cravens acted in the manner described in their affidavits, (2) both appeared to

be acting in good faith, and (3) a reasonable police officer standing in the shoes of either

Officer Kubicek or Officer Cravens would have acted in the same manner they acted in this

circumstance. The City's expert, Robert Knowles, concluded that after reviewing Officer

Kubicek's and Cravens's actions the night Waltman died, he believed both Officer Kubicek

and Officer Cravens acted appropriately in following the City's policies.




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       These affidavits establish that "a reasonably prudent officer" in either Officer

Kubicek's or Cravens's position would have acted in the same manner they did. Therefore,

the City met its summary judgment burden that Officers Kubicek and Cravens were acting

in good faith. The burden then shifted to Waltman to controvert the proof of good faith.

See City of Lancaster, 883 S.W.2d at 656-57; Smith, 946 S.W.2d at 503.

       The Waltmans claim their summary judgment proof contradicted the officers' claims

of good faith. However, after reviewing the Waltmans' summary judgment evidence, we

disagree.

The Waltmans' Evidence Attempting to Controvert Proof of Officer Kubicek's Good Faith

       The Waltmans' expert, Dr. Ginger, testified that, in his opinion, any reasonable

officer would have located the bottle of drugs during a search of Waltman because of the

size of the bottle. We conclude this evidence does not contradict the evidence of Officer

Kubicek's good faith. The issue here is whether Officer Kubicek could have believed that

his actions in searching Waltman were justified. See City of Lancaster, 883 S.W.2d at 657.

Once this was established, the only way to controvert it would be to show that no reasonable

officer could have believed Officer Kubicek's actions were justified, i.e., that no reasonable

person would have done what he did. See id. Dr. Ginger's statement does not attack what

Officer Kubicek did; he does not opine that no reasonable officer would have performed the

search in the way Officer Kubicek did. He merely concludes that a reasonable officer would

have discovered the bottle. Conclusory statements by an expert are insufficient to support



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or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).

       Additionally, the good faith standard is not equivalent to a general negligence

standard that addresses what a reasonable person would have done; rather, it focuses on

what a reasonable officer could have believed. Id. at 469 n.l. Here, Dr. Ginger's

statement, at best, infers negligence by stating that a reasonable officer would have found

a bottle the size of the one Waltman was hiding. He offers no testimony or opinion on what

a reasonable officer could have believed was the proper way to search an arrestee under the

circumstances surrounding Officer Kubicek's search of Waltman. See generally Smith, 946

S.W.2d at 503 (officer's good faith questioned after he failed to search entire house of

woman who reported intruder; in controverting his evidence of good faith, plaintiff

presented expert testimony that no reasonable person in the officer's position could have

thought the facts justified his failure to search the victim's bedroom). In this case, Dr.

Ginger's statement falls short of the proof necessary to controvert the evidence of good

faith, and we find no evidence that under the circumstances, no reasonable officer would

have searched Waltman in the manner Officer Kubicek did.

The Waltmans' Evidence Attempting to Controvert Proof of Officer Cravens's Good Faith

       The Waltmans' expert. Dr. Ginger, also testified that, in his opinion, Waltman was

not monitored "constantly" as required by the City's policy. However, neither Dr. Ginger

nor anyone else testified that, in light of the actions taken by Officer Cravens as described

in her affidavit, no reasonable officer in her position could have believed she was




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"constantly" monitoring Waltman's jail cell. Thus, the Waltmans also failed to controvert

the City's proof of Cravens's good faith.

       We find that the Waltmans' summary judgment evidence fails to establish that no

reasonable officer would have acted in the manner Officer Kubicek and Officer Cravens did.

Therefore, the summary judgment evidence was not sufficient to controvert the City's

affidavits on good faith. The Waltmans failed to raise a material fact issue on the question

of good faith. See City of Lancaster, 883 S.W.2d at 657.

                                      CONCLUSION


       We conclude Officer Kubicek and Officer Cravens performed discretionary acts in

good faith while acting within the scope of their employment. We sustain points of error

two and three and reverse and render summary judgment for the City and Officer Kubicek

that the Waltmans take nothing by their suit. Because of our disposition of the second and

third points of error, we need not address appellants' first point of error.




                                                           d&L' Uudzg^b
                                                    ED KINKEADE
                                                    JUSTICE


Publish
Tex. R. App. P. 47
980142F.P05




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