                                                                                       ACCEPTED
                                                                                  13-15-00261-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                            10/22/2015 4:11:56 PM
                                                                                 Dorian E. Ramirez
                                                                                            CLERK



                         NO. 13-15-00261-CV
                                                       FILED IN
              IN THE THIRTEENTH COURT OF    13th COURT OF APPEALS
                                           APPEALS
                                         CORPUS CHRISTI/EDINBURG, TEXAS
                      CORPUS CHRISTI, TEXAS 10/22/2015 4:11:56 PM
                                                  DORIAN E. RAMIREZ
                                                       Clerk


                     HIDALGO COUNTY, TEXAS,
                            Appellant
                               v.
MICHAEL CALVILLO, AND ROSA RIVERA, INDIVIDUALLY, AND AS
  NEXT OF FRIEND OF LUIS ESPINOZA AND AARON CALVILLO,
                         MINORS,
                         Appellees


                APPEAL FROM CAUSE NO. C-8615-14-A
         ND
       92 JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS
               HON. LUIS M. SINGLETERRY, PRESIDING


                   APPELLANT’S REPLY BRIEF



                            Miguel “Mike” Ruiz
                            State Bar No. 24079252

                            LAW OFFICES OF PRESTON HENRICHSON, P.C.
                            222 W. Cano
                            Edinburg, Texas 78539
                            (956) 383-3535
                            (956) 383-3585 (fax)
                            eservices@henrichsonlaw.com

                            Counsel for Appellant, Hidalgo County, Texas
INDEX OF AUTHORITIES

Cases

City of Pasadena v. Belle,
297 S.W.3d 525 (Tex. App. 2009)………………………………….…………. 3, 4

Tex. Dep't of Pub. Safety v. Sparks ,
      347 S.W.3d 834 (Tex. App.—Corpus Christi-Edinburg 2011, no
      pet.)………………………………………………………………………..2, 3

Tex. Nat. Res. Conservation Comm'n v. IT-Davy,
      74 S.W.3d 849, 854 (Tex. 2002)……………….. …………………………..3




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TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      Defendant-Appellant, (hereinafter “Hidalgo County”) files this reply brief,

replying to two issues raised by Plaintiffs-Appellees (hereinafter “Plaintiffs”) in

their Response. Hidalgo County once again asks this Court to reverse the trial

court’s denial of its First Amended Plea to The Jurisdiction and dismiss all claims

against it with prejudice.

                             REPLY TO FIRST ISSUES

1.    In Plaintiffs’ Response to Hidalgo County’s “emergency exception”
      argument, they complain that more evidence was required. (Response
      Brief Pg.19)

      Plaintiffs state that Tex. Dep't of Pub. Safety v. Sparks, 347 S.W.3d 834

(Tex. App. 2011) a case used by Hidalgo County in its Brief is distinguishable with

the case at hand because in Sparks a “significant amount of evidence was

involved.” (Response Brief Pg.19)       This argument does not make any sense

because a quick examination of Hidalgo County’s and Plaintiffs’ respective

Statement of The Facts will show that they are almost identical. All parties agree

to most of the facts, specifically the most important fact, that is, that Hidalgo

County was responding to an emergency call as set out in Plaintiffs’ own Statement

of the Facts and supported by Hidalgo County’s evidence as set out in its original

brief. (Response Pg.6) Furthermore, Sgt. Glen Mendoza’s Fleet Accident Report

states that the emergency lights and sirens were activated; subsequently pursuant
                                         2
Sparks the burden of evidence shifts to Plaintiffs as set out in Hidalgo County’s

original brief. (CR46-47) Plaintiffs did not offer any evidence to raise an issue of

fact as to recklessness, therefore the emergency exception applies and Hidalgo

County retains it governmental immunity.

      Moreover, a plea to the jurisdiction based upon immunity, provides a

process to prevent unnecessary discovery costs which ultimately are borne by the

tax payers. As stated by the Supreme Court:

      Subjecting the government to liability may hamper governmental
      functions by shifting tax resources away from their intended purposes
      toward defending lawsuits and paying judgments. See Krent, 45
      VAND. L. REV. at 1537 n.23. Accordingly, the Legislature is better
      suited than the courts to weigh the conflicting public policies
      associated with waiving immunity and exposing the government to
      increased liability, the burden of which the general public must
      ultimately bear. Federal Sign, 951 S.W.2d at 414 (Hecht, J.,
      concurring); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813
      (Tex. 1993).

Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)

                          REPLY TO SECOND ISSUE

2.    In Plaintiffs’ Response to Hidalgo County’s “good faith” official
      immunity defense, Plaintiffs once again complain that more evidence is
      required to show that the Hidalgo County officer acted as a reasonably
      prudent officer would at the time he received the emergency call.
      (Response Brief Pg.17)

      Plaintiffs’ offered City of Pasadena v. Belle, 297 S.W.3d 525 (Tex. App.

2009) as case law to support their assertion that Hidalgo County is required to

present more evidence to support the “good faith” element in their official
                                         3
immunity defense. (Response Brief Pg.17)          As stated by Plaintiffs in their

Response, City of Pasadena dealt with a “possible” hostage situation. Id. Where

an officer “did not activate his vehicle’s emergency lights or siren.” Id. at 29. The

City of Pasadena’s analysis inquired as to whether the officer’s presence was

necessary to protect a hypothetical hostage (at least at the time the officer acted)

from “possible” injury or death. The whole analysis was based on a what if

scenario. Moreover, the officer involved in the accident was allegedly speeding

without his sirens and lights on. City of Pasadena v. Belle, at 529, 532.

      In the case at hand, Hidalgo County was responding to an actual ongoing

situation where a known gang member wanted for capital murder barricaded

himself and began shooting an estimated 500 rounds, actually shooting two

officers. (CR41-42) App.Tab.No.13 App.Tab.No.13 This altercation did not take

place in an open field in the middle of nowhere, it took place in the middle of a

neighborhood in La Joya, Texas. (CR39-42) Moreover, Hidalgo County’s officer

did have its lights and sirens on. (CR46-47)

      The element of “good faith” was the only element of Hidalgo County’s

official immunity’s argument in dispute. All the evidence offered by Hidalgo

County establishes said element, therefore Hidalgo County has established a prima

facie showing of good faith as set out in original brief. Again, Plaintiffs did not

offer any evidence at all to dispute said showing. Therefore official immunity is


                                         4
retained by the officer Olivarez and Hidalgo County in turn retains its

governmental immunity.

                         CONCLUSION AND PRAYER

      Plaintiffs offered no evidence to contradict Hidalgo County’s evidence that

Olivarez was responding to an emergency call. Plaintiffs fail to offer any evidence

to show Olivarez actions were not in compliance with the laws and ordinances

applicable to emergency action (and that such non-compliance was reckless).

Furthermore, Olivarez acted in good faith, therefore Hidalgo County retains its

sovereign (governmental) immunity via derivative immunity.           Accordingly,

Hidalgo County prays that this Court reverse the trial court’s ruling and grant

Hidalgo County’s First Amended Plea to the Jurisdiction and dismiss Plaintiffs’

claims with prejudice.

                                      Respectfully submitted,

                                      /s/ Mike Ruiz

                                      Miguel “Mike” Ruiz
                                      State Bar No. 24079252
                                      LAW OFFICES OF PRESTON HENRICHSON, P.C.
                                      222 W. Cano
                                      Edinburg, Texas 78539
                                      (956) 383-3535
                                      (956) 383-3585 (fax)
                                      E-Mail: eservices@henrichsonlaw.com

                                      Appellate and Trial Counsel for Hidalgo
                                      County, Texas


                                        5
                       CERTIFICATE OF COMPLIANCE

      In compliance with Tex. R. App. Proc. 9.4(i)(3), I hereby certify that this

document contains 832 words, excluding the caption, identity of parties and

counsel, statement regarding oral argument, table of contents, index of authorities,

statement of the case, statement of issues presented, statement of jurisdiction,

statement of procedural history, signature, proof of service, certification, certificate

of compliance and appendix. In calculating the word count, I have relied on the

word count feature of Microsoft Office Word 2007.

                                        /s/ Miguel “Mike” Ruiz
                                        ______________________________________
                                        Miguel A. Ruiz




                          CERTIFICATE OF SERVICE

       On October 22, 2015, in compliance with Texas Rule of Appellate
Procedure 9.5, I served a copy of this response upon Appellees and all parties to
the trial court proceeding through the electronic filing manager and/or e-mail.


                                        /s/ Miguel “Mike” Ruiz
                                        ______________________________________
                                        Miguel A. Ruiz


Taylor Shipman
601 Sawyer Street, Suite 650
Houston, TX 77007
E-Mail: taylor@lapezejohns.com



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