Affirmed and Opinion filed April 12, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00185-CV

    SERGEANT MARY HAVER AND DEPUTY CONSTABLE KEVIN
      VAILES, IN THEIR INDIVIDUAL CAPACITIES, Appellants

                                       V.

      BARBARA COATS, INDIVIDUALLY AND AS PERSONAL
  REPRESENTATIVE OF THE ESTATE OF JAMAIL AMRON AND AS
  HEIR TO THE ESTATE OF JAMAIL AMRON, DECEASED, AND ALI
   AMRON, INDIVIVIDUALLY AND AS HEIR TO THE ESTATE OF
             JAMAIL AMRON, DECEASED, Appellees

                    On Appeal from the 61st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-55551

                                OPINION


      In this case, appellees Barbara Coats and Ali Amron, individually and on
behalf of the estate of Jamail Amron (collectively Coats), allege that law
enforcement officers violated Jamail Amron’s federal civil rights and that he died
as a result. Appellants, Sergeant Mary Haver and Deputy Kevin Vailes, appeal
from the trial court’s denial of their no-evidence motion for summary judgment
asserting the affirmative defense of qualified immunity. Appellants raise three
issues on appeal, which we address together.

      Appellants assert that the trial court erred when it denied their no-evidence
motion for summary judgment because Coats failed to produce evidence sufficient
to raise a genuine issue of material fact on the inapplicability of the affirmative
defense of qualified immunity. We overrule appellants’ issues on appeal because a
defendant cannot establish an affirmative defense such as qualified immunity,
which it bears the burden to prove, by filing a no-evidence motion for summary
judgment. We therefore affirm the trial court’s order denying appellants’ motion
and remand this case to the trial court for further proceedings.

                                   BACKGROUND

      The summary judgment record shows that just after midnight on September
30, 2010, Jamail Amron experienced trouble breathing. Amron called 9-1-1 from a
poolside emergency telephone at an apartment complex.              Amron told the
emergency dispatcher that he had taken too much medicine and had started
hyperventilating. Amron later specified that the medicine was a muscle relaxer.
The dispatcher sent paramedics from Cypress Creek Emergency Medical Services
to the scene. The paramedics were instructed to respond to a nearby parking lot
and to wait until law enforcement officers arrived to clear them onto the scene.

       While the ambulance was sitting in the parking lot, the paramedics observed
Amron jump over a fence and approach the ambulance.                Amron told the
paramedics that he needed help because he was going to die. Amron told the
paramedics that he had taken cocaine. Amron then told the paramedics that he was
thirsty and asked if they had any water. The paramedics did not, but they asked
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Amron to let them check him out and make sure everything was okay. Amron
refused, apologized for bothering them, and then moved toward a nearby Burger
King restaurant.

      Coats attached excerpts from the deposition of Cindy Lansdale, the manager
of the Burger King, to her response to appellees’ no-evidence motion for summary
judgment. Lansdale testified that she heard a bang on the front window of the
restaurant. Lansdale saw Amron and told him the dining room of the restaurant
was closed and she could not open the doors. Amron asked Lansdale for help.
Lansdale told Amron to come around to the drive-through window and she would
try to help him. Amron moved around the corner of the restaurant and asked
Lansdale for a drink of water. Lansdale handed Amron a cup of water through the
drive-through window. Amron told Lansdale he was not feeling well and asked
her to watch him as he took the water and walked over to a nearby curb where he
sat down and began sipping the water.         Lansdale observed that Amron was
breathing hard, but said he did not exhibit signs of alcohol or drug use. Lansdale
also observed that Amron was kind, respectful, spoke clearly, was not sweating
profusely, was not agitated, had no visible cuts or bruises, and did not appear to be
a threat to her or to himself.

      While Amron was drinking water on the curb, Lansdale heard a siren and
saw a constable car with its emergency lights on pull into the drive-thru lane and
stop just past Amron. A deputy constable got out of the police car, approached
Amron, and told him: “If you try to hurt me, I will knock the [expletive] out of
you.” The constable, without explanation, immediately started placing Amron in
handcuffs. Amron offered no resistance and said to the deputy constable “But, I
didn’t do anything.” While he was being handcuffed, Amron attempted to give
Lansdale a phone number.

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      After getting Amron’s hands handcuffed behind his back, the deputy jerked
Amron toward the back of an ambulance, two of which were at the scene. Amron
and the deputy were at the back of the ambulance for one to two minutes when
Amron, still handcuffed, ran out from behind the ambulance toward the drive-thru
window.    Lansdale testified that the deputy grabbed Amron and shoved him
against the constable car. Three more officers, including Sergeant Haver and
Deputy Vailes, drove up. All four officers struggled to pin Amron against the car.
After struggling for several minutes, one of the deputy constables said something
to one of the paramedics. The paramedic pulled out a syringe and gave Amron an
injection in his shoulder. According to Lansdale, Amron lost “all natural body
functions” and fell to the ground like a dead man.

      Amron lay on his back with his arms still handcuffed beneath him. Lansdale
believed Amron was either dead or in a coma. Lansdale testified that Sergeant
Haver began “kick-tapping” Amron in the side and Vailes placed his boot on top of
Amron’s face, covering Amron’s nostrils and mouth. Vailes pressed down on
Amron’s face with his boot until the arch of Amron’s neck flattened against the
ground. Lansdale believed Vailes held his boot on top of Amron’s face for two to
five minutes. The officers and paramedics left Amron laying on the ground for
about fifteen minutes until a fire engine arrived. Amron was then placed on a
gurney, loaded into an ambulance, and taken away from the scene. Once the
ambulance drove off, Lansdale saw officers placing yellow investigation tape
around the area where the incident had occurred. One of the investigating officers
told Lansdale that Amron had died.

      Coats eventually filed suit against Haver, Vailes, and numerous other
defendants. Coats alleged federal civil rights claims under the Fourth Amendment
to the United States Constitution and 42 U.S.C. § 1983 for excessive force, false

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arrest, unreasonable search and seizure, denial of the right to refuse medical
treatment, and deliberate indifference.       Haver and Vailes filed a no-evidence
motion for summary judgment based on the affirmative defense of qualified
immunity. The trial court denied the motion. This interlocutory appeal followed.

                                     ANALYSIS

      Haver and Vailes argue that the trial court erred when it denied their no-
evidence motion for summary judgment based on the affirmative defense of
qualified immunity. We disagree because a party with the burden of proof on an
affirmative defense cannot use a no-evidence motion for summary judgment to
establish that defense.

I.    Standard of review

      Rule 166a(i) provides that a no-evidence motion for summary judgment is
one in which the movant asserts that “there is no evidence of one or more essential
elements of a claim or defense on which an averse party would have the burden of
proof at trial.” Tex. R. Civ. P. 166a(i). We review the trial court’s denial of such a
motion de novo to determine whether the non-movant pointed out summary-
judgment evidence raising a genuine issue of fact as to the essential elements
attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 206–08 (Tex. 2002). A motion for summary judgment must stand or
fall on its own merits. See Brown v. Hearthwood II Owners Ass’n, Inc., 201
S.W.3d 153, 159 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).                 A
reviewing court cannot read between the lines or infer from the pleadings or
evidence any grounds for summary judgment other than those expressly set forth in
the motion. See Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).




                                          5
II.   A no-evidence motion cannot be used to obtain summary judgment
      establishing the affirmative defense of qualified immunity.
      Section 1983 provides a private right of action against persons acting under
color of state law who violate rights secured by the United States Constitution or
federal law.   Escobar v. Harris County, 442 S.W.3d 621, 629 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (citing 42 U.S.C. § 1983); Spacek v. Charles,
928 S.W.2d 88, 92 (Tex. App.—Houston [14th Dist.] 1996, writ dism. w.o.j.); see
Harris County v. Nagel, 349 S.W.3d 769, 777 (Tex. App.—Houston [14th Dist.]
2011, pet. denied) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)
(“When a state actor violates a person’s right to be free from the use of excessive
force, a suit for civil damages ‘may offer the only realistic avenue for vindication
of constitutional guarantees.’”)).   The defense of qualified immunity shields
government officials performing discretionary functions within the scope of their
authority from individual liability for civil damages under section 1983, however,
as long as their actions could reasonably have been thought consistent with the
rights they are alleged to have violated. Brown & Gay Eng’g, Inc. v. Olivares, 461
S.W.3d 117, 128 (Tex. 2015); Nagel, 349 S.W.3d at 777–78; Spacek, 928 S.W.2d
at 92. Qualified immunity is an affirmative defense to a section 1983 claim.
Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009); Escobar, 442 S.W.3d at
629; Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 697 (Tex. App.—San
Antonio 1997, no pet); Spacek, 928 S.W.2d at 91.

      Generally, when claims based on federal substantive law are raised in state
court, state law and rules govern the manner in which the federal claims are tried
and proved. Johnson v. Nacogdoches Cnty. Hosp. Dist., 109 S.W.3d 532, 536
(Tex. App.—Tyler 2001, pet. denied). Under Texas law, an affirmative defense is
an independent reason why a plaintiff should not recover. Nowak v. DAS Inv.
Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
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Ordinarily, the party asserting an affirmative defense has the burden of both
pleading and proving the defense. Id. As a result, under Texas procedural rules, a
defendant cannot use a no-evidence motion for summary judgment to establish an
affirmative defense. Id.

       This result follows from the plain language of Rule 166a(i), which provides
that a no-evidence motion can only be used to establish the inapplicability of a
“defense on which an adverse party would have the burden of proof at trial”
(emphasis added).      Although a plaintiff may move for no-evidence summary
judgment on the ground that there is no evidence of one or more essential elements
of an affirmative defense that the defendant alleged and has the burden to prove, a
defendant must file a traditional motion for summary judgment if it wishes to
establish each element of that defense as a matter of law. See FDIC v. Lenk, 361
S.W.3d 602, 609 (Tex. 2012) (“‘When a defendant moves for summary judgment
based on an affirmative defense, . . . the defendant, as movant, bears the burden of
proving each essential element of that defense.’” (quoting Ryland Grp., Inc. v.
Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam))).

       Appellants argue that qualified immunity is an exception to this general rule.
In support, appellants cite Leo v. Trevino, 285 S.W.3d 470, 480 (Tex. App.—
Corpus Christi 2006, no pet.). In Leo, the Corpus Christi Court of Appeals held
that as a result of the shifting burdens of proof found in federal cases addressing
qualified immunity, a state actor could use a no-evidence motion for summary
judgment to raise the qualified immunity defense by doing nothing more than
pleading in good faith that qualified immunity applies. Id. Once this assertion is
made, the court held, the “burden shifts to the plaintiff to rebut” the defense. Id.1


       1
         Although not cited by the parties, we note that the Fort Worth Court of Appeals has
reached the same conclusion as the Corpus Christi Court of Appeals in Leo. See Poteet v.
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       Because this procedure would enable a section 1983 defendant to prevail
without offering any proof in support of the qualified immunity defense, we
decline to follow the Leo court’s holding. As the Supreme Court of Texas has
explained, “[s]ummary judgments in federal courts are based on different
assumptions, with different purposes, than summary judgments in Texas.” Casso
v. Brand, 776 S.W.2d 551, 555–56 (Tex. 1989). Thus, although “federal courts
place responsibilities on both movants and non-movants in the summary judgment
process,” Texas courts “never shift the burden of proof to the non-movant unless
and until the movant has ‘establish[ed] his entitlement to a summary judgment on
the issues expressly presented to the trial court by conclusively proving all
essential elements of his cause of action or defense as a matter of law.’” Id. at 556
(quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979)).

       Consistent with this principle, the First Court of Appeals explained in
Escobar that the defendant bears a burden of proof in establishing a defense of
qualified immunity.        The Escobar court acknowledged that federal precedent
addressing qualified immunity had created a shifting burden of proof “when a
governmental official asserts the affirmative defense of qualified immunity.” 442
S.W.3d at 630. The court recognized, however, that the federal burden-shifting
procedure places the initial burden on the state actor alleging qualified immunity to
not only assert good faith—as Leo requires—but also establish that he was acting
within the scope of his discretionary authority. Id.; see also Aguiar v. Whiteley,



Sullivan, 218 S.W.3d 780, 787 (Tex. App.—Fort Worth 2007, pet. denied) (“The moving party is
not required to put forth evidence to meet its summary judgment burden for a claim of qualified
immunity; rather, it is sufficient that the movant in good faith pleads that it is entitled to
immunity. . . . Once the movant asserts this affirmative defense, the burden shifts to the plaintiff
to rebut it.”).

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No. SA-15-CV-DAE (HWB), 2016 WL 502199, at *6 (W.D. Tex. Feb. 8, 2016).2
The court concluded that “this procedure essentially mirrors traditional summary-
judgment practice in Texas state courts with respect to affirmative defenses.”
Escobar, 442 S.W.3d at 630.

       Texas courts have taken a similar approach to the analogous affirmative
defense of official immunity, recognizing that the defendant has the burden to
plead and prove it. Brown & Gay Eng’g, Inc., 461 S.W.3d at 128; see City of
Lancaster v. Chambers, 883 S.W.2d 650, 656–57 (Tex. 1994) (stating that official
immunity test is derived from federal test for claims of qualified immunity). As a
result, a defendant cannot obtain a no-evidence summary judgment based on
official immunity. See Dorrough v. Faircloth 443 S.W.3d 278, 285 (Tex. App.—
San Antonio 2014, no pet.) (“Because common-law official immunity is an
affirmative defense, and Dorrough has the burden to prove each of its elements, . . .
a no evidence motion was inapt.”); Battin v. Samaniego, 23 S.W.3d 183, 185–86
(Tex. App.—El Paso 2000, pet. denied).3


       2
         Although Leo suggests that simply pleading good faith is sufficient to meet that element
of the defense, 285 S.W.3d at 480, other Texas courts considering motions for traditional
summary judgment on qualified immunity have examined whether the movant offered evidence
of good faith (that is, objective legal reasonableness) and whether the non-movant controverted
that evidence. E.g., City of San Antonio v. Hernandez, 53 S.W.3d 404, 408–09 (Tex. App.—San
Antonio 2001, pet. denied); Wallace v. Moberly, 947 S.W.2d 273, 278 (Tex. App.—Fort Worth
1997, no writ); Robinett v. Carlisle, 928 S.W.2d 623, 625–27 (Tex. App.—Fort Worth 1996, writ
denied); cf. Telthorster v. Tennell, 92 S.W.3d 457, 465–66 (Tex. 2002) (concluding officer’s
summary-judgment proof conclusively established element of good faith in support of analogous
defense of official immunity); Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488, 490
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (explaining that only if defendant conclusively
establishes good-faith element of official immunity does burden shift to plaintiff to come
forward with controverting evidence that no reasonable official under similar circumstances
could have believed conduct was justified). As we have explained, the inquiry regarding the
element of good faith (or legal reasonableness) for qualified immunity is an objective one that
includes both factual and legal dimensions. Nagel, 349 S.W.3d at 778, 782.
       3
        We note that employment discrimination is another area of law in which federal courts
have adopted a burden-shifting framework. Texas courts have reconciled that framework with
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       Here, for reasons not disclosed in the record, appellants filed only a no-
evidence motion for summary judgment on their affirmative defense of qualified
immunity. This motion was not an appropriate procedural vehicle for establishing
their affirmative defense without a trial. See Tex. R. Civ. P. 166a(i); Nowak, 110
S.W.3d at 680 (“[A] defendant urging summary judgment on an affirmative
defense must come forward with summary judgment evidence for each element of
the defense.”); Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229, 238 (Tex. App.—
Dallas 1995, no writ) (applying state summary judgment standards to defense of
qualified immunity). We therefore overrule appellants’ issues challenging the trial
court’s denial of their motion.

                                       CONCLUSION

       Having overruled appellants’ issues on appeal, we affirm the trial court’s
order denying appellants’ no-evidence motion for summary judgment and remand
the case to the trial court for further proceedings.



                                           /s/     J. Brett Busby
                                                   Justice



Panel consists of Justices Boyce, Busby, and Brown.


our summary judgment procedure by requiring an employer moving for traditional summary
judgment to establish as a matter of law a legitimate, nondiscriminatory reason for its adverse
employment action, at which point the burden shifts to the employee to raise a fact issue
regarding whether the employer’s reason was a pretext for discrimination. M.D. Anderson Hosp.
& Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000); Niu v. Revcor Molded Prods. Co., 206
S.W.3d 723, 728 (Tex. App.—Fort Worth 2006, no pet.). Given this burden, the employer
cannot obtain a no-evidence summary judgment on the ground that there is no evidence it did not
have a legitimate, nondiscriminatory reason for its action. Hernandez v. Gray Wolf Drilling,
L.P., 350 S.W.3d 281, 285–86 (Tex. App.—San Antonio 2011, no pet.).

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