                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-075-CV


CITY OF FORT WORTH                                                    APPELLANT

                                         V.

AUDREY ROBINSON                                                          APPELLEE

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        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

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                                    OPINION

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I.    Introduction

      The City of Fort Worth (the City) appeals the trial court’s denial of its plea

to the jurisdiction in the lawsuit filed against it by Appellee Audrey Robinson.

We hold the City conclusively established its employee’s official immunity from

suit, thereby establishing the City’s governmental immunity. We reverse the

trial court’s order and dismiss this cause for lack of subject-matter jurisdiction.
II.    Procedural History

       Robinson filed suit against the City on October 27, 2008, alleging she

was injured when Officer J.A. Ferguson’s weapon accidentally discharged while

Officer Ferguson and other Special Weapons and Tactics (SWAT) officers “set

upon” the vehicle in which she was a passenger.            Although she did not

specifically identify the relevant statute, Robinson alleged the district court had

jurisdiction over her case because the Texas Legislature waived the City’s

governmental immunity for claims involving personal injury by a City employee

if the employee would be liable to her under Texas law. The City answered,

asserting Robinson’s claims were barred by the doctrine of governmental

immunity. The City thereafter filed its plea to the jurisdiction, which the trial

court denied by order dated February 20, 2009.          This interlocutory appeal

followed.   See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon

2008).

III.   Standard of Review

       Whether the trial court had subject-matter jurisdiction is a question of law

that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy,

74 S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea

that challenges the trial court’s subject-matter jurisdiction. Bland Indep. Sch.




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Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause

of action without regard to whether the claims asserted have merit. Id.

      The plaintiff has the burden of alleging facts that affirmatively establish

the trial court’s subject-matter jurisdiction.   Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings

liberally in favor of the plaintiff, look to the pleader’s intent, and accept the

pleadings’ factual allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). If, as in this case, a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties that is necessary to resolve the jurisdictional issues.

Id. at 227; Bland, 34 S.W.3d at 555.

      The plea to the jurisdiction standard generally mirrors that of a traditional

motion for summary judgment. Miranda, 133 S.W.3d at 228; see Tex. R. Civ.

P. 166a(c). The governmental unit is required to meet the summary judgment

standard of proof for its assertion that the trial court lacks jurisdiction.

Miranda, 133 S.W.3d at 228. Once the governmental unit meets its burden,

the plaintiff is then required to show that there is a disputed material fact

regarding the jurisdictional issue. Id. We take as true all evidence favorable to

the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.       Wise Reg’l Health Sys. v. Brittain, 268



                                        3
S.W.3d 799, 805 (Tex. App.—Fort Worth 2008, no pet.) (citing Miranda, 133

S.W.3d at 228). If the evidence creates a fact question regarding jurisdiction,

the trial court must deny the plea to the jurisdiction and leave its resolution to

the factfinder.   Miranda, 133 S.W.3d at 227–28.          But if the 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. Id. at 228.

IV.   Factual Background

      The record before the trial court at the hearing on the City’s plea to the

jurisdiction consisted of Robinson’s original petition, the City’s plea, Robinson’s

response, an affidavit by Officer Ferguson, and an affidavit by Robinson.

Because we assume the truth of the nonmovant’s evidence when reviewing a

plea to the jurisdiction, Brittain, 268 S.W.3d at 805, we summarize the

evidence in the light most favorable to Robinson, the nonmovant.            Where

appropriate, we acknowledge discrepancies in the evidence in footnotes. 1

      At approximately 11 a.m. on April 16, 2008, Robinson was the passenger

and Clayton Warwick was the driver of a Mazda sedan parked on Katy Street

in Fort Worth, Texas. Officer Ferguson, his partner Officer D. Nelson, and other

members of the SWAT Unit were also in the area, on burglary detail. During



      1
       … Although Robinson’s and Officer Ferguson’s affidavit testimony differ,
we hold the differences do not present genuine issues of material fact. We
explain our holding in section V, below.

                                        4
the operation, the officers became suspicious of Warwick’s vehicle because

they initially believed it to be empty and abandoned. Looking into Warwick’s

vehicle as he drove past, Officer Ferguson saw Warwick in the driver seat 2

mixing what Officer Ferguson believed to be a narcotic in an aluminum can

bottom. Officer Ferguson believed the substance to be a narcotic because, in

his experience, narcotics users commonly prepare narcotics by mixing them in

this manner before using them with a syringe.       The substance was later

determined to be heroin.

      Officer Ferguson continued past Warwick’s vehicle and turned around at

the next block. He called Officer K.W. Clowers, who was also working with

the SWAT unit at the time, to advise him of the narcotics sighting. Officer

Clowers drove toward Warwick’s vehicle from the front, stopping his truck two

feet from the front bumper, and Officer Ferguson drove toward Warwick’s

vehicle from behind, stopping his truck two feet from the rear bumper. Officer

Clowers, wearing jeans and a t-shirt, approached from the front, and Officer

Ferguson, wearing jeans and a polo shirt, approached from the rear.       The




      2
     … Officer Ferguson did not initially see Warwick in the vehicle because
Warwick had his seat reclined and was leaning back in the seat.

                                      5
officers did not identify themselves as police officers and did not wear anything

to indicate they were police officers. 3

      As he approached the vehicle, Officer Ferguson drew his handgun and

pointed it at the ground with his finger off the trigger.     Through the back

window of the vehicle, Officer Ferguson saw that Warwick had a syringe in his

right hand and that he was emptying the syringe’s contents onto the floor.

Robinson stated, however, that Warwick did not threaten any of the officers

with the syringe and did not make any movements the officers at the scene

would consider threatening. 4

      Officer Ferguson, now within one or two feet of Warwick, ordered

Warwick to turn off the vehicle. Concerned that Warwick might use the syringe

as a weapon to stab him, and unaware of the exact contents of the syringe,

Officer Ferguson pointed his weapon at Warwick with his finger on the trigger.

Warwick then put the vehicle in reverse and hit Officer Ferguson’s pick-up

truck. After the vehicle came to rest, Officer Ferguson, with the gun in his left




      3
       … Contrary to Robinson’s account, Officer Ferguson stated that he and
Officer Nelson wore their SWAT identification vests over their civilian clothes
and that Officer Clowers shouted, “Police, get out of the car,” as he exited his
truck.
      4
        … To the contrary, Officer Ferguson stated that as he approached the
vehicle, Warwick balled his fist, with the needle of the syringe extending out,
as if he might use the syringe as a weapon.

                                           6
hand, attempted to open the door to pull Warwick out of the vehicle. The gun

then accidentally discharged, and the bullet struck Robinson in the leg. 5

      Officer Ferguson said he did not know as he approached the vehicle if

Warwick was a drug dealer or if Warwick was armed. However, he stated he

believed Warwick was threatening serious bodily harm to the officers because

the syringe was a potential weapon and because Warwick refused to exit or

turn off his vehicle. Officer Ferguson felt he needed to point his weapon at

Warwick to shoot him, if necessary, to prevent being stabbed or struck by the

vehicle if Warwick attempted to flee. Officer Ferguson also believed he would

have placed himself and the other officers in more danger had he not

approached Warwick’s vehicle with his gun drawn. Officer Ferguson averred

that, based on his training and experience, and in light of the threats posed,

another reasonable officer could have believed it appropriate to point his

weapon at Warwick with his finger on the trigger. Officer Ferguson stated that

his actions complied with the Police Department’s General Orders concerning

the use of deadly force.




      5
       … Officer Ferguson said that he had already opened the vehicle door
before Warwick put the vehicle in reverse and that as the vehicle moved
backward, the open door struck him, causing his weapon to accidentally
discharge.

                                       7
V.    Analysis

      In two issues, the City contends that there were no fact issues that

precluded rendition of judgment on the City’s plea to the jurisdiction and that

it conclusively established Officer Ferguson’s official immunity, thereby

establishing the City’s governmental immunity. Because the City’s issues are

related, we consider them together.

      A.    Governmental Immunity

      “When official immunity shields a governmental employee from liability,

sovereign immunity shields the governmental employer from vicarious liability.”

Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000) (citing DeWitt v.

Harris County, 904 S.W.2d 650, 653 (Tex. 1995)). Invoking this rule, the City

argues Robinson’s lawsuit is barred by governmental immunity because official

immunity would protect Officer Ferguson had Robinson sued him individually.

      Unless waived by the State, governmental immunity from suit defeats a

trial court’s subject-matter jurisdiction. Miranda, 133 S.W.3d at 225. Relevant

to this case, section 101.021(2) of the Tort Claims Act waives governmental

immunity for personal injury caused by the use of tangible personal property,

but only to the extent the governmental unit would be liable to the claimant

under Texas law if it were a private person. Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.021(2), 101.025(a) (Vernon 2005). Conversely, the Tort Claims Act



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does not waive governmental immunity if the governmental unit would not be

liable to the claimant under Texas law if it were a private person.         Id. §§

101.021(2), 101.025(a). Thus, the Tort Claims Act creates a unique statutory

scheme in which immunity from liability and immunity from suit are

coextensive. Miranda, 133 S.W.3d at 224; see also Tex. Civ. Prac. & Rem.

Code §§ 101.021(2), 101.025(a).

      In this case, Robinson contends the City is vicariously liable for Officer

Ferguson’s conduct. If official immunity would shield Officer Ferguson from

liability, the City cannot be vicariously liable for his acts, and the Tort Claims

Act does not waive the City’s governmental immunity. Clark, 38 S.W.3d at

580; City of San Antonio v. Trevino, 217 S.W.3d 591, 593, 596 (Tex.

App.—San Antonio 2006, no pet.). Thus, we must determine whether official

immunity would protect Officer Ferguson from liability had Robinson sued him

individually.

      B.        Official Immunity for Injuries Sustained During an Arrest

      A governmental employee is entitled to official immunity for discretionary

duties within the scope of the employee’s authority that are performed in good

faith. Leachman v. Dretke, 261 S.W.3d 297, 315 (Tex. App.—Fort Worth

2008, no pet.); see also Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex.

2002); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).



                                          9
“[O]fficial immunity is designed to protect public officials from being forced to

defend their decisions that were reasonable when made, but upon which

hindsight has cast a negative light” because “‘the public would suffer if

government officers, who must exercise judgment and discretion in their jobs,

were subject to civil lawsuits that second-guessed their decisions.’”

Telthorster, 92 S.W.3d at 463 (quoting Kassen v. Hatley, 887 S.W.2d 4, 8

(Tex. 1994)). Because Robinson does not contest Officer Ferguson was

performing a discretionary duty within the scope of his employment at the time

his weapon accidentally discharged, we address only the good faith element of

the official immunity test. See Trevino, 217 S.W.3d at 591.

      In Chambers, the Supreme Court of Texas held that an officer establishes

good faith in a police-pursuit case by showing a reasonably prudent officer

could have believed it necessary to continue the pursuit, balancing the need for

immediate police intervention against the risk of harm to the public.       883

S.W.2d at 656.     The supreme court later extended this test to high-speed

emergency responses and elaborated on the need and risk elements. Wadewitz

v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). The court explained that

the need element is determined by the seriousness of the emergency, the

necessity of the officer’s immediate response, and the alternate courses of

action available, if any. Id. The risk aspect involves the potential harm the



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officer’s actions could cause, the likelihood of the potential harm, and the

clarity of the risk of harm to a reasonably prudent officer. Id.

      In Telthorster, the court specifically declined to apply the Wadewitz good-

faith standard to an officer’s conduct that causes injuries during an arrest

“because the public-safety concerns underlying [the Wadewitz] assessment are

not implicated” in an arrest-injury case. 92 S.W.3d at 459–60. Instead, the

court held that an officer proves good faith in an arrest-injury case by showing

“that a reasonably prudent officer, under the same or similar circumstances,

could have believed that his conduct was justified based on the information he

possessed when the conduct occurred.” Id. at 459. This does not require the

officer to prove that all reasonably prudent officers would have engaged in the

same conduct or that it would have been unreasonable to not engage in the

conduct. Id. at 465. Instead, the officer “must prove only that a reasonably

prudent officer, under similar circumstances, might have reached the same

decision.” Id. (emphasis in original). Once the officer meets this burden, the

plaintiff must “do more than show that a reasonably prudent officer could have

reached a different decision.” Id. “Instead, [the plaintiff] must offer evidence

that no reasonable officer in [the officer’s] position could have believed that the

facts were such that they justified his conduct.” Id. (emphasis added).




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      C.    Officer Ferguson’s Good Faith Under Telthorster

      The City, citing Telthorster and relying on Officer Ferguson’s affidavit,

argues it conclusively established Officer Ferguson’s good faith conduct during

the accidental shooting because a reasonably prudent officer could have

believed it necessary to engage in the same conduct. 6

      Officer Ferguson stated in his affidavit that he was suspicious of

Warwick’s vehicle because it initially appeared empty and abandoned. He also

stated that he saw Warwick mixing a narcotic in his vehicle, that Warwick had

a syringe and was emptying its contents onto the floor, that he was concerned

Warwick would use the syringe as a weapon, and that Warwick ignored

multiple orders to turn off his vehicle. Officer Ferguson was within one to two

      6
        … The City does not cite, and we have not found, a case applying the
Telthorster good-faith standard to a plea to the jurisdiction. However, other
courts have applied the Wadewitz good-faith standard to pleas to the
jurisdiction. See Trevino, 217 S.W.3d at 593, 596 (applying Wadewitz and
reversing order denying city’s plea to jurisdiction where city conclusively
established officer’s official immunity); Harris County v. Smyly, 130 S.W.3d
330, 333–34, 336 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (applying
Wadewitz and affirming order denying county’s plea to jurisdiction where
county did not conclusively establish officer’s official immunity). The Wadewitz
good-faith standard addresses police emergencies while the Telthorster good-
faith standard addresses injuries sustained during an arrest. Telthorster, 92
S.W.3d at 459. Because the Wadewitz good-faith standard and the Telthorster
good-faith standard both consider what a reasonably prudent officer could have
believed under similar circumstances, it follows that if courts apply the
Wadewitz good-faith standard to pleas to the jurisdiction, courts should also
apply the Telthorster good-faith standard to pleas to the jurisdiction. Thus, we
apply the Telthorster good-faith standard to determine whether the City
conclusively established Officer Ferguson’s official immunity.

                                      12
feet of Warwick and believed it necessary to point his weapon at Warwick

during the encounter.     Officer Ferguson said he believed Warwick was

threatening serious bodily harm to himself and his fellow officers because the

syringe was a potential weapon and because Warwick refused to exit or turn

off his vehicle. Officer Ferguson further averred he would have placed himself

and the other officers in more danger had he not approached Warwick’s vehicle

with his gun drawn. Finally, Officer Ferguson stated that, based on his training

and experience, and in light of the threats posed, another reasonable officer

could have believed it appropriate to point his weapon at Warwick with his

finger on the trigger.

      This evidence satisfied the City’s burden under Telthorster to prove that

a reasonably prudent officer, under similar circumstances, could have believed

Officer Ferguson’s conduct was justified. Id. at 460; see also Hidalgo County

v. Gonzalez, 128 S.W.3d 788, 795–96 (Tex. App.—Corpus Christi 2004, no

pet.) (holding that officer met Telthorster burden when he testified he believed

force was necessary to ensure detainee’s safety, he used only the amount of

force necessary, and he used force only after detainee reacted aggressively).

We must therefore determine if Robinson offered evidence sufficient to create

genuine issues of material fact. Telthorster, 92 S.W.3d at 465.




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      D.    Robinson’s Controverting Evidence Under Telhorster

      Once the City met its burden of proof, Robinson was required to offer

evidence that no reasonable officer in OfficerFerguson’s position could have

believed the facts justified his conduct.    Id.   To create a genuine issue of

material fact, she was required to “do more than show that a reasonably

prudent officer could have reached a different decision.” Id.

      Citing Telthorster, Robinson first contends a good faith analysis balances

the officer’s need to place himself in the situation against the risk of public

harm by engaging in the conduct. However, the need/risk assessment does not

apply to cases like this one involving injuries sustained during an arrest. Id. at

459. Robinson’s reliance on the need/risk analysis is therefore misplaced. Id.

      Without citation to authority, Robinson also contends the City cannot

establish Officer Ferguson’s good faith because Officer Ferguson violated the

Fort Worth Police Department’s General Orders. However, “an officer’s good

faith is not rebutted by evidence that he violated the law or department policy

in making his response.” Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex.

App.—Texarkana 2004, pet. denied); see also Vazquez v. City of San Antonio,

No. 04-05-00707-CV, 2006 WL 1539636, at *4 (Tex. App.—San Antonio

June 7, 2006, no pet.). “Nor does recklessness in the performance of the

officer’s duty belie his good faith. Recklessness is negligence, and negligence



                                       14
is immaterial when determining if an officer acted in good faith.” Johnson, 142

S.W.3d at 596. Thus, even assuming Officer Ferguson violated department

policy, his alleged violation does not mean Officer Ferguson did not act in good

faith. Id.

      In her affidavit, Robinson does not deny that Warwick was mixing a

narcotic in his vehicle, that Warwick had a syringe, that Warwick refused

multiple orders to turn off the vehicle, or that Warwick attempted to escape by

backing his vehicle into Officer Ferguson’s truck.     Robinson also does not

contradict Officer Ferguson’s statements that he believed Warwick was

threatening serious bodily harm to the officers because the syringe was a

potential weapon and that Warwick refused to exit or turn off his vehicle. She

also does not contradict Officer Ferguson’s statement that the officers would

have been in more danger had Officer Ferguson not pointed his weapon at

Warwick.     Although there are factual differences between Robinson’s and

Officer Ferguson’s affidavit testimony, the differences are not genuine issues

of material fact because they do not suggest that no reasonable officer could

have acted as Officer Ferguson acted. See Telthorster, 92 S.W.3d at 466–67

(holding plaintiff did not controvert good faith where evidence was conclusory

and did not establish that no reasonable officer would have been concerned for

his safety under the particular facts of the case). In short, Robinson did not



                                      15
present evidence that “no reasonable officer under similar circumstances could

have believed that the facts were such that they justified the disputed

conduct.” Id. at 465. We sustain the City’s first and second issues.

VI.   Conclusion

      Because we sustain both of the City’s issues, we reverse the trial court’s

order denying the City’s plea to the jurisdiction. We dismiss this cause for lack

of subject-matter jurisdiction.




                                            ANNE GARDNER
                                            JUSTICE

PANEL: CAYCE, C.J.; GARDNER and MEIER, JJ.

DELIVERED: November 12, 2009




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