Reversed and Remanded and Memorandum Opinion filed July 3, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00533-CV

                          PAULA COLLINS, Appellant
                                         V.

                    CITY OF HOUSTON, TEXAS, Appellee

                    On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2010-60628

                  MEMORANDUM OPINION
      Paula Collins appeals the trial court’s order granting a plea to the jurisdiction
and dismissing her personal injury suit against the City of Houston. In six issues
on appeal, Collins contends that the trial court erred in dismissing her case because
the City cannot invoke a viable basis for immunity. We reverse and remand.

                                   BACKGROUND

      Officers James Brown and Christopher McCain of the Houston Police
Department were parked in separate patrol units on June 26, 2009, in a church
parking lot off of Tidwell Road near U.S. Highway 59. Officers Brown and
McCain received a radio broadcast from Officer Forniss stating:

      I have a male on a motorcycle, reckless driving. He’s standing up on
      the thing at a high rate of speed.
      He’s gunning it. He’s taking off right now. We’re getting ready to
      come up to Little York. He’s in the fast lane.
The dispatcher responded to Officer Forniss’s message by broadcasting a radio
message stating:

      Any 17-40 B units close to the freeway can check by 59 approaching
      Little York? Male on a motorcycle.

Officer Forniss elaborated:

      Going southbound. He’s still in the fast lane. We just crossed over,
      we’re coming up to Little York. He’s at Little York. He’s still
      southbound. Fast lane.

Because Officer Brown was only 1.5 miles from the entrance to U.S. Highway 59,
he decided to respond.

      Officer Brown responded by heading westbound on Tidwell Road towards
U.S. Highway 59 at high speed. While en route, Officer Brown saw Collins’s
vehicle exit a parking lot and turn right onto Tidwell Road heading westbound. As
Office Brown approached, Collins switched from the right westbound lane to the
left westbound lane. Collins then switched lanes again and moved in front of
Officer Brown, who attempted to move to the left lane to pass Collins. Officer
Brown collided with Collins when she moved back into the left lane again and
abruptly stopped. The City suspended Officer Brown for three days in connection
with the accident.

      Collins sued the City claiming that Officer Brown’s reckless operation of an
emergency vehicle caused the accident. The City filed a plea to the jurisdiction in
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which it asserted that it is entitled to governmental immunity under the Texas Tort
Claims Act. The trial court granted the City’s plea to the jurisdiction, and this
appeal followed.

                                    ANALYSIS

      In six issues on appeal, Collins asserts that (1) genuine issues of material
fact exist regarding whether Officer Brown was responding to an emergency; (2)
there are genuine issues of material fact regarding whether Officer Brown
complied with the requirements of Houston Police Department General Order 600-
1 regarding a “Code 2” run; (3) there are genuine issues of material fact regarding
whether Officer Brown is liable for his failure to control speed; (4) there are
genuine issues of material fact regarding whether Officer Brown was engaged in a
high-speed pursuit of a suspect fleeing arrest; (5) The City’s expert witness
affidavits are no evidence; and (6) Sergeant Hampton is disqualified from serving
as an expert witness because he refused to disclose the facts or data underlying his
opinion during his deposition. Collins argues that the City is not entitled to
governmental immunity because its employee, Officer Brown, did not act in good
faith and was not performing a discretionary duty. Collins further contends that
the emergency exception does not apply.

I.    Standard of Review

      A plea to the jurisdiction is a dilatory plea used “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
jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a governmental
unit has immunity from a pending claim, a trial court lacks subject matter
jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.
                                          3
2012). Because the existence of subject matter jurisdiction is a question of law, we
review the trial court’s denial of the City’s plea to the jurisdiction de novo. State v.
Holland, 221 S.W.3d 639, 642 (Tex. 2007).

      When a plea to the jurisdiction challenges the pleadings, we determine if the
plaintiff has alleged facts affirmatively demonstrating the court’s jurisdiction.
Miranda, 133 S.W.3d at 226 (citing 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 and look to the pleader’s intent. Id. If the pleadings do not contain
sufficient facts to affirmatively demonstrate jurisdiction but do not reveal incurable
defects, the issue is one of pleading sufficiency and the plaintiff should be afforded
the opportunity to amend. Miranda, 133 S.W.3d at 226–27. If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

      Where the governmental unit challenges the existence of jurisdictional facts,
and the parties submit evidence relevant to the jurisdictional challenge, we
consider that evidence when necessary to resolve the jurisdictional issues raised.
Id. at 227. The standard of review for a jurisdictional plea based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c).” Id. at 228.

      When reviewing a plea in which the pleading requirement has been met, we
credit as true all evidence favoring the nonmovant and draw all reasonable
inferences and resolve any doubts in the nonmovant’s favor. Id. The movant must
assert the absence of subject matter jurisdiction and present conclusive proof that
the trial court lacks subject matter jurisdiction. Id. Proof is conclusive only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson,
168 S.W.3d 802, 816 (Tex. 2005). If the movant discharges this burden, then the

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nonmovant must present evidence sufficient to raise a material issue of fact
regarding jurisdiction, or the plea will be sustained. Miranda, 133 S.W.3d at 228.

II.   Texas Tort Claims Act

      Governmental immunity protects “the State and its political subdivisions
from lawsuits and liability for money damages.” Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). The state and its governmental units
are immune from suit absent legislative consent. See, e.g., Tex. Dep’t of Transp. v.
Jones, 8 S.W.3d 636, 638-39 (Tex. 1999).

      Consent to suit “may be alleged either by reference to a statute or to express
legislative permission.” Miranda, 133 S.W.3d at 230. “We interpret statutory
waivers of immunity narrowly, as the Legislature’s intent to waive immunity must
be clear and unambiguous.” Garcia, 253 S.W.3d at 655 (citing Tex. Gov’t Code
Ann. § 311.034 (Vernon 2013)).

      The Texas Tort Claims Act, codified in chapter 101 of the Texas Civil
Practice & Remedies Code, governs waiver of immunity for tort suits against
governmental entities. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
378 (Tex. 2006). This statute does not create a cause of action; instead, it waives
immunity for a cause of action that otherwise exists. See Robinson v. Univ. of Tex.
Med. Branch at Galveston, 171 S.W.3d 365, 370 (Tex. App.—Houston [14th Dist.]
2005, no pet.).

      Section 101.021 of the Texas Tort Claims Act states:

      A governmental unit in the state is liable 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

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              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 (Vernon 2011). The City is a
governmental unit under the statute. See Tex. Civ. Prac. & Rem Code Ann. §
101.001(3)(B) (Vernon Supp. 2013).

      This appeal focuses on two exceptions to the legislative consent manifested
by the Texas Tort Claims Act.

      The first exception concerns official immunity. “To the extent an employee
has individual immunity from a tort claim for damages, it is not affected by this
chapter.” Id. § 101.026 (Vernon 2011). Police officers are entitled to official
immunity for the performance of discretionary duties that are within the scope of
the officer’s authority and undertaken in good faith.      See, e.g., Telthorster v.
Tennell, 92 S.W.3d 457, 461 (Tex. 2002).         An officer who is performing a
discretionary function is protected by official immunity regardless of whether the
officer acted negligently. See Harless v. Niles, 100 S.W.3d 390, 396 (Tex. App.—
San Antonio 2002, no pet.). And if a governmental employee has no liability
because of official immunity, then the employing governmental entity is not liable
under section 101.021 for that employee’s negligence. DeWitt v. Harris Cnty., 904
S.W.2d 650, 653-54 (Tex. 1995).

      The second exception concerns emergencies, which is addressed in section
101.055(2):

      This chapter does not apply to a claim arising . . . from the action of
      an 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
      law or ordinance, if the action is not taken with conscious indifference
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      or reckless disregard for the safety of others . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.055 (Vernon 2011).

      The City asserted in its plea to the jurisdiction that it is immune from suit
because Officer Brown was (1) protected by official immunity as he performed a
discretionary duty in good faith and within the course and scope of his
employment; and (2) responding to an emergency call.

      A.     Official Immunity

      The parties join issue on whether Officer Brown’s alleged injury-producing
conduct was discretionary or ministerial, and whether Officer Brown acted in good
faith. It is undisputed that Officer Brown was acting within the course and scope
of his employment.

             1.     Discretionary versus ministerial duties

      An action is discretionary if it involves personal deliberation, decision, and
judgment; an action that requires obedience to orders or the performance of a duty
as to which the employee has no choice is ministerial. Ramos v. Tex. Dep’t of Pub.
Safety, 35 S.W.3d 723, 727 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)
(citing City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). The
distinction between ministerial and discretionary acts is often one of degree
because any official act that is ministerial still requires the employee to use some
discretion in its performance. Id. (citing Chambers, 883 S.W.2d at 654).

      In determining whether an act is discretionary, the inquiry focuses on
whether an employee was performing a discretionary function — not on whether
the employee had the discretion to do an allegedly wrongful act while discharging
that function, or whether the job description at issue includes discretionary duties.
Id. (citing Chambers, 883 S.W.2d. at 653).

                                            7
      A police officer’s operation of a vehicle is discretionary in some situations.
These include high-speed chases; investigations; traffic stops; and an officer’s
decision to violate traffic laws to respond quickly to an officer’s call for assistance.
See City of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (operation of an ambulance in response to emergency situation
was a discretionary act); Harless, 100 S.W.3d at 397 (officer’s decision to violate
traffic laws in order to quickly reach scene of suspected criminal activity and assist
another officer there was discretionary act). Absent special circumstances, an
officer performs a ministerial act by driving a motor vehicle on official,
nonemergency business. See City of Houston v. Jenkins, 363 S.W.3d 808, 817
(Tex. App.—Houston [14th Dist.] 2012, pet. denied).

      Collins suggests that an officer’s operation of a vehicle never can be
discretionary if there is no emergency. We reject this contention because case law
teaches that an officer may perform a discretionary act while driving even in
circumstances that do not rise to the level of an emergency. See Ramos, 35 S.W.3d
at 727-29 (officer performed a discretionary act by conducting a driving test
because he exercised judgment regarding how and when to conduct the test).

      Here, Officer Brown was responding to a radio broadcast requesting
assistance to apprehend a reckless motorcyclist. He was not required to respond.
Officer Brown nevertheless decided to do so because he believed he was close to
the destination the motorcyclist would be heading. This evidence demonstrates
that Officer Brown’s actions involved personal deliberation, decision, and
judgment.     We therefore conclude that Officer Brown was performing a
discretionary function at the time of the accident. See Ramos, 35 S.W.3d at 727.

             2.     Good faith

      Collins argues in her second, third, fourth, and fifth issues that the City is not
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entitled to immunity because Officer Brown did not act in good faith. In Collins’s
second, third, and fourth issues, she emphasizes that the Houston Police
Department temporarily suspended Officer Brown because he violated the Houston
Police Department General Orders by speeding without turning on his siren.

      Evidence that Officer Brown operated his police car in violation of the
General Orders may be a factor in determining negligence; however, evidence of
negligence alone is insufficient to controvert competent evidence of good faith.
See City of Dallas v. Brooks, 349 S.W.3d 219, 231 (Tex. App.—Dallas, 2011, no
pet.). Thus, we reject this argument.

      The City cites the affidavits and deposition testimony of expert witnesses
Officer Brown, Sergeant Curtis Hampton, and Officer McCain to support its
assertion that Officer Brown acted in good faith. Collins asserts that this evidence
amounts to no evidence. We construe this as an argument that the City failed to
meet its threshold evidentiary burden to demonstrate that Officer Brown acted in
good faith. Miranda, 133 S.W.3d at 228.

      To determine whether a public official has acted in good faith, we look to
the objective standard adopted in City of Lancaster v. Chambers, 883 S.W.2d 650,
656 (Tex. 1994). The good faith standard is subject to a balancing test that weighs
the need for the officer’s actions versus the risks entailed by such conduct. See
Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997).

      In the context of a police-pursuit case, an officer acts in good faith if “a
reasonably prudent officer, under the same or similar circumstances, could have
believed that the need to immediately apprehend the suspect outweighed a clear
risk of harm to the public in continuing the pursuit.” Chambers, 883 S.W.2d at
656; City of Pasadena v. Belle, 297 S.W.3d 525, 531 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).    The need and risk factors also apply to good faith
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determinations in emergency responses. Univ. of Houston v. Clark, 38 S.W.3d
578, 582 (Tex. 2000). In making this determination, “consideration of subjective
evidence of the good faith element of official immunity is inappropriate.” See
Ballantyne v. Champion Builders, Inc., 144 S.W.3d at 417, 419 (Tex. 2004).

      An expert witness’s conclusory statement that a reasonable officer could or
could not have taken some action will not establish good faith. See Harris Cnty. v.
Smyly, 130 S.W.3d 330, 336 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Instead, expert testimony on good faith must address what a reasonable officer
could have believed under the circumstances and must be substantiated with
reference to each aspect of the Chambers balancing test. See Chambers, 883
S.W.2d at 656–57. An officer is not required to use particular words in assessing
risk, but an officer is required to assess the specific circumstances present that
affect any risks. See Smyly, 130 S.W.3d at 335.

      Officer Brown stated in his affidavit that “[he] received a call for assistance
from another [Houston Police Department] Officer, Officer Forniss. The call
indicated that a suspect had evaded the Officer’s attempted stop and had fled in a
fast-moving vehicle on Highway 59.” Sergeant Hampton stated in his affidavit
that “Officer Brown received an emergency request for assistance from Officer L.
Forniss, another [Houston Police Department] Officer in the Northeast Patrol Unit,
informing other units that a suspect had evaded a traffic stop and was fleeing down
Highway 59.” Officer McCain stated in his affidavit that “[w]e both heard calls for
assistance from another officer, informing us that officer’s attempted stop was
evaded and that the suspect had fled down Interstate 59.”

      The City’s affidavits analyze Officer Brown’s response based on the
assumption that the motorcyclist evaded a traffic stop and fled from police. The
radio transcript excerpts proffered into evidence do not state that the motorcyclist

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evaded arrest or was fleeing from police; they also do not state that an emergency
situation existed. Instead, the radio transcripts reveal that the dispatcher requested
assistance to apprehend a motorcyclist who was driving recklessly.

       To establish good faith under these circumstances, the City was required to
demonstrate that a reasonably prudent officer could conclude that the need to
respond to a speeding motorcyclist driving recklessly outweighed the risk to the
public caused by the officer’s action in exceeding the speed limit while
responding.1 We do not exclude the possibility that the City could do so; however,
on this record, the City did not address such a balance of risks. Instead, the City’s
proffered evidence focuses on a materially different balance of risks involving
whether a reasonably prudent officer could conclude that the need to respond to a
motorcyclist who evaded a traffic stop and fled from police outweighed the risk of
speeding while responding.

       Because it relies on assumptions that are not supported by the record, the
expert opinions proffered by the City do not address whether Officer Brown’s
decision to exceed the speed limit was justified based on the call for assistance he
received under the specific circumstances in which he received it. On this record,
therefore, the City failed to establish that Officer Brown acted in good faith in a
circumstance that did not involve the driver of a motor vehicle fleeing arrest.

       Because the City failed to establish its entitlement to governmental
immunity on this record based on the specific circumstances surrounding Officer
       1
         The City argues that the absence of the words “suspect” and “fleeing arrest” in the radio
transmissions is not conclusive evidence that the motorcyclist was not fleeing arrest. In his
deposition, Officer McClain testified that not all communications between dispatch and patrol
units occur over the radio. He further testified that the police also communicated information
over a computer system. However, Officer Brown stated in his affidavit that “[t]he call indicated
that a suspect had evaded the Officer’s attempted stop and had fled in a fast-moving vehicle on
Highway 59.” He does not assert that the computer system communications related this
information.

                                               11
Brown’s decision to respond as he did, the trial court erred to the extent it granted
the City’s plea to the jurisdiction based on the officer’s official immunity.

       B.    Emergency Exception

       In Collins’s first issue, she argues that “there are genuine issues of material
fact regarding whether Officer Brown was responding to an ‘emergency’ because
there was a ‘pursuit’ in progress by another [Houston Police Department] officer
who was ‘. . . engaged in a high-speed pursuit with a suspect who was fleeing
arrest.’”   In Collins’s fourth issue, she asserts that the Houston Police
Department’s three-day suspension of Officer Brown directly contradicts the City’s
claim that Officer Brown was pursuing a suspect who evaded arrest. We construe
these issues as an argument that the trial court erred by granting the City’s plea to
the jurisdiction because there are disputed fact issues as to whether Officer
Brown’s actions were in compliance with the laws and ordinances applicable to the
situation, and whether Officer Brown was responding to an emergency call.

       To raise a fact issue regarding the emergency exception, Collins had to
present evidence of one of the following circumstances: (1) Officer Brown was not
responding to an emergency call or reacting to an emergency situation; (2) Officer
Brown’s actions were not in compliance with the laws and ordinances applicable to
the emergency action; or (3) Officer Brown’s actions demonstrated that he was
indifferent to the safety of others. Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d
236, 238-39 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Collins does not
assert that Officer Brown was indifferent to the safety of others. Thus, the inquiry
here focuses on whether Collins presented some evidence that Officer Brown was
not responding to an emergency call or reacting to an emergency situation, or that
Officer Brown’s actions were not in compliance with the laws and ordinances
applicable to an emergency action. See id.

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      Collins argues that Officer Brown was not responding to an emergency call
and points to evidence discussed above tending to show that he was not responding
to a call involving flight from an attempted arrest. The City responds by pointing
to Little, 259 S.W.3d at 239.

      In Little, an officer responded to a dispatch call requesting assistance with a
wanted person. Id. at 237. The officer testified without contradiction that law
enforcement officers consider such requests to be an emergency. Id.; see also
Quested v. City of Houston, 14-13-00516-CV, 2014 WL 2615921, at *6 (Tex.
App.—Houston [14th Dist.] June 12, 2014, no. pet. h.) (officer driving his personal
vehicle to respond to a hostage stand-off situation was responding to an emergency
call). Here, the City did not offer evidence that a request for assistance to detain a
speeding motorcyclist is an emergency. Instead, the City presented evidence that
law enforcement considers it to be an emergency when there is a call requesting
assistance in apprehending a motorcyclist who has evaded arrest and is fleeing
from police.

      The City also cites Texas Department of Public Safety v. Sparks, 347 S.W.3d
834 (Tex. App.—Corpus Christi 2011, no pet.), to support the contention that
Officer Brown responded to an emergency call. In Sparks, the plaintiff was injured
while police were chasing another motorist who was speeding and driving
recklessly. Id. at 836. The court concluded that the emergency exception applied
because the officer did not act with conscious indifference or reckless disregard for
the safety of the public. Id. at 843-44.

      Sparks is distinguishable because the plaintiff did not dispute that the officer
was responding to an emergency situation. Id. at 837. Here, Collins presented
evidence tending to show that the call Officer Brown received was not an
emergency. Collins demonstrated that the dispatcher did not designate the call as

                                           13
an emergency. Collins also presented evidence that Officer Brown did not have
his siren on when the accident occurred.2 Further, the evidence that the City
produced to demonstrate that the situation was an emergency did not describe the
situation that occurred. Officer Brown, Officer McCain, and Sergeant Hampton
stated that the situation was an emergency because the motorcyclist evaded arrest
and fled from police. The City failed to present evidence that law enforcement
considers the pursuit of a reckless motorcyclist to be an emergency in
circumstances that do not involve evading arrest and fleeing from police.

       Viewing this evidence in the light most favorable to Collins, she has raised a
fact question as to whether Officer Brown was responding to an emergency call.
Thus, the trial court erred to the extent it granted the City’s plea to the jurisdiction
based on the emergency exception.3

                                           CONCLUSION

       The City failed to establish the applicability of official immunity. A fact
issue exists as to whether Officer Brown was responding to an emergency call.
Therefore, we reverse the trial court’s order granting the plea to the jurisdiction
and remand this case for proceedings consistent with this opinion.


                                     /s/     William J. Boyce
                                             Justice

Panel consists of Justices Boyce, Christopher, and Brown.

       2
          Although Officer Brown, Officer McCain, and Sergeant Clark stated that Officer
Brown’s siren was activated at the time of the accident, Collins and two eye witnesses stated that
his siren was not activated.
       3
         In light of this conclusion, we need not address whether violation of a General Order
demonstrates a failure to comply with applicable laws and ordinances. We also do not address
Collins’s sixth issue.

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