Reversed and Rendered and Memorandum Opinion filed March 5, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00182-CV

                          HARRIS COUNTY, Appellant
                                         V.
   JUANA AVILA, INDIVIDUALLY AND AS NEXT FRIEND OF K.A., A
           MINOR, AND K.A., INDIVIDUALLY, Appellees

                    On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-60506

                          MEMORANDUM OPINION

      In this interlocutory appeal from an order denying a plea to the jurisdiction,
the question is whether a governmental unit conclusively established that it is
protected by governmental immunity. For reasons explained more fully below, we
conclude that it did. We therefore reverse the trial court’s order and render judgment
dismissing the case for want of jurisdiction.
                                 BACKGROUND

      This personal-injury action arises from damages sustained when a sheriff’s
deputy collided with Juana Avila and a related individual (collectively “Avila”),
during the deputy’s high-speed pursuit of a fleeing suspect.

      The pursuit began when the suspect’s vehicle quickly departed a corner store
at the very moment that the deputy arrived there in his marked patrol car. The deputy
decided to follow the vehicle, suspecting that the reason for the departure was related
to the presence of law enforcement.

      The suspect headed towards a tollway, where the suspect crossed two lanes of
traffic without signaling. The deputy activated his emergency lights in an attempt to
conduct a traffic stop, but the suspect refused to stop, and accelerated instead to
speeds exceeding 100 miles per hour. The deputy then activated his siren and
notified his dispatcher of the high-speed pursuit.

      The suspect eventually exited the tollway and proceeded to a major
thoroughfare, where the deputy remained in pursuit. Even though the speed limit on
the thoroughfare was only 45 miles per hour, the deputy traveled as fast as 80 miles
per hour. Other vehicles on the thoroughfare became aware of the chase and pulled
over to the right-hand lane to allow for the deputy’s safe travel. Avila, however,
came to a complete stop in the left-hand lane, where the deputy had been traveling.
Once he realized that he could not maneuver around Avila, the deputy slammed on
his brakes.

      The deputy rear-ended Avila at an unknown speed, but a data recorder on his
patrol car indicated that he had been traveling at 11 miles per hour just 2.5 seconds
before impact. The deputy called EMS to the scene of the collision, but no one was
transported to the hospital.


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      Avila sued Harris County, the deputy’s employer, on a theory of negligence
under the Texas Tort Claims Act. The County responded with a plea to the
jurisdiction, arguing that its immunity from suit had not been waived. More
specifically, the County argued that it could not be vicariously liable for the deputy’s
negligence because the deputy himself was protected by official immunity. In an
alternative ground for relief, the County argued that it was exempted under the Act
because Avila’s claim for damages arose from the deputy’s reaction to an emergency
situation.

      After Avila filed a response, the trial court denied the plea to the jurisdiction.
The County then brought this interlocutory appeal.

                            STANDARD OF REVIEW

      To prevail on its plea to the jurisdiction, the County had the initial burden of
negating the existence of jurisdictional facts and of conclusively establishing that
the trial court lacked subject-matter jurisdiction. See Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If that burden was satisfied, the
burden then shifted to Avila to present evidence sufficient to raise a genuine issue
of material fact regarding the jurisdictional issue. Id. at 227–28. This standard
essentially mirrors that of a traditional motion for summary judgment. Id. at 228.
Consistent with that standard, we review the trial court’s ruling de novo, and we
consider all evidence presented in the light most favorable to Avila, the nonmovant.
Id.

                                     ANALYSIS

      Even though the County asserted two grounds for relief in its plea to the
jurisdiction, we only address the first ground relating to the deputy’s official
immunity because that ground is dispositive. See Tex. R. App. P. 47.1.


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      We begin with a general overview of immunity.

I.    Immunity

      Under the common law doctrine of sovereign immunity, the state is immune
from suit, which means that it cannot be sued without its consent. See City of
Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Governmental units in the
state enjoy the same type of immunity, although their immunity is known as
“governmental immunity.” See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d
371, 374 (Tex. 2006).

      The County is a governmental unit, which means that it cannot be sued absent
a waiver of its governmental immunity. See Harris County v. Annab, 547 S.W.3d
609, 613 (Tex. 2018). One such waiver can be found under the Texas Tort Claims
Act, which provides that a governmental unit is liable for the tort of an employee, if
the tort arises out of the operation of a motor vehicle and “the employee would be
personally liable to the claimant according to Texas law.” See Tex. Civ. Prac. &
Rem. Code § 101.021(1)(B).

      A governmental employee cannot be personally liable, however, if he is
protected under the common law doctrine of official immunity. See DeWitt v. Harris
County, 904 S.W.2d 650, 653 (Tex. 1995). That doctrine is born out of “the necessity
of public officials to act in the public interest with confidence and without the
hesitation that could arise from having their judgment continually questioned by
extended litigation.” See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,
424 (Tex. 2004).

      An employee’s official immunity therefore becomes relevant to the liability
of his employer: a governmental unit “is vicariously liable for the acts of its




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employees only to the extent its employees are not entitled to official immunity.”
See K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex. 1994).

      The County argued in its plea to the jurisdiction that the deputy in this case
was entitled to official immunity. If the County conclusively proved that defense,
then the deputy’s official immunity would negate an essential jurisdictional fact,
thereby depriving the trial court of subject-matter jurisdiction.

      To prove the official immunity defense, the County had the burden of
establishing the following essential elements: (1) the deputy was acting within the
scope of his employment, (2) the deputy was performing a discretionary duty, and
(3) the deputy was acting in good faith. See City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994). Avila concedes that the County met its burden with
respect to the first two elements. Therefore, we only address the third element. See
Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002).

II.   Good Faith

      To establish that an officer acted in good faith in a case involving the pursuit
of a fleeing suspect, the defendant must establish that “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 (rather than terminating) the pursuit.” See Wadewitz v. Montgomery, 951
S.W.2d 464, 466 (Tex. 1997).

      The evidence in support of good faith must adequately address both the need
and the risk aspects of this test. Id. at 467. “Need” refers to the urgency of the
circumstances requiring police intervention, and is determined by factors such as
(1) the seriousness of the crime or accident to which the officer responds;
(2) whether the officer’s immediate presence is necessary to prevent injury or loss


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of life or to apprehend a suspect; and (3) what alternative courses of action, if any,
are available to achieve a comparable result. Id. “Risk” refers to the countervailing
public safety concerns, such as (1) the nature and severity of harm that the officer’s
actions could cause, including injuries to bystanders as well as the possibility that an
accident would prevent the officer from reaching the scene of the emergency; (2) the
likelihood that any harm would occur; and (3) whether any risk of harm would be
clear to a reasonably prudent officer. Id.

       Under these factors, the defendant claiming good faith does not have to prove
that an officer would have acted unreasonably by stopping the pursuit, or that all
reasonably prudent officers would have continued the pursuit. See Chambers, 883
S.W.2d at 657. Rather, the defendant need only prove that a reasonably prudent
officer might have believed, after weighing the needs and risks, that the pursuit
should have been continued. Id. at 656–57 & n.7 (analogizing this standard to an
abuse of discretion standard of review). If the defendant conclusively establishes that
point, then the burden shifts to the plaintiff to show that no reasonable person in the
officer’s position could have thought that the facts were such that they justified the
officer’s actions. Id. at 657.

III.   The County’s Plea

       The County supported its claim of good faith with affidavits from the deputy
and from a chief of police.

       A.    The Deputy’s Affidavit

       The deputy testified that he has been a peace officer for more than seven years.
During the length of his career, he has been involved in more than 200 pursuits, none
of which ever resulted in a collision until the pursuit involved in this case.




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      On the day of the collision, the deputy testified that he had been assigned to
the Community Action Team, which is tasked with patrolling and conducting
surveillance in high-crime areas. The corner store where the pursuit began was
located in one such area.

      The deputy testified that he saw the suspect’s vehicle parked along a guard
rail, in an unmarked parking spot just outside the corner store. When the vehicle
quickly departed, the deputy suspected that the departure was related to his presence,
given the area’s high reputation for crime.

      The deputy testified that he activated his emergency lights on the tollway once
he saw the suspect cross two lanes of traffic without signaling. When the suspect
sped off at more than 100 miles per hour, the deputy activated his siren and notified
his dispatcher, who informed him that the pursuit was a “priority one call.” The
dispatcher also said that a supervisor was en route as a backup, but that the deputy
was “the primary unit in the vehicle pursuit.”

      The deputy continued his pursuit, opining that “the suspect’s hazardous
driving created a danger to the public that required [the deputy’s] intervention and
which clearly outweighed the risks of a vehicle pursuit.” In explaining the risks of
his pursuit, the deputy observed that traffic was light on the tollway. The time was
approximately 7:00 p.m., the lanes were well-lit and dry, and the weather was clear.

      The deputy testified that he remained vigilant of the traffic and weather
conditions as the pursuit progressed. The deputy said that he reduced his speed when
the tollway became congested. He traveled in an unoccupied lane when proceeding
through a toll booth area. And he waited for other motorists to yield before changing
lanes himself.




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         When the suspect exited the tollway and headed towards the major
thoroughfare, the deputy followed course. The deputy testified that he was “very
familiar” with the thoroughfare because he traveled down it often.

         The speed limit on the thoroughfare was 45 miles per hour, but the deputy
traveled at speeds between 15 miles per hour and 80 miles per hour. The deputy
testified that he was aware that speeding increases the chances of causing an
accident, in part because speeding reduces the time available for braking to avoid
another vehicle, but the deputy believed that he could safely speed under the
circumstances. The deputy explained that he was continuously monitoring the
weather conditions, which were the same as on the tollway. The deputy also said
that he was continuously monitoring the traffic conditions, noting that congestion
was moderate to reduced, depending on the location.

         The deputy remarked that his decision to speed was also informed by his belief
that other vehicles were aware of his approach. The deputy noted that visibility was
good, that his emergency lights and siren were engaged, and that at least seven other
vehicles had pulled over to the right-hand lane to allow for his safe travel.

         The deputy testified that he collided with Avila because she “suddenly applied
her brakes and brought her vehicle to a stop in the left lane of traffic,” which is where
he had been driving. “When she failed to move to the right and made her sudden
stop,” the deputy explained that he “had no choice but to continue straight as there
was no median and due to the vehicles on [his] right and oncoming traffic to the
left.”

         At the time of the collision, the deputy had been in pursuit of the fleeing
suspect for approximately two minutes.




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      The deputy testified that he was aware that he could have abandoned his
pursuit or reduced his speed earlier, but he believed that apprehending his suspect
was necessary in this case. The deputy explained that a person who is fleeing in an
automobile is “a serious matter.” The deputy speculated that his suspect may have
committed a serious offense before the pursuit. The deputy was also concerned that
the suspect’s hazardous driving could cause an accident with another vehicle. The
deputy accordingly believed that it was important to contain the suspect and prevent
harm to others.

      Based on the foregoing facts, the deputy opined that his pursuit was justified
and that a reasonably prudent officer in the same or similar circumstances could have
believed that the need to apprehend the fleeing suspect was outweighed by the risks
to the public. This evidence was uncontroverted.

      B.     The Chief’s Affidavit

      The other affidavit in support of the County’s position was from a retired chief
of police, who had over thirty-three years of experience in law enforcement. During
his time on the force, the chief reviewed more than 700 accidents involving police
officers to determine if disciplinary measures were warranted. After reviewing the
record in this case, which included a dash cam video of the deputy’s pursuit, the
chief concluded that the deputy’s actions were justified.

      The chief first testified that the deputy had probable cause to stop the suspect
after the deputy observed a moving violation. The chief then testified that the deputy
had a duty to pursue the suspect when the vehicle sped away, rather than stopped.
The chief explained that the need for the deputy’s pursuit was rooted in the suspect’s
hazardous driving, which presented a danger to others.




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         The chief also opined that the deputy had acted with due regard for innocent
bystanders. The chief noted that the deputy did not replicate the suspect’s hazardous
driving. For example, the suspect cut off other motorists, whereas the deputy yielded,
especially when approaching critical junctures. The chief also noted that the deputy
notified his dispatcher in an effort to garner more manpower, that he activated his
emergency lights and siren, and that he continuously monitored the traffic and
weather conditions. The chief believed that there was no change in circumstances
over the course of the pursuit that would have required the deputy to abandon his
chase.

         Like the deputy, the chief also noted that a reduced speed would have been an
alternative course of action, but the chief believed that the suspect needed to be
stopped as soon as possible, and that speeding was not unsafe under the particular
circumstances of the deputy’s pursuit.

         The chief opined that a reasonably prudent officer under the same or similar
circumstances could have believed that the need to take the deputy’s course of action
outweighed the risks of harm to the public. This opinion was uncontroverted.

         C.    Application of Law to Facts

         Opinion testimony on good faith must address what a reasonable officer
“could have believed” under the circumstances—not what a reasonable officer
“would have done”—and the testimony must be substantiated with facts showing
that the officer involved in the case assessed both the need to apprehend the suspect
and the risk of harm to the public. See Tex. Dep’t of Pub. Safety v. Bonilla, 481
S.W.3d 640, 644 (Tex. 2015) (per curiam) (explaining that evidence of negligence
will not controvert competent evidence of good faith). The testimony here meets that
standard.


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      The County produced evidence showing that the deputy had a need to pursue
his suspect, based on a series of escalating events. There was evidence that the
suspect was in a high-crime area and acting suspiciously. The suspect later crossed
two lanes of traffic without signaling, which had the effect of cutting off other
motorists. The suspect then refused to stop when the deputy activated his emergency
lights, accelerating instead to speeds exceeding 100 miles per hour. The deputy
testified that a suspect fleeing under these circumstances is “a serious matter”
because the suspect may cause an accident with another vehicle.

      The County further showed that the deputy’s immediate presence was
necessary to apprehend the suspect and prevent injury to others because the deputy
was the only official in direct pursuit of the suspect. Even though a supervisor was
en route, the deputy remained “the primary unit in the vehicle pursuit.”

      The County also showed that the deputy had considered alternative courses of
action, such as abandoning his pursuit or reducing his speed. The deputy testified
that a reduced speed would have reduced the chances of a collision, but it would
have also impeded the deputy’s effort to contain the suspect, whose hazardous
driving already presented an immediate danger to others.

      As for the risks, the County showed that the deputy was aware that speeding
increased his chances of causing a collision, but that the deputy believed that
speeding was not unsafe under the circumstances. The deputy was “very familiar”
with the major thoroughfare where the collision occurred. The weather was clear,
the roads were well-lit, and traffic congestion was moderate to light. Also, the deputy
had activated his emergency lights and siren, and other vehicles had pulled over to
allow for the deputy’s safe travel.

      Based on this evidence, we conclude that the County met its burden of
showing that a reasonably prudent officer, under the same or similar circumstances,

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could have believed that the need to apprehend the suspect outweighed the risks of
harm to the public. See City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex.
2007) (per curiam) (the evidence established good faith as a matter of law where
there was expert testimony that the officer had evaluated both the needs and risks).

IV.   Avila’s Response

      Having concluded that the County satisfied its initial burden of showing that
the deputy acted in good faith, we must now determine whether Avila raised a
genuine issue of material fact in her response. To controvert the County’s evidence
of good faith, Avila was required to show more than just that a reasonably prudent
officer could have decided to stop the pursuit. See Chambers, 883 S.W.2d at 657.
Her burden was much more demanding: she had to show that no reasonable officer
in the deputy’s position could have thought that the facts justified the deputy’s
actions. Id.

      Avila only attached two exhibits to her response. The first exhibit was an
unredacted copy of the crash report, which had also been attached to the County’s
plea to the jurisdiction (except that the County’s copy was in redacted form). The
second exhibit was a copy of Avila’s original petition. Neither one of these exhibits
contains any opinion testimony that controverts the County’s evidence of good faith.

      In the absence of any controverting evidence of her own, Avila suggests on
appeal that the County’s evidence was legally insufficient to establish good faith.
Avila begins by pointing out that the deputy speculated in his affidavit as to the
reason why his suspect left the parking lot of the corner store. Because the deputy
did not actually know the reason why the suspect departed, Avila suggests that there
was no need for the deputy’s pursuit. This argument fails because the deputy
personally observed other violations, from the suspect’s illegal lane change to the


                                         12
suspect’s evading detention, which did justify a pursuit. Indeed, the chief testified
that, under those facts, the deputy had a duty to pursue his suspect.

      Avila acknowledges these other facts, but she argues that committing a traffic
violation in the presence of an officer is not serious or urgent enough to warrant a
high-speed pursuit. This argument is also meritless. When the deputy witnessed the
illegal lane change, he attempted to initiate a routine traffic stop, but the suspect
evaded detention, which is a felony when committed in a vehicle. See Tex. Penal
Code § 38.04(b). More importantly, the evidence showed that the suspect had
accelerated to speeds exceeding 100 miles per hour, which presented a clear danger
to the public that was serious and urgent enough to justify a pursuit. See Univ. of
Houston v. Clark, 38 S.W.3d 578, 586 (Tex. 2000) (the evidence established good
faith as a matter of law where the officer pursued a suspect who was fleeing at an
estimated 80 to 90 miles per hour).

      Avila also suggests that there was no need for a pursuit once the deputy was
told by his dispatcher that backup was on the way. Avila cites to no authority for this
proposition, which would be contrary to binding precedent, as the evidence showed
that the deputy was the only officer in visible pursuit of the suspect. See Wadewitz,
951 S.W.2d at 467 (considering whether the officer’s presence is necessary to
apprehend the suspect). And as the chief plainly testified, there was no change in
circumstances that would have required the deputy to abandon the chase.

      Avila argues next that the deputy could not have had a need for his pursuit
because he had no information regarding the identity of his suspect. Once again, this
argument fails. See Clark, 38 S.W.3d at 585 (the evidence established good faith as
a matter of law despite the fact that “the suspect had not been identified before he
fled”). The deputy did not need to obtain the identity of his suspect to know that the
suspect already posed a danger to others, given the suspect’s hazardous driving.

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        Avila finally argues that the trial court’s ruling should be upheld because the
circumstances of the deputy’s pursuit are similar to those in Loftin v. Morales, 187
S.W.3d 533 (Tex. App.—Tyler 2005, no pet.), which held that an officer’s good faith
had not been established as a matter of law. But Loftin is distinguishable on the facts.
The officer there made statements in his deposition that were contrary to his own
position, id. at 541, whereas the deputy here was never contradicted or inconsistent.
Also, the court of appeals in Loftin concluded that the officer had failed to prove
good faith because there was no evidence that the officer had considered any
alternatives to pursuit, or that he had reassessed the need for his pursuit as the pursuit
progressed over twenty-seven minutes and through different neighborhoods. Id. at
542. Here, by contrast, there was evidence on both subjects. The deputy testified that
he had considered his alternatives, and that he had continuously monitored the
weather and traffic conditions as his much shorter pursuit changed course from the
tollway to the thoroughfare. Accordingly, Loftin does not control the outcome of this
case.

                                   CONCLUSION

        We conclude that the County satisfied its burden of showing that the deputy
was entitled to official immunity, and that Avila failed to present any controverting
proof. Because the deputy’s official immunity negates an essential jurisdictional
fact, we further conclude that the trial court erred by denying the County’s plea to
the jurisdiction. We therefore reverse the trial court’s order and render judgment
dismissing Avila’s suit for want of jurisdiction.



                                         /s/    Tracy Christopher
                                                Justice

Panel consists of Justices Christopher, Jewell, and Hassan.

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