                                                                                                ACCEPTED
                                                                                            03-15-00300-CV
                                                                                                    5939141
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       7/6/2015 11:44:58 AM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                  No. 03-15-00300-CV

                                                                      FILED IN
                       IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
                                                   7/6/2015 11:44:58 AM
                             AUSTIN, TEXAS
                                                                  JEFFREY D. KYLE
                                                                       Clerk

                     TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                                      APPELLANT,
                                    V.

                                   ANISTY MIRASOL,
                                                              APPELLEE.


                             No. D-1-GN-14-001479
                              201ST Judicial District
         Appealing the Interlocutory Order from the 345th Judicial District
                               Travis County, Texas



                                  APPELLANT’S BRIEF



KEN PAXTON                                   ELSA GIRÓN NAVA
Attorney General of Texas                    Assistant Attorney General
                                             SBN: 14826900
CHARLES E. ROY
First Assistant Attorney General             OFFICE OF THE ATTORNEY GENERAL
                                             Tort Litigation Division
JAMES E. DAVIS                               P.O. Box 12548, MC-030
Deputy Attorney General for                  Austin, Texas 78711-2548
Civil Litigation                             (512) 463-2197 receptionist
                                             (512) 457-4459 direct fax
KARA L. KENNEDY                              Elsa.Nava@texasattorneygeneral.gov
Chief, Tort Litigation Division
                                             COUNSEL FOR APPELLANT DPS


                    APPELLANT REQUESTS ORAL ARGUMENT
                     APPELLANT REQUESTS ORAL ARGUMENT

    Pursuant to TEXAS RULES       OF   APPELLATE PROCEDURE 38.1(e) and 39.7,

Appellant requests oral argument. Oral argument would significantly aid the court

in deciding this case and give the court a more complete understanding of the facts

presented in this appeal.




                                         ii
                         IDENTITY OF PARTIES AND COUNSEL

    Appellant certifies that the following is a complete list of the judge and all

parties and counsel to the trial court’s order appealed from.

Trial judge:                             Honorable Stephen Yelenosky
                                         345th Judicial District
                                         Travis County Courthouse
                                         1000 Guadalupe St, 5th Fl.
                                         Austin, TX 78701
                                         (512) 854-9374

Appellant/Defendant:                     Texas Department of Public Safety

Counsel for Appellant/Defendant:         Elsa Girón Nava
                                         State Bar No. 14826900
                                         Assistant Attorney General
                                         Tort Litigation Division, MC-030
                                         P. O. Box 12548, Capitol Station
                                         Austin, Texas 78711-2548
                                         (512) 463-2197
                                         (512) 475-4459 direct fax
                                         Elsa.Nava@texasattorneygeneral.gov

Appellee/Plaintiff:                      Anisty Mirasol

Counsel for Appellee/Plaintiff:          Paul Batrice
                                         State Bar No. 24048344
                                         Batrice Law Firm
                                         1114 Lost Creek Blvd, Suite 440
                                         Austin, TX 78746
                                         (512) 600-1000
                                         (512) 600-0217, fax
                                         Paul@batricelawfirm.com




                                          iii
                                           TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT .................................................................... ii

IDENTITY OF PARTIES AND COUNSEL .......................................................... iii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES.....................................................................................vi

STATEMENT OF THE CASE ..................................................................................x

ISSUE PRESENTED ................................................................................................xi

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENTS ...................................................................... 5

ARGUMENTS AND AUTHORITIES ..................................................................... 7

ISSUE ONE: The trial court erred in denying DPS’s Plea to the Jurisdiction and
Motion for Summary Judgment based on the official immunity of the DPS Trooper
that resulted in DPS maintaining its sovereign immunity ......................................... 7

A.      STANDARD OF REVIEW ............................................................................. 7

B.      SOVEREIGN IMMUNITY AND TEXAS TORT CLAIMS ACT ................ 9

C.      OFFICIAL IMMUNITY ...............................................................................12

        1. Discretionary Act ......................................................................................12

        2. Scope of Employment ..............................................................................13

        3. Good Faith ................................................................................................14

D.      LACK OF EMERGENCY SIRENS DID NOT DEFEAT OFFICIAL
        IMMUNITY ..................................................................................................18

E.      ALTERNATIVES WERE CONSIDERED ................................................. 22
                                                          iv
F.       BURDEN SHIFTED TO MARISOL TO CONTROVERT OFFICIAL
         IMMUNITY AND SHE DID NOT SUCEED ..............................................23

CONCLUSION .......................................................................................................25

CERTIFICATE OF COMPLIANCE .......................................................................26

CERTIFICATE OF SERVICE ................................................................................27

APPENDIX ..............................................................................................................28

Tab 1: Order on Defendant’s Plea to the Jurisdiction and Alternatively, Motion
       for Summary Judgment, CR 117; and,

Tab 2: Tex. Civ. Prac. & Rem. Code § 101.021 (West 2005).




                                                           v
                                      INDEX OF AUTHORITIES
Cases

Bland I.S.D. v. Blue,
      34 S.W.3d 547 (Tex. 2000) .............................................................................8

Brown & Gay Engineering v. Olivares,
     No. 13-0605, 2015 WL 1897646 (Tex. April 24, 2015) ...........................7, 11

Carpenter v. Barner,
     797 S.W.2d 99 (Tex. App.—Waco 1990, writ denied) .................................13

Chapa v. Aguilar,
     962 S.W.2d 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.)......20, 21, 22

City of Amarillo v. Martin,
       971 S.W.2d 426 (Tex. 1998) .........................................................................15

City of Lancaster v. Chambers,
       883 S.W.2d 650 (Tex. 1994) .......................... 5, 11, 12, 13, 14, 15, 16, 17, 24

City of Richmond v. Rodriguez,
       No. 01-08-00471-CV, 2009 WL 884810
       (Tex. App.—Houston [1st Dist.] April 2, 2009 no pet. h.) ......................19, 20

City of San Antonio v. Trevino,
       217 S.W.3d 591(Tex. App.—San Antonio 2006 no pet.) .............................23

City of San Antonio v. Ytuarte,
       229 S.W.3d 318 (Tex. 2007) .................................................12, 15, 17, 18, 24

Dallas Area Rapid Transit v. Whitley,
      104 S.W.3d 540 (Tex. 2003) .......................................................................8, 9

Dallas County Mental Health & Mental Retardation v. Bossley,
      968 S.W.2d 339 (Tex. 1998) ........................................................................... 9

DeWitt v. Harris County, Texas,
     904 S.W.2d 650 (Tex. 1995) .........................................................................11


                                                      vi
Edgar v. Plummer,
     845 S.W.2d 452 (Tex. App.—Texarkana 1993, no writ) ..............................13

Harris County v. Ochoa,
      881 S.W.2d 884 (Tex. App.—Houston [14th Dist.] 1994, writ denied) ........ 13

Harris County v. Sykes,
      136 S.W.3d 635 (Tex. 2004) ...........................................................................7

Kassen v. Hatley,
     887 S.W.2d 4 (Tx. 1994) .........................................................................11, 12

Malley v. Briggs,
      475 U.S. 335 (1986).......................................................................................24

Mayhew v. Town of Sunnyvale,
     964 S.W.2d 922 (Tex.1998) ....................................................................... 7, 8

Rivas v. City of Houston,
      17 S.W.3d 23 (Tex. App. Houston [14th Dist.] 2000, pet. denied) ................ 19

Ryder v. Fayette County,
      453 S.W.3d 922 (Tex. 2015) .......................................................................8, 9

Suarez v. City of Texas City,
      No. 13-0947, 2015 WL 3802865 (Tex. June 18, 2015) ................................10

Telhorster v. Tennell,
      92 S.W.3d 457 (Tex. 2001) .....................................................................12, 17

Tex. Ass’n. of Business v. Tex. Air Control Bd,
      852 S.W.2d 440 (Tex. 1993) ...........................................................................7

Tex. Dep’t of Crim. Justice v. Miller,
      51 S.W.3d 583 (Tex. 2001) ...........................................................................10

Tex. Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) .....................................................................8, 11



                                                       vii
Tex. Dep’t of Transp. v. Jones,
      8 S.W.3d 636 (Tex. 1999) .....................................................................7, 9, 10

Tex. Natural Res. Conservation Common v. IT-Davy,
      74 S.W.3d 849 (Tex. 2002) .............................................................................7

Tex. Natural Res. Conservation Comm’n v. White,
      46 W.W.3d 864 (Tex. 2001) ............................................................................8

Travis Cent. Appraisal Dist. v. Norman,
      342 S.W.3d 54 (Tex. 2011) ............................................................................. 7

Univ. of Houston v. Barth,
      403 S.W.3d 851 (Tex. 2013) ........................................................................... 7

University of Houston v. Clark,
     38 S.W.3d 578 (Tex. 2000) ...............................................................11, 20, 22

Wadewitz v. Montgomery,
    951 S.W.2d 464 (Tex. 1997) ...................................................6, 12, 14, 20, 22


Statutes

TEX. ADMIN. CODE § 217.27(b) ..................................................................................2

TEX. CIV. PRAC. & REM. CODE CHAPTER 101 ............................................................ 9

TEX. CIV. PRAC. & REM. CODE § 101.001(3)(a) ......................................................... 9

TEX. CIV. PRAC. & REM. CODE § 101.001(5) ...........................................................14

TEX. CIV. PRAC. & REM. CODE §101.021 (West 2005) ............................................10

TEX. CIV. PRAC. & REM. CODE §101.021(1) (West 2005) .......................................11

TEX. CIV. PRAC. & REM. CODE §101.021(1)(B) .......................................................11

TEX. CIV. PRAC. & REM. CODE § 101.025(a) (West 2011)...................................9, 10


                                                      viii
TEX. GOV’T CODE § 411.002(a) (West 2009) ............................................................ 9

TEX. REV. CIV. STAT. ANN. ART. 6701d, §24(e)(Vernon 1977) ........................15, 16

TEX. TRANSP. CODE §504.943 (WEST 2015) .............................................................. 2

TEX. TRANSP. CODE § 546.005 (West 2011)......................................................15, 16




Rules

TEX. R. APP. P. 9.4(i) (1) ..........................................................................................26

TEX. R. APP. P. 9.4(i) (2) (B) ....................................................................................26

TEX. R. APP. P. 9.4(i) (3) (B) ....................................................................................26

TEX. R. APP. P.38.1(e) ............................................................................................... ii

TEX. R. APP. P. 39.7................................................................................................... ii




                                                            ix
                               STATEMENT OF THE CASE

       Nature of the case. This case pertains to an automobile accident during a

traffic stop conducted by a Texas Department of Public Safety Trooper as limited by

the Texas Tort Claims Act. CR 3, 32.1 The Texas Department of Public Safety

(“DPS”) asserts that its Trooper’s official immunity cloaked DPS with sovereign

immunity. CR 21-65.

       Course of proceedings. On April 30, 2015, a hearing was held before Judge

Stephen Yelenosky, sitting in the 345th Judicial Court, in Travis County, Texas,

regarding other motions in this case. CR 75-106, 108.2 Judge Yelenosky ordered

that he would rule on DPS’s Plea to the Jurisdiction and Alternatively Motion for

Summary Judgment by submission. CR 108. On May 14, 2015, Judge Yelenosky

signed the order denying DPS’s dispositive motions. CR 117.

       Trial court disposition. On May 14, 2015, Judge Yelenosky signed the order

denying DPS’s Plea to the Jurisdiction and Alternatively Motion for Summary

Judgment. CR 117. On May 15, 2015, DPS filed its notice of appeal. CR 118.




1
 The Clerk’s Record consists of two volumes and will be referred to as “CR.” There is no
Reporter’s Record.
2
  Travis County has a central docketing system. Judge Yelenosky was presiding in the courtroom
for walk-in Motions for Continuances and ruled on Ms. Marisol’s Motions for Continuances. CR
108.
                                              x
                               ISSUE PRESENTED



ISSUE ONE: The trial court erred in denying DPS’s Plea to the Jurisdiction and

Motion for Summary Judgment based on the official immunity of the DPS Trooper

that resulted in DPS maintaining its sovereign immunity.




                                        xi
                               No. 03-15-00300-CV


                       IN THE COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT
                             AUSTIN, TEXAS


                     TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                                      APPELLANT,
                                    V.

                                 ANISTY MIRASOL,
                                                               APPELLEE.


                             No. D-1-GN-14-001479
                              201ST Judicial District
         Appealing the Interlocutory Order from the 345th Judicial District
                               Travis County, Texas


                               APPELLANT’S BRIEF



TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

        NOW COMES Appellant Texas Department of Public Safety and

respectfully submits its Appellant’s brief. DPS appeals the order denying its Plea to

the Jurisdiction and Motion for Summary Judgment. CR 117.

      For clarity, Appellant Texas Department of Public Safety will be referred to

as “DPS” and Appellee Anisty Mirasol will be referred to as “Ms. Mirasol”.
                                  STATEMENT OF FACTS

         On May 24, 2012, DPS Trooper Thomas V. Goodson was on routine patrol,

in the course and scope of his employment with DPS. CR 32-34, 40-42, 44-46 (dash

cam video).3 He was initially traveling westbound on 11th Street, in Austin, Texas,

driving a marked DPS vehicle. CR 34, 38, 40-42, 44-46. He spotted a pickup truck

without a front license plate4 traveling eastbound on 11th Street. CR 32-34, 38, 40-

42, 44-46. He made the discretionary decision to make the traffic stop and safely

turned his patrol vehicle from westbound to eastbound in order to conduct the traffic

stop of the pickup truck. CR 32-34, 38, 40-42, 44-46.

         He activated his red and blue emergency lights located on top of his DPS

vehicle. CR 32-36, 38, 40-42, 44-46. The Trooper traveled a few blocks with his

emergency lights activated behind the pickup truck. CR 38, 40-42, 44-46. A witness

statement confirms that the Trooper had his emergency lights flashing:

         Officer going east on E. 11th trying to get a 1967 Ford pick-up to pull
         over. Ford pick-up turn (sic) left in an alley. Officer followed with
         lights flashing & hit by a white car travelling west on E. 11th. He was
         following the Fort pick-up for a (sic) least 3 blocks. All of his lights
         were flashing. I was next to him for 2 of those blocks.

CR 35.

3
  The dash cam video can be viewed on Windows Media player. The video of this traffic stop starts
at 07:35 on the DVD. The “subtitles” should be activated on the DVD player to see the onscreen
lettering.
4
    See Tex. Transportation Code §504.943 (West 2015) and Tex. Admin. Code §217.27(b).

                                               2
      The dash cam video depicts the Trooper’s view of the rear of the pickup truck

and the “L” will appear on the screen indicating that the emergency lights were

activated. CR 40-42, 44-46.

      The Trooper considered alternatives to the traffic stop. He thought of not

making the stop at all, but there was little to moderate traffic and believed he could

stop the pickup truck safely. CR 41. He was able to read the license plate and read it

to dispatch to identify the truck as well as to let dispatch know he was making the

traffic stop. CR 41. He could not read the license plate number before that because

the front one was missing and he had to get close enough to read the rear plate

number. CR 41.

      Finally, the pickup truck slowed and turned on its left turn signal. CR 38, 40-

42, 44-46. The pickup truck made the left turn into a parking lot and the Trooper

slowly followed, slowly making the left turn. CR 38, 40-42, 44-46. He believed the

way was clear when he made the left turn. CR 41. Then he realized that Ms.

Mirasol’s car was going too fast and she collided with his vehicle. CR 38, 41, 44-

46. Before the Trooper could complete the left turn, Ms. Marisol’s vehicle collided

with the Trooper’s vehicle. CR 32-36, 40-42, 44-46.

      The dash cam video indicates that Ms. Marisol did not slow, did not brake,

did not take an evasive maneuver and appears to be traveling faster than the posted



                                          3
30 m.p.h zone. CR 44-46. Subsequently, Ms. Mirasol filed a lawsuit against DPS

alleging that she was injured as a result of this minor accident. CR 48-52.




                                          4
                         SUMMARY OF THE ARGUMENTS


ISSUE ONE: The trial court erred in denying DPS’s Plea to the Jurisdiction and

Motion for Summary Judgment based on the official immunity of the DPS Trooper

that resulted in DPS maintaining its sovereign immunity.

      DPS met its burden to prove that its Trooper was entitled to official immunity

for (1) the performance of discretionary duties (2) while acting in the course and

scope of his employment and (3) acting in “good faith.” City of Lancaster v.

Chambers, 883 S.W. 2d 650, 656 (Tex. 1994). It was uncontroverted that the

Trooper was performing discretionary duties (conducting a traffic stop), while in the

course and scope of his employment. CR 41, 50.

      The DPS Trooper was acting in good faith by proving 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 the manner that he conducted the traffic stop. City of Lancaster v.

Chambers, 883 S.W. 2d 650, 656 (Tex. 1994). From his perspective, he believed the

way was clear to make the left turn when he followed the pickup truck into the

parking lot. CR 41. By the time the DPS trooper realized that Ms. Marisol’s car was

indeed traveling too fast, the collision occurred. CR 41.




                                          5
      Even if Ms. Marisol asserted that the Trooper was negligent in the manner he

conducted the traffic stop, the Supreme Court has held that findings of negligence

or violations of law do not bar an individual from invoking the protection of the

doctrine of “official immunity.” Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1

(Tex. 1997). Therefore, even if Trooper Goodson’s conduct was negligent, he is

entitled to official immunity and DPS is entitled to maintain its sovereign immunity.

Id.




                                         6
                             ARGUMENTS AND AUTHORITIES

ISSUE ONE: The trial court erred in denying DPS’s Plea to the Jurisdiction and

Motion for Summary Judgment based on the official immunity of the DPS Trooper

that resulted in DPS maintaining its sovereign immunity.

       A. STANDARD OF REVIEW

       A plea to the jurisdiction contests the authority of a court to determine the

subject matter of the case. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). The standard of review of a trial court’s ruling on a plea to the jurisdiction

based on sovereign immunity 5 is de novo. Tex. Natural Res. Conservation Common

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998).

       Subject matter jurisdiction cannot be presumed and cannot be waived. Univ.

of Houston v. Barth, 403 S.W.3d 851, 854 (Tex. 2013) citing Tex. Ass’n. of Business

v. Tex. Air Control Bd, 852 S.W.2d 440, 443-44 (Tex. 1993). Where a governmental

entity challenges jurisdiction on the basis of immunity, “the plaintiff must

affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of




5
 Although the terms are often used interchangeably, “sovereign immunity” applies to the State
and its agencies and “governmental immunity” applies to political subdivisions. Brown & Gay
Engineering v. Olivares, No. 13-0605, 2015 WL 1897646, at *3 (Tex. April 24, 2015) citing Travis
Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011); see also Harris County v.
Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

                                               7
immunity. Ryder v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) citing Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if

the plaintiff has met that burden, the court must “consider the facts alleged by the

plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence

submitted by the parties.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,

542 (Tex. 2003) citing Tex. Natural Res. Conservation Comm’n v. White, 46

W.W.3d 864, 868 (Tex. 2001). A court deciding a plea to the jurisdiction is not

required to look solely to the pleadings but may consider evidence and must do so

when necessary to resolve the jurisdictional issues raised. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) citing Bland I.S.D. v. Blue,

34 S.W.3d 547, 555 (Tex. 2000).

      The standard of review for a plea to the jurisdiction based on evidence

generally mirrors that of a motion for summary judgment. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). After the state asserts and

supports with evidence that the trial court lacks subject matter jurisdiction, we

simply require the plaintiffs, when the facts underlying the merits and subject matter

jurisdiction are intertwined, to show that there is a disputed material fact regarding

the jurisdictional issue. Miranda, 133 S.W.3d at 228.

      Whether a trial court has subject matter jurisdiction is a question of law.

Mayhew, 964 S.W.2d at 928. Sovereign immunity from suit defeats a trial court’s

                                          8
subject matter jurisdiction. Tex. Dep’t. of Transportation v. Jones, 8 S.W.3d 636,

639 (Tex. 1999); Dallas County Mental Health & Mental Retardation v. Bossley,

968 S.W.2d 339, 341 (Tex. 1998).

      B. SOVEREIGN IMMUNITY AND THE TEXAS TORT CLAIMS ACT

      A governmental unit is immune from suit and liability unless the immunity

from suit has been waived and the State consents. Ryder v. Fayette County, 453

S.W.3d 922, 927 (Tex. 2015) citing Dallas Area Rapid Transit v. Whitley, 104

S.W.3d 540, 542 (Tex. 2003); TEX. CIV. PRAC. & REM. CODE §101.025(a) (West

2011).

      DPS is a governmental unit pursuant to TEX. GOV. CODE §411.002(a) (West

2009) and TEX. CIV. PRAC. & REM. CODE § 101.001(3)(a). DPS challenged the

court’s subject matter jurisdiction in its Plea to the Jurisdiction and Alternatively, its

Motion for Summary Judgment based on its employee’s official immunity. CR 21-

65. DPS asserted that the evidence proves as a matter of law that there is no waiver

of DPS’s sovereign immunity under the Texas Tort Claims Act.

      The Texas Legislature waived sovereign immunity “only to a limited degree”

when it enacted the Texas Tort Claims Act (TTCA). TEX. CIV. PRAC. & REM. CODE

CHAPTER 101, et seq; Bossley, 968 S.W.2d at 343; see Ryder v. Fayette County, 453

S.W.3d 922, 927 (Tex. 2015). A plaintiff must allege a waiver of sovereign

immunity as provided in the TTCA. The TTCA provides:

                                            9
      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 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;

      (2)    personal injury and death so caused by a condition or use of
             tangible personal or real property if the governmental unit would,
             were it a private person, be liable to the claimant according to
             Texas law.

TEX. CIV. PRAC. & REM. CODE §101.021 (West 2005) (emphasis added). Although

this provision speaks in terms of a waiver of immunity from liability, the TTCA

also waives immunity from suit to the same extent. Tex. Dep’t of Crim. Justice v.

Miller, 51 S.W.3d 583, 587 (Tex. 2001). Immunity from liability is an affirmative

defense, while immunity from suit deprives a court of subject matter jurisdiction.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The TTCA creates

a unique statutory scheme in which the two immunities are co-extensive:

“Sovereign immunity to suit is waived and abolished to the extent of liability

created by this chapter.” TEX. CIV. PRAC. & REM. CODE § 101.025(a) (West 2011);

Miller, Id. The immunity waiver is therefore, intertwined with the merits of a claim

under the TTCA. Suarez v. City of Texas City, No. 13-0947, 2015 WL 3802865, at



                                         10
*5 (Tex. June 18, 2015). A plea to the jurisdiction is appropriate in this case

because DPS is immune from suit based on its employee’s official immunity.

      In this case, there is use of a motor vehicle which falls under the waiver of

immunity in the TTCA but only if the “employee would be personally liable to the

claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE §101.021(1)(B).

Therefore, if the DPS employee is not liable because of official immunity, then

DPS maintains its immunity from suit. TEX. CIV. PRAC. & REM. CODE §101.021(1)

(West 2005); DeWitt v. Harris County, Texas, 904 S.W.2d 650, 653 (Tex. 1995)

(holding that if the employee is protected from liability by official immunity, the

government retains its governmental immunity).

      Official immunity is an affirmative defense and each element of the defense

must be pled and proven by the party asserting it. University of Houston v. Clark,

38 S.W.3d 578, 580 (Tex. 2000) citing Kassen v. Hatley, 887 S.W.2d 4, 8-9 (Tx.

1994) and Brown & Gay Engineering v. Olivares, No. 13-0605, 2015 WL

1897646, at *8 (Tex. April 24, 2015) citing City of Lancaster v. Chambers, 883

S.W.2d 650, 653 (Tex. 1994).

      When as here, the governmental unit challenges the existence of

jurisdictional facts, the court must consider the relevant evidence submitted by the

parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.

2004).

                                         11
      C. OFFICIAL IMMUNITY

      Official immunity is an affirmative defense that shields governmental

employees from personal liability so that they are encouraged to vigorously perform

their duties. Telhorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2001)(official

immunity applied in an arrest case) citing Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.

1994). A governmental employee is entitled to official immunity for (1) the

performance of discretionary duties (2) while acting in the course and scope of their

employment and (3) acting in “good faith.” Telhorster, Id.; University of Houston v.

Clark, 38 S.W.3d 578, 581 (Tex. 2000) citing City of Lancaster v. Chambers, 883

S.W.2d 650, 656 (Tex. 1994) (seminal case establishing the official immunity

standard in a pursuit); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.

1997)(official immunity in an emergency response call); and City of San Antonio v.

Ytuarte, 229 S.W.3d 318, 319 (Tex. 2007) (official immunity in a pursuit case).

      1. Discretionary Act

      The first prong of official immunity involves performing a discretionary act.

Chambers, 883 S.W.2d at 655. A discretionary act is an act that requires personal

deliberation, decision and judgment. Id. In determining whether conduct is

discretionary, we focus on whether the public official was performing a discretionary

function, not on whether he had discretion to do an allegedly wrongful act while

discharging that function. See Chambers, 883 S.W.2d at 653-54.

                                         12
       In some situations, such as high-speed chases, investigations and traffic stops,

an officer’s operation of a vehicle involves personal deliberation or the exercise of

professional expertise, decision, or judgment. Chambers, 883 S.W.2d at 654-55,

citing Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex. App.—Waco 1990, writ

denied)(county constable was protected by immunity when he stopped a vehicle

whose taillights were not operating) and Edgar v. Plummer, 845 S.W.2d 452, 454

(Tex. App.—Texarkana 1993, no writ)(enforcement of traffic regulations by peace

officers involves the exercise of discretion).

       As a matter of law, an officer’s decision to initiate a traffic stop or pursuit is

a discretionary function. Chambers, 883 S.W.2d at 654-55; see also Harris County

v. Ochoa, 881 S.W.2d 884, 887 (Tex. App.—Houston [14th Dist.] 1994, writ

denied)(initiating a pursuit after observing a traffic violation is discretionary).

       It is uncontroverted that Trooper Goodson was performing discretionary acts

when he decided to conduct a traffic stop of the pickup truck with the missing front

license plate, and when he activated his emergency lights in order to pull over the

pickup truck. CR 38, 40-42, 44-46. Therefore, the first prong of official immunity is

met.

       2. Scope of Employment

       The second prong of official immunity is that the officer be in the scope of his

employment. Id. This means “the performance for a governmental unit of the duties

                                           13
of an employee’s office or employment and includes being in or about the

performance of a task lawfully assigned to an employee by a competent authority.”

TEX. CIV. PRAC. & REM. CODE § 101.001(5); Chambers, 883 S.W. at 658 (officers

were acting within the scope of their authority—each officer was on duty, in a squad

car, pursuing a suspect).

      Trooper Goodson took a law enforcement action which was to initiate the

traffic stop, was driving a marked DPS vehicle while he was on patrol in the course

and scope of his employment with DPS. CR 38-42, 44-46. Ms. Marisol admits in her

original petition that the Trooper was a DPS employee at the time of the accident.

CR 50. Therefore, the second prong of official immunity is met.

      3. “Good Faith”

      The third prong of official immunity is acting in “good faith.” The Texas

Supreme Court adopted a test for measuring this third element in the seminal case,

City of Lancaster v. Chambers, 883 S.W. 2d 650 (Tex. 1994), as follows:

      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.

City of Lancaster v. Chambers, 883 S.W. 2d 650, 656 (Tex. 1994) (emphasis added).

The Texas courts have held that findings of negligence or violations of law do not

bar an individual from invoking the protection of the doctrine of “official immunity.”

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1 (Tex. 1997). Therefore, even if

                                         14
an officer’s conduct was negligent, the officer is cloaked with immunity pursuant to

the good faith doctrine and is not liable for any alleged damages. Id.

       If the officer meets his burden of proving he acted in good faith, then the

burden shifts, and the nonmovant must present evidence that “no reasonable person

in the officer’s position could have could have assessed the need and risks as the

police officers did in this case.” City of Lancaster v. Chambers, 883 S.W.2d at 658.

       Moreover, for a plaintiff to defeat official immunity he must do more than

argue that different officers have different opinions on what they would have done.

The relevant test is “not whether the officers assessed the needs and risks differently,

but whether no reasonable prudent officer could have assessed the need and risks

as the police officers did in this case.” City of San Antonio v. Ytuarte, 229 S.W.3d

318, 321 (Tex. 2007)(emphasis added).

       Furthermore, this Court explained in Chambers that the statutory duty

imposed on drivers of emergency vehicles is the duty to exercise appropriate regard

for the safety of others (previously called “due regard”). Chambers, 883 S.W.2d at

656. This statutory duty is located in TEX. TRANSP. CODE § 546.0056 (West 2011),

“Duty of Care,” that provides:



6
  Tex. Rev. Civ. Stat. Ann. Art. 6701d, § 24(e) (Vernon’s 1977) was recodified in 1995 into TEX.
TRANSPORTATION CODE §546.005 (West 2011) and the Legislature replaced the phrase “with due
regard” to “appropriate regard.” See City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998).
“The Legislature’s substitution of “appropriate regard” for “due regard” lends credence to our view
                                                15
       This chapter does not relieve the operator of an authorized emergency
       vehicle from:

       (1) the duty to operate the vehicle with appropriate regard for the safety
            of all persons; or

       (2) the consequences of reckless disregard for the safety of others.

TEX. TRANSP. CODE § 546.005 (West 2011) (emphasis added).

       The “appropriate regard” provision is the ordinary negligence standard that

does not apply to liability in the context of official immunity as this Court explained:

       Despite similarity between this standard and a general negligence test,
       no equivalence should be implied. While art. 6701d provides the test
       for whether an emergency vehicle operator is guilty of ordinary or gross
       negligence, it does not determine whether immunity should be
       extended. See Tex. Rev. Civ. Stat. Ann. Art. 6701d, §24(e) (Vernon
       1977) (stating that the article’s provisions as to duty do not relate to
       consequences of breach of such duty: “nor shall such provisions protect
       the driver from the consequences of his reckless disregard for the safety
       of others”). That art. 6701d may be read to inferentially rebut the
       defense of official immunity for operators of emergency vehicles in
       some instances, by collapsing the duty and good faith inquiries, is a
       consequence of the legislature’s framing of the statutory duty. But in
       the absence of an expression of clear legislative intent to abolish official
       immunity altogether in this context, we hold that a violation of art.
       6701d does not preclude application of the official immunity doctrine
       to negligent emergency vehicle operators.

City of Lancaster v. Chambers, 883 S.W.2d 650, 656 n.5 (Tex. 1994) (emphasis in

original). This statute supports official immunity even if the officer was negligent.


that the Legislature intended for emergency vehicle operators in emergency situations to be
cognizant of public safety, but only intended to impose liability for reckless conduct.” Id.


                                            16
      In Chambers, this Court said that courts should focus on what the defendant

“could have believed,” that is, on the reasonableness of the officer’s perception

under the circumstances surrounding the incident, not on the facts as they appear

through the clarity of hindsight. Telthorster, 92 S.W.3d at 464, citing Chambers, 883

S.W.2d at 656. A court must look for evidence of the officer’s reasonable perception

of need and risk. City of San Antonio v. Ytuarte, 229 S.W.3d 318, 320-21 (Tex.

2007).

      Trooper Goodson proved that a reasonable and prudent officer could have

believed under the circumstances that the need outweighed the risks as he perceived

them at the time. CR 39-65.

         • The benefit or need of this kind of traffic stop includes enforcing the
           traffic laws since a missing license plate is a Class C misdemeanor. CR
           41.

         • In addition, license plates are important because law enforcement
           officers depend on the plates to identify vehicles should the vehicle be
           involved in an accident, a traffic violation or other type of crime. CR
           41.
         • The Trooper considered the risks involved and believed they were
           minimal considering that the weather was clear and not raining, the
           roadway was well paved and dry, it was daylight and his view was clear,
           unobstructed and the road was straight. CR 41.

         • There was little to moderate traffic. CR 41.

         • Neither he nor the pickup truck was traveling at an excessive rate of
           speed and the speed zone at the location was 30 m.p.h. CR 41, 32.


                                         17
           • He activated his red and blue emergency lights located on top of his
             DPS vehicle. CR 32-36, 38, 40-42, 44-46.

           • A witness statement confirms that the Trooper had his emergency lights
             flashing “for a (sic) least 3 blocks all of his lights [were] flashing. I was
             next to him for 2 of those blocks.” CR 35.

           • The Trooper considered alternatives to the traffic stop. He thought of
             not making the stop at all, but there was little to moderate traffic and
             believed he could stop the pickup truck safely. CR 41. He was able to
             read the license plate and read it to dispatch to identify the truck as well
             as to let dispatch know he was making the traffic stop. CR 41. He could
             not read the license plate number before that because the front one was
             missing and he had to get close enough to read the rear plate number.
             CR 41.

           • The Trooper slowly followed, slowly making the left turn. CR 38, 40-
             42, 44-46.

           • He believed the way was clear when he made the left turn. CR 41.

           • When he realized that Ms. Mirasol’s car was going too fast, it was too
             late and she collided with his vehicle. CR 38.

           • He cared about the safety of the public and his safety as well. CR 41.

      From the Trooper’s perspective at the time, he believed that the way was clear

to make the left turn. CR 41. Even if he misjudged the speed of Ms. Marisol’s

vehicle, CR 41, this is not sufficient to deny the Trooper official immunity. Ytuarte,

229 S.W.3d at 320-21 (court must look for evidence of the officer’s reasonable

perception).

      D.    LACK OF EMERGENCY SIRENS DID NOT DEFEAT
            SOVEREIGN IMMUNITY AND OFFICIAL IMMUNITY

                                            18
      The Trooper had his emergency lights activated; however, he did not have his

emergency sirens activated before the accident. CR 38, 40-42. The lack of the

emergency sirens does not defeat the application of official immunity. In Rivas v.

City of Houston, the paramedic had decided to go from a Code 1 (nonemergency) to

a Code 2 (emergency) and entered the intersection against a red light without

emergency lights and sirens activated. Rivas v. City of Houston, 17 S.W.3d 23, 27-

28 (Tex. App. Houston [14th Dist.] 2000, pet. denied). The Rivas court held that there

was no waiver of sovereign immunity because the paramedic was entitled to official

immunity.

      In City of Richmond v. Rodriguez, the officer stated that he activated his

emergency lights but never activated his emergency sirens during the pursuit of a

motorcycle going at a high speed without a headlight. City of Richmond v.

Rodriguez, No. 01-08-00471-CV, 2009 WL 884810, at *3-4 (Tex. App.—Houston

[1st Dist.] April 2, 2009 no pet. h.). The Rodriguez plaintiff alleged he created a fact

question on good faith because he testified that the officer not only did not have his

emergency sirens activated but he did not have his emergency lights activated either

and that the suspect’s motorcycle did have his headlight on. Id. The Rodriguez court

held that the officer was entitled to official immunity because the officer’s affidavit

explained the risks vs. benefits and alternatives. Id. Moreover, the Rodriguez court



                                          19
held that plaintiff’s allegations of no lights and sirens did not create a fact question

because:

      As Rodriguez’s argument does not address the need and risk factors in
      Wadewitz, it is insufficient to controvert Sergeant Elliott’s proof on
      good faith. See Clark, 38 S.W.3d at 587 (stating that because plaintiff’s
      expert’s testimony on good faith is not substantiated with reference to
      each aspect of the need and risk balancing test, it is conclusory and is
      insufficient to controvert the defendant’s proof on good faith”).

City of Richmond v. Rodriguez, No. 01-08-00471-CV, 2009 WL 884810, at *5 (Tex.

App.—Houston [1st Dist.] April 2, 2009 no pet. h.).

      In the case at bar, Ms. Marisol did not present any evidence as to why the lack

of emergency sirens, under the circumstances, does not support the Trooper’s belief

that risks were minimal.

      In Chapa v. Aguilar, the court held that the officer was entitled to official

immunity. Chapa v. Aguilar, 962 S.W.2d 111, 115 (Tex. App.—Houston [1st Dist.]

1997, no pet.). The Deputy Constable Romeo Chapa was on patrol in a marked

police car and while stopped at an intersection, he saw a van in front of him run the

red light. Officer Chapa turned on his flashers, but not his siren, drove into the

intersection and collided with a vehicle driven by the plaintiff. Chapa v. Aguilar,

962 S.W.2d at 113.

      The investigating officer subsequently faulted Officer Chapa concluding in

his report that Chapa “used poor judgment in his attempt to stop the violator in front


                                          20
of him” and “did not enter the intersection (on the red light) in a safe and cautious

manner.” Officer Chapa was suspended for one day without pay and ordered to

attend a police driver training course. Id.

      The Chapa court of appeals held that Officer Chapa’s affidavit was sufficient

to support official immunity:

      I was on duty and patrolling southbound on Fondren when I observed
      a van that was directly in front of me about thirty feet away blatantly
      and flagrantly run a red light. I considered the facts observable to me
      such as: the condition of the streets, it was clear and dry and visibility
      was good, I was on a divided street with three lanes on each side of a
      median, traffic was light. Based on the facts known to me, I determined
      that I needed to attempt to apprehend the driver of the van and that the
      risk to the public was slight.

Chapa v. Aguilar, 962 S.W.2d at 114-15. The Chapa court stated the purpose and

standard of the good faith defense as follows:

      The good faith standard recognizes that an officer may act in good faith
      and still be negligent. Were we to rely upon the department’s internal
      report citing appellant for negligence, we would be using negligence as
      proof of bad faith. Such a result decimates the concept of governmental
      immunity, because its very essence is the protection of officers from the
      consequences of their negligent acts. The standard is turned on its head:
      if there is evidence of negligence, we will not protect the officer from
      the consequences of his negligence!

      Our holding today should not be read as an endorsement of high speed
      chases or reckless pursuit. But when we subject what is essentially a
      split-second decision to standards we draft at out leisure, we run the
      risk of stifling a peace officer’s ability to unhesitatingly respond to
      crisis. This guts the very purpose of good faith immunity. We would be
      narrowing what should remain a broad, even forgiving, standard.


                                              21
Chapa v. Aguilar, 962 S.W.2d at 115 (emphasis added).

      These cases support official immunity in the case before this Court. The

Trooper activated his emergency lights and he believed that the way was clear to

make the left turn. CR 41, 44-46.

      E. ALTERNATIVES WERE CONSIDERED

      To establish the good faith prong of official immunity, an officer must show,

among other factors, that an officer considered the availability of alternatives, if any,

as part of balancing the need versus risks analysis. Wadewitz v. Montgomery, 951

S.W.2d 464, 467 (Tex. 1997).

      In this case, Trooper Goodson considered the alternative of not making the

stop at all, but there was little to moderate traffic and he believed that he could safely

stop the pickup truck. CR 41. When he was able to read the rear license plate, he

read it to dispatch to identify the truck. CR 41. He could not read the license plate

number prior to that because the front one was missing and he had to get close

enough to read the rear plate number. CR 41.

      These alternatives are sufficient to prove good faith. In University of Houston

v. Clark, this Court held that the officer was entitled to official immunity when he

considered one alternative—calling in the license plate number to dispatch but not

being able to do it. University of Houston v. Clark, 38 S.W.3d at 586. In Clark, one

of the officers stated in his affidavit regarding alternatives, that he “followed the

                                           22
suspect at a distance and was not able to get close enough to the suspect vehicle to

obtain its license plate number.” Id. This Court held that considering one alternative

was sufficient to meet the good faith analysis. Id.

       In City of San Antonio v. Trevino, the only alternative to the pursuit considered

by the police officer was the license plate number, but he was unable to get close

enough to the suspect’s car to read its license plate. City of San Antonio v. Trevino,

217 S.W.3d 591, 596 (Tex. App.—San Antonio 2006 no pet.). This was sufficient

to satisfy the alternatives requirement of the good faith test. Id. Notably, the Trevino

officer did not have either his lights or sirens activated at the time the suspect’s car

collided with the plaintiff’s car; nonetheless, the court held that the City was entitled

to the official immunity defense. Trevino, 217 S.W.3d at 596.

       For these reasons, DPS met its burden of proof regarding official immunity.

The burden then shifted to Ms. Marisol to controvert official immunity and she did

not.



       F.    THE BURDEN SHIFTED TO MIRASOL TO CONTROVERT
             OFFICIAL IMMUNITY AND SHE DID NOT SUCCEED

       In order for Ms. Marisol to controvert and defeat official immunity, she had

to prove, and did not, as follows:

       To controvert the officer’s summary judgment proof on good faith, the
       plaintiff must do more than show that a reasonably prudent officer

                                           23
      could have decided to stop the pursuit; the plaintiff must show that “no
      reasonable person in the defendant’s position could have thought the
      facts were such that they justified defendant’s acts.” [citations omitted].

City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). This Court further

explained:

      Moreover, for a plaintiff to defeat official immunity he must do more
      than argue that different officers have different opinions on what they
      would have done. The relevant test is “not whether the officers assessed
      the needs and risks differently, but whether no reasonable prudent
      officer could have assessed the need and risks as the police officers did
      in this case.”

City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (emphasis added).

      Ms. Marisol did not offer any expert opinion that no reasonable prudent

officer could have assessed the need and risks as Trooper Goodson did in this case.

CR 1-129. She did not offer any deposition testimony nor affidavits from any law

enforcement expert regarding official immunity. CR 1-129. Even if she had offered

evidence that another officer would have acted differently, that would still not defeat

official immunity because: “[I]f officers of reasonable competence could disagree

on this issue, immunity should be recognized.” City of Lancaster v. Chambers, 883

S.W.2d 650, 657 (Tex. 1994) citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.

1092, 1096, 89 L.Ed.2d 271 (1986).




                                          24
                                   CONCLUSION

      Trooper Goodson is entitled to official immunity based on the facts of this

case as outlined above because he has established that a reasonable and prudent

officer, in the same or similar circumstances, could have believed that the need

outweighed the minimal risks to this traffic stop and that he considered alternatives.

Ms. Marisol did not present any expert opinion that no reasonable prudent officer

could have assessed the need and risks as Trooper Goodson did. Therefore, based on

Trooper Goodson’s official immunity, DPS maintains its sovereign immunity and

Ms. Marisol’s suit should be dismissed.

      WHEREFORE, Appellant Texas Department of Public Safety prays that this

appeals court reverse the trial court’s order denying its Plea to the Jurisdiction and

its Motion for Summary Judgment, prays that the court reverse and render judgment,

assess the costs of court against Appellee, and prays for all other relief to which it

may show itself justly entitled.

                                      RESPECTFULLY SUBMITTED,

                                      KEN PAXTON
                                      Attorney General of Texas

                                      CHARLES E. ROY
                                      First Assistant Attorney General

                                      JAMES E. DAVIS
                                      Deputy Attorney General for Civil Litigation


                                          25
                                      KARA KENNEDY
                                      Division Chief, Tort Litigation

                                      /s/ Elsa Girón Nava

                                      ELSA GIRÓN NAVA
                                      Assistant Attorney General
                                      State Bar No. 14826900
                                      Tort Litigation Division, Mail Stop 030
                                      P.O. Box 12548, Capitol Station
                                      Austin, Texas 78711-2548
                                      (512) 463-2197 / (512) 457-4459, direct fax
                                      Elsa.Nava@texasattorneygeneral.gov
                                      COUNSEL FOR APPELLANT DPS



                          CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. 9.4(i)(3), this is to certify that this brief complies

with the type-volume limitations of TEX. R. APP. 9.4(i)(2)(B)(must not exceed

15,000 words). This brief contains 5,689 words in a proportionally spaced typeface,

exclusive of the exempted portions set forth in TEX. R. APP. 9.4(i)(1). This brief has

been prepared using Times New Roman 14 point in text and Times New Roman 12

point in footnotes produced by Microsoft Word 2010 software.

                                       /s/ Elsa Girón Nava

                                       ELSA GIRÓN NAVA
                                       Assistant Attorney General




                                         26
                     CERTIFICATE OF ELECTRONIC SERVICE


      I certify that on July 6, 2015, at approximately 11:00 a.m., I served a copy of

this document on the party below by electronic service concurrently with the

electronic filing of the document. The electronic transmission was reported as

complete. My e-mail address is Elsa.Nava@texasattorneygeneral.gov

      Paul Batrice
      Batrice Law Firm
      1114 Lost Creek Blvd, Suite 440
      Austin, TX 78746
      (512) 600-1000
      (512) 600-0217, fax
      Paul@batricelawfirm.com
      Counsel for Appellee

                                              /s/ Elsa Girón Nava
                                              __________________________
                                              ELSA GIRÓN NAVA
                                              Assistant Attorney General




                                         27
                              No. 03-15-00300-CV


                       IN THE COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT
                             AUSTIN, TEXAS


                     TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                                      APPELLANT,
                                    V.

                                ANISTY MIRASOL,
                                                             APPELLEE.


                            No. D-1-GN-14-001479
                             201ST Judicial District
        Appealing the Interlocutory Order from the 345th Judicial District
                              Travis County, Texas


                            APPELLANT’S APPENDIX




Tab 1: Order on Defendant’s Plea to the Jurisdiction and Alternatively, Motion
       for Summary Judgment, CR 117; and,

Tab 2: TEX. CIV. PRAC. & REM. CODE § 101.021 (West 2005).




                                        28
                         Tab 1:

Order on Defendant’s Plea to the Jurisdiction and Alternatively,
          Motion for Summary Judgment, CR 117
                                                                           Filed In The District Court
                                                                             of Travis Co n , Texas
                                                                          on         ·/ - ,       -
                                                                          at                              M.
                                                                           Velva L. Prlc:t , Dlttrlct Cterk
                               CAUSE NO. D-l-GN-14-001479

ANISTY MlRASOL                                  §              lN THE DISTRICT COURT OF
     Plaintiff,

vs.                                             §                  TRAV1S COUNTY, TEXAS

TEXAS DEPARTMENT OF                             §
PUBLJC SAFETY
     Defendant.                                 §                  201 ST JUDICIAL DISTRICT


          ORDER DENYING DEFENDANT'S PLEA TO THE JURISDICTION
                  AND MOTION FOR SUMMARY JUDGMENT

       On this day came on to be considered Defendant Texas Department of Public Safety' s

Plea to the Jurisdiction and Alternatively, Motion for Summary Judgment and the court having

heard the pleadings by submission and considered the law and the facts, finds as follows:

       lT lS ORDERED, ADJUDGED and DECREED that Defendant's Plea to the Jurisdiction

is DENTED.

       IT IS ORDERED, ADJUDGED and DECREED that Defendant ' s Motion for Summary

Judgment is DENIED.

       lT IS FURTHER ORDERED, ADJUDGED and DECREED that all relief not expressly




                                        If,2o i S-
                                        J   Hon.          n elen ky
                                            345 th Judicial Distri t
                                            JUDGE PRESIDING
                                                                                   /
Elsa Giron Nava, Assistant Attorney General, Attorney for Defendant, FAX: (512) 475-4459
Elsa .N av a(a~tex a sattomeygen era!. gov

Paul Batrice, Attorney for Plaintifl: FAX (512) 600-0217
Paul(ii),batTicclawfinn .corn




                                                                                   EXHIBIT A
                    Tab 2:

Tex. Civ. Prac. & Rem. Code § 101.021 (West 2005)
                                                                        July 17, 2014

V.T.C.A., Civil Practice & Remedies Code § 101. 021                                            Page 1



                                  Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code(Refs & Annos)
    Title 5. Governmental Liability
        Chapter 101. Tort Claims (Refs & Annos)
          Subchapter B. Tort Liability of Governmental Units (Refs & Annos)
              § 101. 021. Governmental Liability

A governmental unit in the state is liable for:

  (1) property damage, personal injury, and death proximately caused by the wrongful act or omis-
  sion or the negligence of an employee acting within his scope of employment if:

    (A) the property damage, personal injury, or death arises from 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; and

  (2) personal injury and death so caused by a condition or use of tangible personal or real property
  if the governmental unit would, were it a private person, be liable to the claimant according to
  Texas law.

CREDIT(S)
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

HISTORICAL AND STATUTORY NOTES

2005 Main Volume

Prior Laws:
    Acts 1969, 61st Leg., p. 874, ch. 292, § 3.
    Acts 1973, 63rd Leg., p. 77, ch. 50, § 1.
    Acts 1983, 68th Leg., p. 3084, ch. 530, § 1.
    Vernon's Ann.Civ.St. art. 6252-19, § 3(b).
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.


                        © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
