                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00151-CV

Oscar LOPEZ, in his official capacity as Sheriff of Jim Wells County, Unknown Named Agents
   of Jim Wells County Sheriff’s Department, in their official capacities, Jim Wells County
                        Sheriff’s Department, and Jim Wells County,
                                          Appellants

                                                   v.
                                                Monica
                                           Monica ESCOBAR,
                                                Appellee

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 12-06-51183-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 28, 2013

REVERSED AND RENDERED

           This is an appeal of the trial court’s order denying appellants’ plea to the jurisdiction in a

personal injury suit brought by Monica Escobar. Appellants contend they have not waived

governmental immunity from suit because the accident that caused Escobar’s injuries did not arise

from a governmental employee’s use or operation of a motor vehicle. We agree that immunity has

not been waived and therefore reverse the trial court’s order.
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                                                      BACKGROUND

           Monica Escobar sued Jim Wells County, its Sheriff, and unknown named agents of the

County. 1 The petition alleged County agents, driving a patrol car with its lights activated, engaged

in a “relentless pursuit” of a pickup truck driving eastbound on State Highway 44. It alleges the

agents drove “at excessive rates of speed in high-traffic areas,” in violation of Sheriff Department

policies, and the officers knew or should have known that the pickup truck “was in imminent

danger of losing control in a high-traffic area or posing other serious risks to other motorists in a

high–traffic area.” Escobar asserted that the officers’ “relentless pursuit of the pickup truck caused

the truck to drive perpendicular across traffic, directly in the path of Plaintiff’s vehicle.” She

alleged the officer’s negligent operation of the patrol car and/or the County’s negligent entrustment

of the car to the officer proximately caused her injuries. The petition alleges that immunity is

waived because Escobar’s injuries arose from the officer’s operation or use of a motor vehicle.

           The defendants (collectively referred to as “the County”) filed a plea to the jurisdiction.

The County attached to its plea copies of the Texas Department of Public Safety’s accident report

and the Sheriff’s Department’s incident report, which included the written statement of Captain

Joe Martinez of the Jim Wells County Sheriff’s Department. The County later supplemented its

plea with excerpts from Escobar’s deposition, the onboard video from Captain Martinez’s patrol

car, a printout of data from the patrol car showing the location and velocity of the unit for a period

of time before and after the accident, and an affidavit interpreting the data. In response to the plea,

Escobar submitted excerpts from Captain Martinez’s deposition and Sheriff’s Department policies

setting guidelines for making decisions regarding pursuit of vehicles.




1
    The individuals were all sued in their official capacities only.

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       None of the evidence submitted to the trial court in support of or opposing the plea to the

jurisdiction was disputed. The evidence established that Jim Wells County Sheriff’s Department

Captain Joe Martinez was driving a County vehicle with Texas Ranger Matthew Segur in the front

passenger seat early in the afternoon on May 3, 2012. They responded to a request from Duval

County to assist with three vehicles reported to be carrying undocumented individuals. Captain

Martinez saw two trucks matching the description provided by the Duval County dispatcher turn

onto State Highway 44, heading east. Highway 44 is a divided highway with two lanes going in

each direction and a median in between. Captain Martinez followed and then passed one of the

vehicles, a white pickup truck. He and Ranger Segur witnessed people ducking in an attempt to

conceal themselves both in the bed and in the cab of the truck.

       Captain Martinez slowed down and the white pickup truck passed him, travelling at

approximately forty miles per hour. The speed limit on Highway 44 at that location is seventy

miles per hour. Captain Martinez decided to stop the truck. He turned on his emergency lights,

notified dispatch, and initiated a pursuit of the truck. Captain Martinez followed the truck in the

eastbound lanes of Highway 44 for about twenty seconds at speeds that did not exceed fifty-one

miles per hour.

       When the pickup truck reached the uncontrolled intersection of State Highway 44 and

County Road 170, it turned left into the median crossover that allows access to either westbound

Highway 44 or northbound County Road 170. The driver of the pickup truck was braking and

Captain Martinez testified he initially believed it had come to a stop in the crossover. Captain

Martinez stopped his car about one and one-half car lengths behind the truck, but left the ignition

and emergency lights on. Although Captain Martinez noticed the truck was slowly creeping

forward, he and Ranger Segur got out of the patrol car and used hand signals and their voices to



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direct the driver of the pickup truck to stop. The truck then darted out into traffic, where it was hit

by Escobar’s vehicle.

       Escobar was driving in the right lane of westbound Highway 44. She testified she was

driving seventy miles an hour and talking on the telephone when she saw the white pickup truck

and the officers’ car behind it driving eastbound on Highway 44. She testified she saw the truck

and the patrol car turn into the crossover and come to a stop, and saw the officer get out of the car.

The pickup truck then darted out onto the highway in front of her. She applied her brakes, but it

was too late to avoid the accident.

       Several people were ejected from the bed of the pickup truck and several more inside the

cab were injured. The driver and a few other people who had been in the truck fled the scene. At

the time of the trial court proceedings, the driver had not been located. Escobar was injured and

received treatment at a hospital.

       The County argued to the trial court that the evidence established the accident did not arise

out of the use or operation of a motor vehicle. However, the trial court denied the County’s plea

to the jurisdiction and this appeal followed.

                    GOVERNMENTAL IMMUNITY AND STANDARD OF REVIEW

       The County enjoys governmental immunity from suit unless immunity has been waived.

Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Immunity from suit deprives the trial

court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Id. Whether

there has been a waiver of immunity that confers subject matter jurisdiction on the trial court is a

question of law, and we review the trial court’s ruling on a plea to the jurisdiction de novo. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).




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Plea to the jurisdiction

       A plea to the jurisdiction may challenge the sufficiency of the pleadings or challenge the

existence of jurisdictional facts. Id. at 226-27. The County does not challenge the sufficiency of

Escobar’s pleading; rather, it contends the undisputed facts conclusively negate a waiver of

immunity.

       When a plea to the jurisdiction challenges the existence of jurisdictional facts by

controverting the factual allegations in the petition that support jurisdiction, the court considers

relevant evidence submitted by the parties to resolve the jurisdictional issues raised. Id. at 227,

231. The court applies a standard that “generally mirrors that of a summary judgment under Texas

Rule of Civil Procedure 166a(c).” Id. at 228. Accordingly, “[w]hen reviewing a plea to the

jurisdiction in which the pleading requirement has been met and evidence has been submitted to

support the plea that implicates the merits of the case, we take as true all evidence favorable to the

[respondent].” Id. “We indulge every reasonable inference and resolve any doubts in the

[respondent’s] favor.” Id.

       “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id.

at 227-28. “However, if the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at

228. When the evidence regarding the jurisdictional facts is undisputed, whether that evidence

establishes a waiver of immunity and the trial court’s jurisdiction is a question of law for the court.

Id. at 226. “[W]hether a district court has subject matter jurisdiction is a question for the court, not

a jury, to decide, even if the determination requires making factual findings, unless the

jurisdictional issue is inextricably bound to the merits of the case.” Id. (quoting Cameron v.

Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir.1997)). If the plaintiff cannot establish
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a waiver of immunity under any reasonable view of the evidence, the plea must be granted.

Miranda, 133 S.W.3d at 231-32.

Waiver of immunity

       Section 101.021(1) of the Texas Tort Claims Act waives immunity for property damage

and personal injury proximately caused by the negligence of a government employee acting in the

scope of his employment if the damage or injury “arises from the operation or use of a motor-

driven vehicle.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A). While not conceding either

the negligence or proximate cause elements, the only jurisdictional fact challenged by the County

in the plea to the jurisdiction was the assertion that Escobar’s injury “arises from the operation or

use of a motor-driven vehicle.”

       For immunity to be waived under section 101.021, the government employee must be the

person who operated or used the motor vehicle that caused the injury. Hamshire-Fannett Indep.

Sch. Dist. v. LeLeaux, 835 S.W.2d 49, 51 (Tex. 1992); Ramos v. City of San Antonio, 974 S.W.2d

112, 116-17 (Tex. App.—San Antonio 1998, no pet.) (holding “immunity is only waived where

the governmental employee, not a third party, is the operator of the motor vehicle causing the

injury”). In this context, “operation” means “a doing or performing of a practical work” and “use”

means “to put or bring into action or service; to employ for or apply to a given purpose.” LeLeaux

835 S.W.2d at 51 (quoting Mount Pleasant Indep. Sch Dist. v. Estate of Lindburg, 766 S.W.2d

208, 211 (Tex. 1989)). A governmental employee who is not the driver of the motor vehicle that

causes injury may nevertheless “use or operate” the motor vehicle if the employee exercised direct

control over the movement of the vehicle. See County of Galveston v. Morgan, 882 S.W.2d 485,

490-91 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

       The phrase “arises from,” as used in section 101.021, requires a nexus between the

operation or use of the motor vehicle and the plaintiff’s injuries. Dallas Area Rapid Transit v.
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Whitley, 104 S.W.3d 540, 543 (Tex. 2003); LeLeaux, 835 S.W.2d at 51. The nexus must be more

than mere involvement of the motor vehicle; the government employee’s operation or use of the

vehicle “must have actually caused the injury.” Whitley, 104 S.W.3d at 543 (quoting Texas Natural

Resource Conservation Com’n v. White, 46 S.W.3d 864, 869 (Tex. 2001)). “[T]he operation or use

of a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes

the injury possible.’” Whitley, 104 S.W.3d at 543 (quoting Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)).

                                             DISCUSSION

        The County argues the trial court erred in denying its motion because the undisputed

evidence conclusively establishes the accident did not arise from Captain Martinez’s operation or

use of a motor vehicle. The County contends the evidence establishes the patrol car did not cause

Escobar’s injuries and the officers were not in the car at the time of the accident; the officers did

not use the patrol car in a manner that forced the truck to drive into oncoming traffic; and the

officers did not exert any direct control over the manner in which the pickup truck was driven. The

County argues the accident was caused solely by the deliberate and purposeful act of the third

party truck driver when he decided to pull out into oncoming traffic instead of stopping, and that

under these circumstances there is no waiver of immunity.

        Escobar makes several arguments in support of the trial court’s ruling. She first contends

the patrol car was in “operation or use” at the time of the accident because the ignition and the

overhead lights were on. Although these are the facts, Escobar provides no argument that the fact

the ignition and lights remained on after the officers got out of the car played any role in causing

her injuries. That is, there is no nexus between the fact the ignition and lights of the patrol car were

on and the accident. See Whitley, 104 S.W.3d at 543; LeLeaux, 835 S.W.2d at 51.



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       Escobar next argues that immunity is waived by an officer’s use or operation of a motor

vehicle that causes an accident even if the officer is not driving the vehicle when the accident

occurs, and argues the trial court’s ruling is supported by the decisions in Saramanee v. Town of

Northlake, No. 02-10-00152-CV, 2011 WL 944908 (Tex. App.—Fort Worth, March 17, 2011, pet.

denied) (mem. op.), Junemann v. Harris County, 84 S.W.3d 689 (Tex. App.—Houston [1st Dist.]

2002, pet. denied); and City of El Campo v. Rubio, 980 S.W.2d 943 (Tex. App.—Corpus Christi

1998, pet. dism’d w.o.j.).

       In both Saramanee and Junemann, the accidents were directly caused by an officer’s use

of a patrol car to block lanes of highway traffic. In Saramanee, the officer sped up a freeway ramp

and across double white lines and parked in the lane of traffic in order to stop motorcyclists he had

observed doing “wheelies” on the highway. 2011 WL 944908, at *1. The officer opened his car

door and two of the motorcyclists collided with each other when one tried to avoid hitting the

patrol car. Id. at *5. In Junemann, the officer parked his car in a highway traffic lane behind a

stalled car. 84 S.W.3d at 692. Several cars swerved to avoid the patrol car, resulting in a multi-

vehicle accident that injured the plaintiff. Id. In both cases, the courts held immunity from suit was

waived because the accident arose from the officer’s use of the patrol vehicle. Saramanee, 2011

WL 944908, at *5; Junemann, 84 S.W.3d at 696.

       In Rubio, a police officer stopped a car on the highway and arrested the driver for driving

with a suspended license. The petition asserted the officer instructed an unlicensed passenger on

how to drive by showing her where the gas and brake pedals were and then ordered her to follow

him to the police station. 980 S.W.2d at 944. As she pulled onto the highway to follow the officer

as she was ordered to do, she was hit by an oncoming vehicle. Id. The court held these pleadings

sufficient to allege the officer used or operated the vehicle by directly exercising control over its

movement. Id. at 946-47.
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       Escobar asserts this case is analogous to Saramanee, Junemann, and Rubio because

Captain Martinez “guided,” “directed,” or “forced” the pickup truck into the median, “created a

blockade on the median with his patrol unit,” and left the pickup truck nowhere to go except into

oncoming traffic. However, the undisputed evidence, viewed in the light most favorable to

Escobar, does not support her factual assertions. There is no evidence the pickup truck driver was

directed, forced or coerced into turning into the median instead of continuing in the eastbound

lanes or stopping on the shoulder of the eastbound lanes. There is no evidence the “pursuit” was

at a speed that precluded the pickup truck from stopping once it had turned into the median. Rather,

the evidence conclusively established both the patrol car and the truck were traveling well below

the speed limit, and Escobar herself testified she saw both the truck and patrol car stop after turning

into the median and before the truck drove onto the highway. The only logical inference from the

evidence is that the pickup truck driver did not want to submit to the officer’s authority and chose

instead to flee into oncoming traffic when he saw the officers get out of the car.

       Here, the evidence establishes Captain Martinez did not use his car to block or interfere

with traffic in a manner to cause the accident; nor did he exercise any control over the movements

of the pickup truck. Therefore, the case is not controlled by Saramanee, Junemann, or Rubio.

Instead, the facts are much more akin to those in City of Dallas v. Hillis, 308 S.W.3d 526 (Tex.

App.—Dallas 2010, pet. denied). In that case, a police officer attempted to initiate a traffic stop of

Hillis, who was on a motorcycle. When Hillis did not stop, the officer pursued him at speeds greater

than 110 mph onto the freeway. Hillis lost control of his motorcycle, causing him to fall and sustain

fatal injuries. Hillis’s survivors sued the City, alleging the officer violated the City’s high-speed

chase policy and negligently caused Hillis’s death. The court of appeals held the City’s immunity

from suit was not waived because Hillis’s death did not arise from the officer’s use or operation



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of a motor vehicle, but instead was caused solely by Hillis’s deliberate decision to flee the officer

at a reckless rate of speed. Id. at 534-535.

       Captain Martinez’s use of the patrol car—by following or “pursuing” the truck with his

overhead lights on while driving below the speed limit, by following the truck into the median, by

leaving the overhead lights on, and by leaving the engine running when he got out of the car—did

not actually cause Escobar’s injuries. The unknown driver of the truck’s decision to try to flee by

darting out into traffic caused the injuries. The only connection between the use of the patrol car

and Escobar’s injuries is that Captain Martinez was attempting to initiate a stop of the vehicle with

which Escobar collided. That fact alone is nothing more than mere involvement of the official

vehicle and is an insufficient nexus to result in a waiver of immunity. See Whitley, 104 S.W.3d at

543. Escobar would apparently have us hold that immunity from suit is always waived under

section 102.021(1)(A) if an accident occurs while an officer in a government vehicle is attempting

to affect a traffic stop, regardless of the circumstances, merely because a government employee in

a motor vehicle is involved. We decline to so hold.

       We hold that there is no reasonable view of the evidence under which Captain Martinez’s

operation or use of the vehicle actually caused Escobar’s injury. Under the circumstances shown

by the undisputed facts in this case, Escobar’s injuries did not arise from a County employee’s use

or operation of a motor vehicle. To the contrary, the evidence shows the pickup truck driver, in an

attempt to flee, caused Escobar’s unfortunate injuries. The trial court therefore should have granted

the plea to the jurisdiction. See Miranda, 133 S.W.3d at 231-32. Accordingly, we reverse the trial

court’s order and render judgment dismissing the cause for want of jurisdiction.


                                                   Luz Elena D. Chapa, Justice




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