                                                                                              ACCEPTED
                                                                                         13-15-00133-CV
                                                                         THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    9/17/2015 4:08:29 PM
                                                                                        Dorian E. Ramirez
                                                                                                   CLERK

                         NO. 13-15-133-CV

            IN THE COURT OF APPEALS RECEIVED                        -      IN
                                    13th COURT              - - ---OF     APPEALS
     FOR THE THIRTEENTH DISTRICT   OF TEXAS
                                CORPUS                  -- -
                                               CHRISTI/EDINBURG,                  TEXAS
                                                   ----s
               AT EDINBURG, TEXAS -9/17/2015
                                         - - - - -    s          - - ----
                                       -
                                      - ID                    -4:08:29 PM
                                                                -
                                   --- VO ------
   ___________________________________________
                                       DORIAN---   - -         E. RAMIREZ
                                                           -
                                                       ----    Clerk
                    CITY OF PHARR TEXAS,
                          Appellant
                                                          FILED IN
                                   VS.             13th COURT OF APPEALS
                                                CORPUS CHRISTI/EDINBURG, TEXAS

                    DORA HERRERA,            ET AL 9/17/2015 4:08:29 PM
                                                     DORIAN E. RAMIREZ
                          Appellee                         Clerk

    __________________________________________

     Original Appellate Proceeding from the County
      370TH District Court - Hidalgo County, Texas

___________________________________________________

               APPELLANT CITY OF PHARR’S
                     REPLY BRIEF



                                 RICARDO J. NAVARRO
                                 REBECCA S. HAYWARD
                                 DENTON, NAVARRO, ROCHA
                                 BERNAL, HYDE & ZECH, P.C.
                                 701 E. Harrison St., Ste. 100
                                 Harlingen, Texas 78550
                                 956/421-4904
                                 956/421-3621 (Fax)
                                 COUNSEL FOR APPELLANTS
                                 THE CITY OF PHARR, TEXAS
                                 ORAL ARGUMENT REQUESTED
                                    TABLE OF CONTENTS


Issue Presented #1: The Trial Court Erred in Denying the
     Defendant City’s Jurisdictional Plea Because Plaintiff
     Never Presented, in Pleading or Proof, a Cause of Action
     That Overcomes the General Rules of Government
     Immunity ........................................................................................... 2
        A. The Motor Vehicle Exception and the Requirement of
           Causation ..................................................................................... 2
        B. The Standard of Care In An Emergency Situation .................... 8


Issue Presented #2: The City Can Not Be Held Liable Under the
     Tort Claims Act Because Officer Gonzalez Would
     Otherwise Be Entitled to Official Immunity For Carrying
     Out His Law Enforcement Duties In Good Faith .......................... 11
        A. Officer Gonzalez Acted In Reasonable Good Faith As
           A Matter of Law.......................................................................... 11




Reply Brief for Appellant – City of Pharr, Texas                                      Table of Contents
                                   TABLE OF AUTHORITIES

Cases
City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex.1998) ...................... 10

City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. App - Dallas) ................. 5
City of Pasadena v. Kuhn, 260 S.W.3d 93, 99-100 (Tex. App - Houston
      2008) ............................................................................................... 12
City of San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695, 701-02 (Tex.
      App. - Austin 2005, no pet.) ............................................................. 13
City of Sugarland v. Ballard, 174 S.W.3d 259 (Tex. App. - Houston [1st
      Dist.] 2005, no pet.)............................................................................ 7
Dallas County Mental Health & Mental Retardation v. Bossley, 968
      S.W.2d 339, 343 (Tex.1998) .............................................................. 5
DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995) ...................... 15

Lancaster v. Chambers, 883, S.W.2d 650, 653 (Tex.1994) ....................... 13

LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W. 2d 49, 51
     (Tex. 1992) ........................................................................................ 5
Lopez v. Escobar, No. 04-13-00151-CV, 2013 WL 4679062, at *5 (Tex.
     App.-San Antonio Aug 28, 2013, no pet.) ........................................... 6

Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d
    208 (Tex. 1989) ................................................................................. 5

Northcutt v. City of Hearne, No. 10-14-00012-CV, 2015 WL 4727197
     (July 30, 2015). .................................................................................. 8

Pakdimounivong v. City of Arlington, 219 S.W. 3d 401, 411-12 (Tex.
     App. - Fort Worth 2006, pet. denied) ................................................ 12
Ron v. Airtrain Airways, 397 S.W.3d 785, 800 (Tex. App. - Houston
     2013)(no pet.) .................................................................................... 8
Ryder v. Fayette County, 453 S.W. 3d 922, 928 (2015) .............................. 4


Reply Brief for Appellant – City of Pharr, Texas                                     Table of Authorities
Shlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435
     S.W.2d 854, 858 (Tex. 1968) ............................................................. 9

Smith v. Janda, 126 S.W.3d 543, 545-46 (Tex. App.-San Antonio 2003,
     no pet) ............................................................................................. 12

Texas Department of Public Safety v. Grisham, 232 S.W.3d 822 (Tex
     App. - Houston [14th Dist.] 2007, no pet.) .......................................... 8

Townsend v. City of Alvin, No. 14-05-000915-CV, 2006 WL 2354922,
    at *1 (Tex. App-Houston 2006) .......................................................... 7

Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) ............................... 4
University of Houston v. Clark, 38 S.W.3d 578, 579 (Tex. 2000) ............... 15

Williams v. City of Baytown, No. 01-14-000269-CV 2015 WL 209488
      (May 5, 2015)..................................................................................... 6
Statutes
TTCA §101.055(2), Tex. Civ. Prac & Rem. Code ...................................... 10
Tex. Govt. Code Ann. §311.021. ............................................................... 10




Reply Brief for Appellant – City of Pharr, Texas                                    Table of Authorities
                                 NO. 13-15-133-CV


                   IN THE COURT OF APPEALS FOR
             THE THIRTEENTH DISTRICT OF TEXAS APPEAL
                           AT EDINBURG

            ___________________________________________

                             CITY OF PHARR TEXAS,
                                   Appellant

                                           VS.

                             DORA HERRERA , ET AL
                                   Appellee

             __________________________________________

               Original Appellate Proceeding from the County
                370TH District Court - Hidalgo County, Texas

      ___________________________________________________

                  APPELLANT CITY OF PHARR’S
                          REPLY BRIEF
      ___________________________________________________

May it Please the Court:
      COMES NOW the APPELLANT, the CITY OF PHARR TEXAS
(hereafter, “APPELLANT” or DEFENDANT” or “CITY”) and files this Reply
Brief in accordance with the Texas Rules of Appellate Procedure (“TRAP”).




Reply Brief for Appellant – City of Pharr, Texas                      -1-
For clarity, APPELLANT will be referred to as “the City” or “Defendant” and
the APPELLEES shall be referred to as the “Plaintiffs” or “Herrera”.1

                                  II. REPLY BRIEF

The Appellant City of Pharr files it this Reply to the following Issues contained
in Appellee’s Responsive Brief.

Issue Presented #1: The Trial Court Erred in Denying the Defendant
     City’s Jurisdictional Plea Because Plaintiff Never Presented, in
     Pleading or Proof, a Cause of Action That Overcomes the General
     Rules of Government Immunity.
            The Motor Vehicle Exception and the Requirement of
          Causation
      Plaintiffs, in their brief continue to rely on the plurality opinion of Texas
Supreme Court case Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992)
as their sole basis for their argument that the City’s immunity has been
waived. Plaintiffs further argue that the cases cited by the Defendant are in
direct contradiction with the Texas Supreme Court. This is not the case as
the City has cited to numerous Texas Supreme Court cases that support that
defense that the fatal accident did not “arise from” the City’s use of a motor-
driven vehicle.
      Plaintiffs cite to Texas Supreme Court case Ryder v. Fayette County,
453 S.W. 3d 922, 928 (2015) which states that the “arises from” requirement
means that the vehicle’s use “must have actually caused the injury.” In
Ryder, the Supreme Court states:



      1
         Also, shorthand references to “CR” shall be to “Clerk’s Record.” References to
“SCR” shall be references to “Supplemental Clerk’s Record.” References to “Apdx” shall
be to the “Appendix” which is incorporated herein as an aid to the Court. References to
“RR” shall be to the “Reporters Record.”

Reply Brief for Appellant – City of Pharr, Texas                                    -2-
      “[The] tortious act alleged must relate to the defendant’s
      operation of the vehicle rather than to some aspect of the
      defendant’s conduct. In other words, even where the plaintiff has
      alleged a tort on the part of a government driver, there is no
      immunity waiver absent the negligent or otherwise improper use
      of a motor-driven vehicle. For example, a driver’s failure to
      supervise children at a bus stop may rise to the level of
      negligence, but that shortcoming cannot accurately be
      characterized as negligent operation of the bus. See generally
      Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766
      S.W.2d 208 (Tex. 1989). Where the vehicle itself “is only the
      setting” for defendant’s wrongful conduct, any resulting harm will
      not give rise to a claim for which immunity is waived under
      Section 101.021. LeLeaux v. Hamshire-Fannett Indep. Sch.
      Dist., 835 S.W. 2d 49, 51 (Tex. 1992).

Ryder, 453 S.W.3d at 928. Here, it cannot reasonably be argued that the
City’s patrol vehicle “actually” caused the injury.
      Plaintiffs consider the Dallas Court of Appeals case City of Dallas v.
Hillis case as a rogue case which is inconsistent with the general standards
of proximate cause. That is not so. The Supreme Court in Ryder quotes the
Dallas Court of Appeals case with approval: “When an alleged cause is
geographically, temporally, or causally attenuated from the alleged effect,
that attenuation will tend to show that the alleged cause did not more than
furnish the condition that made the effect possible.” Ryder, at 930, quoting
City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. App - Dallas).
      Further, the Hillis court relies on Texas Supreme Court case Dallas
County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex.1998) in which an escaped mental patient's death on a freeway was
“distant geographically, temporally, and causally” from the unlocked doors
through which he escaped. Bossley, 968 S.W.2d at 343. The Texas Supreme
Court has noted that this nexus requirement is consistent with the clear intent

Reply Brief for Appellant – City of Pharr, Texas                            -3-
of the TTCA that the waiver of sovereign immunity be limited. LeLeaux v.
Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).
      In Whitley (cited in Defendant’s brief), the Texas Supreme Court
considered whether a plaintiff could sue a local transit authority for injuries
that he sustained during an altercation with a fellow passenger. 104 S.W.3d
at 541. The bus driver has required the plaintiff to exit the bus in the vicinity
of the passenger who had assaulted the plaintiff. Id. The Texas Supreme
Court concluded that immunity was not waived under the TTCA because the
bus passenger’s injuries did not arise from the government driver’s operation
of the bus. Id. at 542-43. Hillis relied on Whitley in rejecting the notion that
immunity is waived simply because a collision took place in the context of a
police chase. Hillis, 308 S.W.3d at 532.
      The San Antonio Court of Appeals in Lopez v. Escobar, No. 04-13-
00151-CV, 2013 WL 4679062, at *5 (Tex. App.-San Antonio Aug 28, 2013,
no pet.) also followed the reasoning from the Hillis court. Lopez involved an
incident in which police officers signaled a truck to stop in a highway median,
but the truck driver instead attempted to flee and went into oncoming traffic
where he collided with Escobar, the plaintiff. Id. at *2. The San Antonio Court
of Appeal held that “pursuing” the truck driver into the median did not
proximately cause Escobar’s injuries, but rather, the suspect driver caused
them. Id. at *4, *6.
      In Williams v. City of Baytown, No. 01-14-000269-CV 2015 WL 209488
(May 5, 2015), the Houston Court of Appeals held that immunity had not been
waived in a police chase in which the suspect vehicle rammed through a
police barricade and police pursued and ultimately rear-ended plaintiff’s
vehicle. The police officers in Williams were only 10 seconds behind the
suspect when the accident occurred. The plaintiff’s alleged that the City was
Reply Brief for Appellant – City of Pharr, Texas                              -4-
negligent in using their vehicle in the foiled attempt to box-in the suspect
vehicle. Hillis is also relied on by Williams court, but further cites to the
holding in Texas Supreme Court case Ryder in stating that the plaintiff’s had
“failed to show a waiver of immunity through the operation of a police vehicle
– no police car was directly involved in the collision – no officer blinded
oncoming traffic or entered a freeway access road the wrong way during the
chase.” Williams, at *7. Specifically, the court held that “the decision to try to
box-in the fleeing suspects was too attenuated from [the suspect’s] decision
to evade the officer and continue his reckless flight. As a result, the officer’s
failed strategy was not a proximate cause of the accident.” Williams, at *8.
      Similarly, in Townsend v. City of Alvin, No. 14-05-000915-CV, 2006 WL
2354922, at *1 (Tex. App-Houston 2006), the Houston Court of Appeals also
rejected the plaintiff’s contention that a police officer exercised control over
a speeding individual’s vehicle when the officer instructed the individual to
driver straight homer after a traffic stop, even though the driver did not
possess a driver’s license. Id. at *1. The suspect driver in that case ran a red
light and killed another driver on the road a few minutes after the police
encounter. Id. The court held that the facts alleged did not establish waiver
of immunity because the police officer did not control the suspect’s car at the
time of the accident. Id. at *3-4.
      The Plaintiffs ignore completely the undisputed fact that it was the
suspect driver, Quintero, who hit Plaintiff’s vehicle. The chain of causation is
broken when the injury most directly results from another person's own
decisions. City of Sugarland v. Ballard, 174 S.W.3d 259 (Tex. App. - Houston
[1st Dist.] 2005, no pet.) (Plaintiff’s deliberate decision to flee from police
undercuts the claim that resulting injuries are “caused” by the police when
the Plaintiff is struck by another vehicle); Texas Department of Public Safety
Reply Brief for Appellant – City of Pharr, Texas                               -5-
v. Grisham, 232 S.W.3d 822 (Tex. App .- Houston [14th Dist.] 2007, no pet.)
(Use of police car merely furnished the condition that made injury possible
and did not actually cause the injury and driver’s decision to change lanes
and collide with another vehicle actually caused his injuries.). The causal
nexus here, involving a Pharr patrol vehicle that was nowhere near the
accident site itself, is too attenuated, and the jurisdictional plea should have
been granted as a matter of law.
      In a recent Court of Appeals case out of Waco, the court again held
that the City’s immunity was not waived as the accident did not “arise from”
the city’s use of the motor-driven vehicle. Northcutt v. City of Hearne, No. 10-
14-00012-CV, 2015 WL 4727197 (July 30, 2015). In Northcutt, the plaintiff
alleged that Officer Sullivan was stationed in a private drive with his lights off
setting up a speed trap. As the plaintiff approached the speed trap, the officer
flipped on his lights and pulled out of the private drive onto the shoulder
causing the plaintiff to swerve to avoid contact. As a result, the plaintiff lost
control of the motorcycle, flipped on its side, in which the plaintiff died as a
result of the accident. The court held specifically, that the accident in question
was not proximately caused by the officer’s police unit. The Court stated that
“without a number of unreasonable assumptions and stacked inferences”
there was no evidence to create a fact issue as to whether or not the officer’s
action caused the plaintiff’s injuries. Northcutt, at *4. As it was Northcutt’s
burden to provide evidence demonstrating a causal nexus, she failed in
meeting the burden. Northcutt, at *4, citing to Ron v. Airtrain Airways, 397
S.W.3d 785, 800 (Tex. App. - Houston 2013)(no pet.)(“This court should not
find genuine facts issue precluding summary judgment by unreasonable
inferences from the summary –judgment evidence or by pilin on one
inference upon another” (citing Shlumberger Well Surveying Corp. v. Nortex
Reply Brief for Appellant – City of Pharr, Texas                               -6-
Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968). Northcutt, citing to Hillis
and Ryder, found that Northcutt’s complaints about the officer’s actions
“seem to be more properly classified as a condition that made the accident
possible, rather than the actual cause of the accident itself.” Northcutt, at *5
      In attempting to connect Quintero’s decision to flee from Officer
Gonzalez to an act by the city, Plaintiffs seek to stretch the causal connection
“net to include the officer’s decision to pull Quintero over and the decision to
pursue the fleeing vehicle. Following this train of “unreasonable assumption
and stacked inferences” would cast the net of causation to include that the
tragic death of the Plaintiff was “caused by” Officer Gonzalez clocking into
work that day. This goes against the basic purpose of section 101.021 in
which immunity is waived “only to a limited degree.” Bossley¸968 S.W.2d
339, 343 (Tex. 1998).
      Plaintiffs cannot meet the causal nexus requirement to get around
immunity because reasonable minds cannot differ as to the most important
facts of this case. It is not disputed that Officer Gonzales did not come into
contact with Quintero’s vehicle and most importantly did not come into
contact with the Decedent’s vehicle. It is not disputed that Officer Gonzalez
in no way forced Quintero’s vehicle into another object, barrier, or vehicle. It
is not disputed that the pursuit by Officer Gonzales ended more than 3 miles
from the collision, yet Quintero continued, on his own volition, to travel at a
high rate of speed thereby placing himself and others in danger. CR at 60-
71, 74-79; SCR at 33-38.
      Again, Plaintiffs rely soley on the plurality opinion of Travis v. City of
Mesquite, 830 S.W.2d 94 (Tex. 1992). The plaintiff in Hillis also relied on
Travis, and the Court of Appeals found the case distinguishable. Hillis, 308
S.W.3d at 535. The Travis court “did not consider the narrower issue of
Reply Brief for Appellant – City of Pharr, Texas                             -7-
whether the use of a police car was the actual cause of the accident in
question. By contract, this case squarely presents the question of what
constitutes a sufficient causal nexus between the use of the police vehicle
and subsequent accident.” Hillis, 308 S.W.3d at 535.
      Likewise, in the case at hand, the question is whether the Plaintiffs’
claims “arise” out of the City’s use of the police vehicle and the evidence
establishes that it does not.

      B.     The Standard of Care In An Emergency Situation
      Defendant City asserts that it retains immunity from such claims, as the
Texas Tort Claims Act does not waive sovereign immunity for claims arising
from an employee responding to an emergency call or reacting to an
emergency situation. §101.055(2), TCP&RC. Under the Texas Gov’t Code,
the intention of enacting statutes and there is a presumption that the entire
status is intended to be effective, that a just and reasonable result is
intended, and that public interest is favored over any private interest. Tex.
Govt. Code Ann. §311.021.
      Plaintiffs, in their response to the City’s brief, makes only conclusory
allegations through their expert that Officer Gonzalez’ actions were taken
with conscious indifference and reckless disregard for the safety of others.
Plaintiffs further fail to cite to any case law whatsoever in support of their
argument. They cannot simply ignore Texas Supreme Court precedent on
this well settled issue.
      The Texas Supreme Court explains that imposing liability for a mere
failure in judgment could deter emergency personnel from acting decisively
and from taking calculated risks. City of Amarillo v. Martin, 971 S.W.2d 426,
430 (Tex.1998). This would allow for the judicial second guessing of the split-
second and time-pressured decisions emergency personnel are forced to
Reply Brief for Appellant – City of Pharr, Texas                            -8-
make. City of Amarillo v. Martin, 971 S.W.2d 426 (Tex.1998). Under
emergency conditions, an emergency vehicle operator is entitled to various
privileges. Martin, at 428 (referring to Tex. Trans. Code §546.001-005 which
allow emergency vehicle to proceed past a red light or stop sign, exceed the
maximum speed limit, or disregard regulation governing the direction of
movement in traffic).
      Plaintiff’s attach to their brief the dash cam video from Officer
Gonzalez’ police unit in support of their argument. (Pltfs SCR Ex.
E).However, the dash cam from Gonzalez’ vehicle only proves that Officer
Gonzalez acted reasonably and in good faith.
      At approximately time index 1:05, Officer Gonzalez begins the pursuit
of the suspect vehicle driven by Quintero and Quintero then refuses to stop.
As the pursuit begins Officer Gonzalez is continuously updating dispatch and
his supervisors of the pursuit to include the information regarding speed, and
what cross streets that are passed and other general observations. (Pltfs
SCR Ex. E). Throughout the video, it is clear that at each intersection, Officer
Gonzalez slows his vehicle. (See time index 8:00 (slows at stop sign); 8:30
(slows stop sign); 8:50 (slows at stop sign); 9:18 (slows at intersection; 9:50
(slows at intersection); and 10:40 (slows at intersection). (Pltfs SCR Ex. E).
      Further, at time index 12:00 Officer Gonzalez requests that dispatch
make contact with other agencies for spike strips or else he would need to
disengage the pursuit.         (Pltfs SCR Ex. E at 12:00). At 12:25, Officer
Gonzalez advises dispatch again that he would need to disengage the
pursuit unless other officers were able to assist with spike strips. (Pltfs SCR
Ex. E, at 12:25). At approximately 12:38 Officer Gonzalez advises dispatch
that he is disregarding the pursuit as the suspect driver is “traveling
recklessly.” (Pltfs SCR Ex. E, at 12:38.) At time index 14:00, Plaintiff makes
Reply Brief for Appellant – City of Pharr, Texas                             -9-
contact with a DPS Trooper and states “still going;” he does not advise or
request that DPS continue with the pursuit. (Pltfs SCR Ex. E, at 14:00).
Approximately 3 mi from where Officer Gonzalez disengages from the
pursuit, Quintero crashed into the Plaintiff’s vehicle. (CR at 60-71, 74-79;
SCR 33-38) It is not disputed that four law enforcement agencies (Pharr,
Alamo, Hidalgo County, and DPS) were involved in the pursuit. This only
further establishes the reasonableness of the officers’ actions. To deduce
anything more would introduce the judicial second guessing of the split-
second and time-pressured decisions of emergency personnel in which the
Supreme Court has held is not the intent of their rulings. City of Amarillo v.
Martin, 971 S.W.2d 426 (Tex.1998).
      Plaintiffs not only fail to cite to any case law supporting their argument,
but also fail to distinguish their case from rulings in which other courts have
determined that actual collisions with emergency vehicles are insufficient to
show reckless disregard and cannot defeat immunity. See City of Pasadena
v. Kuhn, 260 S.W.3d 93, 99-100 (Tex. App - Houston 2008) (holding officer’s
actions not taken with conscious indifference or reckless disregard for safety
of citizen when officer collided with citizen after slowing down to enter
intersection); Pakdimounivong v. City of Arlington, 219 S.W. 3d 401, 411-12
(Tex. App. - Fort Worth 2006, pet. denied)(holding that officers’ actions were
not taken with conscious indifference or reckless disregard for safety of
deceased when no evidence showed that officers did not care what
happened to deceased); Smith v. Janda, 126 S.W.3d 543, 545-46 (Tex.
App.-San Antonio 2003, no pet) (holding that evidence was insufficient to
establish recklessness when ambulance driven to emergency with lights and
sirens activated as it approached intersection, other drivers at intersection
could hear and see sirens and lights, ambulance driver slowed down and
Reply Brief for Appellant – City of Pharr, Texas                             -10-
looked around and then proceeded into intersection without coming to
complete stop); City of San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695,
701-02 (Tex. App. - Austin 2005, no pet.) (holding no evidence of reckless
disregard for safety of others when officer entered intersection without
stopping and witness did not hear brakes being applied).

Issue Presented #2: The City Can Not Be Held Liable Under the Tort
     Claims Act Because Officer Gonzalez Would Otherwise Be
     Entitled to Official Immunity For Carrying Out His Law
     Enforcement Duties In Good Faith.
             Officer Gonzalez Acted In Reasonable Good Faith As A
             Matter of Law
      The Plaintiffs do not dispute that if Officer Gonzalez was acting in good
faith, then he and the City of Pharr retain official immunity. Plaintiffs also cite
to Corpus Christi Court of Appeals case Cameron County v. Alvarado in
support of their argument. Alvarado cites to Texas Supreme Court Case City
of Lancaster v. Chambers, 883, S.W.2d 650, 653 (Tex.1994). In Chambers,
the Supreme Court of Texas held that an officer establishes good faith in a
police-pursuit case by showing that a reasonably prudent officer could have
believed it necessary to continue the pursuit, balancing the need for
immediate police intervention against the risk of harm to the public. Id.
      Alvarado quotes Chambers when holding that the “could have
believed” aspect of the good faith test means that, in order to be entitled to
summary judgment, a police officer must prove that a reasonably prudent
officer might have believed that the pursuit should have been continued.
Alvarado, at 880. (citing to Chambers, at 656-57). The test is one of
“objective legal reasonableness” and the immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Chambers at 656.


Reply Brief for Appellant – City of Pharr, Texas                               -11-
      It’s important to note that the City of Pharr was not the only law
enforcement agency in pursuit of Quintero. Four other agencies were
involved in the pursuit and DPS continued the pursuit after Officer Gonzalez
chose to disregard. (CR at 60-71, 74-79; SCR 33-38; Pltfs SCR Ex. E).
      Officer Gonzalez acted in good faith with regard to all actions taken by
him in regards to this pursuit. (CR at 60-71, 74-79; SCR 33-38.) Officer
Gonzalez balanced the need for taking the action he did against the risks of
harm to the public posed and proceeded appropriately. This is evident in the
fact that Officer Gonzalez disengaged from the pursuit when he felt it was
becoming more dangerous. (CR at 60-71, 74-79; SCR 33-38; Pltfs SCR Ex.
E at 12:28) Even after Gonzalez chose to disengage from the pursuit, DPS
continued to pursue Quintero. (CR at 60-71, 74-79; SCR 33-38; Pltfs SCR
Ex. E). At this point, Officer Gonzalez is no longer, as a matter of fact and of
law, a causal factor in the collision that happened later.
      The Plaintiffs have not, and cannot, show that no reasonable officer in
Officer Gonzalez’s position could have ever believed the facts justified his
response. This is important, because to create a genuine issue of material
fact, Plaintiffs must do more than show that Officer Gonzalez was negligent,
or that a reasonably prudent officer could have reached a different decision.
They must show that absolutely no reasonable police officer would ever
engage in and continue with this pursuit in the way and fashion in which
Gonzalez did. The fact that four other law enforcement agencies engaged in
and continued the pursuit after Officer Gonzalez disengaged from the pursuit
establishes that Officer Gonzalez acted reasonably. “[T]o controvert a police
officer’s summary judgment proof on good faith, the [respondent] must do
more than show that a reasonable prudent officer could have decided to stop
the pursuit. The respondent must show that no reasonable person in the
Reply Brief for Appellant – City of Pharr, Texas                            -12-
officer’s position could have thought that the facts justified the officer’s acts.”
Wadewitz, at 467.
      As such, Gonzalez is entitled to official immunity, and the City is, by
extension, consequently entitled to its government immunity. University of
Houston v. Clark, 38 S.W.3d 578, 579 (Tex. 2000); DeWitt v. Harris County,
904 S.W.2d 650, 653 (Tex. 1995).

                    CONCLUSION & PRAYER FOR RELIEF
      Therefore, based on any one or more of the reasons outlined above,
the Appellant City of Pharr Texas requests and prays that this Court should
REVERSE the trial court’s order denying the Plea to the Jurisdiction as to
the Plaintiffs’ personal injuries claim and RENDER Judgment that the
Plaintiff/Appellee’s claims be dismissed for want of subject-matter
jurisdiction.
      In addition, Appellant also requests any further and additional relief to
which it is entitled, at law or in equity.
      SIGNED this 17th day of SEPTEMBER, 2015.

                                         Respectfully Submitted,

                                         DENTON NAVARRO ROCHA BERNAL
                                         HYDE & ZECH
                                         A Professional Corporation
                                         701 E. Harrison, Ste. 100
                                         Harlingen, Texas 78550
                                         956/421-4904
                                         956/421-3621 (Fax)




Reply Brief for Appellant – City of Pharr, Texas                               -13-
                                  By:    /s/ Ricardo J. Navarro
                                         RICARDO J. NAVARRO
                                         Attorney In Charge
                                         State Bar No. 14829100
                                         Email: rjnavarro@rampage-rgv.com

                                  By:    /s/ Rebecca S. Hayward
                                         REBECCA S. HAYWARD
                                         State Bar No. 24080709
                                         Email: rhayward@rampage-rgv.com
                                         COUNSEL FOR APPELLANT
                                         THE CITY OF PHARR, TEXAS


                        CERTIFICATE OF COMPLIANCE
     Undersigned counsel for the Defendant / Appellant, the City of Pharr,
Texas hereby certifies that this Brief complies with Texas Rule of Appellate
Procedure 9.4 and contains approximately [3,564] words, as measured in the
TRAP Rules.

                                         /s/ Ricardo J. Navarro
                                         RICARDO J. NAVARRO
                                         REBECCA S. HAYWARD




Reply Brief for Appellant – City of Pharr, Texas                            -14-
                           CERTIFICATE OF SERVICE

      Pursuant to TRAP 9.5, I certify that a true copy of this document has
been sent served in accordance with one or more of the methods of service
recognized by the Texas Rules of Appellate Procedure to the counsel or the
parties identified below on the 17th day of SEPTEMBER, 2015.

      Mr. Wyatt Snider
      Snider Law Firm
      550 Fannin Ste 111
      Beaumont, Texas 77701
      Counsel for Appellee




                                         Ricardo J. Navarro
                                         RICARDO J. NAVARRO
                                         REBECCA S. HAYWAR




Reply Brief for Appellant – City of Pharr, Texas                       -15-
