Opinion issued July 9, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-01069-CV
                           ———————————
                       CITY OF HOUSTON, Appellant
                                       V.
                       CASSANDRA GARZA, Appellee


                   On Appeal from the 281st District Court
                            Harris County, Texas
                      Trial Court Case No. 2018-15552


                         MEMORANDUM OPINION

      This is an interlocutory appeal of the trial court’s denial of the City of

Houston’s traditional motion for summary judgment, in which it argued that it was

immune from suit under the Texas Tort Claims Act. On appeal, the City argues
that the trial court erred by denying its motion because appellee Cassandra Garza’s

summary judgment affidavit was a sham that should have been disregarded.

      Because the City did not conclusively prove its entitlement to summary

judgment, we affirm the order of the trial court.

                                      Background

      City of Houston Police Officer J. Turretine and his partner stopped

Cassandra Garza for speeding at 5:14 a.m. on March 9, 2016. She was arrested for

outstanding traffic warrants and taken to the City’s Southeast Jail. At the jail,

Officer Turretine’s partner found Garza in possession of clear plastic bags

containing less than a gram of cocaine residue. Based on that information, Officer

Turretine contacted a Harris County assistant district attorney, “who accepted

charges of possession of cocaine less than one gram.” Officer Turretine had no

further contact with Garza.

      Garza alleged that she was injured later that day when a vehicle taking her

from the City jail to the Harris County jail collided with another vehicle. She sued

both the City and Harris County, stating that it was “undetermined at this time

whether the Plaintiff was in the custody of the City of Houston or Harris County,

Texas at the time of the accident.”

      The City filed a traditional motion for summary judgment in which it argued

that immunity precluded Garza’s suit as a matter of law. The City contended that


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its evidence—two affidavits and discovery responses—conclusively proved that

Garza’s alleged injuries did not arise from the City’s use of a motor driven vehicle.

The City attached affidavits from Officer Turretine, who arrested Garza, and

Officer R. Hall, who worked later that day. Officer Turretine stated that he and his

partner were uniformed and in a marked patrol car when they met Garza. He

averred that they were not involved in a motor vehicle collision while transporting

her.

       Both Officers Turretine and Hall denied having taken Garza to the Harris

County jail, although Officer Hall said that it was within his job responsibilities to

transport inmates. Officer Hall averred that he had provided inmate transportation

for 14 years and never had an accident. On March 9, 2016, he was assigned to the

evening shift, which began at 2:00 p.m. It was his usual practice to open the back

doors of the transport vehicle upon arrival at the Harris County jail, he “never

observed any inmates on the floor of the van after opening the doors,” and he

“never received a report from an inmate that they were injured during the drive.”

       The City’s final piece of summary judgment evidence was Garza’s sworn

interrogatories. In response to interrogatories, Garza stated that:

       •     She was a passenger in a vehicle owned and operated by either
             the City of Houston or Harris County.

       •     The vehicle in which she was riding rear-ended another vehicle.



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      •      She was seated in the rear of the vehicle, and she was being
             transported to jail.

      •      Immediately after the accident, she remained seated in the
             vehicle.

      •      She did not know of any efforts made by the driver to avoid the
             collision, nor did she know what the driver did immediately
             after the collision.

      •      She suffered pain to her body generally, including her head,
             neck, and back. She did not have this pain immediately prior to
             the collision.

      •      She did not recall any subsequent vehicular collision that
             affected the injuries she allegedly sustained.

      In other, separate interrogatories, she was asked to describe the vehicle with

regard to specific characteristics,1 to identify each person who was in the vehicle at

the time of the alleged collision,2 to describe the driver including any uniform

worn,3 and to describe any other vehicle involved in the collision. She responded

that she could not or did not recall the requested information.



1
      Interrogatory No. 3. Describe the vehicle You were in at the time of the Accident,
      including the make, model, exterior color, the color of exterior lettering, if any, the
      substance of any lettering on the vehicle, interior color, position of the emergency
      lights and any other detail You can recall.
2
      Interrogatory No. 5. Identify each person who was in the vehicle in which You
      were a passenger at the time of the Accident, including their location in the vehicle
      and whether they were restrained by a seat belt or other safety device.
3
      Interrogatory No. 6. If a peace officer was driving the vehicle in which You were a
      passenger at the time of the Accident, describe him or her, including the uniform
      he or she was wearing, if any.
                                             4
      Garza responded with her own affidavit and an affidavit from Harris County

Sheriff’s Deputy C. Meaux. In her affidavit, Garza averred that she was arrested

and taken to the City’s Southeast Jail on March 9, 2016. She stated: “Later that

same day, I was loaded into a van, along with two other female inmates, to be

transported from this jail to County Jail.” She also averred that she was handcuffed

to a female inmate, and another inmate on the van was pregnant. She described the

van as “being light in color,” although she “only saw the rear of the van.” She

stated that the “people who loaded [her] into the van had uniforms that were dark

in color.” She described metal partitions inside the van, and she stated that she was

“seated on a metal bench that had no seatbelts.” She recalled feeling “the jolt of a

collision with another vehicle,” and when she looked through a window, she saw

that “the transport van had collided with the rear of another vehicle.”

      Deputy Meaux averred that he had worked for the Harris County Sheriff’s

Office for 27 years, and during that time he oversaw “all investigations involving

HCSO fleet vehicles.” He averred:

      ....

      6.     It is the policy of the HCSO only to use HCSO fleet vehicles to
             transport inmates.

      7.     It has never been the practice of the HCSO to transport inmates
             from the City of Houston Southeast Jail located at 8300
             Mykawa Road, Houston, Texas 77048.



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      8.     On March 9, 2016, there were only two HCSO fleet vehicle
             accidents, neither HCSO fleet vehicle involved on this date are
             the type used to transport inmates. Neither HCSO fleet vehicle
             involved in an accident on this date were driven by an officer
             assigned to inmate transport.

      9.     On March 9, 2016, a Dodge Ram 1500 driven by Deputy [G.]
             Bloomfield, a HCSO Investigator, was in an accident at 10:30
             a.m. Deputy Bloomfield’s vehicle was hit by another vehicle
             backing into it in a parking lot. On March 9, 2016, a Ford
             Taurus driven by Deputy [C.] Workman was struck at the scene
             of an accident by a tow truck. No other HCSO fleet vehicles
             were involved in accidents on this date.

      The City objected that Garza’s affidavit was a sham affidavit and asked the

court to strike it from the summary judgment record. The City argued that Garza’s

affidavit included details about the transport vehicle, its other occupants, the

driver, and the other vehicle involved in the alleged collision, but she had stated

that she did not recall these details in her previously filed sworn interrogatory

responses.

      The trial court denied the City’s motion and specifically overruled the City’s

sham affidavit objection.4

                                       Analysis

      On appeal, the City raises a single issue, arguing that the trial court erred by

denying its motion for summary judgment because Garza’s affidavit was a sham
4
      The ruling on the sham affidavit objection preserved the City’s issue for appeal.
      See Scott v. Hunt, No. 01-11-00042-CV, 2012 WL 983339, at *5 (Tex. App.—
      Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (an objection that an
      affidavit is a sham affidavit alleges a defect in form, which requires a ruling from
      the trial court to preserve the issue for appeal).
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and should not have been considered. The City contends that Garza’s affidavit was

the only evidence that created a genuine question of material fact sufficient to

preclude summary judgment. Garza joins issue with the City, arguing that her

affidavit was not a sham and that together with Deputy Meaux’s affidavit, there

was a genuine question of material fact about whether the transport vehicle was

operated by the City.

I.    The court of appeals has jurisdiction over an interlocutory order
      denying a motion for summary judgment in which a governmental unit
      asserted immunity.

      A person may appeal from an interlocutory order of a district court that

grants or denies a plea to the jurisdiction by a governmental unit. TEX. CIV. PRAC.

& REM. CODE § 51.014(8). When a governmental unit asserts immunity in a

motion for summary judgment, a court of appeals has jurisdiction to review an

interlocutory order denying summary judgment. PHI, Inc. v. Tex. Juvenile Justice

Dep’t, No. 18-0099, 2019 WL 1873431, at *2 n.1 (Tex. Apr. 26, 2019); accord

Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (“If the trial court denies

the governmental entity’s claim of no jurisdiction, whether it has been asserted by

a plea to the jurisdiction, a motion for summary judgment, or otherwise, the

Legislature has provided that an interlocutory appeal may be brought.”).




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II.   A traditional summary judgment movant must show its entitlement to
      judgment as a matter of law.

      We review a trial court’s summary judgment de novo. Lujan v. Navistar,

Inc., 555 S.W.3d 79, 84 (Tex. 2018). To prevail on a traditional motion for

summary judgment, the movant must show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Lujan, 555 S.W.3d at 84. “If the movant carries this burden, the burden shifts to

the nonmovant to raise a genuine issue of material fact precluding summary

judgment.” Lujan, 555 S.W.3d at 84; see Maldonado v. Maldonado, 556 S.W.3d

407, 414 (Tex. App.—Houston [1st Dist.] 2018, no pet.). The purpose of summary

judgment is to eliminate patently unmeritorious claims, not to deprive a litigant of

the right to a jury trial. E.g., Tex. Dep’t. of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 228 (Tex. 2004); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 n.5 (Tex. 1979). When a party moving for traditional summary

judgment fails to satisfy the initial burden of showing that it is entitled to judgment

as a matter of law, the trial court must deny the motion, and the nonmovant is not

required to come forward with evidence demonstrating that a genuine question of

material fact exists. See Lujan, 555 S.W.3d at 84.




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III.   Governmental immunity enjoyed by municipalities can be waived by
       the Legislature.

       Governmental immunity, like sovereign immunity from which it is derived,

exists to protect political subdivisions, such as municipalities, from suit and

liability for monetary damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 655 & n.2 (Tex. 2008). The Legislature has expressly waived

immunity to the extent provided by the Texas Tort Claims Act. Id.; see TEX. CIV.

PRAC. & REM. CODE §§ 101.001–.109. As relevant to this case, the TTCA waives

immunity for personal injury caused by a wrongful act, omission, or negligence of

an employee using a motor-driven vehicle in the scope of his employment, so long

as the employee would be liable personally. TEX. CIV. PRAC. & REM. CODE

§ 101.021(1).

       The City argued that it was entitled to summary judgment as a matter of law

because it conclusively negated that the alleged injuries were caused by one of its

employees using a motor-driven vehicle. We disagree. Having reviewed the City’s

summary judgment de novo, we conclude that it failed to meet its initial summary

judgment burden.

       The City’s evidence showed that at approximately 5:14 a.m. on March 9,

2016, Officer Turretine arrested Garza and took her to the Southeast Jail. Officer

Turretine’s affidavit did not indicate when his shift ended, although it stated that,



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after contacting an assistant district attorney about a small quantity of cocaine

found in Garza’s possession, he took no further action related to this case.

      Officer Hall’s affidavit showed that he transported inmates to Harris County

jails from 2004 to 2018 and that he never had a vehicular accident. Officer Hall

averred that on March 9, 2016, his shift began at 2:00 p.m. He further averred that

on March 9, 2016, he was “the transport officer assigned to the evening shift.” He

did not, however, aver that inmates were only transported during the evening shift

or that no inmates were transported before his shift began that day. His affidavit

does not mention whether he saw Garza at any time after he arrived at work on

March 9, 2016. Thus, there is a gap in the City’s evidence between 5:14 a.m. and

2:00 p.m.

      Garza did not allege when she was taken to the Harris County jail except to

say it was “later in the day,” after her arrest on March 9, 2016. Her affidavit was

similarly phrased. This statement could mean that she was moved at a late time of

day, such as late afternoon or evening generally. It also could mean that Garza was

taken to the Harris County jail after her arrest around 5:14 a.m., but on the same

day. The City’s evidence does not address whether Garza was or could have been

transported to the Harris County jail before Officer Hall arrived at work at

2:00 p.m. While the evidence showed that neither Officer Turretine nor Officer

Hall was driving a vehicle in which Garza was a passenger when the collision


                                         10
occurred, it did not conclusively establish that no City employee was operating the

motor vehicle that Garza alleged was involved in the collision that caused her

injuries. Because of the gap in the City’s summary judgment evidence, it remains

possible that Garza was transported to the Harris County jail by a City of Houston

employee, i.e., one driving a vehicle after Garza’s arrest and before 2:00 p.m.

Thus, the City did not conclusively establish that its immunity was not waived

under the TTCA.

      Because the City did not meet the initial summary judgment burden to prove

its entitlement to judgment as a matter of law, the court was obligated to deny the

motion, and Garza was not required to come forward with any evidence to create a

question of fact. Having properly applied the summary judgment standard of

review, we do not need to address whether Garza’s affidavit was a sham affidavit

or whether the sham affidavit rule applies when the prior statement was a sworn

response to interrogatories. See TEX. R. APP. P. 47.1; see also Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (explaining prohibition on

advisory opinions).

      We overrule the City’s sole issue.




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                                    Conclusion

      We affirm the order of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Keyes, Kelly, and Goodman.




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