REVERSE AND RENDER and Opinion Filed December 7, 2018




                                           S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                        No. 05-18-00033-CV

                      CITY OF DALLAS, Appellant
                                   V.
 BLANCA K. HERNANDEZ-GUERRERO, MARIA MARTINEZ, INDIVIDUALLY, AS
    NEXT FRIEND TO E.H. AND J.H., MINORS, ROSEMARY AND SEFERINO
                         RODRIGUEZ, Appellees

                       On Appeal from the 68th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-16-04828

                               MEMORANDUM OPINION
                           Before Justices Bridges, Francis, and Lang-Miers
                                      Opinion by Justice Bridges
       The City of Dallas appeals the trial court’s order denying its plea to the jurisdiction in the

underlying car wreck involving a marked squad car. In three issues, the City argues the trial court

erred in denying its plea to the jurisdiction, the City is immune from suit because its officer is

entitled to official immunity, and the City is immune from suit because its officer was responding

to an emergency. We reverse the trial court’s order and render judgment that appellees take

nothing on their claims.

       In April 2016, Blanca Hernandez-Guerrero filed her original petition in which she alleged

she was a passenger in a vehicle that was struck by the unknown driver of a city-owned police

squad car. Hernandez-Guerrero alleged claims of negligence, injury by motor vehicle, and
respondeat superior. In May 2016, the City filed an answer in which it asserted Hernandez-

Guerrero’s claims concerned a governmental function, and the limited waiver of governmental

immunity did not apply to claims arising from the action of a governmental employee while

responding to an emergency call. In addition, the City argued its employee would be entitled to

official immunity since he was performing a discretionary function within the scope of his

employment and acting in good faith. Because its employee was entitled to immunity, the City

argued, it was also immune.

       In January 2017, the trial court entered an order consolidating Hernandez-Guerrero’s

claims with the claims of the other appellees bringing legal actions arising out of the accident. In

September 2017, the City filed a plea to the jurisdiction challenging the trial court’s exercise of

subject-matter jurisdiction over appellees’ claims against the City. The City alleged that, on

December 21, 2014, Dallas police officer Antwan Dunn was dispatched to an emergency call at a

Group Home where a man stole a purse, threatened to kill staff and residents, and was potentially

armed with a knife. Dunn activated his emergency lights and siren and proceeded to the location

in “Code 3” status. Dunn drove north on North Jim Miller Road and approached the intersection

at Lake June Road, where the traffic light was red. Dunn applied his brakes and slowed to clear

the intersection, and he proceeded when he believed the intersection was safe to enter. As Dunn

proceeded through the intersection, a vehicle in which Hernandez-Guerrero was a passenger

collided with Dunn. The dash camera video from Dunn’s vehicle showed his emergency lights

and siren were engaged for five minutes before he approached the intersection, and at least thirteen

vehicles pulled over for him.

       The City asserted its immunity from suit was based on Dunn’s entitlement to official

immunity. The City argued Dunn was performing a discretionary duty, acting within the scope of

his authority, and acting in good faith. The plea to the jurisdiction was supported by Dunn’s

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affidavit in which he described the circumstances of the accident and explained his actions and

perception of the urgency of the situation and the risks involved.

       In response to the City’s plea to the jurisdiction, appellees argued Dunn did not come to a

complete stop at the intersection despite the fact that Dunn’s training for responding to Code 3

emergencies required a complete stop at red light intersections. Instead, Dunn was traveling at

twenty-one miles per hour when he entered the intersection. Dunn received a letter of reprimand

stating he violated City policy when he was “involved in an on-duty motor vehicle accident that

was classified as PREVENTABLE.” Plaintiffs argued Dunn did not act in good faith because the

letter of reprimand showed no reasonable person in Dunn’s place could have thought the facts

were such that they justified Dunn’s actions. Plaintiffs acknowledged Dunn was responding to an

emergency but argued Dunn was “obliged to show appropriate regard for others and avoid reckless

conduct while doing so.” Plaintiffs alleged Dunn failed to operate his vehicle with appropriate

regard for the safety of all persons and demonstrated reckless disregard for the safety of others by

ignoring the requirements of his emergency response training and the City’s policies and

procedures when he traveled without stopping at the intersection on a red signal light. In December

2017, the trial court denied the City’s plea to the jurisdiction, and this appeal followed.

       In its first issue, the City argues the trial court erred in denying its plea to the jurisdiction.

Specifically, the City argues it is immune from suit as a result of Dunn’s official immunity.

       Immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly

asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d

217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a pleader

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are

questions of law. Id. at 226. Therefore, we review de novo a trial court’s ruling on a jurisdictional

plea. Id.

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        When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. We

construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction

but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

        However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do. Id. When the consideration of a trial court’s

subject matter jurisdiction requires the examination of evidence, the trial court exercises its

discretion in deciding whether the jurisdictional determination should be made at a preliminary

hearing or await a fuller development of the case, mindful that this determination must be made as

soon as practicable. Id. Then, in a case in which the jurisdictional challenge implicates the merits

of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists. 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.

        This standard generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate itself from

litigation if it is truly immune. Id. After the state asserts and supports with evidence that the trial

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court lacks subject matter jurisdiction, the plaintiffs are required, 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. Id. A summary judgment may be based on uncontroverted

testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise

credible and free from contradiction, and could have been readily controverted. TEX. R. CIV. P.

166a(c); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 698 (Tex. App.—Austin

2005, no pet.).

       When 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 nonmovant. Miranda, 133 S.W.3d at 228. We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

       Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951 S.W.2d 464,

465 (Tex. 1997). A governmental employee has official immunity for the performance of

discretionary duties within the scope of the employee’s authority, provided the employee acts in

good faith. Id. at 466. A court must measure good faith in official immunity cases against a

standard of objective legal reasonableness, without regard to the employee’s subjective state of

mind. Id. Good faith depends on how a reasonably prudent officer could have assessed the need

to which an officer responds and the risks of the officer’s course of action, based on the officer’s

perception of the facts at the time of the event. Id. at 467 (applying City of Lancaster v. Chambers,

883 S.W.2d 650, 656 (Tex. 1994) (good faith balancing test in context of emergency response

case). The “need” aspect of the test refers to the urgency of the circumstances requiring official

intervention. Id. In the context of an emergency response, need is determined by factors such as

the seriousness of the crime or accident to which the officer responds, whether the officer’s

immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and

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what alternative courses of action, if any, are available to achieve a comparable result. Id. The

“risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns:

the nature and severity of harm that the officer’s actions could cause (including injuries to

bystanders as well as the possibility that an accident could prevent the officer from reaching the

scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm

would be clear to a reasonably prudent officer. Id.

       Here, Dunn’s affidavit stated he understood that, in making discretionary decisions during

emergency response calls, he must weigh the need to urgently respond to a potentially life

threatening emergency against the risk involved to the general public when responding to the

emergency. Based on his law enforcement training and experience in responding to emergency

calls, Dunn understood that “Disturbance Emergency” calls, prioritized as Code 3 emergencies,

require an immediate response because victims could be in imminent danger, and the presence of

officers may be necessary to prevent serious bodily injury to persons at the scene.

       Dunn’s affidavit stated that, when he proceeded through the intersection after slowing

down and seeing that the intersection was clear of traffic, he believed in good faith that the need

to get to the scene of the emergency call outweighed the perceived minimal risk of an accident.

Dunn recognized that there is some risk when an officer decides to proceed through an intersection

on a red light. Dunn slowed down from 73 to 47 to 21 miles per hour as he approached the

intersection. Given the dry condition of the roadway at the time and the fact that the vehicles he

observed were stopped in the eastbound and westbound lanes of traffic, Dunn’s emergency lights

and siren were activated, and Dunn had slowed down prior to entering the intersection, Dunn did

not perceive that proceeding through the intersection would cause any danger to any other driver

close to him.




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       Dunn’s affidavit stated that, considering the above factors, the potential danger posed by

proceeding through the intersection was far less than the danger posed to the potential victims at

the location of the reported emergency disturbance. Given that Dunn had been dispatched through

the 9-1-1 system to respond and was expected to respond urgently to provide assistance to the

victims at the scene, Dunn had no other reasonable alternative but to proceed through the

intersection in the manner in which he proceeded. He did not engage in conduct that he believed

would pose a likelihood of serious injury to anyone. Dunn stated he was acting in good faith and

within the scope of his discretionary duty as a Dallas police officer. Dunn stated his actions were

reasonable in light of the circumstances, and any reasonably prudent police officer under the same

or similar circumstances could have believed that Dunn’s actions were justified.

       In their brief, appellees argue the City failed to prove that it was entitled to judgment as a

matter of law. Appellees argue they raised a factual dispute as to whether Dunn acted recklessly

or in violation of the Texas Transportation Code, defeating jurisdictional immunity, and as to

whether Dunn acted in good faith, defeating official immunity. Specifically, appellees argue the

City relies entirely on Dunn’s affidavit to show he slowed “as necessary for safe operation” at the

intersection. Appellees argue Dunn knew he was supposed to completely stop at the intersection

and look both ways, he was placed at fault by the City, and he received a reprimand for violating

City policy. In totality, appellees argue, this evidence raises a fact issue as to whether Dunn was

reckless or acted with conscious indifference. Further, appellees argue Dunn’s receipt of a letter

of reprimand indicates other Dallas police officers found Dunn’s actions to be unjustified and

constitutes evidence of a lack of good faith.

       Section 546.001(2) of the transportation code provides that the operator of an emergency

vehicle may proceed past a red or stop signal or stop sign after slowing as necessary for safe

operation. TEX. TRANSP. CODE ANN. § 546.001(2). The fact that a collision occurred does not

                                                –7–
amount to a showing that an officer violated the statute and is insufficient to raise a genuine issue

of material fact as to whether the officer acted recklessly. See Tex. Dep’t of Pub. Safety v. Sparks,

347 S.W.3d 834, 842 (Tex. App.—Corpus Christi–Edinburg 2011, no pet.); see also City of

Laredo v. Varela, No. 04–10–619–CV, 2011 WL 1852439, *3–5 (Tex. App. —San Antonio

May 11, 2011, no pet.) (mem. op.) (holding officer’s failure to adhere to policy requiring

emergency vehicles to come to complete stop and failure to remember looking both ways

before entering intersection did not raise fact issue as to whether officer acted in conscious

indifference to or reckless disregard for safety of others).

       A police officer’s own affidavit may establish good faith. City of La Joya v. Herr, 41

S.W.3d 755, 761 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (citing Barker v. City of

Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ denied)). An

officer’s good faith is not rebutted by evidence that he violated department policy. City of Fort

Worth v. Robinson, 300 S.W.3d 892, 900 (Tex. App.—Fort Worth 2009, no pet.) (citing

Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied)).

       The record shows the need to which Dunn was responding was a potentially life

threatening emergency at a Group Home. Dunn slowed at the intersection, and he believed in

good faith that the need to get to the scene of the emergency call outweighed the perceived minimal

risk of an accident. The road was dry, the vehicles Dunn observed were stopped in the eastbound

and westbound lanes of traffic, Dunn’s emergency lights and siren were activated. Thirteen other

vehicles had stopped in response to the emergency sirens and lights. Dunn did not perceive that

proceeding through the intersection would cause any danger to any other driver close to him. Dunn

recognized that there is some risk when an officer decides to proceed through an intersection on a

red light. However, the potential danger posed by proceeding through the intersection was far less

than the danger posed to the potential victims at the location of the reported emergency
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disturbance. Under the facts and circumstances of this case, we conclude appellees failed to raise

a factual dispute as to whether Dunn acted recklessly or in violation of the Texas Transportation

Code. See Sparks, 347 S.W.3d 834 at 842; Varela, 2011 WL 1852439 at *3–5. Further, we

conclude the evidence conclusively established Dunn acted in good faith. See Wadewitz, 951

S.W.2d at 465-67. Accordingly, the trial court erred in denying the City’s plea to the

jurisdiction. We sustain the City’s first issue. Because of our disposition of the City’s first

issue, we need not address the City’s remaining issues.

       We reverse the trial court’s order denying the City’s plea to the jurisdiction and render

judgment that appellees take nothing on their claims.




                                                 /Molly Francis/
                                                 DAVID L. BRIDGES
                                                 JUSTICE



180033F.P05




                                               –9–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 CITY OF DALLAS, Appellant                            On Appeal from the 68th Judicial District
                                                      Court, Dallas County, Texas
 No. 05-18-00033-CV          V.                       Trial Court Cause No. DC-16-04828.
                                                      Opinion delivered by Justice Bridges.
 BLANCA K. HERNANDEZ-GUERRERO,                        Justices Francis and Lang-Miers
 MARIA MARTINEZ, INDIVIDUALLY                         participating.
 AND AS NEXT FRIEND TO E.H. AND
 J.H., MINORS, AND ROSEMARY AND
 SEFERINO RODRIGUEZ, Appellees

        In accordance with this Court’s opinion of this date, the trial court’s order denying the
City of Dallas’s plea to the jurisdiction is REVERSED and judgment is RENDERED that:

       Blanca K. Hernandez-Guerrero, Maria Martinez, individually and as next friend
       of E.H. and J.H., minors, and Rosemary and Seferino Rodriguez take nothing on
       their claims against the City of Dallas.

       It is ORDERED that appellant City of Dallas recover its costs of this appeal from
appellees Blanca K. Hernandez-Guerrero, Maria Martinez, individually and as next friend of
E.H. and J.H., minors, and Rosemary and Seferino Rodriguez.


Judgment entered December 7, 2018.




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