Alejandra Zapata, Individually and as Next Friend of Yarely Zapata, Antonio Morales Sr. and Irma Morales Individually and as Next Friends of Antonio Morales Jr. and Miguel Morales v. City of Gonzales

• Court: Court of Appeals of Texas
• Decided: January 30, 2020
• Docket: 13-18-00065-CV
• Status: Published

Opinion

NUMBER 13-18-00065-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALEJANDRO ZAPATA, INDIVIDUALLY AND AS NEXT FRIEND OF YARELY ZAPATA, ANTONIO MORALES SR. AND IRMA MORALES INDIVIDUALLY AND AS NEXT FRIENDS OF ANTONIO MORALES JR. AND MIGUEL MORALES, Appellants,

v.

CITY OF GONZALES, Appellee.

On appeal from the 25th District Court of Gonzales County, Texas.

DISSENTING MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina Dissenting Memorandum Opinion by Justice Tijerina For the reasons set forth below, I respectfully dissent.

I agree with the majority that appellants have not raised a fact question as to

whether Officer Tunis was responding to an emergency call; however, I disagree that

appellants have raised a fact question as to whether Officer Tunis’s conduct was reckless.

In determining whether appellants pleaded a proper waiver of immunity, we

analyze whether they raised a fact issue as to whether Officer Tunis acted in “conscious

indifference” to or “reckless disregard” for the safety of others when he entered the

intersection on a red light without slowing as necessary for safe operation. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.055(2); § TEX. TRANSP. CODE ANN. 545.001. Even taking

appellants’ factual allegations as true as set out in the majority opinion, appellants raise

a fact question as to negligence at best but fail to raise a fact question as to whether

Officer Tunis’s conduct was reckless. Driving through a red light, on its own, does not

raise a fact issue regarding recklessness. 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 Harris

Cty. v. Spears, No. 14-17-00662-CV, 2018 WL 4571841, at *7 (Tex. App.—Houston [14th

Dist.] Sept. 25, 2018, no pet.) (mem. op.). I would therefore sustain the City’s issue and

affirm the trial court’s judgment granting the City’s plea to the jurisdiction.

JAIME TIJERINA, Justice

Delivered and filed the 30th day of January, 2020.