REVERSE and RENDER in part; REMAND and Opinion Filed March 27, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00045-CV
CITY OF DALLAS, Appellant V. ROSA RODRIGUEZ, Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-14889
MEMORANDUM OPINION Before Justices Bridges, Nowell, and Evans1 Opinion by Justice Bridges On the Court’s own motion, we withdraw our opinion issued August 7, 2019
and vacate our judgment of that date. The following is now the opinion of the Court.
The City of Dallas appeals the trial court’s order denying its plea to the
jurisdiction in the underlying case involving Rosa Rodriguez’ collision with a
marked police car. In three issues, the City argues the trial court abused its discretion
in sustaining Rodriguez’ objections to the City’s evidence offered in support of its
1 The Honorable Justice David Evans succeeded the Honorable Ada Brown, a member of the original panel. Justice Evans has reviewed the briefs and the record before the Court. plea to the jurisdiction, the trial court erred in denying its plea to the jurisdiction, and
the City is immune from suit because its officer is entitled to official immunity. We
reverse the trial court’s order, grant the City’s plea to the jurisdiction, dismiss
appellee’s claims for want of subject matter jurisdiction, and remand this cause to
the trial court for further proceedings consistent with this opinion.
In October 2017, Rodriguez filed her original petition in which she alleged
she was injured when a vehicle operated by Veronica Alejandro, a Dallas police
officer, disregarded a red light and caused Rodriguez’ vehicle to strike Alejandro’s
vehicle. Rodriguez alleged claims of negligence, gross negligence, respondeat
superior, and negligence per se.
In October 2018, the City filed a plea to the jurisdiction in which it argued
Alejandro was entitled to official immunity and the City was therefore shielded from
liability by sovereign immunity. Specifically, the City argued Alejandro was
performing a discretionary function within the scope of her employment and acting
in good faith. The plea to the jurisdiction was supported by Alejandro’s affidavit in
which she described the circumstances of the accident and explained her actions and
perception of the urgency of the situation and the risks involved.
In response to the City’s plea to the jurisdiction, Rodriguez first objected to
Alejandro’s affidavit as “hearsay and violations of the best evidence rule.”
Rodriguez argued Alejandro’s affidavit was fatally defective on the grounds that it
failed to unequivocally show it was based on personal knowledge and it made no –2– representation that the facts disclosed were true. Rodriguez also objected that
Alejandro’s affidavit contained self-serving statements, legal conclusions, and
conclusory statements of fact. Accordingly, Rodriguez argued, five paragraphs of
Alejandro’s affidavit should be excluded.
In addition, Rodriguez argued Alejandro approached the intersection where
the traffic signal controlling travel for Rodriguez was green, and the traffic signal
for Alejandro was red. Nevertheless, Alejandro approached the intersection without
coming to a complete stop to ensure she could safely cross the intersection and avoid
a collision. Rodriguez alleged Alejandro entered the intersection on a red light and
proceeded through the intersection without her lights and sirens on. Rodriguez
attached a copy of the collision report which contained a “City Driver’s Statement”
in which Alejandro stated she came to a complete stop before entering the
intersection and proceeded very slowly through the intersection. Alejandro also
stated that “all traffic on the northbound side had stopped and was giving [her]
passage.” Rodriguez argued that, although Alejandro stated she came to a complete
stop at the intersection, her dash cam showed her speed never read zero until after
the collision.
Rodriguez alleged the accident was investigated by the Dallas police, and the
investigator found that Alejandro’s disregarding a stop and go signal was a
contributing factor in the accident. The investigator also “noted that the vehicle in
front of [Rodriguez] proceeded through the intersection prior to [Rodriguez],” and –3– this contradicted Alejandro’s statement that northbound travel had stopped to allow
her to proceed through the intersection. Rodriguez argued Alejandro’s actions were
not discretionary because a general order of the Dallas police chief required officers
to “come to a complete stop” before entering an intersection; therefore, because the
order was mandatory, Alejandro had no discretion to ignore the order and was
required to obey the order. Rodriguez also argued Alejandro did not act in good
faith because she violated the order requiring her to come to a complete stop and the
traffic laws of Texas when she ran a red light without coming to a complete stop. In
making this argument, Rodriguez argues Alejandro’s dash cam “shows the triggers
for her lights and sirens to be going on and off up until the accident” and, “in
listening to the audio it is clear that Officer Alejandro’s overhead sirens were not
activated and cannot be heard until after the collision.” Rodriguez added “[i]t was
later noted the sirens on Officer Alejandro’s vehicle were not working properly.”
In her brief, Rodriguez argues Alejandro’s dash cam shows that she never
came to a complete stop at the intersection. Rodriguez argues Mario Rodriguez
testified Alejandro was driving without her lights and siren when the collision
occurred, and an incident report stated Alejandro’s sirens did not work properly,
contradicting Alejandro’s statement in her affidavit that her emergency lights, siren,
and air horn were activated. Rodriguez complains Alejandro did not mention in her
affidavit that her view was obstructed by another vehicle and that at least one other
vehicle besides Rodriguez’ did not stop and yield. –4– The dash cam video shows Alejandro constantly honking her patrol car’s air
horn as she approached the intersection where the collision occurred. The video’s
GPS “speed” indication shows Alejandro’s speed at 23 miles per hour just before
Alejandro appears to come to a complete stop. The speed indicator quickly drops to
nine and then to two miles per hour after she stopped and the indicator immediately
shows her speed at three miles per hour as she slowly entered the intersection. It is
obvious from viewing the video in relation to the GPS speed indicator that the
indicator is delayed in its indication of Alejandro’s speed at a given instant.
Alejandro’s stop at the intersection is very brief, but the stop is apparent from the
video, and it is clear that the GPS simply did not have time to read zero before
Alejandro was moving again. In effect, the laws of physics showed Alejandro
stopped, and the readout on the GPS was not accurate. Alejandro’s speed fluctuated
between two, three, six, three, and seven miles per hour as she proceeded through
the intersection, and she reached fourteen miles per hour and had almost cleared the
intersection when the collision occurred. As Alejandro proceeded, all other vehicles
cleared the intersection, giving her a clear line of sight at the road ahead.
The video also indicates “Triggers” including lights, siren, and brakes. Just
as Alejandro stops at the intersection, the siren indicator flickers on and off for a
second, but Alejandro was continuously honking her air horn at the time, and it is
difficult to hear the siren clearly until after the collision when Alejandro stops
honking the air horn. However, the siren is audible immediately before the collision –5– as Alejandro pulls into the intersection. The lights indicator stayed on continuously
throughout Alejandro’s approach to the intersection and the following collision,
although the lights themselves are not visible in the video.
On December 31, 2018, the trial court signed an order denying the City’s plea
to the jurisdiction. The order also sustained Rodriguez’ objections to Alejandro’s
affidavit except for her statement that “The potential danger posed by proceeding
through the intersection was far less, considering the above factors, than the danger
posed to the officers and victims involved in the 6XE major disturbance (violence)
emergency.” This appeal followed.
In its first issue, the City argues the trial court abused its discretion in
sustaining Rodriguez’ objections to the City’s evidence offered in support of its plea
to the jurisdiction. The City argues the trial court erred in striking twenty sentences
of Alejandro’s affidavit, effectively striking the bulk of Alejandro’s testimony.
Specifically, the City argues that, by “failing to identify which of her general
objections applied to the larger parts of Alejandro’s affidavit being challenged,
Rodriguez failed to put the district court on notice of the precise grounds on which
she challenged the affidavit.”
The party contesting jurisdiction in a plea to the jurisdiction must meet the
summary-judgment standard of proof to support its contention that the trial court
lacks subject-matter jurisdiction. HSBC Bank USA, N.A. v. Watson, 377 S.W.3d
766, 773 (Tex. App.—Dallas 2012, pet. dism’d). An appellate court reviews a trial –6– court’s ruling that sustains an objection to summary judgment evidence for an abuse
of discretion. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no
pet.). An appellant has the burden to bring forth a record that is sufficient to show
the trial court abused its discretion when it sustained the appellee's objections to the
summary judgment evidence. See id.
Rodriguez’ response to the City’s plea to the jurisdiction objected to
Alejandro’s testimony in her affidavit as “hearsay and violations of the best evidence
rule,” evidence of an interested witness, unsubstantiated opinions or unilateral
subjective determinations of facts, self-serving statements not susceptible of being
readily controverted, legal conclusions, and conclusory statements of fact.
Rodriguez’ response then separately listed sections of Alejandro’s affidavit to which
Rodriguez objected. Rodriguez did not state the specific grounds on which each
identified section of the affidavit was objectionable. We conclude these objections
were not sufficiently specific. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 207
(Tex. App.—Dallas 2005, no pet.) (rejecting argument that evidence was
substantively defective where objections identified only number of particular
paragraphs and exhibits with no description of particular basis for objection); see
Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler
2002, no pet.) (objection that individual paragraph of affidavit “contains
unsubstantiated legal conclusions” is itself conclusory because it fails to identify
which statements in individual paragraph are objectionable or offer any explanation –7– to trial court as to precise bases for objection); Garcia v. John Hancock Variable
Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio 1993, writ denied)
(objection that individual paragraphs contained “speculation” and “conclusion”
failed to give grounds to support inadmissibility argument). Under these
circumstances, we conclude the trial court abused its discretion in sustaining
Rodriguez’ objections to Alejandro’s affidavit. See Cantu, 195 S.W.3d at 871. We
sustain the City’s first issue.
In its second issue, the City argues the trial court erred in denying its plea to
the jurisdiction. In its third issue, the City argues it is immune from suit as a result
of Alejandro’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.
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 –8– 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.
–9– 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 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, –10– 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 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.
In its plea to the jurisdiction, the City alleged that, on March 2, 2017, at
approximately 2:40 p.m., Alejandro was on routine patrol duty in a marked Dallas
police patrol car. Through the 911 call center, Alejandro was dispatched to a report
of a person breaking windows and threatening to shoot a woman at her home. The –11– call was dispatched as a “code 3” assignment, which meant the call was “to be given
priority and answered without delay.”
Here, Alejandro’s affidavit stated she understood that, in making discretionary
decisions during emergency calls, she must weigh the need to urgently respond to
the emergency call against the risk involved to the general public when responding
to the emergency. Based on her law enforcement experience and responding to
emergency calls, Alejandro understood that “6X major disturbance (violence)
emergency calls” needed to be responded to immediately because fellow officers
and/or victims could be in imminent danger from the disturbance, and the immediate
presence of other police officers is necessary to prevent serious injury to the police
officers and/or the victims.
Alejandro’s affidavit stated that, when she proceeded through the intersection
after stopping, she believed in good faith that the need to get to the scene of the
disturbance emergency outweighed what she perceived to be the minimal risk of an
accident. Alejandro recognized that there was some risk in deciding to proceed
through an intersection on a red light. Alejandro came to a complete stop, looked to
her right and left, and activated the air horn on her patrol car. Given the dry condition
of the roadway at the time and the fact that traffic at the intersection appeared to be
yielding to her vehicle, Alejandro’s emergency lights, siren and air horn were
activated, and Alejandro had stopped at the light and proceeded slowly through the
–12– intersection, Alejandro did not perceive that proceeding through the intersection
would cause any danger to any other driver near her location.
Alejandro’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 officers and victims involved in the 6X major disturbance (violence)
emergency. Given that Alejandro had been dispatched through the 9-1-1 system to
respond and was expected to respond urgently to provide assistance to other officers
and victim(s), there was no other reasonable alternative but to proceed through the
intersection in the manner in which she proceeded. From her point of view at the
time and at all times while en route to the call, Alejandro did not engage in conduct
she believed would pose a likelihood of serious injury to anyone. Alejandro stated
she was acting in good faith and within the scope of her discretionary authority as a
Dallas police officer. Alejandro stated her actions were reasonable in light of the
circumstances, and any reasonably prudent police officer, under the same or similar
circumstances, could have believed Alejandro’s actions were justified.
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 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, –13– 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 Alejandro was responding was a
potentially life threatening emergency involving several unknown people beating on
a woman’s door and threatening her with a gun. Alejandro stopped at the
intersection, and she 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, traffic “appeared to be yielding to [Alejandro’s] vehicle,” and Alejandro’s
emergency lights, siren, and air horn were activated. While there may have been
some malfunction with Alejandro’s lights and siren, they were nevertheless –14– activated, and Alejandro used her air horn continuously. Alejandro did not perceive
that proceeding through the intersection would cause any danger to any other driver
near her location. Alejandro recognized that there was some risk in deciding 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
officers and victims involved in the 6X major disturbance (violence) emergency.
Under the facts and circumstances of this case, we conclude appellees failed to raise
a factual dispute as to whether Alejandro 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
Alejandro 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 second and third issues.
We reverse the trial court’s order, grant the City’s plea to the jurisdiction,
dismiss appellee’s claims for want of subject matter jurisdiction, and remand this
cause to the trial court for further proceedings consistent with this opinion.
/David L. Bridges/ DAVID L. BRIDGES JUSTICE 190045F.P05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the 116th Judicial District Court, Dallas County, Texas No. 05-19-00045-CV V. Trial Court Cause No. DC-17-14889. Opinion delivered by Justice Bridges. ROSA RODRIGUEZ, Appellee Justices Nowell and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
the City's plea to the jurisdiction is GRANTED, and Rosa Rodriguez' claims against the City are DISMISSED for want of subject matter jurisdiction. This cause is remanded to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered March 27, 2020.
–16–