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
2 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.
3 • 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.
5 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
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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
2 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.
3 • 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.
5 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). 6 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.”).
7 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.
8 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,
9 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.
11 Conclusion
We affirm the order of the trial court.
Peter Kelly Justice
Panel consists of Justices Keyes, Kelly, and Goodman.