Elmer Rivera, Kassandra Morales Rodriguez and Isreal Morales v. City of Houston and Veronica Romero

• Court: Court of Appeals of Texas
• Decided: June 16, 2022
• Docket: 01-19-00629-CV
• Status: Published

Opinion

Opinion issued June 16, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00629-CV ——————————— ELMER RIVERA, KASSANDRA MORALES RODRIGUEZ, AND ISREAL MORALES, Appellants V. CITY OF HOUSTON, Appellee

On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2018-87546

MEMORANDUM OPINION1

1 Our opinion issued on December 22, 2020. The City moved for panel rehearing. We deny the motion for rehearing. We withdraw our December 22 opinion and issue this in its stead. This new opinion has two parts. The first part is the December 22 opinion without any substantive changes to the text. The second part includes additional, expanded analysis and a response to the matters raised in the motion for rehearing. This appeal arises from a car accident and centers on whether a City of

Houston police officer held official immunity when she drove her police vehicle

through an intersection—having no idea that she had a red light—on her way to

pick up a co-worker because she planned, after that, to stop by a police event to

which she had neither been assigned nor instructed to go. The City argued she had

official immunity, and the trial court granted the City’s summary-judgment

motion, ruling that the City established its affirmative defense.

In four issues, the other vehicle’s driver, Elmer Rivera, and his passengers,

Kassandra Morales Rodriguez and Israel Morales, (collectively, Rivera) contend

that (1) they raised a genuine issue of material fact to defeat the City’s summary-

judgment motion on immunity, (2–3) the trial court abused its discretion on two

evidentiary rulings related to the parties’ summary-judgment evidence, and (4) the

trial court abused its discretion in denying their motion to continue the summary-

judgment hearing, given that they did not get the chance to depose the two officers

whose affidavits the City relied on in support of its summary-judgment motion. As

explained below, we conclude that Rivera raised a fact issue on the officer’s

official immunity, which requires a reversal unless the ruling was correct on other

grounds.

The City argues it was. It contends that the summary judgment should have

been granted on its alternative theory that the emergency exception to

2 governmental-immunity waiver applied and the trial court erred when it denied the

summary-judgment motion on that separate ground. Because the trial court did not

err in denying summary judgment on that ground, we overrule the City’s sole

appellate issue.

We reverse.

Background

At around midnight, Officer V. Romero was driving outside of her regular

patrol area on her way to the Beechnut Station to pick up her partner. After picking

up her partner, she planned to go to a non-emergency priority-three call on an auto

theft. While on her way to the Beechnut Station, she heard a radio announcement

of an emergency priority-two call involving a suspect with a weapon. At the time,

Officer Romero was 10 to 15 minutes from that location, which was in her regular

patrol area. Officer Romero was not assigned to the priority-two call. She was not

asked to back that call up either.

Priority-two calls are emergency calls. The standard response to such a call,

according to Lieutenant C. Chen, who supervises patrol officers, is to “run silent

without emergency lights and siren” with a response time of “under five minutes.”

But if the situation “clearly warrants” the use of emergency equipment (meaning

lights and a siren), then an officer has the discretion to use that mode.

3 Even through Officer Romero was 10 or more minutes away, had not been

assigned to the call, and planned to pick up her partner before doing anything else,

Officer Romero decided to “check by” the priority-two call after going to the

Beechnut Station. At that point, before getting to the Beechnut Station, she

engaged her emergency equipment as she drove to pick up her partner.

Recognizing that the law permits police officers who are responding to an

emergency to violate certain traffic laws,2 Officer Romero reached the first

intersection after turning on her emergency equipment, noted that her light was

red, “came to a complete stop to ensure the intersection was clear,” saw that the

other vehicles were yielding her the right of way even though she had the red light,

and drove through that intersection.

She quickly approached the next intersection. There, she slowed down as she

approached the intersection but did not stop. As she was typing a message to the

dispatcher on her mobile data terminal (MDT) device about checking by the

priority-two call later, she entered that intersection. Officer Romero later admitted

she had no idea whether her light was red or green when she entered the

intersection typing on her MDT. As she entered the intersection, her police car

struck another car that was traveling along the intersecting roadway. The

2 See TEX. TRANSP. CODE § 545.151(a)(1)(A) (requiring a motorist to stop at an official traffic-control device); id. § 546.001(2) (authorizing police officers to “proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation”). 4 undisputed summary-judgment evidence is that Officer Romero, in fact, had a red

light, even though she was not aware she did, and that the other driver, Elmer

Rivera, had a green light.

In December 2018, Rivera and his passengers sued Officer Romero and the

City of Houston for damages for injuries suffered in the wreck. The next month,

the City answered and moved to dismiss Officer Romero from the suit under the

Texas Tort Claims Act, leaving just the City as the defendant. The motion was

fully briefed by both sides and set for hearing in February 2019. The trial court

granted the motion that month.

Two months later, the City filed a motion for summary judgment on two

immunity grounds: (1) official immunity for Officer Romero’s actions and (2) the

emergency exception to the Tort Claims Act’s governmental-immunity waiver

provision. See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (official immunity);

id. § 101.055(2) (emergency exception). In support of its motion, the City attached

the affidavits of Officer Romero and her supervisor, Lieutenant Chen. The motion

was set for May 2019.

Rivera responded in several ways. First, he moved to compel the City to

respond to pending discovery requests and to strike various objections the City had

raised to them. That motion was set to be heard in May 2019. Second, he filed a

verified motion to continue the summary-judgment hearing, arguing that discovery

5 was not complete and depositions still needed to be taken. Officer Romero had not

been deposed yet because the City had not given any dates for her availability.

Also, the case had not been set for trial. Third, he noticed Officer Romero’s

deposition for May 28, 2019.

Before the May 28 deposition date, the trial court denied Rivera’s motion to

continue the summary-judgment hearing and granted the City’s summary-

judgment motion.

Governmental Immunity

A. Standard of Review

Governmental immunity protects political subdivisions of the State,

including municipalities, from suit, unless immunity from suit has been waived.

Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).

When a governmental unit raises the affirmative defense of governmental

immunity through a summary-judgment motion, it must establish the affirmative

defense as a matter of law. See TEX. R. CIV. P. 166a(c); Oakbend Med. Ctr. v.

Martinez, 515 S.W.3d 536, 542 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

If the movant conclusively establishes the affirmative defense of immunity,

the burden of production shifts to the nonmovant to present evidence sufficient to

create a fact issue on at least one element of either the movant’s affirmative

defense or an exception to that defense. Oakbend, 515 S.W.3d at 542; Zeifman v.

6 Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.). If the movant

cannot and suit is barred because of a governmental unit’s immunity, summary

judgment is proper. Oakbend, 515 S.W.3d at 542; See Shives v. State, 743 S.W.2d

714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary

judgment may be based on a showing that the cause of action is barred as a matter

of law by the affirmative defense of governmental immunity.”); cf. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004) (standard of

review for jurisdictional plea based on evidence generally mirrors traditional

summary judgment standard).

B. Whether the City established immunity as matter of law based on good- faith performance of a discretionary act

Rivera sued the City for the actions of its employee, Officer Romero, in

causing the car wreck and resulting injuries. Political subdivisions, including

municipalities, cannot be held liable for the actions of their employees unless a

constitutional provision or statute waives governmental immunity. Little-Tex

Insulation, 39 S.W.3d at 594. The Texas Tort Claims Act waives governmental

immunity in certain circumstances. Dallas Cnty. Mental Health Mental

Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998). One of those

involves injuries that result from the governmental employee’s use of a vehicle.

Section 101.021 of the Act waives a governmental unit’s immunity for, among

other things, property damage and personal injuries proximately caused by the

7 negligence of an employee acting within her scope of employment if (1) the

damage and injuries arise from the operation or use of a motor vehicle and (2) the

“employee would be personally liable to the claimant according to Texas law.”

TEX. CIV. PRAC. & REM. CODE § 101.021(1).

The second half of the waiver criteria implicates official immunity because a

governmental employee who holds official immunity for her actions or omissions

would not be “personally liable under Texas law.” See DeWitt v. Harris Cnty., 904

S.W.2d 650, 653 (Tex. 1995) (“If the employee is protected from liability by

official immunity, the employee is not personally liable to the claimant and the

government retains its sovereign immunity” under § 101.021(1)); see also Mem’l

Villages Police Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309, at

*3 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.). “A

governmental employee is entitled to official immunity: (1) for the performance of

discretionary duties; (2) within the scope of the employee’s authority; (3) provided

the employee acts in good faith.” Univ. of Houston v. Clark, 38 S.W.3d 578, 580

(Tex. 2000); see City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994).

1. Discretionary duty

Generally, nonemergency driving by a police officer while on official

business is not a discretionary duty; it is, instead, a ministerial act that does not

entitle an officer to official immunity. City of Houston v. Hatton, No. 01-11-

8 01068-CV, 2012 WL 3528003, at *3 (Tex. App.—Houston [1st Dist.] Aug. 16,

2012, pet. denied) (mem. op.); Harris Cnty. v. Gibbons, 150 S.W.3d 877, 886

(Tex. App.—Houston [14th Dist.] 2004, no pet.). But, when the officer’s operation

of a vehicle involves personal deliberation or the exercise of the officer’s

professional expertise, decision, or judgment, then the manner of driving may

become a discretionary act. Hatton, 2012 WL 3528003, at *3. For example, an

officer’s manner of driving, including violating certain traffic laws, when the

officer is trying to quickly reach the scene of suspected criminal activity and assist

another officer has been held to be a discretionary act. See Harless v. Niles, 100

S.W.3d 390, 398 (Tex. App.—San Antonio 2002, no pet.).

2. Good faith

If the officer’s driving qualifies as the performance of a discretionary act, the

officer still must act in good faith to qualify for official immunity. See Clark, 38

S.W.3d at 580. We measure the “good faith” requirement against a standard of

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

mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997).

Because official immunity is part of the City’s affirmative defense of

governmental immunity raised in its motion for summary judgment, the City had

the burden to prove that a reasonably prudent police officer, under the same or

similar circumstances, “could have believed his actions were justified based on the

9 information he possessed at the time.” Gomez v. City of Houston, 587 S.W.3d 891,

897 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Telthorster v.

Tennell, 92 S.W.3d 457, 465 (Tex. 2002)).

This “could have believed” evaluation does not raise a question of

unreasonableness. Rather, it is a test of good faith analogous to an abuse-of-

discretion standard that protects “all but the plainly incompetent or those who

knowingly violate the law.” Id. (quoting Texas Dep’t of Pub. Safety v. Bonilla, 481

S.W.3d 640, 643 (Tex. 2015) (per curiam) (internal quotation marks omitted)). In

other words, the City need not prove it would have been unreasonable not to take

the actions that Officer Romero took or that a reasonable officer would have taken

the same actions as her; instead, it is enough to prove that a reasonable officer

under the same or similar circumstances might have reached the same decision she

did. Id.; Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 491 (Tex. App.—

Houston [1st Dist.] 2011, no pet.).

The evaluation of good faith compares the need to act against the risks of the

officer’s actions based on the facts at the time. Wadewitz, 951 S.W.2d at 467.

Need, in the context of an emergency response, is evaluated based on factors such

as (1) the seriousness of the crime or accident the officer is responding to, (2) the

need for the officer’s immediate presence to prevent injury or loss of life or to

10 apprehend a suspect, and (3) the availability of alternative courses of action, if any,

to achieve a comparable result. Id.

Risk evaluates countervailing public-safety concerns by examining (1) the

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

to bystanders as well as the possibility that a vehicle accident might prevent the

officer from reaching the scene of the emergency that drew the action, (2) the

likelihood that harm would occur, and (3) whether any risk of harm would be clear

to a reasonably prudent officer based on the officer’s perception of the facts at the

time. See id.; Gomez, 587 S.W.3d at 898.

If the City meets this “good faith” summary-judgment burden, then, to raise

a fact issue to defeat summary judgment, Rivera must offer evidence that no

reasonable officer in Romero’s position could have believed that the facts justified

her conduct. Gomez, 587 S.W.3d at 898.

3. The City did not establish these elements conclusively

In support of its summary-judgment motion and to conclusively establish

official immunity, the City relies on the affidavits of Officer Romero and

Lieutenant C. Chen, who was Officer Romero’s supervisor on the day of the

wreck. The City argues that these affidavits establish that Officer Romero was

performing a discretionary act and acting in good faith at the time of the wreck. In

doing so, the City focuses on the fact that Officer Romero had engaged her

11 emergency equipment consistent with responding to an emergency because Officer

Romero intended to “check by” the priority-two call after picking up her partner.

And the City focuses on Officer Romero’s explanation that it was reasonable for

her to type on her MDT as she drove through the intersection where the collision

occurred because she wanted to let the radio operator know that she intended to

check by the priority-two call and her “preference is to enter that information into

the MDT, rather than reporting via the radio to leave the air open in case the officer

needs assistance.” Her supervisor agreed that her actions were reasonable.

But other evidence called into question the reasonableness of these actions.

First, Lieutenant Chen claimed that the standard response to a priority-two call is

to “run silent without emergency light and siren” but an officer “has discretion to

use that mode” if the situation “clearly warrants the use of emergency equipment.”

There is no summary-judgment evidence that this situation warranted emergency

equipment. While Officer Romero claimed that typically “two units respond” to

such a call “unless the primary unit is a two-man unit,” making her decision to

check by the unassigned call align with police department practices, there is no

summary judgment evidence that the unit assigned to the call was a one-man unit

for which another unit would be warranted. This is thus no evidence that the

standard practice for this call was for her unit to go as well. Moreover, Lieutenant

Chen claimed that the standard response to a priority-two call is “under five

12 minutes.” Officer Romero, who was not assigned to the call, claimed that she was

10-15 minutes away and still planned to pick up her partner before going to the

call.

Even if we were to assume that

—the City established that Officer Romero’s decision to “check by” a call that was more than 10 minutes away, with no evidence the call met the criteria for her unit’s participation, and for which she had not been assigned to appear was a discretionary act,

—the City established that choosing to check by a priority-two call that was not within 5 minutes of her location and to use emergency equipment to do so—even though Officer Romero was 10-15 minutes away and planned to go pick up her partner from the Beechnut Station before going there—was “clearly warrant[ed],” and

—the City established that Officer Romero’s actions in typing on her MDT while driving through an intersection against a red light could be considered a good faith action,

we still must conclude that no reasonable officer could have concluded it was

reasonable to do these things without first confirming that the light was green or, at

a minimum, having some idea whether it was red.

Neither of the affidavits the City relies on addresses or acknowledges what

the summary-judgment evidence establishes: Officer Romero entered the

intersection having no idea whether she had a red light or green light. Rivera

submitted the Texas Peace Officer’s Crash Report for the wreck as summary-

judgment evidence. The report contains the verbatim text of Officer Romero’s

13 written statement, which included the concession: “I didn’t realize I had the red

light at the intersection at S. Braeswood.”

That Officer Romero did not know the status of the traffic light as she

entered an intersection is dispositive: it is not objectively reasonable to drive into

an intersection, while actively typing on a machine, without having any idea that

the traffic light controlling traffic from that direction was red, meaning there could

be cross-traffic entering the intersection on a green light. Because Officer Romero

did not know whether she had a red light when she entered that intersection typing

on her MDT, she could not properly evaluate the risks of her actions against any

need to check by the priority-two call, thereby taking her actions outside the realm

of a good-faith performance of a discretionary act. See Jarpe v. City of Lubbock,

No. 07-17-00316-CV, 2019 WL 2529670, at *5–6 (Tex. App.—Amarillo June 19,

2019, pet. denied) (mem. op.) (rendering judgment against City on immunity

claim, concluding no reasonably prudent officer could have determined it

reasonable to speed to a call to which the officer was not assigned, at night,

without emergency equipment activated, and while looking down at the MDT

instead of the road and other vehicles in the vicinity); Gomez, 587 S.W.3d at 899

(holding that city failed to establish good faith where affidavits discussed good

faith under assumed facts and provided no evidence of good faith under version of

facts most favorable to nonmovant); Rodriguez, 344 S.W.3d at 497 (concluding

14 officer and lieutenant’s affidavits did not establish good faith in driving through

red light).

Because Rivera raised a fact issue on official immunity,3 we sustain Rivera’s

first issue.

C. The evidentiary rulings and the continuance ruling are moot

In his remaining three issues, Rivera challenges two evidentiary rulings on

the summary-judgment evidence and another ruling to deny a continuance of the

summary-judgment hearing. We conclude that all three of these issues are mooted

by our holding that the trial court erred in granting the summary-judgment motion,

which returns this case to the trial court’s docket for additional proceedings and

evidentiary development.

D. Whether the City established immunity as matter of law based on emergency exception to immunity waiver

The City contends that, even if the trial court erred in granting it summary

judgment on official immunity arising out of a good-faith performance of a

discretionary act, the summary judgment may still be upheld on the alternative

3 The City argues that Rivera is unable to raise a fact issue without expert evidence, citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466–67 (Tex. 1997), and Harris County v. Avila, No. 14-18-00182-CV, 2019 WL 1030332, at *6 (Tex. App.— Houston [14th Dist.] Mar. 5, 2019, no pet.) (mem. op.). Neither case supports the City’s position. Neither case addresses whether, much less holds that, expert testimony is required to raise a fact issue on official immunity. See Wadewitz, 951 S.W.3d at 467 (concluding that the expert testimony offered on the subject of good faith was conclusory and therefore no evidence); Avila, 2019 WL 1030332, at *7 (stating that Avila “failed to present any controverting proof,” not simply expert opinion testimony). 15 theory that the emergency exception to immunity waiver applies here. The trial

court explicitly rejected this argument, and we do as well.

Under the emergency exception, the Texas Tort Claims Act’s immunity

waiver will not apply to a claim arising from “the action of an employee while

responding to an emergency call or reacting to an emergency situation if [1] the

action is in compliance with the laws and ordinances applicable to emergency

action, or in the absence of such a law or ordinance, if [2] the action is not taken

with conscious indifference or reckless disregard for the safety of others . . . .”

TEX. CIV. PRAC. & REM. CODE § 101.055(2).

The laws on operating an emergency vehicle are in the Transportation Code.

See TEX. TRANSP. CODE §§ 546.001–.006; Perez v. Webb County, 511 S.W.3d 233,

236 (Tex. App.—San Antonio 2015, pet. denied). Section 546.005 provides that an

emergency-vehicle driver must drive “with appropriate regard for the safety of all

persons” and is not relieved of the “consequences of reckless disregard for the

safety of others.” Id. § 546.005. A person commits the offense of reckless driving

if “the person drives a vehicle in willful or wanton disregard for the safety of

persons or property.” Id. § 545.401(a). A violation of this provision requires a

showing that the driver committed an act he knew or should have known posed a

high degree of risk of serious injury. City of Pasadena v. Kuhn, 260 S.W.3d 93, 99

(Tex. App.—Houston [1st Dist.] 2008, no pet.); Perez, 511 S.W.3d at 236. This is

16 a recklessness standard. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672

n.19 (Tex. 2006) (“conscious indifference” and “reckless disregard” have been

interpreted to require proof that a party knew the relevant facts but did not care

about the result).

An operator approaching an intersection “shall stop, yield, and grant

immediate use of the intersection . . . in obedience to an official traffic-control

device.” TEX. TRANSP. CODE § 545.151(a)(1)(A). It is permissible for an

authorized emergency vehicle to “proceed past a red [light] after slowing as

necessary for safe operation.” Id. § 546.001(2).

The City points to Officer Romero’s affidavit in which she states she slowed

down before entering the intersection where the wreck occurred. But the statute

requires more than that she slow down: it requires “slowing as necessary for safe

operation” through the intersection. See id.

Here, Officer Romero slowed her vehicle, but she did not look to see if she

had a red light to evaluate the risk of proceeding through the intersection. In fact,

she had no idea if she had the right of way or if other traffic did, yet she proceeded

through the intersection looking—not at the road, but—at her MDT.

Rivera raised an issue of fact about whether Officer Romero acted with

reckless disregard for him and other drivers in the area by failing to observe,

17 appreciate, or weigh the risk of entering this intersection against a red light and

with her eyes diverted. See Perez, 511 S.W.3d at 237.

This Court’s holding in Kuhn is distinguishable. There, an officer was

responding to a house-fire emergency. Kuhn, 260 S.W.3d at 95. He activated his

emergency lights and approached an intersection. Id. at 98. He recognized he had a

red light, he slowed down or possibly stopped and evaluated whether the

intersection appeared clear to cross, and he entered the intersection. Id. at 99–100.

There was a blind spot at that intersection, the officer did not see another car

coming, and the two collided in the intersection. Id. This Court held that there was

no evidence of reckless disregard because the officer slowed as necessary and the

existence of a blind spot was not determinative. See id. at 100–01.

Here, on the other hand, Officer Romero entered the intersection having

failed to determine whether she had a red light and she did so while distracted by

typing on her MDT. She slowed her vehicle, but she did not slow to the degree

necessary to evaluate whether she was traveling against a red light and, based on

that information, to evaluate the risks of proceeding through the intersection while

typing on her MDT.

The City did not establish a right to summary judgment on the emergency

exception on this evidence, and the trial court was correct to deny the motion on

this ground.

18 We overrule the City’s sole issue.

Conclusion

We reverse and remand for additional proceedings.

Panel consists of Justices Keyes, Lloyd, and Landau. Memorandum opinion authored by Justice Sarah Beth Landau.

OPINION ON REHEARING

In our original opinion, we stated that, even assuming certain facts favorable

to the City were true, the City still failed to establish immunity as a matter of law.

We took this approach because the two affidavits the City relied on for summary

judgment failed to adequately address a material fact established by the summary-

judgment evidence: that Officer Romero entered the intersection where the crash

occurred without knowing whether the traffic signal was red or green. That fact

must weigh into the need versus risk assessment required in a good-faith analysis,

yet neither affidavit weighed that material fact in concluding that a reasonable

officer could have believed that the need to arrive quickly outweighed the risk

associated with this officer’s conduct. We expand our analysis here to make

additional points and one correction.

A. Expanded analysis on good faith

A governmental entity must conclusively establish that a reasonably prudent

officer in the same or similar situation could have believed the need to which the

19 officer is responding outweighs the risks associated with the officer’s action to

obtain summary judgment based on good faith in a police-response situation.

Wadewitz v. Montgomery, 951 S.W.2d 464, 466–67 (Tex. 1997). The need half of

the balancing test assesses the urgency of the circumstances to which the officer is

responding, including the seriousness of the situation, whether the officer’s

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

suspect, and whether any other courses of action exist. Id. at 467. An officer must

assess the specific circumstances present that affect the risks involved. Harris

Cnty. v. Smyly, 130 S.W.3d 330, 335 (Tex. App.—Houston [14th Dist.] 2004, no

pet.). When a governmental entity’s supporting affidavit ignores the extent to

which alternative actions might have affected the officer’s ability to respond timely

to a disturbance call, the affidavit fails to adequately assess risk to conclusively

prove good faith. City of Brazoria v. Ellis, No. 14-14-00322-CV, 2015 WL

3424732, at *5 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem.

op.). Here, neither affidavit assessed the risks involved in entering an intersection

unaware of the color of the traffic light. Neither affidavit addressed the extent to

which alternative actions—like pausing typing or slowing until able to look up to

check the traffic light’s color—might have affected Officer Romero’s ability to

respond timely to the call, particularly given that she was making a stop at the

police station en route anyway.

20 In our original opinion, we stated that summary-judgment evidence that

Officer Romero did not know the traffic light’s color was dispositive. We clarify

here that it is dispositive in that it is a material fact that neither affidavit that the

City relies on incorporates into its risk assessment. Affidavits are required to assess

the specific circumstances present that affect risk. Smyly, 130 S.W.3d at 335.

“Summary-judgment proof does not provide a ‘suitable basis’ for determining

good faith if it fails to address several factors we have identified as bearing on the

need/risk analysis, including the availability of any alternative action.” Tex. Dep’t

of Pub. Safety v. Bonilla, 481 S.W.3d 640, 644 (Tex. 2015) (per curiam). The

evidence submitted by the City in support of its motion failed to address whether

Officer Romero had any available alternatives—such as looking up to see the light

color and then incorporating that information into her assessment of the risk of

entering that intersection under those conditions—or whether such alternatives

would have been viable given the circumstances. See Gomez v. City of Houston,

587 S.W.3d 891, 897–98 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). The

City did not conclusively establish good faith because it did not assess risk in light

of the uncontroverted, material facts and weigh those facts in determining whether

an alternative course of action was available instead of entering an intersection

without knowing the light color and while typing on a device.

21 The City’s evidence of good faith is also inconclusive for a second,

independent reason: it assumes the truth of the disputed fact that Officer Romero

engaged her emergency lights and siren before and while entering the intersection.

The police report contains verbatim statements from three people in the car that

collided with Officer Romero. Elmer Rivera stated that Officer Romero used her

emergency lights “half way.” Kassandra Rodriguez stated that it was “halfway”

when “the cops lights turn on.” Israel Morales stated he saw the police lights when

“she put it at the last minute.”

An opinion that an officer acted in good faith does not conclusively establish

good faith when the opinion is reached “by assuming the truth of disputed facts.”

Green v. Alford, 274 S.W.3d 5, 20 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied) (en banc). The affidavits the City relies on assumes Officer Romero had

her emergency equipment engaged continuously as she approached and entered the

intersection. But there was other evidence in the record that she did not have the

emergency equipment engaged before entering this second intersection. The three

people in the other car stated that Officer Romero turned them on halfway through

the intersection at the last minute. Neither of the City’s affiants formed their good-

faith opinions based on a need versus risk analysis under the alternative scenario

that Officer Romero had not engaged her emergency siren until halfway through

the intersection. Because they did not, and there is evidence in the record that she

22 turned on the siren late, the City has not conclusively demonstrated that Officer

Romero acted in good faith. Ellis, 2015 WL 3424732, at *6; Smyly, 130 S.W.3d at

335 (“When material facts underlying an officer’s claim of good faith are

contradicted, a conclusive finding of good faith is precluded and summary

judgment is improper.”).

Because the evidence does not reflect that Officer Romero considered

alternative actions and because the City’s evidence of good faith assumes the truth

of disputed facts, we reaffirm our conclusion that the City did not conclusively

establish that Officer Romero acted in good faith. Gomez, 587 S.W.3d at 897–901.

Accordingly, the burden never shifted to Rivera to produce controverting evidence

to rebut Officer Romero’s good faith. And the trial court erred in granting the

City’s motion for summary judgment on official immunity’s good-faith grounds.

B. Correction

In our original opinion we described the crash by saying that Officer

Romero’s “police car struck another car that was traveling along the intersecting

roadway.” The City argues on rehearing that the other car struck Officer Romero’s.

Indeed, the crash report identifies “Unit 1” as Rivera and “Unit 2” as Officer

Romero and states that “Unit 1 had the green light. Unit 2 failed to use due caution

and was using the MDT police computer. Unit 1 (FD) struck Unit 2 (RP).” Thus,

23 we amend our opinion to state that Rivera’s vehicle struck Officer Romero’s

vehicle.

Additionally, our original opinion indicated that Officer Romero’s affidavit

made no mention of the fact that she did not know the color of her traffic light. The

City is correct that there is a short phrase in Romero’s affidavit that states she did

not know she had a red light. But our analysis remains the same. The reason the

City’s affidavits did not support summary judgment was not that the officers failed

to acknowledge she had not known the traffic light’s color. It was that neither

affidavit incorporated that material fact into the need versus risk assessment that is

required to posit that a reasonable officer might have believed the officer’s actions

were appropriate. See Ellis, 2015 WL 3424732, at *5–6 (summary judgment on

immunity is improper when government entity attempts to establish good faith by

assuming truth of disputed facts or fails to consider uncontroverted facts). Officer

Romero said she did not know the traffic light’s color, but she did not incorporate

that material fact into her need versus risk assessment. Neither did Lieutenant

Chen. See Smyly, 130 S.W.3d at 334–35 (to establish good faith as a matter of law,

the affidavits relied on by the government entity must base their need-risk

assessment on facts in light most favorable to the nonmovant and must address all

evidence in the record that is material to the good-faith determination).

24 We amend our opinion to make these two corrections but conclude that

neither affects our analysis.

C. Additional response to the City’s motion for rehearing

The City lodges three additional criticisms of our original opinion that we

address here.

1. Color of traffic light

First, the City contends that we reversed on a ground not expressly presented

to the trial court. According to the City, Rivera never highlighted to the trial court

that Officer Romero had not known the traffic light color when she entered the

intersection. This omission, under the City’s theory, prevents this Court, on appeal,

from allowing that record fact to drive our analysis. We disagree that Rivera’s

alternate focus requires an affirmance for two reasons.

The law requires an appellant to have raised with the trial court the issue on

which it seeks to rely on appeal. TEX. R. CIV. P. 166a(c). Here, the City was the

movant, and Rivera was the nonmovant. The City had the burden to conclusively

establish good faith to obtain summary judgment. Wadewitz, 951 S.W.2d at 466–

67. “A summary judgment may be based on uncontroverted testimonial evidence

of an interested witness ... if the evidence is,” among other things, “free from

contradictions and inconsistencies.” TEX. R. CIV. P. 166a(c). Rivera’s response

challenged the risk assessment in Officer Romero’s affidavit and noted that the

25 summary-judgment evidence supported an alternative factual theory that Officer

Romero had turned on her emergency equipment “at the time she realized she had

run a red light and was in the middle of an intersection”—meaning she did not

know she had a red light when she entered the intersection. Attached to Rivera’s

summary-judgment response was a crash report that contained this statement by

Romero: “I didn’t realize I had the red light at the intersection at S. Braeswood.”

The City’s own evidence included the same fact because Officer Romero’s

affidavit likewise stated: “I did not realize I had the red light at the intersection of

S. Braeswood.” The matter of entering the intersection unaware of the light color

was raised in the summary-judgment proceeding, even if it was not the center of

Rivera’s argument. That Rivera chose not to highlight the fact does not preclude its

relevance in our de novo review of the grant of summary judgment on immunity

grounds. This simply is not a waived issue.

Regardless, we have concluded that the affidavits were insufficient to

support summary judgment because they assumed the truth of disputed facts—that

Officer Romero’s emergency equipment was engaged before and while entering

the intersection. The extent to which Rivera focused on Officer Romero’s

knowledge of the traffic light’s color played no role in our conclusion that

summary judgment was improper because the City’s affidavits impermissibly

assumed a disputed fact in the movant’s favor. Thus, there is an independent basis

26 for reversing summary judgment unrelated to the color of the traffic light and

whether Rivera focused on it in his summary-judgment response.

2. Negligence standard

Next, the City contends we reduced the good-faith evaluation to a

negligence standard by seeming to conclude that Officer Romero could not have

appropriately “proceed[ed] past a red [light] after slowing as necessary for safe

operation” if she did not know the color of her light as she entered the intersection.

TEX. TRANSP. CODE § 546.001(2). According to the City, Officer Romero’s

“knowledge of the light’s color” should have been “immaterial” to our analysis so

long as there was evidence that she slowed her vehicle; otherwise, we are

impermissibly evaluating whether she was negligent.

We disagree that our discussion of this Transportation Code provision

reduced the evaluation to a negligence standard. The statute requires an officer to

slow “as necessary for safe operation.” Id. The issue is not that Officer Romero

failed to slow enough or that her failure to slow might be negligent. It is that she

could not have assessed the risks involved in proceeding through the intersection

without also knowing the light color because whether she faced a red or green light

affected the risk assessment of proceeding. See Smyly, 130 S.W.3d at 335.

Until cross-traffic became aware of Officer Romero’s presence, those

drivers presumably would have stopped if they had a red light or would have

27 continued through the intersection if they had a green light. The likelihood cross-

traffic would have crossed the intersection at the same time Officer Romero

crossed the same intersection was impacted by the color of the traffic light from

each direction. This makes Officer Romero’s lack of knowledge of the light’s color

a material fact that affected the risk assessment. Yet, neither of the affidavits the

City relied on incorporated that record fact into their risk assessment in concluding

that a reasonable officer might have determined that the need outweighed the risks.

It is not that Officer Romero failed to slow enough to be safe. It is that a risk

assessment must include the material fact that she had a red light and proceeded

through the intersection without that knowledge. Neither affidavit on which the

City relied accounted for that material fact in their risk assessments.

3. Emergency exception

Finally, the City contends there is no genuine issue of material fact that

Officer Romero was responding to an emergency and that her actions were not

reckless, and, therefore, the City was entitled to summary judgment on immunity

under its alternative theory that the emergency exception applied. TEX. CIV. PRAC.

& REM. CODE § 101.055(2). The City cites to multiple cases that state the

undefined term “emergency” should be read broadly and to the affidavits it

supplied in support of its summary-judgment motion that referred to the priority-

two call Officer Romero says she was responding to as an emergency.

28 But the cases the City cites are distinguishable. In each, the officer was

going directly to the location of a call that, in most cases, involved a dangerous

situation that might have resulted in injuries or loss of life. See, e.g., Quested v.

City of Houston, 440 S.W.3d 275, 284–85 (Tex. App.—Houston [14th Dist.] 2014,

no pet.) (officer received emergency call from SWAT commander who ordered

officer to immediately report to scene of armed hostage situation). Here, Officer

Romero planned to “check by” a call assigned to a different officer but only after

driving to the police station to pick up her partner. The undisputed evidence in this

case, as confirmed by Officer Romero’s own affidavit, is that Officer Romero

heard a dispatch about a priority-two call, she was not assigned to the call, she was

not in the assigned area of the call, and she was more than five minutes from the

location, even though Lieutenant Chen testified that a priority-two call has a

standard response time of less than five minutes.

Before hearing the call, Officer Romero was on her way to the police station

to pick up her partner. Nothing about the content or seriousness of the call caused

her to alter her course. It only affected what she would do after picking up her

partner. The wreck happened on the way to the police station before Officer

Romero picked up her partner.

The summary-judgment evidence raises a fact issue whether the underlying

facts constitute an emergency as contemplated in Section 101.055(2). According to

29 Lieutenant Chen—in the affidavit the City was relying on for summary

judgment—priority-two responders should arrive in less than five minutes. Officer

Romero was more than five minutes away and planned to make a stop en route.

We have not found any “emergency exception” cases involving a stop en

route to a call location, much less cases where the officer who stopped en route

was never assigned to the call to begin with. At a minimum, there is a fact question

whether this qualifies as a response to an emergency call under Section 101.055(2)

to take Officer Romero’s actions outside the waiver of immunity for emergency

responses. See City of Coll. Station v. Kahlden, No. 10-12-00262-CV, 2014 WL

1269026, at *5 (Tex. App.—Waco Mar. 27, 2014, pet. denied) (mem. op.)

(defining “emergency,” in context of Section 101.055(2), as “an unforeseen

combination of circumstances or the resulting state that calls for immediate action”

(internal quotations omitted)); Jefferson Cnty. v. Hudson, No. 09-11-00168-CV,

2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem.

op.) (defining “emergency” as used in section 101.055(2) to “refer[ ] to unforeseen

circumstances that call for immediate action” (internal quotations omitted)).

The fact question precludes summary judgment on this alternative theory.

30 Conclusion

The City’s motion for rehearing is denied. We reverse and remand for

additional proceedings.

Sarah Beth Landau Justice

Panel on rehearing consists of Justices Landau, Hightower, and Rivas-Molloy.