Hidalgo County, Texas v. Michael Calvillo and Rosa Rivera, Individually, and as Next Friend of Luis Espinoza and Aaron Calvillo

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: 13-15-00261-CV
• Status: Published

Opinion

ACCEPTED 13-15-00261-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/22/2015 4:11:56 PM Dorian E. Ramirez CLERK

NO. 13-15-00261-CV FILED IN IN THE THIRTEENTH COURT OF 13th COURT OF APPEALS APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 10/22/2015 4:11:56 PM DORIAN E. RAMIREZ Clerk

HIDALGO COUNTY, TEXAS, Appellant v. MICHAEL CALVILLO, AND ROSA RIVERA, INDIVIDUALLY, AND AS NEXT OF FRIEND OF LUIS ESPINOZA AND AARON CALVILLO, MINORS, Appellees

APPEAL FROM CAUSE NO. C-8615-14-A ND 92 JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS HON. LUIS M. SINGLETERRY, PRESIDING

APPELLANT’S REPLY BRIEF

Miguel “Mike” Ruiz State Bar No. 24079252

LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 W. Cano Edinburg, Texas 78539 (956) 383-3535 (956) 383-3585 (fax) eservices@henrichsonlaw.com

Counsel for Appellant, Hidalgo County, Texas INDEX OF AUTHORITIES

Cases

City of Pasadena v. Belle, 297 S.W.3d 525 (Tex. App. 2009)………………………………….…………. 3, 4

Tex. Dep't of Pub. Safety v. Sparks , 347 S.W.3d 834 (Tex. App.—Corpus Christi-Edinburg 2011, no pet.)………………………………………………………………………..2, 3

Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)……………….. …………………………..3

1 TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Defendant-Appellant, (hereinafter “Hidalgo County”) files this reply brief,

replying to two issues raised by Plaintiffs-Appellees (hereinafter “Plaintiffs”) in

their Response. Hidalgo County once again asks this Court to reverse the trial

court’s denial of its First Amended Plea to The Jurisdiction and dismiss all claims

against it with prejudice.

REPLY TO FIRST ISSUES

1. In Plaintiffs’ Response to Hidalgo County’s “emergency exception” argument, they complain that more evidence was required. (Response Brief Pg.19)

Plaintiffs state that Tex. Dep't of Pub. Safety v. Sparks, 347 S.W.3d 834

(Tex. App. 2011) a case used by Hidalgo County in its Brief is distinguishable with

the case at hand because in Sparks a “significant amount of evidence was

involved.” (Response Brief Pg.19) This argument does not make any sense

because a quick examination of Hidalgo County’s and Plaintiffs’ respective

Statement of The Facts will show that they are almost identical. All parties agree

to most of the facts, specifically the most important fact, that is, that Hidalgo

County was responding to an emergency call as set out in Plaintiffs’ own Statement

of the Facts and supported by Hidalgo County’s evidence as set out in its original

brief. (Response Pg.6) Furthermore, Sgt. Glen Mendoza’s Fleet Accident Report

states that the emergency lights and sirens were activated; subsequently pursuant 2 Sparks the burden of evidence shifts to Plaintiffs as set out in Hidalgo County’s

original brief. (CR46-47) Plaintiffs did not offer any evidence to raise an issue of

fact as to recklessness, therefore the emergency exception applies and Hidalgo

County retains it governmental immunity.

Moreover, a plea to the jurisdiction based upon immunity, provides a

process to prevent unnecessary discovery costs which ultimately are borne by the

tax payers. As stated by the Supreme Court:

Subjecting the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes toward defending lawsuits and paying judgments. See Krent, 45 VAND. L. REV. at 1537 n.23. Accordingly, the Legislature is better suited than the courts to weigh the conflicting public policies associated with waiving immunity and exposing the government to increased liability, the burden of which the general public must ultimately bear. Federal Sign, 951 S.W.2d at 414 (Hecht, J., concurring); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex. 1993).

Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)

REPLY TO SECOND ISSUE

2. In Plaintiffs’ Response to Hidalgo County’s “good faith” official immunity defense, Plaintiffs once again complain that more evidence is required to show that the Hidalgo County officer acted as a reasonably prudent officer would at the time he received the emergency call. (Response Brief Pg.17)

Plaintiffs’ offered City of Pasadena v. Belle, 297 S.W.3d 525 (Tex. App.

2009) as case law to support their assertion that Hidalgo County is required to

present more evidence to support the “good faith” element in their official 3 immunity defense. (Response Brief Pg.17) As stated by Plaintiffs in their

Response, City of Pasadena dealt with a “possible” hostage situation. Id. Where

an officer “did not activate his vehicle’s emergency lights or siren.” Id. at 29. The

City of Pasadena’s analysis inquired as to whether the officer’s presence was

necessary to protect a hypothetical hostage (at least at the time the officer acted)

from “possible” injury or death. The whole analysis was based on a what if

scenario. Moreover, the officer involved in the accident was allegedly speeding

without his sirens and lights on. City of Pasadena v. Belle, at 529, 532.

In the case at hand, Hidalgo County was responding to an actual ongoing

situation where a known gang member wanted for capital murder barricaded

himself and began shooting an estimated 500 rounds, actually shooting two

officers. (CR41-42) App.Tab.No.13 App.Tab.No.13 This altercation did not take

place in an open field in the middle of nowhere, it took place in the middle of a

neighborhood in La Joya, Texas. (CR39-42) Moreover, Hidalgo County’s officer

did have its lights and sirens on. (CR46-47)

The element of “good faith” was the only element of Hidalgo County’s

official immunity’s argument in dispute. All the evidence offered by Hidalgo

County establishes said element, therefore Hidalgo County has established a prima

facie showing of good faith as set out in original brief. Again, Plaintiffs did not

offer any evidence at all to dispute said showing. Therefore official immunity is

4 retained by the officer Olivarez and Hidalgo County in turn retains its

governmental immunity.

CONCLUSION AND PRAYER

Plaintiffs offered no evidence to contradict Hidalgo County’s evidence that

Olivarez was responding to an emergency call. Plaintiffs fail to offer any evidence

to show Olivarez actions were not in compliance with the laws and ordinances

applicable to emergency action (and that such non-compliance was reckless).

Furthermore, Olivarez acted in good faith, therefore Hidalgo County retains its

sovereign (governmental) immunity via derivative immunity. Accordingly,

Hidalgo County prays that this Court reverse the trial court’s ruling and grant

Hidalgo County’s First Amended Plea to the Jurisdiction and dismiss Plaintiffs’

claims with prejudice.

Respectfully submitted,

/s/ Mike Ruiz

Miguel “Mike” Ruiz State Bar No. 24079252 LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 W. Cano Edinburg, Texas 78539 (956) 383-3535 (956) 383-3585 (fax) E-Mail: eservices@henrichsonlaw.com

Appellate and Trial Counsel for Hidalgo County, Texas

5 CERTIFICATE OF COMPLIANCE

In compliance with Tex. R. App. Proc. 9.4(i)(3), I hereby certify that this

document contains 832 words, excluding the caption, identity of parties and

counsel, statement regarding oral argument, table of contents, index of authorities,

statement of the case, statement of issues presented, statement of jurisdiction,

statement of procedural history, signature, proof of service, certification, certificate

of compliance and appendix. In calculating the word count, I have relied on the

word count feature of Microsoft Office Word 2007.

/s/ Miguel “Mike” Ruiz ______________________________________ Miguel A. Ruiz

CERTIFICATE OF SERVICE

On October 22, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I served a copy of this response upon Appellees and all parties to the trial court proceeding through the electronic filing manager and/or e-mail.

/s/ Miguel “Mike” Ruiz ______________________________________ Miguel A. Ruiz

Taylor Shipman 601 Sawyer Street, Suite 650 Houston, TX 77007 E-Mail: taylor@lapezejohns.com