Tennell v. Telthorster

84 S.W.3d 1, 2000 WL 33924359
CourtCourt of Appeals of Texas
DecidedOctober 12, 2000
DocketNo. 14-99-01141-CV
StatusPublished
Cited by5 cases

This text of 84 S.W.3d 1 (Tennell v. Telthorster) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tennell v. Telthorster, 84 S.W.3d 1, 2000 WL 33924359 (Tex. Ct. App. 2000).

Opinions

OPINION

PAUL C. MURPHY, Chief Justice.

Officer Telthorster shot an unarmed man in the back while he was lying on the ground, half-handcuffed. In this appeal from a summary judgment on the affirmative defense of qualified immunity, we are asked to review whether appellee, Officer Mark Andrew Telthorster, established as a matter of law that he acted in good faith during the arrest of appellant, Ollie Lee Tennell. We hold that he did not and reverse the trial court’s summary judgment.

FACTUAL AND PROCEDURAL HISTORY

The appellee, who was employed by the Navasota Police Department, observed the appellant in his vehicle committing traffic [3]*3violations. The appellee, and his partner Officer Bailey, decided to stop the appellant and after following for some distance, turned on their flashing lights. The appellant did not stop, and the appellee followed the appellant to the driveway of the appellant’s home. After the appellant exited his vehicle, the appellee and Officer Bailey began to arrest and handcuff the appellant. During the handcuffing process, the appellee’s gun went off, and he shot the appellant and Officer Bailey.

The appellant sued both the appellee and the City of Navasota for negligence. The City and the appellee moved for summary judgment alleging the affirmative defense of qualified immunity on behalf of the officer and sovereign immunity on behalf of the City.

The trial court granted the appellee’s motion for summary judgment. The parties reached an agreement in which the appellant non-suited the City of Navasota pending this appeal. In one point of error, the appellant argues the appellee is not entitled to summary judgment based on qualified immunity because he failed to establish as a matter of law that he acted in good faith during the appellant’s arrest.

STANDARD OF REVIEW

The standard we follow in reviewing a summary judgment is well-established. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Tex. R.Civ.P. 166a(c). When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non-movant as true and we resolve any doubts in his favor. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).

ANALYSIS

A. Official Immunity

A properly pleaded affirmative defense, supported by uncontroverted summary judgment proof, may serve as the basis for a summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991). To be entitled to summary judgment on the affirmative defense of official and sovereign immunity, appellants have the burden to establish all the essential elements of those defenses as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials. The public would suffer if government officers, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. Chambers, 883 S.W.2d at 653. The appellant argues only that the appellee was not acting in good faith during his arrest.

B. Good Faith

The Supreme Court of Texas determined that a court must measure good faith in official immunity cases against a standard of objective legal reasonableness, without regard to the officer’s subjective state of mind. Chambers, 883 S.W.2d at 656. To establish good faith, one must show that a reasonably prudent officer, under the same or similar circumstances, [4]*4could have believed his conduct was lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred. Chambers, 883 S.W.2d at 656 (holding, in police pursuit cases, an officer acts in good faith, if a reasonably prudent officer, under the same or similar circumstance, could have believed that the need to immediately apprehend a suspect outweighed a clear risk of harm to the public in continuing the pursuit).

Simple subjective pronouncements of good faith by a defendant-officer, or by experts supporting the officer’s assertions, are insufficient as a matter of law to meet the summary judgment movant’s burden of showing good faith. See Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.1997). The test for good faith, in emergency response cases, depends on how a reasonably prudent officer could have assessed both 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. Therefore, it is incumbent on an officer asserting official immunity to not only explain the urgency of the circumstances requiring police intervention but also address the degree, likelihood, and obviousness of the risks created by the officer’s actions. Id.

The “need” aspect of the test for good faith refers to the urgency of the circumstances requiring police intervention. Need is determined by factors such as the seriousness of the crime 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. The “risk” aspect of good faith refers to the countervailing public safety concerns: the nature and severity of harm that the officer’s actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer. Id. See also, University of Houston v. Clark, 22 S.W.3d 915 (2000).

If the officer presents sufficient proof to meet his initial summary judgment burden on the issue of good faith, the non-movant must then controvert his proof with a showing elevated from that usually required of non-movants in summary judgment proceedings. The plaintiff must do more than show that a reasonably prudent officer could have acted differently; the plaintiff must show that no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts. Chambers, 883 S.W.2d at 657.

C. Discussion of Facts and the Law of Good Faith

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84 S.W.3d 1, 2000 WL 33924359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennell-v-telthorster-texapp-2000.