law-official-immunity | governmental sovereign immunity defense jurisdictional | individual liability of
governmental officials and employees | litigation involving fire-fighters | Texas Tort Claims Act (TTCA)
OFFICIAL IMMUNITY
In their first issue, the Royals assert that Harris County did not carry its burden in establishing Garcia was
entitled to official immunity on the element of good faith. The Royals also assert, in their third issue, that the
affidavits of Garcia and accident investigation expert John Denholm should not have been considered as
summary-judgment evidence because the affidavits are conclusory and contradicted.
Official immunity is an affirmative offense that shields government employees from personal liability for the
employee’s performance (1) of discretionary duties, (2) within the scope of the employee’s authority, (3)
undertaken in good faith. See Univ. of Houston v. Clark, 38 S.W.3d 578, 580–81 (Tex. 2000); City of
Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). To obtain summary judgment on the basis of
official immunity, the government employee must prove conclusively each of these elements. Clark, 38 S.W.3d
at 580. In determining whether the summary-judgment proof conclusively establishes an official-immunity
defense, we must consider the existence of disputed facts material to these elements. See Telthorster v.
Tennell, 92 S.W.3d 457, 461 (Tex. 2002).
Royal v. Harris County Constable, (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost)
(official immunity defense successfully asserted in high-speed chase collision PI suit,
The Royals do not dispute that Harris County satisfied the first two requirements of official immunity in that they
concede that Garcia was performing a discretionary duty within the scope of his authority. However, the
Royals claim that genuine issues of material fact remain as to whether Garcia acted in good faith.
The evidence submitted by Harris County includes proof of facts that a reasonably prudent officer in the same
or similar circumstances could have believed that the need to pursue Hewitt outweighed the risk to the public.
See Clark, 38 S.W.3d at 586. Based on the evidence presented, Harris County met the summary-judgment
burden and conclusively established the element of good faith. See Ytuarte, 229 S.W.3d at 321. The burden
therefore shifted to the Royals, as nonmovants, to show that no reasonable person in the officer’s position
could have thought that the facts justified the officer’s actions. See Clark, 38 S.W.3d at 581.
OFFICIAL IMMUNITY DEFENSE - AFFIRMATIVE DEFENSES
Official Immunity
Because official immunity is an affirmative defense, the burden rests on the defendant to establish all of the
elements of the defense. Chambers, 883 S.W.2d at 653.
Under that defense, a government employee may be immune from a lawsuit that arises from (1) the
performance of his discretionary duties (2) in good faith, (3) provided he was acting within the scope of his
authority. Id. Here, appellees concede the first[3] and third elements, leaving us to decide only whether
Pasadena conclusively established Hoffman's good faith. See id.; Pruett v. City of Amarillo, 947 S.W.2d 718,
722 (Tex. App.-Amarillo 1997, writ denied).
City of Pasadena, Texas v. Belle (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Sullivan)
(collision involving emergency vehicle) (plea to the jurisdiction properly denied, official immunity not
established)
Under current Texas law, the determination of good faith consists of a balancing test that may often turn upon
the artful drafting of affidavits. Here, Officer Hoffman's affidavit, which we will discuss shortly, does not address
all of the factors mandated by the prevailing balancing test, and therefore does not conclusively demonstrate
his good faith. Accordingly, we affirm the trial court's decision. We begin, however, with a discussion of
current Texas law with respect to good faith.
In the context of official immunity, “good faith" is defined in a counter-intuitive fashion because it refers to a
standard of objective legal reasonableness that apparently disregards the police officer's subjective state of
mind. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (citing Chambers, 883 S.W.2d at 656).
Under this standard, an officer must prove that a reasonably prudent officer might have believed his actions
were justified under the circumstances. Wadewitz, 951 S.W.2d at 466; Chambers, 883 S.W.2d at 656-57. By
contrast, to rebut an officer's prima facie showing of good faith, a plaintiff must establish 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 (citations omitted).
Under Chambers and Wadewitz, that good-faith standard of reasonableness is subject to a balancing test that
weighs the need for the officer's actions versus the risks entailed by such conduct. Thus, in the context of a
police-pursuit case, an officer is said to have acted in good faith if “a reasonably prudent officer, under the
same or similar circumstances, could have believed that the need to immediately apprehend the suspect
outweighed a clear risk of harm to the public in continuing the pursuit." Chambers, 883 S.W.2d at 656. Then,
in Wadewitz, the Court adapted the Chambers good-faith balancing test for use in emergency-response cases:
[G]ood faith 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. The “need" aspect of the test refers to the urgency of the circumstances requiring police
intervention. 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. The “risk" aspect of good faith, on the other hand, refers to the
countervailing public safety concerns[.]
Wadewitz, 951 S.W.2d at 467 (citing Chambers, 883 S.W.3d at 656).
A defendant cannot establish good faith, nor can a plaintiff controvert a showing of good faith, simply by
offering an expert's conclusory statement that a reasonable officer could or could not have taken a particular
action. Wadewitz, 951 S.W.2d at 466. Arguably, such evidence might prove or disprove negligence.[4]
However, mere negligence is not, and should not be, the standard for visiting liability upon a law-enforcement
officer who must exercise discretion for the protection of the public. See Univ. of Houston v. Clark, 38 S.W.3d
578, 584 (Tex. 2000); Chambers, 883 S.W.2d at 655 (“The complex policy judgment reflected by the doctrine
of official immunity, if it is to mean anything, protects officers from suit even if they acted negligently."). Thus,
instead of setting forth what a reasonable officer could or should have done, an expert giving testimony
regarding good faith must discuss what a reasonable officer could have believed, based on the officer's
perception of the facts at the time of the event, and must be substantiated with reference to both the “need"
and “risk" aspects of the Chambers balancing test. See Wadewitz, 951 S.W.2d at 466-67. Further, the facts
of the case may require the expert to provide a continuing assessment of the “need" and “risk" factors,
because “emergency responses and police pursuits may involve rapidly changing circumstances." Clark, 38 S.
W.3d at 582-83.
Liability of Emergency Responders
Pasadena's second issue arises from chapter 546 of the Texas Transportation Code, which governs the
conduct of emergency responders. Under section 546.005, those who respond to emergency calls in
'authorized emergency vehicle[s]"[7] should avoid negligent behavior but are subject to liability only if they act
with reckless disregard for the safety of others. See Tex. Transp. Code Ann. § 546.005 (Vernon 1999);
Green v. Alford, 274 S.W.3d 5, 22 (Tex. App.-Houston [14th Dist.] 2008, pet. filed) (citing City of Amarillo v.
Martin, 971 S.W.2d 426, 431 (Tex. 1998)). Pasadena contends appellees have not demonstrated that
Hoffman drove recklessly and, building on that argument, concludes its immunity has not been waived under
TTCA section 101.021 because Hoffman cannot be personally liable to the claimants absent a showing of
recklessness.
City of Pasadena, Texas v. Belle (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Sullivan)
(collision involving emergency vehicle) (plea to the jurisdiction properly denied, official immunity not
established)
AFFIRMED: Opinion by Justice Sullivan
Before Rondon, Justices Seymore and Sullivan
14-08-00531-CV City of Pasadena, Texas v. Steven Belle and James West
Appeal from 61st District Court of Harris County
Trial Court Judge: John J. Donovan
Because we are required to assume the truth of the evidence favoring appellees,[8] we hold that a fact issue
exists under section 546.005. Therefore, we must affirm the trial court's denial of Pasadena's plea to the
jurisdiction. See Miranda, 133 S.W.3d at 227-28.
Green v. Alford (Tex.App.(Tex.App.- Houston [14th Dist.] July 15, 2008, pet. filed)(Opinion on en banc
rehearing by Guzman) (personal injury suit, injuries caused by collision with fire truck, official immunity defense
rejected)
AFFIRMED: Opinion by Justice Guzman
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Hudson, Fowler, Frost, Seymore, Guzman,
Brown and Boyce
14-05-00407-CV Christopher Green v. Dwainia Alford, Individually and as Next Friend of Aaron Alford and
Ronald Alford
Appeal from 152nd District Court of Harris County
Trial Court Judge: Kenneth Price Wise
Concurring Opinion by Justice Frost
Dissenting Opinion by Justice Hudson
Green v. Alford (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Hudson) (fire truck accident, negligence, official
immunity) (this opinion was withdrawn)
REVERSED AND RENDERED: Opinion by Justice Hudson
Before Justices Anderson, Hudson and Guzman
14-05-00407-CV Christopher Green v. Dwainia Alford, Individually and as Next Friend of Aaron Alford and
Ronald Alford
Appeal from 152nd District Court of Harris County
Justice Guzman dissented in Green v. Alford (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Dissent by
Guzman)
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