COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TEXAS DEPARTMENT OF PUBLIC §
SAFETY, No. 08-13-00117-CV
§
Appellant, Appeal from
§
v. 41st District Court
§
MERARDO BONILLA, of El Paso County, Texas
§
Appellee. (TC # 2011-DCV-10226b)
§
OPINION
The Texas Department of Public Safety (DPS) challenges the trial court’s denial of its
immunity-based plea to the jurisdiction and summary judgment motions. For the reasons that
follow, we affirm.
FACTUAL SUMMARY
This case concerns a traffic accident that occurred in El Paso on February 19, 2010,
when Trooper Cesar Cruz ran a red light while pursuing a speeder and struck a vehicle driven by
Merardo Bonilla. Trooper Cruz was driving his DPS-issued patrol vehicle westbound on
Montana Avenue, about a quarter of a mile from the intersection of Montana and Magruder
Streets, when the speeding vehicle, a pickup truck also traveling west on Montana, passed him
in the next lane. The speed limit on Montana Avenue is 35 m.p.h. Cruz was driving
approximately 35 to 40 m.p.h., and he estimated that the speeding truck was traveling around
55 m.p.h. Trooper Cruz then observed the pickup change lanes several times and run the red
traffic signal light at the intersection of Montana and Magruder. At this point, Cruz activated his
patrol vehicle’s emergency lights, but not its siren. Cruz claimed that he yielded at the
intersection and scanned for traffic. As he entered the intersection, he turned on the vehicle’s
camera and his vehicle struck Bonilla’s. Bonilla was injured as a result of the accident.
DPS brings three issues for review: (1) whether the trial court improperly denied its plea
to the jurisdiction based on sovereign immunity under Section 101.055(2) of the Texas Tort
Claims Act (TTCA), the “emergency exception;” (2) whether the trial court erred in denying its
plea and/or motions for summary judgment based on the official immunity of Trooper Cruz, and
(3) whether the court erred by overruling DPS’s objections to the evidence Bonilla submitted in
response to the plea and the motions. Because the admissibility of Bonilla’s evidence factors
into our analysis of the trial court’s other rulings, we consider it first.
OBJECTIONS TO BONILLA’S EVIDENCE
DPS District 4B Reconstruction Team investigated and reconstructed the accident
between Trooper Cruz and Bonilla, and drafted a report detailing its findings and conclusions.
DPS produced the team’s report and materials to Bonilla during discovery, thus authenticating
them. TEX.R.CIV.P. 193.7. The conclusions were based, in part, upon data collected from the
involved vehicles’ Event Data Recorders (“EDRs”), or “black boxes.” Specifically, the report
states:
Trooper Cruz approached the intersection and at a minimum distance of 164.95
feet prior to impact and was at 100% throttle. This was achieved by using the
accelerate from any velocity formula in conjunction with the EDR data from
[Cruz’s patrol vehicle.] Measurements from the scale diagram indicate that the
area of impact was 65 feet from the stop line that Trooper Cruz was approaching.
Subtracting the measurement of 65 feet from the minimum distance of 164.95
feet, which puts Trooper Cruz at 100% throttle 99.9 feet prior to the stop line.
This information obtained conflicts with the statement from Trooper Cruz that he
2
yielded at the stop line before proceeding through the intersection. Data from
Unit #1’s EDR confirms that once Trooper Cruz accelerated to 100% throttle, he
did not remove his foot from the accelerator pedal until .5 seconds before impact.
He also states he was distracted by turning on the power to his in-car video
camera.
DPS objected to the trial court’s consideration of the reconstruction team’s report because
Bonilla had not attached the raw EDR data and because he failed to establish the reconstruction
team’s expert qualifications. Bonilla counters that the report is an admission by a party-
opponent. See TEX.R.EVID. 801(e)(2).
The objection concerning the raw EDR data is based upon Rule 166a(f) of the Texas
Rules of Civil Procedure. See TEX.R.CIV.P. 166a(f). We review the exclusion or admission of
summary judgment evidence for an abuse of discretion. Blake v. Dorado, 211 S.W.3d 429, 431-
32 (Tex.App.--El Paso 2006, no pet.). In relevant part, Rule 166a(f) requires that affidavits be
made on personal knowledge, set forth such facts as would be admissible in evidence, and that
sworn or certified copies of documents referenced within the affidavit be attached thereto or
served therewith. Id. These requirements stem from the evidentiary prohibition of hearsay.
Priest v. Texas Animal Health Comm’n, 780 S.W.2d 874, 879 (Tex.App.--Dallas 1989, no pet.).
As such, they are subject to hearsay exceptions. Martinez v. Midland Credit Management, Inc.,
250 S.W.3d 481, 484-85 (Tex.App.--El Paso 2008, no pet.); McAlister v. Medina Elec. Co-op.,
Inc., 830 S.W.2d 659, 664 (Tex.App.--San Antonio 1992, writ denied).
An admission by a party-opponent is not hearsay. TEX.R.EVID. 801(e)(2); McAlister,
830 S.W.2d at 664 (applying the party-opponent exception to Rule 166a(f)). “[A]ny statement
by a party-opponent is admissible against that party.” [Emphasis in original]. Reid Road
Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 858 (Tex.
2011), quoting Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007).
3
Admissions by party-opponents include:
(A) the party’s own statement in either an individual or representative capacity;
(B) a statement of which the party has manifested an adoption or belief in its
truth;
(C) a statement by a person authorized by the party to make a statement
concerning the subject;
(D) a statement by the party’s agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the
relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance
of the conspiracy.
TEX.R.EVID. 801(e)(2).
DPS responds to the Rule 802(e)(2) arguments by asserting--somewhat incredibly--that
no agency relationship between it and the reconstruction team has been established. The team’s
report begins with a header reading: “Texas Department of Public Safety District 4B Crash
Team Reconstruction Investigation.” The report’s participants are identified as Trooper Derek
Pearson, Sergeant Michael Hodgson, Sergeant Lee Snead, and Corporal Roberto C. Reyna. At
the hearing on the plea and the motions, DPS’s counsel conceded that these individuals were
DPS employees. Counsel also conceded that the report was “created by an internal investigative
arm of [DPS] to explain to itself what happened [to Trooper Cruz] in a state vehicle.”1 We
conclude that the members of the reconstruction team are clearly agents of DPS and that they
were authorized by DPS to make statements like those contained in their report. The trial court
did not abuse its discretion by overruling DPS’s Rule 166a(f) objection.2
1
DPS’s counsel also admitted during the hearing that she has proffered and relied upon DPS reconstruction reports
on DPS’s behalf in other cases.
2
DPS also argues that Bonilla’s failure to include the raw EDR data to the report renders the report conclusory. See
Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.--Dallas 2004, pet. denied)(holding affidavit was conclusory for
4
DPS next argues that Bonilla failed to establish the expert qualifications of its
reconstruction team. Whether a witness is qualified to offer expert testimony is a matter
committed to the trial court’s discretion. Broders v. Heise, 924 S.W.2d 148 (Tex. 1996). While
the proponent of expert testimony has the burden of establishing the expert’s qualifications, it is
not unusual or improper for the other party to stipulate to the expert’s credentials. See, e.g.,
Guerrero v. Smith, 864 S.W.2d 797, 801-02 (Tex.App.--Houston [14th Dist.] 1993, no writ).
This would certainly be true here, where DPS is the regular employer of the reconstruction team,
and the team’s normal job function is to draw expert conclusions on DPS’s behalf. Nonetheless,
DPS will not stipulate to its team’s qualification for purposes of this litigation. But as its
counsel made clear to the trial court, DPS does not directly challenge its team’s expert
credentials.3 As such, the question becomes whether DPS has otherwise adopted the opinions
and findings of its reconstruction team.
In Reid Road v. Speedy Stop, the Texas Supreme Court considered whether a party could
rely on the statement of another party’s expert over that party’s objection. Speedy Stop Food
Stores, Ltd., 337 S.W.3d at 849. That case arose from an administrative condemnation
proceeding by a utility district against a convenience store. At the administrative stage of the
case, the district offered the testimony of third-party appraiser regarding the value of the utility
easement it sought to obtain. Id. at 847. When the matter became a civil suit, the utility district
decided that it disagreed with the appraiser’s opinion and did not further rely upon it. But the
convenience store did. Id. at 849. The district objected that the appraiser’s statement was
failure to include referenced documents). But the admission by party-opponent exception makes the report
admissible “even if the opposing expert witness does not disclose the bases for the conclusion adverse to the expert's
client.” Yarbrough’s Dirt Pit, Inc. v. Turner, 65 S.W.3d 210, 214 (Tex.App.--Beaumont 2001, no pet.).
3
In response to the trial court’s inquiry as to whether DPS was directly challenging the credentials of its own
employees, DPS’s attorney stated: “I’m not challenging my own guys . . . I’m putting [Bonilla’s attorney] to the
burden that she has.”
5
hearsay and that the convenience store had not identified the appraiser in its expert designations.
Id. Although the appraiser was not the district’s regular employee, the Supreme Court held that
the district had nonetheless “manifested its belief in and approval of” the expert’s opinion by
relying on it prior to litigation, and thus that it was admissible as an admission by adoption. Id.
at 857, citing TEX.R.EVID. 801(e)(2)(B). The party-opponent exception thus trumped not only
the hearsay objection, but the disclosure objection. Id. The court further noted that if an agency
relationship been had established between the expert and the district, the expert’s opinion would
“of course” have been admissible under Rule of Evidence 801(e)(2)(D). Id. at 856, n.5
In Yarbrough’s Dirt Pit, Inc. v. Turner, the Beaumont Court of Appeals also relied on
the admission by party-opponent rule to overrule a party’s objection to its own expert’s opinion.
Yarbrough’s, 65 S.W.3d at 215. There, a plaintiff relied on a defendant’s expert’s deposition
testimony as summary judgment proof against the affirmative defense of contributory
negligence. Id. at 214-15. Specifically, the expert testified that he could place no responsibility
on the plaintiff for the automobile accident. Id. The defendant objected that its expert had not
sufficiently explained the basis for this opinion, and thus it was conclusory. Id. The court of
appeals held that the “conclusion of an expert witness hired by an opposing party to speak on the
subject matter on behalf of the party opponent is admissible against the party opponent, and the
conclusion may be relied on in a motion for summary judgment even if the opposing expert
witness does not disclose the bases for the conclusion adverse to the expert’s client.” Id. at 214.
In another case cited in Speedy Stop, the Collins v. Wayne Corp case, the Fifth Circuit
Court of Appeals held that the report of an expert hired by a bus manufacturer to reconstruct a
serious bus accident was admissible as an admission by the manufacturer over its objections that
the expert was only a consultant and that his report was incomplete. Collins v. Wayne Corp.,
6
621 F.2d 777, 782 (5th Cir. 1980), superseded on other grounds by rule as stated in Mathis v.
Exxon Corp., 302 F.3d 448 (5th Cir. 2002). “[The manufacturer] hired [the expert] to
investigate the bus accident and to report his conclusions. In giving his deposition he was
performing the function that [the manufacturer] had employed him to perform. His deposition,
therefore, was an admission of [the manufacturer].” Id. Similar reasoning is applicable here.
See also State v. Buckner Const. Co., 704 S.W.2d 837, 846 (Tex.App.--Houston [14th Dist.]
1985, writ ref’d n.r.e.)(allowing the statement of an auditor employed by the State of Texas to be
used as an admission by the state).
DPS employs reconstruction teams for the specific purpose of investigating automobile
accidents and reporting their conclusions. Trooper Cruz testified that it is DPS’s practice to
have a reconstruction team investigate any accident involving a DPS trooper. Although DPS
refuses to stipulate to its team’s expertise for litigation purposes, it clearly and obviously accepts
the team’s credentials in routine, day-to-day operations. Along those lines, it is noteworthy that
DPS’s counsel did not directly attack the team’s qualifications. The District 4B Reconstruction
Team’s report is an admission by the DPS, and it is admissible pursuant to TEX.R.EVID.
801(e)(2)(D). The trial court did not abuse its discretion in overruling DPS’s objections to the
report. We overrule DPS’s third issue.4
SOVEREIGN IMMUNITY VIA THE EMERGENCY EXCEPTION
DPS contends that the trial court erred by not sustaining its plea to the jurisdiction based
on sovereign immunity under the emergency exception, Section 101.055(2) of the TTCA. A
governmental unit is immune from suit and liability unless the immunity has been waived.
4
DPS also challenges the trial court’s refusal to exclude as hearsay several unverified statements made by witnesses
to the accident, as well as notes taken by DPS investigators during interviews of such witnesses. Bonilla did not
respond to this argument. We agree that the trial court abused its discretion by not excluding these materials, and
we do not consider them in addressing DPS’s remaining issues.
7
Texas Department of Transportation v. Garza, 70 S.W.3d 802, 806 (Tex.2002). With certain
exceptions, the TTCA waives immunity for claims arising from the use of a motor-driven
vehicle by a governmental entity’s employee. TEX.CIV.PRAC.&REM.CODE ANN. § 101.021(1)
(West 2011). One exception applies for emergency situations, so long as the government
employee’s action (1) is in compliance with any laws and ordinances applicable to emergency
action, or (2) if there are no applicable laws or ordinances, is free from conscious indifference or
reckless disregard for the safety of others. Id. § 101.055(2). As a result, the TTCA does not
waive governmental immunity for ordinary negligence arising from an emergency situation.
City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998). “To recover damages resulting
from the emergency operation of an emergency vehicle, a plaintiff must show that the operator
has committed an act that the operator knew or should have known posed a high degree of risk
of serious injury.” Id. at 430. We review a trial court’s ruling on a plea to the jurisdiction de
novo. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
Although its arguments primarily focus on the latter, DPS challenges both Bonilla’s
pleadings and his ability to factually defeat immunity. When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that affirmatively
demonstrate jurisdiction. Texas Association of Business v. Texas Air Control Board, 852
S.W.2d 440, 446 (Tex. 1993). We must construe the pleadings liberally “in favor of the plaintiff
and look to the pleader’s intent.” Id. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction, the issue is one of pleading sufficiency
and the plaintiff is entitled to amend. Texas Department of Parks and Wildlife v. Miranda, 133
S.W.3d 217, 227 (Tex. 2004). Any other rule “would essentially allow governmental entities
the unjust advantage of being not only a litigant, but also the judge of the plaintiff’s pleadings.”
8
Texas A & M University System v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007).
Bonilla’s pleadings are sufficient to establish jurisdiction. They set out the basic facts of
the accident, including that Trooper Cruz disregarded the red light, and affirmatively assert that
governmental immunity is waived under the TTCA. DPS suggests that because Bonilla alleged
that Cruz was negligent, this constitutes a judicial admission barring his ability to assert reckless
disregard or conscious indifference. But a judicial admission must be a “clear, deliberate, and
unequivocal statement.” [Emphasis added]. Regency Advantage Limited Partnership v. Bingo
Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). Obviously, an unequivocal statement
must concern an unequivocal matter. For instance, in City of El Paso v. Segura, this Court held
a specifically-pled assertion that police officers were responding to an emergency to be a
judicial admission. City of El Paso v. Segura, No. 08-02-00240-CV, 2003 WL 1090661, at *3
(Tex.App.-El Paso Mar. 13, 2003, pet. denied). Whether or not there is an emergency is a
definitive, categorical matter that is completely unlike the often hazy and nebulous border
between the various standards of civil conduct. Bonilla’s allegation of negligence is not a
judicial admission. We now turn to DPS’s fact-based arguments.
When the governmental unit raises the emergency exception, the plaintiff has the burden
to raise disputed fact issues as to whether the actions were taken in response to an emergency, or
were reckless. City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006). Bonilla
advances both of these arguments. Bonilla cites Texas Dept. of Public Safety v. Rodriguez, 344
S.W.3d 483 (Tex.App.--Houston [1st Dist.] 2011, no pet.) in support of his argument that
Trooper Cruz was not engaged in an emergency. But Rodriguez does not hold that a traffic stop
is not an emergency for purposes of Section 101.055(2). See id. at 496. Instead, it considers
whether a mobile police surveillance team was officially immune from an auto accident suit
9
after running a red light in order to avoid losing a suspect it was following “for the purpose of
‘documenting the [suspect’s] activities.’” Id. In the present matter, Trooper Cruz was pursuing
a speeding driver who was making multiple lane changes and disobeying traffic control devices.
These facts constitute an emergency for purposes of the emergency exception.
The laws applicable to Trooper Cruz’s driving actions are Sections 546.001 and 546.005
of the Texas Transportation Code. TEX.TRANSP.CODE ANN. §§ 546.001, 546.005 (West 2011).
Section 546.005 sets out the general standard of care required of the operator of an authorized
emergency vehicle, and Section 546.001 specifies the driving actions that are permissible by the
operator while engaged in an emergency. Id.5 In relevant part, Section 546.001 provides that a
police officer engaged in an emergency may “proceed past a red or stop signal or stop sign, after
slowing as necessary for safe operation.” [Emphasis added]. TEX.TRANSP.CODE ANN.
§ 546.001(2)
DPS argues that Trooper Cruz’s affidavit and deposition testimony establish that he
yielded at the intersection’s stop line before proceeding through the red light he was facing,
slowed, looked right and left, and determined that it was safe to proceed. DPS also asserts that
Trooper Cruz’s testimony establishes that his view was not obstructed at the intersection. But
Bonilla has raised genuine issues of material fact concerning each of these matters.
DPS’s reconstruction team concluded that: (1) the evidence gathered in the investigation
conflicted with Cruz’s report of having yielded at the stop line; (2) Cruz did not remove his foot
from his vehicle’s accelerator pedal until .5 seconds before impact; (3) Cruz was distracted by
turning on his in-car camera as he entered the intersection and thus was not “fully aware of his
surroundings;” and (4) there was a building to Cruz’s right (which was the direction from which
5
See also TEX.TRANSP.CODE ANN. § 546.002 (making § 546.001 applicable when the operator is “pursuing an
actual or suspected violator of the law”).
10
Bonilla was traveling) that “created a sight restriction [interfering with Cruz’s ability] to fully
observe all vehicles at the intersection he was approaching.” Additionally, Bonilla produced a
DPS Interoffice Memorandum written by Corporal Santos Carrasco to Sergeant David Ramos
concerning the subject accident. DPS did not object to this document. Corporal Carrasco
concluded:
It is my opinion that Trooper Cesar Cruz was traveling at an unsafe speed
approaching a red light at an intersection. Trooper Cruz did not use the
emergency vehicle’s siren to warn persons approaching the intersection. Due to
sight restriction and the high volume of traffic in that intersection, Trooper Cruz
was traveling to [sic] fast to have avoided the crash. [Bonilla] had the right of
way at the intersection.
Bonilla’s evidence creates a fact issue regarding whether Trooper Cruz complied with
Section 546.001 by slowing “as necessary” before proceeding through the intersection. See
TEX.TRANSP.CODE ANN. § 546.001(2). This evidence, combined with the visual obstruction and
Cruz’s distraction, creates a fact issue regarding whether Cruz acted with conscious indifference
or reckless disregard to the risk of driving through the intersection against the red light.
Accordingly, the trial court did not err by denying DPS’s plea to the jurisdiction based on
sovereign immunity. We overrule DPS’s first point of error.
SOVEREIGN IMMUNITY VIA CRUZ’S OFFICIAL IMMUNITY
Lastly, DPS contends that the trial court erred by denying its jurisdictional plea and
summary judgment motions based on sovereign immunity derived from the official immunity of
Trooper Cruz.6 Bonilla counters that he has not sued Trooper Cruz and that official immunity is
therefore unavailable to the DPS. This is incorrect. A governmental entity can rely on the
6
DPS asserted both traditional and no-evidence summary judgment motions. Its no-evidence motion presented
only one challenge: that Bonilla lacked evidence showing Trooper Cruz was not engaged in an emergency situation.
Official immunity is an affirmative defense, however. Chambers, 883 S.W.2d at 653. As such, DPS, not Bonilla,
had the burden of showing the urgency of the circumstances in support of official immunity. The trial court did not
err in denying DPS’s no-evidence motion based on official immunity.
11
official immunity of its employee regardless of whether the employee is a party to the suit. City
of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex. 1995). Derivative immunity is an
affirmative defense; it requires the governmental defendant to establish that its employee
performed a discretionary act in good faith and within the scope of his or her authority.
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); City of Lancaster v. Chambers,
883 S.W.2d 650, 653 (Tex. 1994). The only one of these elements at issue here is good faith.7
The element of good faith must be assessed upon objective legal reasonableness, not the
employee’s subjective state of mind. Wadewitz, 951 S.W.2d at 466. The determination depends
here on how a reasonably prudent police officer could, based upon the facts as they appeared to
Cruz at the time, assess the need to stop the speeding truck against the risks associated with
Cruz’s chosen course of action. Id. at 467. The “need” aspect of the test refers to the urgency of
the circumstances requiring official intervention. Id. 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. Id. The
“risk” aspect considers countervailing public safety concerns, such as potential injury to
bystanders, the possibility that an accident will prevent the officer from reaching the scene of the
emergency, the likelihood that harm will occur, and whether such risks, if any, would be clear to
a reasonably prudent police officer. Id.
The same fact issues that defeat sovereign immunity under the emergency exception
likewise defeat derivative immunity. Under the facts adduced by Bonilla, which we must accept
7
DPS argues that Bonilla’s assertion that Trooper Cruz was within the course and scope of his DPS employment at
the time of the accident is a judicial admission in favor of the “scope of authority” prong of official immunity. We
agree. This is precisely the sort of clear, deliberate, and unequivocal statement that properly constitutes a judicial
admission. Regency Advantage Limited Partnership, 936 S.W.2d at 278.
12
as true for summary judgment purposes, a reasonably prudent police officer could determine that
the need to stop the speeding truck in order to prevent an accident was outweighed by a more
immediate risk of causing an accident himself by proceeding through the intersection against a
red light without yielding at the stop line, particularly in light of Cruz’s distraction and sight
restriction caused by the building to his right. [A]n officer in a police pursuit must assess both
the risk that the suspect will injure a third party and the risk that the officer himself will injure a
third party.” [Emphasis in original]. Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.
2000).
Further, DPS did not adduce evidence establishing that Trooper Cruz considered whether
any alternative course of action was available to stop the speeding truck. “To establish good
faith under Wadewitz, [the party urging official immunity is] required to show that [the officer]
assessed the availability of alternatives to pursuit as part of balancing the need to pursue and the
pursuit’s risk to the public.” Clark, 38 S.W.3d at 588-89 (declining to find good faith, in a
police pursuit accident case, because the officer’s affidavit did not discuss alternative courses of
action); see also City of Pasadena v. Belle, 297 S.W.3d 525, 534 (Tex.App.--Houston [14th
Dist.] 2009, no pet.)(same). We accordingly overrule DPS’s second point of error.
Because we conclude that the trial court did not err by denying the plea to the
jurisdiction and summary judgment motions based on sovereign and official immunity, we
affirm the judgment of the trial court.
May 30, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
13