City of Dallas v. Rosa Rodriguez

REVERSE and RENDER in part; REMAND and Opinion Filed March 27,
2020

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00045-CV

CITY OF DALLAS, Appellant
V.
ROSA RODRIGUEZ, Appellee

On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-14889

MEMORANDUM OPINION
Before Justices Bridges, Nowell, and Evans1
Opinion by Justice Bridges
On the Court’s own motion, we withdraw our opinion issued August 7, 2019

and vacate our judgment of that date. The following is now the opinion of the Court.

The City of Dallas appeals the trial court’s order denying its plea to the

jurisdiction in the underlying case involving Rosa Rodriguez’ collision with a

marked police car. In three issues, the City argues the trial court abused its discretion

in sustaining Rodriguez’ objections to the City’s evidence offered in support of its

1
The Honorable Justice David Evans succeeded the Honorable Ada Brown, a member of the original
panel. Justice Evans has reviewed the briefs and the record before the Court.
plea to the jurisdiction, the trial court erred in denying its plea to the jurisdiction, and

the City is immune from suit because its officer is entitled to official immunity. We

reverse the trial court’s order, grant the City’s plea to the jurisdiction, dismiss

appellee’s claims for want of subject matter jurisdiction, and remand this cause to

the trial court for further proceedings consistent with this opinion.

In October 2017, Rodriguez filed her original petition in which she alleged

she was injured when a vehicle operated by Veronica Alejandro, a Dallas police

officer, disregarded a red light and caused Rodriguez’ vehicle to strike Alejandro’s

vehicle. Rodriguez alleged claims of negligence, gross negligence, respondeat

superior, and negligence per se.

In October 2018, the City filed a plea to the jurisdiction in which it argued

Alejandro was entitled to official immunity and the City was therefore shielded from

liability by sovereign immunity. Specifically, the City argued Alejandro was

performing a discretionary function within the scope of her employment and acting

in good faith. The plea to the jurisdiction was supported by Alejandro’s affidavit in

which she described the circumstances of the accident and explained her actions and

perception of the urgency of the situation and the risks involved.

In response to the City’s plea to the jurisdiction, Rodriguez first objected to

Alejandro’s affidavit as “hearsay and violations of the best evidence rule.”

Rodriguez argued Alejandro’s affidavit was fatally defective on the grounds that it

failed to unequivocally show it was based on personal knowledge and it made no
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representation that the facts disclosed were true. Rodriguez also objected that

Alejandro’s affidavit contained self-serving statements, legal conclusions, and

conclusory statements of fact. Accordingly, Rodriguez argued, five paragraphs of

Alejandro’s affidavit should be excluded.

In addition, Rodriguez argued Alejandro approached the intersection where

the traffic signal controlling travel for Rodriguez was green, and the traffic signal

for Alejandro was red. Nevertheless, Alejandro approached the intersection without

coming to a complete stop to ensure she could safely cross the intersection and avoid

a collision. Rodriguez alleged Alejandro entered the intersection on a red light and

proceeded through the intersection without her lights and sirens on. Rodriguez

attached a copy of the collision report which contained a “City Driver’s Statement”

in which Alejandro stated she came to a complete stop before entering the

intersection and proceeded very slowly through the intersection. Alejandro also

stated that “all traffic on the northbound side had stopped and was giving [her]

passage.” Rodriguez argued that, although Alejandro stated she came to a complete

stop at the intersection, her dash cam showed her speed never read zero until after

the collision.

Rodriguez alleged the accident was investigated by the Dallas police, and the

investigator found that Alejandro’s disregarding a stop and go signal was a

contributing factor in the accident. The investigator also “noted that the vehicle in

front of [Rodriguez] proceeded through the intersection prior to [Rodriguez],” and
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this contradicted Alejandro’s statement that northbound travel had stopped to allow

her to proceed through the intersection. Rodriguez argued Alejandro’s actions were

not discretionary because a general order of the Dallas police chief required officers

to “come to a complete stop” before entering an intersection; therefore, because the

order was mandatory, Alejandro had no discretion to ignore the order and was

required to obey the order. Rodriguez also argued Alejandro did not act in good

faith because she violated the order requiring her to come to a complete stop and the

traffic laws of Texas when she ran a red light without coming to a complete stop. In

making this argument, Rodriguez argues Alejandro’s dash cam “shows the triggers

for her lights and sirens to be going on and off up until the accident” and, “in

listening to the audio it is clear that Officer Alejandro’s overhead sirens were not

activated and cannot be heard until after the collision.” Rodriguez added “[i]t was

later noted the sirens on Officer Alejandro’s vehicle were not working properly.”

In her brief, Rodriguez argues Alejandro’s dash cam shows that she never

came to a complete stop at the intersection. Rodriguez argues Mario Rodriguez

testified Alejandro was driving without her lights and siren when the collision

occurred, and an incident report stated Alejandro’s sirens did not work properly,

contradicting Alejandro’s statement in her affidavit that her emergency lights, siren,

and air horn were activated. Rodriguez complains Alejandro did not mention in her

affidavit that her view was obstructed by another vehicle and that at least one other

vehicle besides Rodriguez’ did not stop and yield.
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 The dash cam video shows Alejandro constantly honking her patrol car’s air

horn as she approached the intersection where the collision occurred. The video’s

GPS “speed” indication shows Alejandro’s speed at 23 miles per hour just before

Alejandro appears to come to a complete stop. The speed indicator quickly drops to

nine and then to two miles per hour after she stopped and the indicator immediately

shows her speed at three miles per hour as she slowly entered the intersection. It is

obvious from viewing the video in relation to the GPS speed indicator that the

indicator is delayed in its indication of Alejandro’s speed at a given instant.

Alejandro’s stop at the intersection is very brief, but the stop is apparent from the

video, and it is clear that the GPS simply did not have time to read zero before

Alejandro was moving again. In effect, the laws of physics showed Alejandro

stopped, and the readout on the GPS was not accurate. Alejandro’s speed fluctuated

between two, three, six, three, and seven miles per hour as she proceeded through

the intersection, and she reached fourteen miles per hour and had almost cleared the

intersection when the collision occurred. As Alejandro proceeded, all other vehicles

cleared the intersection, giving her a clear line of sight at the road ahead.

The video also indicates “Triggers” including lights, siren, and brakes. Just

as Alejandro stops at the intersection, the siren indicator flickers on and off for a

second, but Alejandro was continuously honking her air horn at the time, and it is

difficult to hear the siren clearly until after the collision when Alejandro stops

honking the air horn. However, the siren is audible immediately before the collision
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as Alejandro pulls into the intersection. The lights indicator stayed on continuously

throughout Alejandro’s approach to the intersection and the following collision,

although the lights themselves are not visible in the video.

On December 31, 2018, the trial court signed an order denying the City’s plea

to the jurisdiction. The order also sustained Rodriguez’ objections to Alejandro’s

affidavit except for her statement that “The potential danger posed by proceeding

through the intersection was far less, considering the above factors, than the danger

posed to the officers and victims involved in the 6XE major disturbance (violence)

emergency.” This appeal followed.

In its first issue, the City argues the trial court abused its discretion in

sustaining Rodriguez’ objections to the City’s evidence offered in support of its plea

to the jurisdiction. The City argues the trial court erred in striking twenty sentences

of Alejandro’s affidavit, effectively striking the bulk of Alejandro’s testimony.

Specifically, the City argues that, by “failing to identify which of her general

objections applied to the larger parts of Alejandro’s affidavit being challenged,

Rodriguez failed to put the district court on notice of the precise grounds on which

she challenged the affidavit.”

The party contesting jurisdiction in a plea to the jurisdiction must meet the

summary-judgment standard of proof to support its contention that the trial court

lacks subject-matter jurisdiction. HSBC Bank USA, N.A. v. Watson, 377 S.W.3d

766, 773 (Tex. App.—Dallas 2012, pet. dism’d). An appellate court reviews a trial
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court’s ruling that sustains an objection to summary judgment evidence for an abuse

of discretion. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no

pet.). An appellant has the burden to bring forth a record that is sufficient to show

the trial court abused its discretion when it sustained the appellee's objections to the

summary judgment evidence. See id.

Rodriguez’ response to the City’s plea to the jurisdiction objected to

Alejandro’s testimony in her affidavit as “hearsay and violations of the best evidence

rule,” evidence of an interested witness, unsubstantiated opinions or unilateral

subjective determinations of facts, self-serving statements not susceptible of being

readily controverted, legal conclusions, and conclusory statements of fact.

Rodriguez’ response then separately listed sections of Alejandro’s affidavit to which

Rodriguez objected. Rodriguez did not state the specific grounds on which each

identified section of the affidavit was objectionable. We conclude these objections

were not sufficiently specific. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 207

(Tex. App.—Dallas 2005, no pet.) (rejecting argument that evidence was

substantively defective where objections identified only number of particular

paragraphs and exhibits with no description of particular basis for objection); see

Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler

2002, no pet.) (objection that individual paragraph of affidavit “contains

unsubstantiated legal conclusions” is itself conclusory because it fails to identify

which statements in individual paragraph are objectionable or offer any explanation
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to trial court as to precise bases for objection); Garcia v. John Hancock Variable

Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio 1993, writ denied)

(objection that individual paragraphs contained “speculation” and “conclusion”

failed to give grounds to support inadmissibility argument). Under these

circumstances, we conclude the trial court abused its discretion in sustaining

Rodriguez’ objections to Alejandro’s affidavit. See Cantu, 195 S.W.3d at 871. We

sustain the City’s first issue.

In its second issue, the City argues the trial court erred in denying its plea to

the jurisdiction. In its third issue, the City argues it is immune from suit as a result

of Alejandro’s official immunity.

Immunity from suit defeats a trial court’s subject matter jurisdiction and thus

is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject matter

jurisdiction and whether a pleader has alleged facts that affirmatively demonstrate a

trial court’s subject matter jurisdiction are questions of law. Id. at 226. Therefore,

we review de novo a trial court’s ruling on a jurisdictional plea. Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the cause. Id. We construe the pleadings liberally in favor of the plaintiffs and

look to the pleaders’ intent. Id. If the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
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demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency

and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.

Id. at 227.

However, if a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do. Id. When

the consideration of a trial court’s subject matter jurisdiction requires the

examination of evidence, the trial court exercises its discretion in deciding whether

the jurisdictional determination should be made at a preliminary hearing or await a

fuller development of the case, mindful that this determination must be made as soon

as practicable. Id. Then, in a case in which the jurisdictional challenge implicates

the merits of the plaintiffs’ cause of action and the plea to the jurisdiction includes

evidence, the trial court reviews the relevant evidence to determine if a fact issue

exists. Id. If the evidence creates a fact question regarding the jurisdictional issue,

then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be

resolved by the fact finder. Id. at 227-28. However, if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, the trial court

rules on the plea to the jurisdiction as a matter of law. Id. at 228.

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 This standard generally mirrors that of a summary judgment under Texas Rule

of Civil Procedure 166a(c). Id. The standard allows the state in a timely manner to

extricate itself from litigation if it is truly immune. Id. After the state asserts and

supports with evidence that the trial court lacks subject matter jurisdiction, the

plaintiffs are required, when the facts underlying the merits and subject matter

jurisdiction are intertwined, to show that there is a disputed material fact regarding

the jurisdictional issue. Id. A summary judgment may be based on uncontroverted

testimonial evidence of an interested witness if the evidence is clear, positive and

direct, otherwise credible and free from contradiction, and could have been readily

controverted. TEX. R. CIV. P. 166a(c); City of San Angelo Fire Dep’t v. Hudson, 179

S.W.3d 695, 698 (Tex. App.—Austin 2005, no pet.).

When reviewing a plea to the jurisdiction in which the pleading requirement

has been met and evidence has been submitted to support the plea that implicates the

merits of the case, we take as true all evidence favorable to the nonmovant. Miranda,

133 S.W.3d at 228. We indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. Id.

Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951

S.W.2d 464, 465 (Tex. 1997). A governmental employee has official immunity for

the performance of discretionary duties within the scope of the employee’s authority,

provided the employee acts in good faith. Id. at 466. A court must measure good

faith in official immunity cases against a standard of objective legal reasonableness,
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without regard to the employee’s subjective state of mind. Id. Good faith depends

on how a reasonably prudent officer could have assessed 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. at 467 (applying City of Lancaster

v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994) (good faith balancing test in context

of emergency response case). The “need” aspect of the test refers to the urgency of

the circumstances requiring official intervention. Id. 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. Id.

The “risk” aspect of good faith, on the other hand, refers to the countervailing public

safety concerns: the nature and severity of harm that the officer’s actions could cause

(including injuries to bystanders as well as the possibility that an accident could

prevent the officer from reaching the scene of the emergency), the likelihood that

any harm would occur, and whether any risk of harm would be clear to a reasonably

prudent officer. Id.

In its plea to the jurisdiction, the City alleged that, on March 2, 2017, at

approximately 2:40 p.m., Alejandro was on routine patrol duty in a marked Dallas

police patrol car. Through the 911 call center, Alejandro was dispatched to a report

of a person breaking windows and threatening to shoot a woman at her home. The
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call was dispatched as a “code 3” assignment, which meant the call was “to be given

priority and answered without delay.”

Here, Alejandro’s affidavit stated she understood that, in making discretionary

decisions during emergency calls, she must weigh the need to urgently respond to

the emergency call against the risk involved to the general public when responding

to the emergency. Based on her law enforcement experience and responding to

emergency calls, Alejandro understood that “6X major disturbance (violence)

emergency calls” needed to be responded to immediately because fellow officers

and/or victims could be in imminent danger from the disturbance, and the immediate

presence of other police officers is necessary to prevent serious injury to the police

officers and/or the victims.

Alejandro’s affidavit stated that, when she proceeded through the intersection

after stopping, she believed in good faith that the need to get to the scene of the

disturbance emergency outweighed what she perceived to be the minimal risk of an

accident. Alejandro recognized that there was some risk in deciding to proceed

through an intersection on a red light. Alejandro came to a complete stop, looked to

her right and left, and activated the air horn on her patrol car. Given the dry condition

of the roadway at the time and the fact that traffic at the intersection appeared to be

yielding to her vehicle, Alejandro’s emergency lights, siren and air horn were

activated, and Alejandro had stopped at the light and proceeded slowly through the

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intersection, Alejandro did not perceive that proceeding through the intersection

would cause any danger to any other driver near her location.

Alejandro’s affidavit stated that, considering the above factors, the potential

danger posed by proceeding through the intersection was far less than the danger

posed to the officers and victims involved in the 6X major disturbance (violence)

emergency. Given that Alejandro had been dispatched through the 9-1-1 system to

respond and was expected to respond urgently to provide assistance to other officers

and victim(s), there was no other reasonable alternative but to proceed through the

intersection in the manner in which she proceeded. From her point of view at the

time and at all times while en route to the call, Alejandro did not engage in conduct

she believed would pose a likelihood of serious injury to anyone. Alejandro stated

she was acting in good faith and within the scope of her discretionary authority as a

Dallas police officer. Alejandro stated her actions were reasonable in light of the

circumstances, and any reasonably prudent police officer, under the same or similar

circumstances, could have believed Alejandro’s actions were justified.

Section 546.001(2) of the transportation code provides that the operator of an

emergency vehicle may proceed past a red or stop signal or stop sign after slowing

as necessary for safe operation. TEX. TRANSP. CODE ANN. § 546.001(2). The fact

that a collision occurred does not amount to a showing that an officer violated the

statute and is insufficient to raise a genuine issue of material fact as to whether the

officer acted recklessly. See Tex. Dep’t of Pub. Safety v. Sparks, 347 S.W.3d 834,
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842 (Tex. App.—Corpus Christi–Edinburg 2011, no pet.); see also City of Laredo v.

Varela, No. 04–10–619–CV, 2011 WL 1852439, *3–5 (Tex. App. —San Antonio

May 11, 2011, no pet.) (mem. op.) (holding officer’s failure to adhere to policy

requiring emergency vehicles to come to complete stop and failure to remember

looking both ways before entering intersection did not raise fact issue as to whether

officer acted in conscious indifference to or reckless disregard for safety of others).

A police officer’s own affidavit may establish good faith. City of La Joya v.

Herr, 41 S.W.3d 755, 761 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.)

(citing Barker v. City of Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st

Dist.] 1995, writ denied)). An officer’s good faith is not rebutted by evidence that

he violated department policy. City of Fort Worth v. Robinson, 300 S.W.3d 892,

900 (Tex. App.—Fort Worth 2009, no pet.) (citing Johnson v. Campbell, 142 S.W.3d

592, 596 (Tex. App.—Texarkana 2004, pet. denied)).

The record shows the need to which Alejandro was responding was a

potentially life threatening emergency involving several unknown people beating on

a woman’s door and threatening her with a gun. Alejandro stopped at the

intersection, and she believed in good faith that the need to get to the scene of the

emergency call outweighed the perceived minimal risk of an accident. The road was

dry, traffic “appeared to be yielding to [Alejandro’s] vehicle,” and Alejandro’s

emergency lights, siren, and air horn were activated. While there may have been

some malfunction with Alejandro’s lights and siren, they were nevertheless
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activated, and Alejandro used her air horn continuously. Alejandro did not perceive

that proceeding through the intersection would cause any danger to any other driver

near her location. Alejandro recognized that there was some risk in deciding to

proceed through an intersection on a red light. However, the potential danger posed

by proceeding through the intersection was far less than the danger posed to the

officers and victims involved in the 6X major disturbance (violence) emergency.

Under the facts and circumstances of this case, we conclude appellees failed to raise

a factual dispute as to whether Alejandro acted recklessly or in violation of the Texas

Transportation Code. See Sparks, 347 S.W.3d 834 at 842; Varela, 2011 WL

1852439 at *3–5. Further, we conclude the evidence conclusively established

Alejandro acted in good faith. See Wadewitz, 951 S.W.2d at 465-67. Accordingly,

the trial court erred in denying the City’s plea to the jurisdiction. We sustain the

City’s second and third issues.

We reverse the trial court’s order, grant the City’s plea to the jurisdiction,

dismiss appellee’s claims for want of subject matter jurisdiction, and remand this

cause to the trial court for further proceedings consistent with this opinion.

/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
190045F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CITY OF DALLAS, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-19-00045-CV V. Trial Court Cause No. DC-17-14889.
Opinion delivered by Justice Bridges.
ROSA RODRIGUEZ, Appellee Justices Nowell and Evans
participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that:

the City's plea to the jurisdiction is GRANTED, and Rosa Rodriguez'
claims against the City are DISMISSED for want of subject matter
jurisdiction. This cause is remanded to the trial court for further
proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered March 27, 2020.

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