The City of Houston v. Frank Nicolai and Debora Nicolai as Parents of Caroline Nicolai

Opinion issued April 6, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-20-00327-CV
———————————
CITY OF HOUSTON, Appellant
V.
FRANK NICOLAI AND DEBORA NICOLAI, AS PARENTS OF
CAROLINE NICOLAI, DECEASED, Appellees

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2013-75121

OPINION DISSENTING FROM THE GRANTING OF EN BANC
RECONSIDERATION
In this interlocutory appeal,1 appellant, City of Houston (the “City”),

challenges the trial court’s order denying its summary-judgment motion filed in the

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5).
suit of appellees, Frank Nicolai and Debora Nicolai, as parents of Caroline Nicolai,

deceased (collectively, the “Nicolais”), against the City for negligence and wrongful

death. In its sole issue, the City contends that the trial court lacks subject-matter

jurisdiction over the Nicolais’ suit.

Here, because the en banc majority merely disagrees with the panel majority’s

original holding and incorrectly concludes that the City did not establish its

entitlement to governmental immunity, I respectfully dissent from the granting of en

banc reconsideration and from the en banc majority’s analysis of the merits.2

Background3

In their ninth amended petition, the Nicolais alleged that at about 3:30 a.m. on

October 2, 2013, Houston Police Department (“HPD”) Officer R. Gonzales

2
See TEX. R. APP. P. 41.2(c) (“En banc consideration of a case is not favored and
should not be ordered unless necessary to secure or maintain uniformity of the
court’s decisions or unless extraordinary circumstances require en banc
consideration.”); see also In re Marriage of Harrison, 507 S.W.3d 259, 261 (Tex.
App.—Houston [14th Dist.] 2016, order) (Frost, C.J., dissenting to granting of en
banc reconsideration) (“[T]he Supreme Court of Texas has made a policy decision
to disfavor en banc reconsideration, and instead to reserve the special procedure for
rare cases meeting one or both of the two en banc criteria.” (internal footnotes
omitted)); Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) (Jennings, J., concurring in denial of en banc reconsideration)
(“The standard for en banc consideration is not whether a majority of the en banc
court may disagree with all or a part of a panel opinion. Neither is an assertion that
an issue is ‘important’ sufficient [to justify en banc reconsideration].”).
3
This is the second appeal that the Court has heard in this case. See City of Houston
v. Nicolai, 539 S.W.3d 378 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)
(affirming trial court’s denial of City’s plea to jurisdiction where evidence raised
fact issue as to whether City’s governmental immunity was waived under Texas
2
handcuffed the decedent, Caroline, and placed her in the back seat of a patrol car.

Gonzales failed to buckle the decedent’s seat belt. While Gonzales was transporting

the decedent in the patrol car, another car driven by Nicole Moser struck the patrol

car at the intersection of Chartres Street and Texas Avenue in downtown Houston,

Texas. Moser was intoxicated and drove through a red traffic light on Texas Avenue.

The collision caused the decedent to be ejected from the patrol car, and she sustained

severe injuries that ultimately resulted in her death.

According to the Nicolais, at the time of the collision, Officer Gonzales was

acting in the course and scope of her employment with the City and operating a

motor-driven vehicle owned by the City. The Nicolais brought claims against the

City for negligence and wrongful death. The Nicolais alleged that Gonzales was

negligent in:

• “[F]ailing to use, misusing or improperly using the seat belt on [the
decedent] in [t]he [patrol car,] allowing [the decedent] to be ejected
upon impact”;

• “[F]ailing to keep such a lookout as a person of ordinary, reasonable
prudence would have kept under the same or similar circumstances”;

• “[F]ailing to slow down or speed up in order to avoid the collision”;

• “[F]ailing to timely and properly apply the brakes or accelerate to avoid
the [collision]”;

Tort Claims Act (“TTCA”) for Nicolais’ claims arising from governmental
employee’s operation or use of motor-driven vehicle).

3
 • “[F]ailing to take appropriate evasive action or turn [the patrol car]
and/or slow down to avoid the collision or lessen the impact”;

• “[H]andcuffing [the decedent] in the back[]seat, when [she] did not
appear to be under arrest or need to be handcuffed”;

• “[I]mproperly or negligently providing police protection as required by
a municipality under the Texas Civil Practice [and] Remedies Code
and/or the [Texas] Government Code”; and

• “[F]ailing to follow policies and procedures regarding use of
seat[]belts.”

The Nicolais alleged that Gonzales’s negligence proximately caused the decedent’s

death, and the City was vicariously liable for Gonzales’s negligence.

The City answered, generally denying the allegations in the Nicolais’ petition,

and asserting governmental immunity and official immunity as affirmative defenses.

The City then moved for summary judgment, arguing that it was entitled to

judgment as a matter of law because the trial court lacks subject-matter jurisdiction

over the Nicolais’ suit. The City asserted that it was protected from liability by

governmental immunity, and the Texas Tort Claims Act (“TTCA”)4 does not waive

the City’s governmental immunity in a suit arising from the negligent operation or

use of a motor-driven vehicle by a governmental employee acting within the scope

of her employment when the employee is not personally liable to the plaintiffs under

4
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109.

4
Texas law.5 Relevant to this case, a governmental employee is not personally liable

to the plaintiffs if she is protected by official immunity. According to the City,

Officer Gonzales is protected from liability by official immunity because she was

acting within the scope of her authority, performing a discretionary duty, and acting

in good faith when the collision occurred. As to performance of a discretionary duty,

the City asserted that Gonzales was performing a discretionary duty at the time of

the collision by transporting the decedent, a person whom she believed was

intoxicated, to the sobering center in downtown Houston, instead of to jail. The City

attached to its summary-judgment motion, among other things, the depositions of

Gonzales, the Nicolais’ expert witness Lee Ann Grossberg, M.D., HPD Detective C.

Sartor, the Nicolais’ expert witness Richard V. Baratta, Ph. D, HPD Sergeant I.

Izaguirre, the Nicolais’ expert witness Lou Reiter, HPD Officer T. Cox, and HPD

Officer A. Hart-Joseph.

In their response to the City’s summary-judgment motion, the Nicolais

asserted that Officer Gonzales was not protected from liability by official immunity,

and the TTCA waives governmental immunity for the City. According to the

Nicolais, Gonzales was not performing a discretionary duty but was engaged in a

ministerial act and the City had not conclusively proved that Gonzales was acting in

good faith at the time of the collision. The Nicolais attached to their

5
See id. § 101.021(1)(B).

5
summary-judgment response, among other things, certain HPD General Orders, the

affidavit of Reiter, and the depositions of Gonzales, Detective Sartor, Baratta,

Officer Cox, Officer Hart-Joseph, and HPD Officer L. Hinojosa.6

In her deposition, Officer Gonzales testified that on October 2, 2013, she was

on patrol at Ellington Field Airport around 2:00 a.m. Gonzales was in her patrol car

parked in a parking lot at the airport when she received a call from airport security

about the decedent. Airport security reported that the decedent was on airport

property and was a “DWI suspect.” When Gonzales arrived at the decedent’s

location, the decedent was barefoot and “sitting on the curb” next to her car.

Gonzales spoke to the decedent, who disclosed that she had a knife, of which

Gonzales took possession. The decedent also provided Gonzales with her driver’s

license. According to Gonzales, the decedent was intoxicated and could not stand

up on her own. Gonzales held the decedent up so that she would not fall, placed her

6
See Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 345 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (trial court can rely on entire record, including
evidence attached to response, as basis for ruling on summary-judgment motion). I
note that the City objected to certain evidence attached to the Nicolais’
summary-judgment response. The City states that although the trial court did not
rule on its objections to the Nicolais’ evidence, it preserved error by objecting in the
trial court to the trial court’s failure or refusal to rule. To the extent that the City
complains that the trial court erred in refusing to rule on its objections to certain
evidence attached to the Nicolais’ summary-judgment response and that evidence
should not be considered, because of the ultimate disposition I would reach in this
case, I need not address this complaint by the City. See TEX. R. APP. P. 47.1.

6
in handcuffs, and assisted the decedent to the patrol car where Gonzales put her in

the back seat.

Officer Gonzales stated that she placed the decedent in the patrol car as the

decedent was intoxicated and for the decedent’s safety because she could not stand

up and could get hurt. Gonzales did not arrest the decedent but put her in “protective

custody” to take her to the sobering center in downtown Houston. Gonzales was not

“taking her to jail.”

After placing the decedent in her patrol car, Officer Gonzales requested the

location of the sobering center because she had never been there before. And while

driving the decedent to the sobering center, Gonzales had to stop to get directions or

look at her “onboard computer to make sure [she was] going the right direction.”

Gonzales made “wrong turns” on the way to the sobering center. Before the

collision, Gonzales was driving her patrol car slowly on Chartres Street in downtown

Houston while she looked for the sobering center and at the street intersections to

make sure she was going the right way. At the time of the collision, about 3:00 a.m.

or 3:30 a.m., Gonzales was not looking at her “onboard computer.” Yet, before

entering the intersection where the collision occurred, Gonzales did not “look right

or left.” Gonzales did not see Moser’s car before it hit the patrol car. Gonzales

noted that she had viewed a videotaped recording of the collision and it showed

Moser’s car “running three [red traffic] lights” before hitting the patrol car.

7
 In her deposition, Dr. Grossberg testified that about two to three hours before

the decedent’s death, her blood alcohol concentration (“BAC”) was 0.20, and at the

time of her death, the decedent’s BAC was 0.17, which was more than twice the

legal limit.7 Dr. Grossberg also testified that the decedent had used marijuana before

her death, and the intoxicating compound tetrahydrocannabinol (“THC”)8 was

present in the decedent’s blood. Because the decedent appeared to be intoxicated,

Officer Gonzales placed her in the patrol car and began transporting her to the

sobering center. Gonzales, when she encountered the decedent, would not have been

able to determine whether the decedent was going to become “more impaired” over

time or whether the decedent “was already sobering up.” Gonzales had to assist the

decedent in standing.

In his deposition, Detective Sartor testified that he is a crash reconstructionist.

As to the collision, Sartor stated that Officer Gonzales was driving to the sobering

center, which was near Chartres Street in downtown Houston. Moser, the other

driver, approached the intersection at Chartres Street and Texas Avenue and drove

through a red traffic light. At the time, Gonzales’s lane of travel “had a green

[traffic] light.” When Moser’s car struck Gonzales’s patrol car, the patrol car rotated

7
See TEX. PENAL CODE ANN. § 49.01(2)(B).
8
THC is an active ingredient in marijuana. See Randle v. State, No.
01-19-00916-CR, 2020 WL 7391713, at *1 n.1 (Tex. App.—Houston [1st Dist.]
Dec. 17, 2020, pet. ref’d) (mem. op.).

8
counter-clockwise several times and the decedent was thrown out of the patrol car

onto the sidewalk. The decedent was “fatally injured as a result of . . . Moser’s

actions.” According to Sartor, the decedent did not have her seat belt buckled at the

time of the crash, and it was more likely than not that the decedent would not have

been ejected from the patrol car if her seat belt had been buckled. And Gonzales,

under HPD policies, was required to buckle the decedent’s seat belt while she was a

passenger in the back seat of Gonzales’s patrol car. Sartor did not know whether

Gonzales had buckled the decedent’s seat belt the night of the collision.

Detective Sartor also testified that Moser’s BAC on the night of the collision

was 0.18, which is more than twice the legal limit.9 Five or four seconds before

hitting Officer Gonzales’s patrol car, Moser had the gas pedal on her car “pressed

all the way down,” and she was “flooring it.” About three seconds before hitting

Gonzales’s patrol car, Moser had her gas pedal pressed half-way down. Two

seconds before hitting Gonzales’s patrol car, Moser had the gas pedal pressed down

“a little bit,” but “she[] [was] still on the gas.” One second before hitting Gonzales’s

patrol car, Moser “still had her f[oot] on the accelerator pedal.” At the time of the

collision, Moser was driving above the speed limit and Gonzales was driving about

ten miles per hour.

9
See TEX. PENAL CODE ANN. § 49.01(2)(B).

9
 As to Officer Gonzales, Detective Sartor testified that Gonzales had the

authority to transport the decedent to the sobering center. And based on the

decedent’s intoxication level, she was a danger to herself and others. Sartor stated

that given what Gonzales “kn[ew] about [the decedent’s] condition when [she] first

encountered her” on the night of the collision, a reasonably prudent law enforcement

officer would not have left the decedent where Gonzales found her on airport

property sitting, barefoot, on the curb next to her car because the decedent could

have been assaulted and could have gotten into her car and driven off while

intoxicated and possibly killed herself or someone else. The decedent “needed to

get to a safe place.” Additionally, according to Sartor, a reasonably prudent law

enforcement officer could have believed that the need to transport the decedent to

the sobering center outweighed the risk of harm to the decedent during transport; a

reasonably prudent law enforcement officer could have believed that the need to get

the decedent to the sobering center outweighed the risk of harm to decedent even if

the decedent’s seat belt was not buckled; and a reasonably prudent law enforcement

officer could have believed that the need to get the decedent to the sobering center

outweighed the risk of harm from Gonzales’s driving the patrol car.

In his deposition, Baratta testified that at the time of the collision, Officer

Gonzales was taking the decedent to the sobering center, and the decedent had not

been arrested. When asked whether the decedent was being transported to the

10
sobering center because she was intoxicated, Baratta responded, “I have no reason

to disagree with that.” And he had “no reason to disagree” that the decedent’s BAC

was 0.17 or 0.20 at the time of the collision. According to Baratta, it appeared that

the decedent’s seat belt was not buckled at the time of the collision and she was

ejected from the patrol car as a result. Baratta did not know how the decedent ended

up with an unbuckled seat belt.

As to Moser, Baratta testified that about five seconds before the collision,

Moser was driving eighty-three miles per hour, with “full throttle” and “no brake.”

About four seconds before the collision, Moser was driving eighty-five miles per

hour, with “100 percent throttle” and “the brake . . . off.” Three seconds before the

collision, Moser was driving eighty-six miles per hour, with “25 percent throttle”

and “the brake . . . off.” One second before the collision, Moser was driving

eighty-three miles per hour, with the “throttle . . . still at 25 percent.” The speed

limit for the street on which Moser was driving at the time of the collision was thirty

miles per hour.

In his deposition, Sergeant Izaguirre testified that at the time of the collision,

the decedent was being transported in the back seat of Officer Gonzales’s patrol car

to the sobering center. According to Izaguirre, the sobering center was “for

non-violent intoxicated suspects.” When a law enforcement officer encounters a

publicly-intoxicated person, she has the option to either take the person to jail or to

11
the sobering center. Law enforcement officers in such situations “normally go to a

sob[ering] center.” At the time of the collision, the decedent was in the custody of

HPD and was a suspect for the offense of public intoxication.

In his deposition, Reiter testified that HPD General Order 500-11, dated May

15, 2013 and titled “Handling Publicly Intoxicated Persons,” leaves to a law

enforcement officer’s own judgment, the decision of whether to transport a

publicly-intoxicated person to jail or to the sobering center. General Order 500-11

also leaves to a law enforcement officer’s own judgment the determination of

whether an intoxicated person is a danger to herself or to other people as well as the

determination of whether an intoxicated person needs further medical evaluation

because she is unconscious, bleeding from a head injury, experiencing a serious

medical condition, or acute alcohol poisoning or whether she “should be taken to the

sobering center.” Additionally, General Order 500-11 leaves to a law enforcement

officer’s own judgment the determination of whether an intoxicated person is

displaying signs of active aggression or a mental health crisis and should not be taken

to the sobering center, but to jail or to the hospital, respectively.

Reiter also testified that HPD General Order 500-02, dated June 27, 2013 and

titled “Handling and Transporting Prisoners and Other Persons,” leaves to the law

enforcement officer’s discretion the determination of the “safest and most direct

route when transporting someone.”

12
 As to the decedent, Reiter stated that when Ellington Field Airport security

first encountered the decedent on the night of the collision, she was “attempting to

push her car down the road barefoot.” The decedent exhibited signs of intoxication,

was unable to stand up on her own, and had “an odor of alcohol.” At the time of her

death, the decedent’s BAC was 0.17. The decedent was in the back seat of Officer

Gonzales’s patrol car at the time of the collision because the decedent was

intoxicated. If the decedent had been left alone in the dark to push her car in the

middle of the night, she would have been vulnerable and would have faced

significant risks.

Reiter also testified that Officer Gonzales initially decided to take the

decedent to jail, but then she changed her mind and decided to take the decedent to

the sobering center instead. As Reiter explained, Gonzales “made that choice”;

“[s]he deliberated and made that choice, so that [was] . . . a conscious choice.”

According to Reiter, no reasonably prudent law enforcement officer would have left

the decedent where Gonzales found her on airport property sitting, barefoot, on the

curb next to her car. And although there may be more intoxicated drivers on the

road around 3:30 a.m., Gonzales should have attempted to transport the decedent to

the sobering center because “the need to get [the decedent] to the sobering center

outweighed the risk of those other drivers.” Reiter noted that while Gonzales was

13
transporting the decedent to the sobering center, she had not been told that “there

was a drunk driver in the area travelling really fast.”

Reiter further stated that when Officer Gonzales entered the intersection at

Chartres Street and Texas Avenue, the traffic light for her lane of travel was green.

Gonzales did not ignore traffic signs or signals. On the other hand, Moser’s lane of

travel “had [a] red [traffic] light” at the intersection of Chartres Street and Texas

Avenue.

In his affidavit, Reiter testified that on the night of the collision, Officer

Gonzales was “called to investigate a woman who was possibly publicly

intoxicated.” Gonzales found the decedent sitting down, and the decedent could not

stand up on her own. Reiter stated: “Given the fact that it was approximately

3:00 a.m. and the [decedent] appeared to be intoxicated, it was not a discretionary

act by . . . Gonzale[s] to make the decision to get [the decedent] off the street and

take her to a safer place.” According to Reiter, Gonzales did not buckle the

decedent’s seat belt when she placed the decedent in her patrol car. Gonzales was

negligent in pulling into the intersection where the collision occurred “without [first]

looking right or left.”

Reiter also testified that it was not discretionary to buckle a back-seat

passenger’s seat belt. And “the act of seat belting [the decedent] was ministerial and

mandated, not discretionary in any way.” “[A]t the time Officer Gonzale[s] was

14
driving her patrol [car] with [the decedent] as a passenger to the [s]ober[ing] [c]enter,

she was driving in a non-emergency/non-urgent situation, which . . . [was]

ministerial and not discretionary.” In Reiter’s opinion, “there [was] no evidence

that . . . Gonzale[s] acted in good faith when she failed to seat belt [the decedent]

and when she slowed down to an almost stop at a green [traffic] light then entered

the intersection without looking.”

In his deposition, Officer Cox testified that on the night of collision, the

decedent was a passenger in the back seat of a patrol car. She had been “picked up”

and was being transported to the sobering center. Moser, who was intoxicated, was

the driver of the car that hit the patrol car after running a red traffic light. According

to Cox, at the time of the collision, it was unlikely that the decedent’s seat belt was

buckled in the patrol car. Officer Gonzales may not have seen Moser’s car approach

the intersection where the collision occurred because “there were several concrete

pillars next to the road.”

Officer Cox also testified that in general it would be prudent for drivers to

“look[] to make sure nobody [was] coming in the intersection against the [traffic]

light.” And HPD’s policies and procedures and Texas law require law enforcement

officers to buckle the seat belts for their back-seat passengers. Law enforcement

officers must also keep a proper lookout and drive safely. Yet Cox stated that, in

investigating the crash, he never encountered any evidence that indicated that Officer

15
Gonzales was not driving safely on the night of the collision and the “crash report”

did not find that Gonzales was at fault.

In her deposition, Officer Hart-Joseph testified that she was “the primary

investigator for the [HPD] fatality unit” on the night of the collision. On that night,

Officer Gonzales was taking the decedent to jail, but then decided to take the

decedent to the sobering center in downtown Houston. In the minutes before the

collision, Gonzales was trying to locate the sobering center. Moser, the driver of the

car that hit the patrol car, was driving about seventy or eighty miles per hour at the

time of the collision. Moser admitted to emergency-assistance personnel that she

had been “drinking and driving.” Gonzales’s lane of travel “had the green [traffic]

light” before the collision.

Officer Hart-Joseph stated that she did not believe that the decedent’s seat belt

was buckled at the time of the collision, and she recalled that Officer Gonzales, at

one point, stated that she did not buckle the decedent’s seat belt and, at another time,

stated that she usually buckles a back-seat passenger’s seat belt and to the best of her

knowledge, she had buckled the decedent’s seat belt when she placed her in the

patrol car. Hart-Joseph testified that Gonzales was required to buckle the decedent’s

seat belt when she placed her in the back seat of the patrol car. And a reasonably

prudent officer like Gonzales would have buckled the seat belt of a handcuffed

16
passenger in the back seat of a patrol car. HPD policies and Texas law required the

decedent’s seat belt to be buckled.

Officer Hart-Joseph also testified that generally there are more intoxicated

drivers on the roadways after midnight. But when asked whether a reasonably

prudent driver “look[s] both ways before entering an intersection, even if” her lane

of travel “ha[s] a green [traffic] light,” Hart-Joseph responded, “No. Mostly[,] [a

driver] just look[s] directly at the green [traffic] light and when it turns green, [she]

go[es].” And when asked whether she recalled learning anything in HPD officer

training about being “vigilant when entering intersections because not

everybody . . . follows the green light/red light rule,” Hart-Johnson respond, “No.”

In her deposition, Officer Hinojosa testified that HPD had a policy that

required a back-seat passenger in a patrol car to have her seat belt buckled. The

failure to buckle a back-seat passenger’s seat belt violated HPD’s policy and Texas

law. Officer Gonzales had a duty to buckle the decedent’s seat belt while

transporting the decedent to the sobering center in her patrol car. Hinojosa did not

know whether the decedent’s seat belt had been buckled. According to Hinojosa,

HPD General Order 500-11, titled “Handling Publicly Intoxicated Persons,”

permitted a law enforcement officer to take an intoxicated person to the sobering

center in lieu of arresting her.10

10
The City filed a reply to the Nicolais’ response.

17
 The trial court denied the City’s summary-judgment motion.

Standard of Review

Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State and its political subdivisions from lawsuits and liability for money

damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.

2012); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol.

Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323–24 (Tex. 2006)

(“Sovereign immunity protects the State, its agencies, and its officials from lawsuits

for damages.”). Although the terms “sovereign immunity” and “governmental

immunity” are often used interchangeably, sovereign immunity “extends to various

divisions of state government, including agencies, boards, hospitals, and

universities,” while governmental immunity “protects political subdivisions of the

State, including counties, cities, and school districts.” See Ben Bolt-Palito Blanco

Consol. Indep. Sch. Dist., 212 S.W.3d at 323–24; see also Odutayo v. City of

Houston, No. 01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston

[1st Dist.] Apr. 18, 2013, no pet.) (mem. op.). The Court interprets statutory waivers

of sovereign immunity and governmental immunity narrowly, as the Texas

Legislature’s intent to waive immunity must be clear and unambiguous. See

LMV-AL Ventures, LLC v. Tex. Dep’t of Aging & Disability Servs., 520 S.W.3d 113,

18
120 (Tex. App.—Austin 2017, pet. denied); see also TEX. GOV’T CODE ANN.

§ 311.034. Without an express waiver of sovereign immunity or governmental

immunity, courts do not have subject-matter jurisdiction over suits against the State

or its political subdivisions. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006);

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–25 (Tex. 2004);

see also Harris Cnty. v. S. Cnty. Mut. Ins. Co., No. 01-13-00870-CV, 2014 WL

4219472, at *2 (Tex. App.—Houston [1st Dist.] Aug. 26, 2014, no pet.) (mem. op.)

(“Governmental immunity from suit deprives a trial court of subject-matter

jurisdiction.”).

A governmental unit may raise the affirmative defense of sovereign immunity

or governmental immunity and challenge the trial court’s jurisdiction “through a plea

to the jurisdiction or other procedural vehicle, such as a motion for summary

judgment.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.

2018). The Court reviews a trial court’s decision on summary judgment de novo.

Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.

2007).

To prevail on a summary-judgment motion, the movant has the burden of

establishing that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a governmental unit, as the movant, raises the affirmative

19
defense of sovereign immunity or governmental immunity and challenges the trial

court’s subject-matter jurisdiction in a summary-judgment motion, it must establish

that it is entitled to immunity as a matter of law. See TEX. R. CIV. P. 166a(c); Rivera

v. City of Houston, No. 01-19-00629-CV, 2020 WL 7502054, at *3 (Tex. App.—

Houston [1st Dist.] Dec. 22, 2020, no pet.) (mem. op.); Oakbend Med. Ctr. v.

Martinez, 515 S.W.3d 536, 542 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

Once the governmental unit conclusively establishes its entitlement to sovereign

immunity or governmental immunity, the burden shifts to the non-movants to

present evidence sufficient to create a fact issue on at least one element of either the

affirmative defense or an exception to that defense. City of Houston v. Carrizales,

No. 01-20-00699-CV, 2021 WL 3556216, at *3 (Tex. App.—Houston [1st Dist.]

Aug. 12, 2021, pet. denied) (mem. op.); Oakbend, 515 S.W.3d at 542. If the

non-movants cannot meet their burden, the suit is barred because of sovereign

immunity or governmental immunity, and summary judgment is proper. Carrizales,

2021 WL 3556216, at *3; Oakbend, 515 S.W.3d at 542; see also Shives v. State, 743

S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary

judgment may be based on a showing that the cause of action is barred as a matter

of law by the affirmative defense of governmental immunity.”).

20
 Governmental Immunity

In its sole issue, the City argues that the trial court erred in denying its

summary-judgment motion because the trial court lacks subject-matter jurisdiction

over the Nicolais’ suit. The City asserts that it is entitled to governmental immunity,

and the TTCA only waives the City’s governmental immunity in suits arising from

the negligent operation or use of a motor-driven vehicle by a governmental employee

acting within the scope of her employment if the employee would be personally

liable to the plaintiffs under Texas law. And here, Officer Gonzales is not liable to

the Nicolais under Texas law because she is protected from liability by official

immunity.

The TTCA provides a limited waiver of immunity for certain suits against

governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109;

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); City

of Dallas v. Hillis, 308 S.W.3d 526, 530 (Tex. App.—Dallas 2010, pet. denied). The

City is a governmental unit protected by governmental immunity, absent waiver.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A); Carrizales, 2021 WL

3556216, at *4. Relevant here, the TTCA waives a governmental unit’s immunity

for a death proximately caused by the negligence of a governmental employee, such

as a law enforcement officer, acting in the scope of her employment, if the death

arises from the operation or use of a motor-driven vehicle and the employee would

21
be personally liable to the plaintiffs under Texas law. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(1); City of San Antonio v. Riojas, 640 S.W.3d 534, 536 (Tex.

2022); Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App.—

Houston [1st Dist.] 2011, no pet.).

Official immunity is an affirmative defense that protects a governmental

employee from personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580

(Tex. 2000); Harris Cnty., 2014 WL 4219472, at *3; see also Telthorster v. Tennell,

92 S.W.3d 457, 460–61 (Tex. 2002) (“Official immunity is an affirmative defense

that shields governmental employees from personal liability so that they are

encouraged to vigorously perform their official duties.”). Thus, a governmental

employee who is protected by official immunity cannot be liable to the plaintiffs

under Texas law. Clark, 38 S.W.3d at 580; Rivera, 2020 WL 7502054, at *3 (“[A]

governmental employee who holds official immunity for her actions or omissions[]

would not be personally liable under Texas law” (internal quotations omitted)); see

also TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); Alamo Workforce Dev., Inc.

v. Vann, 21 S.W.3d 428, 434 (Tex. App.—San Antonio 2000, no pet.) (governmental

employees are entitled to official immunity when sued in their individual capacity

for official acts). And, as a result, the governmental unit who employs that employee

is also shielded from liability because there is no valid waiver of governmental

immunity under the TTCA. See Riojas, 2022 WL 495473, at *3 (“If [an] employee

22
is protected from liability by official immunity, the employee is not personally liable

to the claimant and the government[al] [unit] retains its [governmental] immunity

under [the TTCA].” (first alteration in original)); Clark, 38 S.W.3d at 580; Harris

Cnty., 2014 WL 4219472, at *2–3; State v. McGeorge, 925 S.W.2d 105, 108 (Tex.

App.—Houston [14th Dist.] 1996, writ denied); see also TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(1).

A governmental employee is entitled to official immunity from a suit arising

from (1) the performance of the employee’s discretionary duties (2) conducted

within the scope of her authority and (3) in good faith. Telthorster, 92 S.W.3d at

461; City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); see also

Riojas, 2022 WL 495473, at *3 (“Official immunity is an affirmative defense that

inures all governmental employees who perform discretionary functions in good

faith and within their authority.” (internal quotations omitted)). To obtain summary

judgment, a governmental unit, asserting that its governmental employee is protected

from liability by official immunity, must conclusively establish each of those

elements. Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653; Gomez v.

City of Houston, 587 S.W.3d 891, 897 (Tex. App.—Houston [14th Dist.] 2019, pet.

denied) (“Because official immunity is an affirmative defense, the burden rests on

the City to establish all elements of the defense.”); see also Rivera, 2020 WL

7502054, at *2 (“When a governmental unit raises the affirmative defense of

23
governmental immunity through a summary-judgment motion, it must establish the

affirmative defense as a matter of law.”). If the governmental unit does not prove

each element of official immunity, the burden does not shift to the plaintiffs to come

forward with controverting evidence. Harris Cnty., 2014 WL 4219472, at *3;

Rodriguez, 344 S.W.3d at 488–89. Yet, if the governmental unit establishes the

affirmative defense of official immunity, the burden shifts to the plaintiffs, as the

non-movants, to present evidence sufficient to create a fact issue on at least one

element of the affirmative defense. See Rivera, 2020 WL 7502054, at *3. Here, the

parties do not appear to dispute that Officer Gonzales was acting within the scope of

her authority when the collision occurred; thus, the focus is on whether the City

conclusively established that Gonzales was performing a discretionary duty in good

faith at the time of the collision.

A. Discretionary Duty

The City argues that it conclusively established that Officer Gonzales was

performing a discretionary duty at the time of the collision because she was

transporting the decedent to the sobering center in downtown Houston and

“effectuating arrests, handling publicly intoxicated persons, and transporting

prisoners and other persons all require [law enforcement] officers to exercise their

own judgment.”

24
 “If an action involves personal deliberation, decision, and judgment, it is

discretionary; an action that requires obedience to orders or the performance of a

duty to which the [governmental] employee has no choice is ministerial.” Ramos v.

Tex. Dep’t of Pub. Safety, 35 S.W.3d 723, 727 (Tex. App.—Houston [1st Dist.]

2000, pet. denied); see also Chambers, 883 S.W.2d at 654; City of Dallas v. Brooks,

349 S.W.3d 219, 225 (Tex. App.—Dallas 2011, no pet.). An act is ministerial if “the

law prescribes and defines the dut[y] to be performed with such precision and

certainty as to leave nothing to the exercise of discretion or judgment.” Chambers,

883 S.W.2d at 654 (internal quotations omitted). In determining whether an act is

discretionary, the issue is whether the governmental employee was performing a

discretionary function, not whether she had the discretion to do an allegedly

wrongful act while discharging that function or whether the employee’s job

description includes discretionary duties. Chambers, 883 S.W.2d at 653; Ramos, 35

S.W.3d at 727. A dominant factor in determining whether an act should be classified

as a “ministerial act” or a “discretionary duty” involves searching for a law,

regulation, or policy that controls the act of the governmental employee and allows

no leeway for individual deliberation. Tex. Dep’t of Crim. Justice v. Watt, 949

S.W.2d 561, 565 (Tex. App.—Waco 1997, no writ); Harris Cnty. v. DeWitt, 880

S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1994), aff’d, 904 S.W.2d 650

(Tex. 1995).

25
 Generally, non-emergency driving of a patrol car by a law enforcement officer

while on official business is a ministerial act that does not entitle an officer, who is

involved in an accident, to official immunity. Rivera, 2020 WL 7502054, at *3; City

of Houston v. Hatton, No. 01-11-01068-CV, 2012 WL 3528003, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 16, 2012, pet. denied) (mem. op.); Brooks, 349 S.W.3d at

225; City of Austin v. Albarran, No. 03-10-00328-CV, 2011 WL 2533751, at *3

(Tex. App.—Austin June 23, 2011, no pet.) (mem. op.); see also City of Wichita

Falls v. Norman, 963 S.W.2d 211, 216–17 (Tex. App.—Fort Worth 1998, pet.

dism’d w.o.j.) (law enforcement officer who caused collision while executing only

patrol duties was not shielded by official immunity). The basic rationale for this rule

is that under normal circumstances, law enforcement officers, like other citizens,

must obey traffic regulations when operating patrol cars and do not have discretion

about whether to do so. Albarran, 2011 WL 2533751, at *3.

In some situations though, a law enforcement officer’s operation of a patrol

car is considered a discretionary function. Albarran, 2011 WL 2533751, at *4.

When an officer’s operation of a patrol car “involves personal deliberation or the

exercise of the officer’s professional expertise, decision or judgment,” the manner

of driving may become a discretionary act. Rivera, 2020 WL 7502054, at *3; see,

e.g., Chambers, 883 S.W.2d at 655 (deeming law enforcement officer’s decision to

undertake and conduct high-speed pursuit of suspect discretionary function); Brooks,

26
349 S.W.3d at 225 (“Such situations include, but are not limited to, high-speed

chases, investigations, and traffic stops.”); Albarran, 2011 WL 2533751, at *4 (when

“a [law enforcement] officer is performing certain law enforcement functions

involving discretion and judgment,” “this discretion and judgment can extend to

whether and how the officer utilizes a motor vehicle in performing these functions”);

see also Hatton, 2012 WL 3528003, at *3.

In its summary-judgment motion, the City argued that Officer Gonzales was

performing a discretionary duty at the time of the collision because she was

transporting the decedent, whom she believed was intoxicated, to the sobering center

in downtown Houston.

In her deposition, Officer Gonzales testified that on October 2, 2013, while on

patrol at Ellington Field Airport, around 2:00 a.m., she received a call from airport

security about the decedent. Airport security reported to Gonzales that the decedent

was on airport property and was a “DWI suspect.” When Gonzales arrived at the

decedent’s location, the decedent was barefoot and “sitting on the curb” next to her

car. The decedent was intoxicated and could not stand up on her own. Gonzales

had to hold the decedent up so that she would not fall and had to assist the decedent

to Gonzales’s patrol car, where she put the decedent in the back seat. Gonzales

placed the decedent in her patrol car so that she could take the decedent to the

sobering center in downtown Houston. While transporting the decedent to the

27
sobering center, at around 3:00 a.m. or 3:30 a.m., Moser struck Gonzales’s patrol

car with her car.

HPD General Order 500-11, dated May 15, 2013 and titled “Handling

Publicly Intoxicated Persons,” states:

When appropriate and available, officers are encouraged to use
approved alternatives for handling persons who are in violation of
Texas Penal Code, [s]ection 49.02, Public Intoxication. When
circumstances meet the criteria outlined in this General Order, officers
should divert publicly intoxicated individuals to the custody of a
responsible adult or the Houston Center for Sobriety (herein referred to
as the ‘Center’) as an alternative to arrest.

....

Public intoxication should not serve as the sole justification for
incarceration and every effort should be made to divert eligible
intoxicated persons to the custody of a responsible adult or the
Center. . . .

If an individual is intoxicated on a substance other than alcohol, such
as marijuana, glue, paint, or any other drug, he or she shall be handled
in the same manner as if they were under the influence of alcohol and
may be diverted to the Center.

(Emphasis added.); see Ramos, 35 S.W.3d at 727 (“If an action involves personal

deliberation, decision, and judgment, it is discretionary . . . .”); cf. Watt, 949 S.W.2d

at 565–66 (act classified as “a ministerial act” when “a law, regulation, or policy

controls the act of the governmental employee and allows no leeway for individual

deliberation,” but when policy allows for exercise of individual judgment and

deliberation in conforming to policy guidelines, governmental employee performs

28
discretionary duty (internal quotations omitted)). General Order 500-11 defines

“[i]ntoxicated” as “[n]ot having the normal use of mental or physical faculties by

reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug,

a combination of two or more of those substances, or any other substance into the

body; or having an alcohol concentration of 0.08 or more.” (Emphasis omitted.) A

person commits the offense of public intoxication if “the person appears in a public

place while intoxicated to the degree that the person may endanger [herself] or

another.” TEX. PENAL CODE ANN. § 49.02(a). General Order 500-11 leaves it up to

the law enforcement officer to determine if a person is intoxicated and has violated

Texas Penal Code section 49.02.

General Order 500-11 cites as authority for its policy Texas Code of Criminal

Procedure article 14.031, which allows a law enforcement officer to take or send a

publicly-intoxicated person to certain places, rather than arresting the intoxicated

person. It provides:

In lieu of arresting an individual who is not a child . . . and who
commits an offense under [s]ection 49.02, Penal Code, a peace officer
may release the individual if: (1) the officer believes detention in a
penal facility is unnecessary for the protection of the individual or
others; and (2) the individual: (A) is released to the care of an adult who
agrees to assume responsibility for the individual . . . .

Act of May 21, 2009, 81st Leg. R.S., ch. 311, 2009 Tex. Gen. Laws. 832 (amended

2019) (current version at TEX. CODE CRIM. PROC. ANN. art. 14.031(a)) (emphasis

added); see also Ramos, 35 S.W.3d at 727 (“If an action involves personal
29
deliberation, decision, and judgment, it is discretionary . . . .”); cf. Watt, 949 S.W.2d

at 565–66 (act classified as “a ministerial act” when “a law, regulation, or policy

controls the act of the governmental employee and allows no leeway for individual

deliberation,” but when policy allows for exercise of individual judgment and

deliberation in conforming to policy guidelines, governmental employee performs

discretionary duty (internal quotations omitted)). According to General Order

500-11, the sobering center in downtown Houston “is able to serve as the responsible

adult under” Texas Code of Criminal Procedure article 14.031.

General Order 500-11 also provides that certain persons may not be

transported to the sobering center, even if they are intoxicated, but allows the law

enforcement officer to determine whether or not a particular intoxicated person falls

into any of the categories. See Ramos, 35 S.W.3d at 727 (“If an action involves

personal deliberation, decision, and judgment, it is discretionary . . . .”). Intoxicated

persons who may not be transported to the sobering center include: those who are

unconscious, bleeding from a head injury, or experiencing a serious medical

condition; those who display signs of active aggression; those who exhibit signs of

being suicidal or having a mental health crisis; those who cannot be identified as

required by the general order; those with “a Class C [misdemeanor offense] or higher

warrant”; those who are also being charged with “a Class C [misdemeanor] offense

involving violence, narcotics, vice, theft, or criminal mischief or any greater

30
offense”; those who are suspected of driving under the influence of alcohol or other

narcotics; and those “with an Immigration and Custom Enforcement detainer.”

In his deposition, the Nicolais’ expert witness Reiter testified that HPD

General Order 500-11 leaves to a law enforcement officer’s own judgment the

decision of whether to transport a publicly-intoxicated person to jail or to the

sobering center.11 See Rivera, 2020 WL 7502054, at *3 (when law enforcement

officer’s operation of patrol car “involves personal deliberation or the exercise of the

officer’s professional expertise, decision, or judgment,” manner of driving may

become discretionary act); Sanchez v. Boone, 579 S.W.3d 526, 532–33 (Tex. App.—

Houston [14th Dist.] 2019, pet. denied) (when policy allows for law enforcement

officers to use their own judgment, officer’s conduct is discretionary); Ramos, 35

S.W.3d at 727 (“If an action involves personal deliberation, decision, and judgment,

it is discretionary . . . .”); see also Albarran, 2011 WL 2533751, at *4 (when “a [law

enforcement] officer is performing certain law enforcement functions involving

11
Reiter also testified that General Order 500-11 leaves a number of other things to a
law enforcement officer’s own judgment, including: the determination of whether
an intoxicated person is a danger to herself or to other people; the determination of
whether an intoxicated person needs further medical evaluation; and the
determination of whether an intoxicated person is displaying signs of active
aggression or a mental health crisis and should not be taken to the sobering center,
but to jail or to the hospital, respectively. See Ramos v. Tex. Dep’t of Pub. Safety,
35 S.W.3d 723, 727 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“If an
action involves personal deliberation, decision, and judgment, it is
discretionary . . . .”).

31
discretion and judgment,” “this discretion and judgment can extend to whether and

how the officer utilizes a motor vehicle in performing these functions”). And Reiter

stated that General Order 500-11 leaves to a law enforcement officer’s own

judgment the determination of whether an intoxicated person “should be taken to the

sobering center.” See Rivera, 2020 WL 7502054, at *3; Sanchez, 579 S.W.3d at

532–33; Ramos, 35 S.W.3d at 727; see also Albarran, 2011 WL 2533751, at *4.

Reiter also explained that on the night of the collision, Officer Gonzales initially

decided to take the decedent to jail, but then changed her mind and decided to take

the decedent to the sobering center instead. According to Reiter, Gonzales “made

[a] choice”; “[s]he deliberated and made that choice, so that [was] . . . a conscious

choice.” See Rivera, 2020 WL 7502054, at *3; Ramos, 35 S.W.3d at 727; see also

Albarran, 2011 WL 2533751, at *4.

Similarly, Sergeant Izaguirre, in his deposition, testified that when a law

enforcement officer encounters a publicly-intoxicated person, she has the option to

either take the person to jail or to the sobering center. See Rivera, 2020 WL

7502054, at *3 (when law enforcement officer’s operation of patrol car “involves

personal deliberation or the exercise of the officer’s professional expertise, decision,

or judgment,” manner of driving may become discretionary act); Sanchez, 579

S.W.3d at 532–33 (when policy allows for law enforcement officers to use their own

judgment, officer’s conduct is discretionary); Ramos, 35 S.W.3d at 727 (“If an action

32
involves personal deliberation, decision, and judgment, it is discretionary . . . .”); see

also Albarran, 2011 WL 2533751, at *4 (when “a [law enforcement] officer is

performing certain law enforcement functions involving discretion and judgment,”

“this discretion and judgment can extend to whether and how the officer utilizes a

motor vehicle in performing these functions”). And Officer Hart-Joseph testified

that on the night of the collision, Officer Gonzales was taking the decedent to jail,

but then made the decision to transport the decedent to the sobering center. See

Rivera, 2020 WL 7502054, at *3; Sanchez, 579 S.W.3d at 532–33; Ramos, 35

S.W.3d at 727; see also Albarran, 2011 WL 2533751, at *4.

Further, HPD General Order 500-02, titled “Handling and Transporting

Prisoners and Other Persons,” states that “[a]ll transports [of persons by law

enforcement officers] shall be made via the safest, most direct route.” And Reiter

testified that General Order 500-02 leaves to the law enforcement officer’s discretion

the determination of the “safest and most direct route when transporting someone.”

See Ramos, 35 S.W.3d at 727 (“If an action involves personal deliberation, decision,

and judgment, it is discretionary . . . .”).

It is undisputed that at the time of the collision Officer Gonzales was

transporting the decedent, whom she believed was intoxicated, to the sobering center

in downtown Houston, rather than to jail. The transportation of inmates has been

held to be a discretionary duty, rather than a ministerial, act. See Wheelock v.

33
Behrens, No. 04-01-00312-CV, 2002 WL 112545, at *2 (Tex. App.—San Antonio

Jan. 30, 2002, no pet.) (not designated for publication) (law enforcement officer was

performing discretionary duty when transporting defendant from Kerr County Jail

to Bexar County Jail); Rinehart v. Britton, No. 14-99-01076-CV, 2000 WL 1715902,

at *3–4 (Tex. App.—Houston [14th Dist.] Nov. 16, 2000, no pet.) (not designated

for publication) (noting transportation of inmates involves discretionary acts); Scott

v. Britton, 16 S.W.3d 173, 178–79 (Tex. App.—Houston [1st Dist.] 2000, no pet.)

(same); Watt, 949 S.W.2d at 565–66 (prison officers performed discretionary duty,

not ministerial act, when removing inmate from cell and transporting him to

infirmary for mandatory examination); see also Gonzales v. Kelley,

No. 01-10-00109-CV, 2010 WL 2650615, at *1–3 (Tex. App.—Houston [1st Dist.]

July 1, 2010, no pet.) (mem. op.) (parties did not dispute that law enforcement

officers were performing discretionary duty when they transported inmate to mental

health unit); Casas v. Gilliam, 869 S.W.2d 671, 674 (Tex. App.—San Antonio 1994,

no writ) (emergency medical technician’s decision to transport decedent to particular

hospital was discretionary act). Here, Gonzales made the decision, based on her

belief that the decedent was intoxicated, to transport the decedent to the sobering

center, rather than to jail, and she was thus performing a discretionary duty at the

time of the collision. See Rivera, 2020 WL 7502054, at *3 (when law enforcement

officer’s operation of patrol car “involves personal deliberation or the exercise of the

34
officer’s professional expertise, decision, or judgment,” manner of driving may

become discretionary act); Sanchez, 579 S.W.3d at 532–33 (when policy allows for

law enforcement officers to use their own judgment, officer’s conduct is

discretionary); Ramos, 35 S.W.3d at 727 (“If an action involves personal

deliberation, decision, and judgment, it is discretionary . . . .”); see also Albarran,

2011 WL 2533751, at *4 (when “a [law enforcement] officer is performing certain

law enforcement functions involving discretion and judgment,” “this discretion and

judgment can extend to whether and how the officer utilizes a motor vehicle in

performing these functions”); cf. Chambers, 883 S.W.2d at 654 (ministerial acts are

those “[w]here the law prescribes and defines the dut[y] to be performed with such

precision and certainty as to leave nothing to exercise of discretion or judgment”

(first alteration in original) (internal quotations omitted)).

In response to the City’s summary-judgment motion, the Nicolais argued that

the City had not conclusively established that Officer Gonzales was performing a

discretionary duty at the time of the collision because “seat-belting a hand-cuffed

passenger in the back[]seat of a patrol cruiser is [a] ministerial [act].”

The Nicolais’ argument misses the mark. The proper inquiry is whether

Officer Gonzales was performing a ministerial act or discretionary duty when the

collision occurred. See Hatton, 2012 WL 3528003, at *3 (focusing on whether law

enforcement officer was performing discretionary duty when collision occurred);

35
Brooks, 349 S.W.3d at 222–23, 225–27; Albarran, 2011 WL 2533751, at *3 (issue

was “whether the City met its burden to establish that [law enforcement officer] was

performing a discretionary function . . . when the collision occurred” (internal

quotations omitted)); Harless v. Niles, 100 S.W.3d 390, 396–98 (Tex. App.—San

Antonio 2002, no pet.); Norman, 963 S.W.2d at 214 (“The issue we must

decide . . . is whether the City [of Wichita Falls] established as a matter of law that

[the law enforcement officer] was exercising discretionary duties in good faith at the

time the accident occurred.”); see also Dickerson v. Davis, 925 S.W.2d 123, 125–26

(Tex. App.—Amarillo 1996, writ dism’d w.o.j.) (focus should be on whether

governmental employee was performing discretionary duty at time of plaintiff’s

injury). At the time of the collision, Gonzales was transporting the decedent, whom

she believed was intoxicated, to the sobering center in downtown Houston—this is

the conduct which must be determined to be ministerial or discretionary.

Notably, the Texas Supreme Court has directed appellate courts, in analyzing

issues of official immunity, to describe a law enforcement officer’s conduct broadly,

rather than using a more specific description that is linked to the alleged wrong

committed by the officer. See Chambers, 883 S.W.2d at 653–55; Fink v. Anderson,

477 S.W.3d 460, 469–70 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (analyzing

Chambers and stating: “The Texas Supreme Court described the officer’s conduct

broadly. Instead of asking whether the officers had discretion to driv[e] unsafely, as

36
the appellate court had done, the Court considered whether ‘engaging in a

high-speed chase’ was a discretionary act and held that it was.”); see also Downing

v. Brown, 935 S.W.2d 112, 114 (Tex. 1996) (“The court of appeals’ analysis of

whether [the governmental employee’s] actions required discretion or judgment was

too narrow.”); Deaver v. Bridges, 47 S.W.3d 549, 553–54 (Tex. App.—San Antonio

2000, no pet.) (“[T]he focus is on the broad category of responsibility involved as

opposed to some particular aspect of the responsibility.”). By only analyzing

whether Officer Gonzales had discretion to buckle the decedent’s seat belt, the

Nicolais do not focus on whether Gonzales was performing a discretionary duty at

the time of the collision; rather, they focus on whether Gonzales had the discretion

to do an allegedly wrongful act while discharging that function. That is not the

appropriate inquiry. See Chambers, 883 S.W.2d at 653; Ramos, 35 S.W.3d at 727;

cf. Brooks, 349 S.W.3d at 226–27 (“[T]he proper inquiry is whether [law

enforcement officer] was operating his patrol car in an emergency situation, not how

or in what manner he operated his vehicle while responding.”).

Finally, although the Nicolais attached numerous exhibits to their response to

the City’s summary-judgment motion, none of the evidence—much of which

focused solely on whether buckling the decedent’s seat belt was a ministerial act—

raised a genuine issue of material fact as to whether Officer Gonzales was

performing a discretionary duty in transporting the decedent, whom she believed

37
was intoxicated, to the sobering center. But to the extent that the Nicolais relied, in

their summary-judgment response, on Reiter’s affidavit to assert that they had raised

a genuine issue of material fact as to whether transporting the decedent to the

sobering center was a discretionary duty, the affidavit only contains two relevant

conclusory statements. In his affidavit, Reiter stated: “Given the fact that it was

approximately 3:00 a.m. and the [decedent] appeared to be intoxicated, it was not a

discretionary act by . . . Gonzale[s] to make the decision to get [the decedent] off the

street and take her to a safer place” and “I also believe that at the time . . . Gonzale[s]

was driving her patrol [car] with [the decedent] as a passenger to the [s]ober[ing]

center, she was driving in a non-emergency/non[-]urgent situation, which in my

opinion is ministerial and not discretionary.” Conclusory statements of an expert

witness are insufficient to create a question of fact to defeat summary judgment.

Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013); McMahon v. Zimmerman, 433

S.W.3d 680, 686–87 (Tex. App.—Houston [1st Dist.] 2014, no pet.); see also City

of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (opinion is conclusory

“if no basis for the opinion is offered, or the basis offered provides no support” for

opinion).

Based on the foregoing, I would conclude that the City met its burden of

conclusively establishing that Officer Gonzales was performing a discretionary duty

when the collision occurred, and the Nicolais failed to raise a genuine issue of

38
material fact as to whether Gonzales was performing a discretionary duty at the time

of the collision.

B. Good Faith

The City argues that it conclusively established that Officer Gonzales was

acting in good faith at the time of the collision because a reasonably prudent law

enforcement officer could have believed, based on the facts available to Gonzales,

that the need to take the decedent to the sobering center outweighed any risk of harm

and any purported negligence by Gonzales in transporting the decedent to the

sobering center does not negate good faith.

Although the City has conclusively established that Officer Gonzales was

performing a discretionary duty at the time of the collision, it must also establish that

Gonzales was acting in good faith. See Wadewitz v. Montgomery, 951 S.W.2d 464,

466 (Tex. 1997). A court must measure the “good faith” requirement against a

standard of objective legal reasonableness, without regard to the particular

governmental employee’s subjective state of mind. Id.; see also Martinez v. Harris

Cnty., 526 S.W.3d 557, 563 (Tex. App.—Houston [1st Dist.] 2017, no pet.)

(governmental employee’s subjective state of mind or motive is irrelevant).

To be entitled to summary judgment, the City must conclusively prove that a

reasonably prudent law enforcement officer, under the same or similar

circumstances, could have believed Officer Gonzales’s actions were justified based

39
on the information she possessed at the time. Telthorster, 92 S.W.3d at 465; Gomez,

587 S.W.3d at 897; see also Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,

426 (Tex. 2004). In assessing what a reasonable person could have believed under

the circumstances, the Court considers only the information that the law enforcement

officer had at her disposal when she made her decisions, not facts that subsequently

became known to her. Telthorster, 92 S.W.3d at 465; Martinez, 526 S.W.3d at 563.

The City need not prove that it would have been unreasonable not to take these

actions, or that all reasonably prudent law enforcement officers would have taken

the same action. Telthorster, 92 S.W.3d at 465; Gomez, 587 S.W.3d at 897. Rather,

the City must only prove that a reasonably prudent law enforcement officer, under

the same or similar circumstances, might have reached the same decision.

Telthorster, 92 S.W.3d at 465; Gomez, 587 S.W.3d at 897.

The good-faith standard is analogous to an abuse-of-discretion standard that

protects “all but the plainly incompetent or those who knowingly violate the law.”

Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (internal

quotations omitted); see also Martinez, 526 S.W.3d at 563. Thus, evidence of a law

enforcement officer’s negligence does not negate good faith. Telthorster, 92 S.W.3d

at 465; Martinez, 526 S.W.3d at 563 (“[O]nly those who are plainly incompetent or

knowingly violate the law lack the good faith necessary to be shielded by official

immunity.”); see also Ballantyne, 144 S.W.3d at 426 (“The standard of good faith

40
as an element of official immunity is not a test of carelessness or negligence, or a

measure of a[] [governmental employee’s] motivation.”). Although in situations

involving high-speed chases, law-enforcement pursuits, or emergency-response

driving by law enforcement officers, courts employ a particularized need/risk

analysis when evaluating good faith,12 the public-safety concerns underlying the

need/risk assessment in those situations are not implicated here. See Riojas, 2022

WL 495473, at *1, *3–7 (refusing to apply “[the] need-risk balancing analysis” to

case involving “routine traffic management” because it was “outside the context of

12
See City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994) (holding law
enforcement officer establishes good faith in law-enforcement-pursuit case by
showing reasonably prudent officer could have believed it necessary to continue
pursuit, balancing need for immediate law enforcement intervention against risk of
harm to public); see also Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.
1997) (extending Chambers need/risk analysis to high-speed emergency responses);
Fayette Cnty. v. Ryder Integrated Logistics, Inc., No. 04-16-00574-CV, 2017 WL
1244440, at *2 (Tex. App.—San Antonio Apr. 5, 2017, no pet.) (mem. op.) (“In
situations involving high-speed chases or emergency[-]response driving by law
enforcement [officers], courts employ a particularized need/risk analysis when
evaluating good faith. This particularized need/risk analysis was crafted in an
attempt to tailor a test that would better weigh the risks that high-speed chases and
responses pose to the general public.” (internal citations and quotations omitted));
Green v. Alford, 274 S.W.3d 5, 15 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (“The rapid response required of law enforcement personnel, paramedics,
and firefighters is essential for the effective performance of their duties, but the
same actions also can pose serious risks to motorists, bystanders, and the responding
officials themselves. Consequently, claims arising from an official’s high-speed or
‘emergency’ driving are subject to a particularized need/risk analysis.”); cf. City of
San Antonio v. Riojas, 640 S.W.3d 534, 535 (Tex. 2022) (explaining Texas Supreme
Court has “refused to apply” “[the] need-risk balancing analysis . . . outside of the
context of a high-speed chase or other emergency law-enforcement response that
carries an inherent risk of harm to the public”).

41
a high-speed chase or other emergency law-enforcement response that carrie[d] an

inherent risk of harm to the public”); Telthorster, 92 S.W.3d at 464 (recognizing

need/risk analysis from Chambers was “crafted in an attempt to tailor a test that

would better weigh the risks that high-speed chases and responses pose to the general

public” and holding inherent risk to general public previously considered in cases

involving high-speed chases was not implicated in cases involving injuries to suspect

by law enforcement officer during arrest); Piedra v. City of Dallas, No.

05-03-00644-CV, 2004 WL 550792, at *2 (Tex. App.—Dallas Mar. 22, 2004, no

pet.) (mem. op.) (holding policy considerations underlying need/risk analysis were

not implicated in case and thus particularized need/risk analysis need not be applied).

When the situation makes the particularized need/risk analysis unnecessary, the City

must satisfy the general requirement of good faith by establishing that a reasonably

prudent law enforcement officer, under the same or similar circumstances, could

have believed that Officer Gonzales’s conduct was justified based on the information

she possessed when the conduct occurred. See Riojas, 2022 WL 495473, at *3–7;

Telthorster, 92 S.W.3d at 462–63; City of Fort Worth v. Robinson, 300 S.W.3d 892,

898 (Tex. App.—Fort Worth 2009, no pet.); Padilla v. Mason, 169 S.W.3d 493,

505–06 (Tex. App.—El Paso 2005, pet. denied); see also Kelley, 2010 WL 2650615,

at *4–9 (in case involving transportation of inmate to mental health unit, court did

not engage in need/risk analysis to determine whether law enforcement officers

42
acted in good faith); Wheelock, 2002 WL 112545, at *2 (in case involving

transportation of inmates between jails, court did not engage in need/risk analysis

when addressing whether law enforcement officer acted in good faith; instead, court

analyzed whether reasonably prudent officer could, under same or similar

circumstances, have believed conduct was justified); Rinehart, 2000 WL 1715902

at *4–5 (same); Watt, 949 S.W.2d at 566 (same).

In her deposition, Officer Gonzales testified that on October 2, 2013, around

2:00 a.m., she received a call from security at Ellington Field Airport about the

decedent. Airport security reported that the decedent was on airport property and

was a “DWI suspect.” When Gonzales arrived at the decedent’s location, she found

the decedent barefoot and “sitting on the curb” next to her car. The decedent was

intoxicated and could not stand up on her own. Gonzales had to hold the decedent

up so that she would not fall and had to assist the decedent to the patrol car. Gonzales

placed the decedent in the patrol car as the decedent was intoxicated and for the

decedent’s safety because she could not stand up and could get hurt. Gonzales began

transporting the decedent to the sobering center in downtown Houston.

The Nicolais’ expert witness Dr. Grossberg testified that when Officer

Gonzales encountered the decedent, the decedent appeared to be intoxicated and

Gonzales had to assist the decedent in standing. According to Dr. Grossberg,

Gonzales would not have been able to determine at the time she encountered the

43
decedent whether the decedent was going to become “more impaired” over time.

See Martinez, 526 S.W.3d at 568.

Detective Sartor testified that Officer Gonzales had the authority to transport

the decedent to the sobering center. And based on the decedent’s intoxication level,

she was a danger to herself and others. According to Sartor, given what Gonzales

“kn[ew] about [the decedent’s] condition when [she] first encountered her” on the

night of the collision, a reasonably prudent law enforcement officer would not have

left the decedent where Gonzales found her on airport property sitting, barefoot, on

the curb next to her car because the decedent could have been assaulted and could

have gotten into her car and driven off while intoxicated and possibly killed herself

or someone else. The decedent “needed to get to a safe place.” Additionally, Sartor

testified that a reasonably prudent officer could have believed that the need to

transport the decedent to the sobering center outweighed any risk of harm to the

decedent during transport. See Martinez, 526 S.W.3d at 568 (“While good faith may

be proved by expert opinion, an officer’s sworn testimony may do so too.”).

The Nicolais’ expert witness Reiter testified that when Ellington Field Airport

security first encountered the decedent on the night of the collision, she was

“attempting to push her car down the road barefoot.” The decedent exhibited signs

of intoxication. She was unable to stand up on her own, and “there was an odor of

alcohol.” If the decedent had been left alone in the dark to push her car in the middle

44
of the night, she would have been vulnerable and would have faced significant risks.

According to Reiter, no reasonable law enforcement officer would have left the

decedent on the road on airport property. And although there may be more

intoxicated drivers on the road around 3:30 a.m., Gonzales had not been told that

“there was a drunk driver in the area travelling really fast.” See id.

Thus, I would conclude that the City met its burden of conclusively

establishing that a reasonably prudent law enforcement officer, under the same or

similar circumstances, would have believed that Officer Gonzales’s conduct in

transporting the decedent to the sobering center was justified. See Riojas, 2022 WL

495473, at *3–7; Telthorster, 92 S.W.3d at 465; Robinson, 300 S.W.3d at 899.

Because the City met its summary-judgment burden, to raise a fact issue, the

Nicolais had to do more than show that a reasonably prudent law enforcement officer

could have reached a different decision. See Telthorster, 92 S.W.3d at 465; Gomez,

587 S.W.3d at 897. Specifically, the Nicolais had to offer evidence that no

reasonable officer in Officer Gonzales’s position could have believed that the facts

were such that they justified Gonzales’s conduct. Telthorster, 92 S.W.3d at 465;

Gomez, 587 S.W.3d at 897.

In response to the City’s summary-judgment motion, the Nicolais argued that

the City had not conclusively established that Officer Gonzales was acting in good

faith at the time of the collision because “no reasonable police officer could have

45
believed that failing to [buckle the] seat belt [of the decedent] was lawful in light of

clearly established law and the information possessed by . . . Gonzales at the time.”

According to the Nicolais, the City “offer[ed] no affidavits or deposition testimony

from any” law enforcement officer to show that Gonzales “could have justifiably not

seat-belted a handcuffed detainee.” (Emphasis omitted.) And the Nicolais provided

evidence that Gonzales was negligent in failing to buckle the decedent’s seat belt.

The Nicolais’ argument is again misplaced. Evidence that a law enforcement

officer violated a state law or a law enforcement department policy does not raise a

fact issue to rebut a law enforcement officer’s good faith nor does recklessness in

the performance of the officer’s duty belie her good faith. See Robinson, 300 S.W.3d

at 899–900; Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana

2004, pet. denied). Recklessness is negligence, and negligence is immaterial when

determining if a law enforcement officer acted in good faith. Robinson, 300 S.W.3d

at 899; Johnson, 142 S.W.3d at 596; see also Martinez, 526 S.W.3d at 563

(good-faith inquiry does not concern carelessness or negligence). Even if I was to

presume that Officer Gonzales was negligent in failing to buckle the decedent’s seat

belt before transporting her to the sobering center, this does not defeat her

established good faith. See Telthorster, 92 S.W.3d at 465; Martinez, 526 S.W.3d at

563 (“[O]nly those who are plainly incompetent or knowingly violate the law lack

the good faith necessary to be shielded by official immunity.”). Based on the

46
foregoing, I would conclude that the Nicolais failed to offer any evidence that no

reasonable officer in Gonzales’s position could have believed that the facts were

such that they justified Gonzales’s conduct in transporting the decedent to the

sobering center. Telthorster, 92 S.W.3d at 465; Gomez, 587 S.W.3d at 897.

Because the City conclusively established that Officer Gonzales was

performing a discretionary duty in good faith at the time of the collision,13 I would

hold that the trial court erred in denying the City’s summary-judgment motion.

I would sustain the City’s sole issue.14

Conclusion

I would reverse the trial court’s order denying the City’s summary-judgment

motion and render judgment dismissing the Nicolai’s suit against the City for lack

of subject-matter jurisdiction. Because the en banc majority seriously errs in

concluding otherwise and because this case does not warrant en banc

reconsideration, I respectfully dissent from the granting of en banc reconsideration

in this case and the en banc majority’s analysis of the merits. See TEX. R. APP. P.

13
Again, the parties did not dispute that Officer Gonzales was acting within the scope
of her authority at the time of the collision. See Telthorster v. Tennell, 92 S.W.3d
457, 461 (Tex. 2002) (“A governmental employee is entitled to official immunity
for (1) the performance of discretionary duties (2) that are within the scope of the
employee’s authority, (3) provided that the employee acts in good faith.”);
Chambers, 883 S.W.2d at 653.
14
Due to this disposition, I need not address the City’s remaining arguments related
to its sole issue. See TEX. R. APP. P. 47.1.

47
41.2(c) (“En banc consideration of a case is not favored and should not be ordered

unless necessary to secure or maintain uniformity of the court’s decisions or unless

extraordinary circumstances require en banc consideration.”); see also In re

Marriage of Harrison, 507 S.W.3d 259, 261 (Tex. App.—Houston [14th Dist.]

2016, order) (Frost, C.J., dissenting to granting of en banc reconsideration) (“[T]he

Supreme Court of Texas has made a policy decision to disfavor en banc

reconsideration, and instead to reserve the special procedure for rare cases meeting

one or both of the two en banc criteria.” (internal footnotes omitted)); Thompson v.

State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(Jennings, J., concurring in denial of en banc reconsideration) (“The standard for en

banc consideration is not whether a majority of the en banc court may disagree with

all or a part of a panel opinion. Neither is an assertion that an issue is ‘important’

sufficient [to justify en banc reconsideration].”).

Julie Countiss
Justice

On original submission, panel consisted of Justices Landau and Countiss and
former Chief Justice Radack.

En banc reconsideration was requested. See TEX. R. APP. P. 49.5.

48
The en banc court consists of Chief Justice Adams and Justices Kelly, Goodman,
Landau, Hightower, Countiss, Rivas-Molloy, Guerra, Farris, and Radack.15

A majority of the justices of this Court voted in favor of reconsidering the case en
banc.

Justice Landau, writing for the majority of the en banc court, joined by Justices
Kelly, Goodman, Landau, Hightower, Rivas-Molloy, Guerra, and Farris.

Justice Countiss, dissenting with separate opinion, joined by Chief Justice Adams
and Justice Radack.

15
The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of
Texas at Houston, sitting by assignment. See TEX. R. APP. P. 41.2(a).

49