Ramos v. Texas Department of Public Safety

*734MARGARET GARNER MIRABAL, Justice,

concurring and dissenting in part.

I respectfully dissent from the portion of the majority opinion dealing with the claims against Officer Kent and DPS involving the operation of the motor vehicle. I concur as to the premises liability claim against DPS.

I. Use of Motor Vehicle Claim Against DPS

In issues one and four,1 appellants complain the trial court erred when it granted DPS’s plea to the jurisdiction based on its claim that the motor vehicle provision in the Texas Tort Claims Act does not act to waive DPS’s sovereign immunity in this case.

Scope and Standard of Review

The Ramos and Garcia families sued DPS under the Texas Tort Claims Act. DPS asserted appellants did not adequately plead a cause of action for which it could be held hable because of sovereign immunity.

When a lawsuit is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and dismissal with prejudice is proper. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App. — Austin 1998, no pet.). A plea to the jurisdiction is the proper method for a governmental entity to challenge subject matter jurisdiction based on sovereign immunity. Id.; see also Tex.Civ.PRAc. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2000).

Our task is to examine the pleadings, to take as true the facts pleaded, and to determine whether those facts support jurisdiction in the trial court. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Austin, 970 S.W.2d at 753. We construe the pleadings in favor of the plaintiff. Id. If necessary, we may review the entire record to determine if there is jurisdiction. Id. We do not dismiss an action where a legitimate pleading amendment will demonstrate the court’s jurisdiction. Id.

DPS is a governmental unit generally immune from tort liability except where that immunity has been specifically waived by the legislature. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995). The Act waives immunity in three specific areas: (1) injury caused by an employee’s operation or use of a motor-driven vehicle; (2) injury caused by a condition or use of tangible personal property; and (3) injury caused by a condition or use of real property. Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). In the live pleadings at the time the trial court granted the amended plea to the jurisdiction (Plaintiffs Second Amended Petition and Intervenor’s First Amended Petition), appellants alleged DPS is liable under all three categories. On appeal, appellants focus on categories one and three only.

Discussion

DPS asserted the motor-driven vehicle exception does not apply because Officer Kent did not drive the car, rather he was a passenger. Appellants alleged that although Cano was the driver of the car, Officer Kent actually controlled the car, as follows:

Although Ms. Cano technically was the “driver” of the vehicle, Officer Kent and the DPS used and operated the vehicle to administer Ms. Cano’s road test. Without this vehicle, the DPS and Officer Kent could not have administered the test; the test would not have taken place without the vehicle. Additionally, throughout this test, Officer Kent used and operated the vehicle through his commands and instructions to Ms. Cano, affirmatively directing Ms. Cano’s actions and the direction of the vehicle. In this regard, Ms. Cano had no discretion to direct the vehicle, but instead *735this discretion and control was surrendered completely to Officer Kent and the DPS. Officer Kent also knew that Ms. Cano had to do what he told her, expected her to obey, and knew that she had “no discretion” to do otherwise. By the very nature of the test, Officer Kent and the DPS assumed the control and operation of the vehicle. If Ms. Cano failed to follow Officer Kent’s commands, she would not have passed the test and could have received a citation, ticket, or otherwise been subjected to criminal and/or civil sanctions and penalties. Ms. Cano knew that she had to do what Officer Kent told her to do and she obeyed these commands, to the best of her ability, for fear of not passing the test, among others. In short, Officer Kent operated and used the Cano vehicle.
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Ms. Cano quickly proved to Officer Kent that she was not a good driver, but was in fact dangerous and unsafe. Officer Kent, even before returning to the DPS office, determined that she would not pass the road test.

In County of Galveston v. Morgan, 882 S.W.2d 485 (Tex.App. — Houston [14th Dist.] 1994, writ denied), the court held that a county employee who was directing the movements of a truck owned and driven by a private party on a road construction job was “using or operating” the truck for purposes under the Act. Id. at 490.

Likewise, the Corpus Christi Court of Appeals recently agreed with Morgan in City of El Campo v. Rubio, 980 S.W.2d 948 (Tex.App. — Corpus Christi 1998, pet. dism’d w.o.j.). Id. at 946-47. In Rubio, the plaintiff alleged that an El Campo police officer ordered an unlicensed driver to follow him to the police station and as a result, the unlicensed driver’s car was struck by another vehicle and the unlicensed driver was seriously injured. Id. at 946-47. The court held:

[T]he City ignores the [plaintiffs’] allegations that [the driver] was acting under “direct orders” from [the police officer] .... We conclude that, by exercising control over the ... vehicle, [the police officer] used or operated the vehicle. Accordingly, his conduct falls within the parameters of the Act and the City’s immunity is waived.

Rubio, 980 S.W.2d at 946-47.

Similarly, in the present case, appellants’ pleadings contained allegations supporting the claim that the injury was caused by Officer Kent’s “operation or use of a motor-driven vehicle.” The pleadings are sufficient to support jurisdiction in the trial court. I would sustain appellants’ issues as to the claim against DPS under the motor vehicle exception (issues one and four).

II. Claims Against Officer Kent

In issue two, appellants complain the trial court erred in granting Officer Kent’s motion for summary judgment in which Officer Kent asserted the claims against him must be dismissed under the affirmative defense of official immunity. DPS rightly asserted as an alternative ground in its plea to jurisdiction that, if Officer Kent established the defense of official immunity, then no liability could attach to DPS, Kent’s employer, with regard to the claim involving the operation of the motor vehicle. See DeWitt v. Harris County, 904 S.W.2d 650, 653-54 (Tex.1995).

Discretionary v. Ministerial

Appellants assert Officer Kent failed to establish the first element of official immunity, that his duties were discretionary.2 Appellants argue Kent’s duties at the time of the accident were ministerial.

*736The majority opinion concludes Kent was engaging in discretionary acts at the time of the accident. I disagree.

The summary judgment evidence shows that Officer Kent had completed administering the standard road test when the accident occurred. Appellants concede that Kent was performing discretionary duties when he was conducting the driving test on the roadways, i.e., when he was directing Ms. Cano during the road test. However, appellants argue that once they had returned to the DPS office parking lot, all that remained to be done was the parking of the car, which did not involve discretionary actions by Kent.

Officer Kent relies primarily on Chambers, in which the Texas Supreme Court held that a police officer engaging in a high-speed chase was performing a discretionary act. City of Lancaster v. Chambers, 883 S.W.2d 650, 655 (Tex.1994). In reaching this conclusion, the Court also indicated that, under other circumstances, such as when conducting a raid, a police officer engages in discretionary acts. Chambers, 883 S.W.2d at 654-55; see also Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997) (the parties did not dispute that an officer responding to an emergency was performing a discretionary act). The present case, involving the parking of a car in the parking lot, does not fit within the examples of discretionary acts in Chambers and Wadewitz.

Appellants rely on a series of cases involving officers and other government employees operating vehicles in non-emergency situations to support their assertion that Officer Kent was performing a ministerial act when he directed Cano to park the car. See, e.g., City of Wichita Falls v. Norman, 963 S.W.2d 211, 215 (Tex.App.— Fort Worth 1998, pet. dism’d w.o.j.) (concluding that a motorcycle patrol officer on routine duty when he hit a car was performing a ministerial act); Woods v. Moody, 933 S.W.2d 306, 308 (Tex.App.— Houston [14th Dist.] 1996, no writ) (holding that a deputy driving a car under routine circumstances was performing a ministerial duty); Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex.App. — San Antonio 1992, writ dism’d w.o.j.) (driving a city bus is ministerial although it involves traffic judgment). In Norman, the court explained:

Situations where peace officers have been found to have official immunity in the operation of their motor vehicles include, but are not limited to, high speed chases, investigations, and traffic stops.... Operating a car or motorcycle in a non-emergency situation, unlike a high speed chase or traffic stop, does not require personal deliberation or the exercise of professional expertise, decision, or judgment involving the government. ... To the contrary, operating a motor vehicle is ministerial because it requires a person to “perform[ ] in a given state of facts and in a prescribed manner in obedience to the method of legal authority, without regard to his own judgment on the propriety of the act being done.” Burgess, 914 S.W.2d at 249 (quoting Miller, 53 S.W.2d at 840)....
Motorcycle police officers, like ordinary citizens, must obey traffic laws in operating their vehicles. They do not have discretion in determining whether the duty exists to follow such regulations.

Norman, 963 S.W.2d at 215-16 (emphasis omitted) (citations omitted).

Our focus in the present case is on whether Officer Kent was performing a discretionary function after the car had entered the DPS parking lot, and all that remained to be done was the parking of the car. Kent’s operation of the vehicle at that point did not require personal deliberation or the exercise of judgment on the propriety of the act being done. The process of parking the car was a ministerial act. See, e.g., Norman, 963 S.W.2d at 215; Woods, 933 S.W.2d at 308; Garza, 846 S.W.2d at 22.

*737I note that Kent also relies on Chapman v. Gonzales, 824 S.W.2d 685 (Tex.App.— Houston [14th Dist.] 1992, writ denied), where the court held an employee administering a pre-employment fitness test was engaging in discretionary acts. Id. at 687-88. However, Chapman is distinguishable from the present case because the injury suffered in Chapman occurred while the employee was still performing discretionary duties. See id. at 686-87.

I would hold that Officer Kent failed to establish that he was performing a discretionary duty at the time of the accident. Because, in my opinion, summary judgment was improper on this basis, it is not necessary to address the good faith element of official immunity. I would sustain issue two.

I would affirm the portion of the order granting DPS’s plea to the jurisdiction as to appellants’ premises liability claims. I would reverse the remainder of the order granting DPS’s plea to the jurisdiction, reverse the summary judgment in favor of Officer Willie Kent, and remand the reversed portions of the case to the trial court.

. The majority opinion does not address issues one and four, because it considered its disposition under issue two to be determina-five. I disagree with the majority’s disposition under issue two, for reasons set out hereafter.

. The three elements of official immunity are: (1) performance of discretionary duties, (2) in good faith, (3) while acting in the course and scope of employment. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).