COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TEXAS DEPARTMENT OF PUBLIC No. 08-13-00117-CV
SAFETY, §
Appeal from
Appellant, §
41st District Court
v. §
of El Paso County, Texas
MERARDO BONILLA, §
(TC #2011-DCV10226)
Appellee. §
DISSENTING OPINION
I respectfully dissent. In my opinion, DPS presented competent evidence to establish the
good faith element of official immunity, and in response Bonilla failed to meet his burden to show
that no reasonable person in the officer’s position could have thought the facts justified the
officer’s actions. Accordingly, I believe we should reverse the trial court’s order denying DPS’s
combined motion for summary judgment and plea to the jurisdiction, and dismiss Bonilla’s claims
for lack of jurisdiction.
The majority opinion contains a thorough analysis of both the issues and the evidence
presented to the trial court. But, I disagree with the majority’s analysis in two respects.
First, the majority considers Bonilla’s responsive evidence in determining whether DPS
met its initial burden to show that a reasonably prudent officer, under the same or similar
circumstances, could have believed the need for the officer’s actions outweighed a clear risk of
harm to the public from those actions. In its opinion remanding this case, the Supreme Court
noted that although “Bonilla disputes the trooper’s version of events in several material respects,”
his “controverting evidence is not germane to the competence of DPS’s evidence in the first
instance.” Texas Dept. of Pub. Safety v. Bonilla, 481 S.W.3d 640, 644 n. 23 (Tex. 2015). I
believe the Supreme Court is instructing us that we should look solely to DPS’s evidence in
determining whether DPS met its initial burden to establish the good faith element of official
immunity. And, looking solely to DPS’s evidence, it was sufficient to show that that a reasonably
prudent officer, under the same or similar circumstances, could have believed the need for the
officer’s actions outweighed a clear risk of harm to the public from those actions.
Second, the majority in essence concludes that Bonilla could avoid dismissal by simply
creating a fact issue concerning the trooper’s version of the events. But, as the Supreme Court has
made clear, once DPS met its initial burden of producing “competent evidence of good faith,” the
good faith “element of the official-immunity defense is established unless the plaintiff shows that
no reasonable person in the officer’s position could have thought the facts justified the officer’s
actions.” Id. at 643 (emphasis in original). In my opinion, Bonilla had to do more than create a
fact issue concerning the trooper’s version of the events to avoid dismissal; Bonilla was also
required to demonstrate that based upon his disputed version of the events, no reasonable person in
the officer’s position could have thought the facts justified the officer’s actions. My review of
Bonilla’s responsive evidence shows that while he may have raised a fact issue on whether the
officer slowed before entering the intersection and whether the officer’s view was obstructed, he
failed to present any evidence that no reasonable person in the officer’s position could have
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thought these facts justified the officer’s actions. Accordingly, Bonilla’s responsive evidence
was insufficient to prevent dismissal on good-faith immunity grounds.
October 12, 2016
STEVEN L. HUGHES, Justice
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Texas Department of Public Safety v. Merardo Bonilla
Combined Opinion