Town of Highland Park v. Tiffany Renee McCullers, Individually and for the Benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, And Sonya Hoskins

DISSENT and Opinion Filed June 29, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas

No. 05-19-01431-CV

TOWN OF HIGHLAND PARK, Appellant
V.
TIFFANY RENEE MCCULLERS, ET AL., Appellees

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-08709
DISSENTING OPINION
Before Chief Justice Burns and Justices Pedersen, III and Goldstein
Dissenting Opinion by Chief Justice Burns
My colleagues rely on labels instead of function—here, the Town of

Highland Park’s coordination of private security services for a resident—to deny

deceased Officer McCullers’ family their day in court and conclude Town’s actions

qualified as police protection and served a governmental function. I disagree and

accordingly dissent.

When municipalities perform governmental functions they are cloaked with

the State’s sovereign immunity. Wasson Interests, Ltd. v. City of Jacksonville, 489

S.W.3d 427, 430 (Tex. 2016) (Wasson I) (“[A] municipality’s immunity extends

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only as far as the state’s but no further.”). Governmental functions are “those acts

which are public in nature and performed by the municipality as the agent of the

State in furtherance of general law for the interest of the public at large.” Gates v.

City of Dallas, 704 S.W.2d 737, 738–39 (Tex. 1986) (internal quotation omitted)).

In contrast, discretionary activities primarily for the benefit of the citizens (here one

citizen property owner) within the corporate limits of a town are proprietary

functions outside of the immunity conferred by the State. Id.; Tooke v. City of Mexia,

197 S.W.3d 325, 343 (Tex. 2006) (distinction lacks clarity, but generally,

“proprietary functions are those conducted in. . . [municipality’s] private capacity,

for the benefit only of those within its corporate limits, and not as an arm of the

government, while its governmental functions are in the performance of purely

governmental matters solely for the public benefit”) (internal quotation omitted)).

As discussed below, unless the function at issue is statutorily designated as

governmental, the municipality’s entitlement to immunity thus depends on “the

relationship, or lack thereof, between the municipality and the state, not the

relationship between the municipality and the party bringing suit.” Wasson

Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018) (Wasson II)

(internal quotation omitted)).

The legislature designated thirty-six municipal functions that are

governmental for purposes of immunity, including “police and fire protection and

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control.” TEX. CIV. PRAC. & REM. CODE §101.0215 (a)(1). Conduct enumerated in

the statute as governmental deprives us of discretion to treat that conduct as

proprietary. City of Plano v. Homoky, 294 S.W.3d 809, 814 (Tex. App.—Dallas

2009, no pet.). Notably, we focus on the conduct at issue, rather than the label used

by Town—police related or non-police related—or the existence of a written policy

utilized by Town.

The majority appears to rely on Town’s argument that “all actions related to”

a category included in the statute’s list of governmental functions deserve the same

treatment as the enumerated function, thereby foregoing any analysis of whether

coordination of private security services deserves immunity as police protection and

control. In support of this argument, Town cites City of Dallas v. Reata Construction

Corp., 83 S.W.3d 392, 395 (Tex. App.—Dallas 2002), rev’d on other grounds, 197

S.W.3d 371 (Tex. 2006), for its holding that “when the legislature changed a

classification from proprietary to governmental, it intended all actions taken by a

city within that category to be reclassified.” Reliance on this holding, however, begs

the question at issue here: whether coordination of private security falls within the

category of “police protection.” Certainly, all functions related to coordination of

police protection to be provided by on-duty officers, for instance added

neighborhood patrols, responses to suspicious persons, and traffic control in

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connection with a funeral1 or the Fourth of July parade that occurred earlier the same

day through Town’s streets would fall within the ambit of police protection. But

coordination of security services, to be provided by off-duty officers, on private

property, for one private citizen, warrants a closer examination.

In Martinez v. City of San Antonio, 220 S.W.3d 10, 15 (Tex. App.—San

Antonio 2006, no pet.), our sister court examined the City of San Antonio’s Gang

Rehabilitation Assessment and Services Program (GRAASP), in its Youth Crime

Services Unit. The program was funded by the U.S. Department of Justice and

although run independently of the City and the police department, the City managed

the funds for the program. The grant application described the program as

intervention strategies and different methods of police protection and services, for

the urban community and public at large. Under to the program, gang members were

recruited based on their degree of involvement in gang activity and crime, and the

severity of their criminal record. Each participant was interviewed and assessed for

vocational, educational, medical or psychological status, with the goal of enrolling

85% of the participants in school or vocational training. The criminal activity and

arrests of each participant were also monitored for increases or decreases, as was the

crime in the target neighborhoods. In addition to reducing gang violence committed

by the participants, the program sought to increase neighborhood participation in

1
See Blackwell v. Harris Cty., 909 S.W.2d 135, 139 (Tex. App.-Houston [14th Dist.] 1995, writ denied).

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community events and associations as an additional avenue to reducing gang

violence. Id. at 13. The San Antonio court concluded GRAASP was a law

enforcement program, and therefore a governmental rather than proprietary function

for which the City was entitled to immunity. It refused to “split various aspects” of

the program to conclude that the counseling and job training altered the fundamental

purpose of the program: a “crime prevention and reduction program, implemented

and administered by the police department, funded by the Department of Justice . . .

[for the] benefit . . . [of] the general public.” Id. at 15.

In contrast, Town coordinated private security services for private property

owners, here, one private property owner. While the effect of these services may

ultimately have been crime reduction, their fundamental purpose was private loss

prevention. See, e.g., Elizondo v. State, 382 S.W.3d 389, 394 (Tex. Crim. App. 2012)

(private citizen providing loss-prevention services not acting as law enforcement).

Certainly, the effect of alarm monitoring or fencing would be the same, yet we would

have no difficulty concluding that coordination of those services would fall far

outside of police protection, particularly when those services were not provided for

the general public or indeed even all of Town’s citizens.

Moreover, unlike my concurring colleague, I find little persuasive relevance

and certainly nothing binding in Homoky, 294 S.W.3d at 813–14. Neither the

conclusion that operation of a golf course falls within the defined governmental

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function of a “recreational facility”2 nor the analysis utilized in reaching that

conclusion suggests coordination of private security services provided by off-duty

officers falls within the definition of “police protection.” Further, unlike Homoky in

which the plaintiff sought to split consideration of the golf course operation, which

easily fell within a defined governmental function, from operation of the club house

in which the plaintiff’s injury occurred and which did not fall so easily within the

same definition, no such splitting is required here. Id. at 813 (improper to split

operation of golf course from operation of a clubhouse for purposes of evaluating

proprietary versus governmental functions). We examine only coordination of

security services; no coupled activity exists.3

Likewise, Town’s reliance on Hallmark v. City of Fredericksburg for the

broad application of “police protection” fails to persuade. Hallmark v. City of

Fredericksburg, No. 04-99-00519-CV, 2000 WL 730601, at *3 (Tex. App.—San

Antonio June 7, 2000, pet. denied) (mem. op., not designated for publication). In

Hallmark, off-duty officers practicing softball at a law enforcement center

threatened the owner of adjacent property with arrest if he refused to return the ball

they had hit onto his property. Concluding such a threat fell within “police

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` TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(23).
3
I disagree with my concurring colleague that an analysis of Town’s coordination of private security
services divorces that function from “police services overall.” Relying on the fact that Town’s police
department had a policy and overall scheme for coordinating off-duty service eliminates the entire analysis.
Overall scheme or no, the question we examine is the purpose of Town’s activity.

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protection” does not inform our analysis, however, since we see no parallel between

that overt exercise of police authority and Town’s coordination of private security

services.

In his deposition, Town’s Chief of Police testified Town coordinated and

provided private security services because the residents wanted the service, “like if

they’re having a party or something,” which also provided “additional officers in the

city and additional security.” He also testified Town provided those services as a

courtesy and could decline to provide them. The officers were paid by the private

citizens who requested their services, although at least one of the officers who

coordinated such services did so while on duty for Town. Requests were made by

citizens directly to the police department with the Chief or his assistant then checking

if specific officers wanted the assignments, or were made directly to individual

officers who accepted the work or searched for others if they did not. Nowhere in

our record did the Chief describe the purpose or function of Town’s coordination of

these services as police protection or law enforcement.4 Instead, while performing

the services Town coordinated, Officer McCullers was in his private vehicle, and

rather than patrolling, was sitting in one place, essentially functioning as a night-

watchman for one citizen.

4
And notably for the summary judgment posture presented, appellees’ pleadings describe Town’s activity
as “coordinating private security guard services for the convenience of residents of the Town.”

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 Evidence that Town communicated private security requests only to licensed

peace officers who in turn are potentially on duty 24 hours a day, provides the

apparent basis for the majority’s naked conclusion that “Officer Morden coordinated

with Officer McCullers in furtherance of police protection at the Property.” The fact

that a peace officer was assigned to this off-duty task, however, does not convert

Town’s actions (or the officer’s) to governmental conduct. Indeed, if we were

examining Officer McCullers’ entitlement to immunity for some action taken while

guarding the Property, we would look to whether he observed a crime so as to trigger

his on-duty status. See City of Balch Springs v. Austin, 315 S.W.3d 219, 225 (Tex.

App.—Dallas 2010, no pet.) (“If an off-duty officer observes and responds to a

crime, he becomes an on-duty officer.”); see also CKJ Trucking, L.P. v. City of

Honey Grove, 581 S.W.3d 870 (Tex. App.—Dallas 2019, pet. denied). Thus, the

potential for activation of on-duty status and the fact that a peace officer’s off-duty

status does not discharge his police authority has no bearing here, since those

possibilities exist in any off-duty work in which an officer might engage. If we

relied on the potential trigger to on-duty status, we would thus render the entire

question at issue irrelevant when the questioned task was performed in connection

with a municipality’s peace officers. See, e.g., City of Houston v. Shilling, 240

S.W.2d 1010, 1012 (Tex. 1951) (rejecting maintenance of garbage trucks as

necessary to provision of governmental garbage collection services, since “[s]urely

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all operations which make it possible for the city to collect garbage are not part of

that function in the sense that the city is immune to liability in its performance.”);

see also CKJ Trucking, L.P., 581 S.W.3d at 877 (in evaluating immunity triggered

by police protection, “we must consider whether Officer Williamson’s actions

furthered enforcement of the law, not whether he was off duty when his actions

occurred.”). Further, the Chief also testified that if no officers were available, Town

would recommend that the requesting resident call a private security company to

coordinate the security services. Given each of these facts, including the ability of

a private security firm to perform the services, for one citizen, when Town declined

to, McCullers’ off-duty status, and the lack of connection between Town’s

coordination service and “police protection,” I cannot conclude the activity was a

“purely governmental matter[] solely for the public benefit.” Tooke, 197 S.W.3d at

343.

Guillory v. Port of Houston Authority, 845 S.W.2d 812 (Tex. 1993), relied

upon by my concurring colleague, does not compel a different conclusion. In

concluding the Port Authority was a political subdivision of the State that could act

only in a governmental rather than proprietary capacity, the Guillory court rejected

the possibility that the Authority waived its immunity through proprietary conduct.

Id. at 812–13. In dicta, it then built on the impossibility of waiver premised on an

expansive definition of proprietary functions proposed by Guillory, which turned on

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whether a private entity could have provided the service at issue—leasing a truck

used for unloading cargo. Id. at 814. In contrast, my conclusion does not rest on

whether a private entity could have coordinated the security services at issue but

instead, considers the discretionary nature of the function as well as the additional

factors discussed above and below.

When the statute does not expressly designate a specific municipal activity as

either proprietary or governmental, we consider the following four factors in making

that determination: “(1) was the City’s act ‘mandatory or discretionary,’ (2) was the

City’s act ‘intended to benefit the general public or the City’s residents,’ (3) was the

City ‘acting on the State’s behalf or its own behalf’ in undertaking the activity; and

(4) was the City’s act ‘sufficiently related to a governmental function to render the

act governmental even if it would otherwise have been proprietary.’” Hays St.

Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 705 (Tex. 2019)

(quoting Wasson II, 559 S.W.3d at 150). These Wasson factors also support a

conclusion that in providing private security services, Town was acting in a

proprietary role. Town admits its coordination of these services was discretionary

and the services were for the benefit of Town’s residents. Moreover, and key to our

inquiry regarding Town’s relationship to the State with respect to the task in question

and the role of immunity, we have no evidence nor any argument that in coordinating

private security services, Town acted on the State’s behalf. And finally, given the

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supreme court’s caution that we may treat a proprietary action as governmental

under the final Wasson factor only if the action is “closely related to or necessary for

performance of” the activity described in the statute,5 I cannot conclude that even

this last factor supports the existence of governmental action here. See Wasson II,

559 S.W.3d at 150.

Particularly in the summary judgment posture applicable to an evidentiary

challenge to jurisdiction, where we resolve all doubts in favor of jurisdiction and

construe the facts and pleadings liberally in favor of the non-movant, I would affirm

the trial court.

/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE

191431DF.P05

5
Wasson II, 559 S.W.3d at 153; see also City of Helotes v. Page, No. 04-19-00437-CV, 2019 WL 6887719,
at *4 (Tex. App.—San Antonio Dec. 18, 2019, pet. denied).

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