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holding an off-duty officer's "authority to act was triggered by reasonable suspicion"
Summary of this case from Town of Highland Park v. McCullersOpinion
No. 05-18-00205-CV
07-23-2019
CKJ TRUCKING, L.P. and Stephen Jack Bond, Appellants v. The CITY OF HONEY GROVE, Appellee
Appellants CKJ Trucking, L.P. and Stephen Jack Bond assert that the trial court erred in granting the plea to the jurisdiction and motion to dismiss filed by the City of Honey Grove. We reverse the trial court's judgment and remand.
BACKGROUND
On September 16, 2015, Ketan and Manali Amine were driving south on U.S. Highway 121 in Fannin County, Texas. At the same time, Zachary Scott Williamson, an off-duty police officer for the City of Honey Grove ("City"), was traveling north on Highway 121. Along this route, Williamson observed a Trenton police car with its lights activated parked behind a private vehicle and an unmarked SUV blocking the police car in. The cars were parked at a business which Williamson testified was a "liquor store attached to a gun shop." Williamson testified that the "scene did not appear to be secure" because he "didn't see any of the occupants from either vehicle either being detained or interviewed, which is a safety issue." Williamson further testified in his deposition that the scene drew his attention because he "didn't see the Trenton officer in the process of issuing a citation or speaking to anybody." Williamson testified that he thought this "atypical" situation raised serious concerns that the police officer might be ambushed, in distress, in need of assistance, or be in physical danger because the "patrol vehicle was blocked in at a liquor store after hours." Williamson testified that part of his concern was based upon the fact that this event had occurred "right after the first ambush killings in New York" and right about the time the "Black Lives Matter had really started kicking off and threats against the police officers had been made." In addition, Williamson was concerned that a crime was being committed in the parking lot. Williamson then engaged his red and blue emergency lights and attempted to make a U-turn to go south on Highway 121 but was unable to make the turn in a continuous manner. Although the Amines were able to stop on the south side of the highway and avoid colliding with Williamson, they were rear-ended by a tractor trailer that could not stop in time. The tractor trailer that collided with the Amines was owned or leased by CKJ Trucking and driven by Bond.
In the underlying litigation, the Amines filed a lawsuit asserting various claims for negligence against Bond and CKJ Trucking. Bond and CKJ Trucking then filed a third party petition against Williamson and the City. In regard to the City, Bond and CKJ Trucking alleged that the City's governmental immunity was waived because the accident and the Amines' injuries were "proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment" and the accident arose "from the operation or use of a motor-driven vehicle or motor-driven equipment." See TEX. CIV. PRAC. & REM. CODE § 101.021(1). In response, the City filed a plea to the jurisdiction, motion to dismiss and motion to sever ("motion to dismiss"). In the motion to dismiss, the City argued that it was entitled to a dismissal because the case did not fall within the limited waiver of immunity in Section 101.021 and the trial court lacked jurisdiction because Williamson was not acting in the scope of his employment at the time of the accident. The trial court granted the City's motion to dismiss and ordered "that any and all claims against Defendant City of Honey Grove are dismissed, with prejudice to Third-Party Plaintiffs refiling same." Bond and CKJ Trucking then timely filed a notice of appeal.
ANALYSIS
In three issues, Bond and CKJ Trucking assert that the trial court erred in granting the City's motion to dismiss.
Sovereign immunity from suit deprives a trial court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction are questions of law. Id. at 226. Accordingly, we review de novo a challenge to the trial court's subject matter jurisdiction. Id. at 228.
The purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). The plaintiff has the burden to plead facts affirmatively showing the trial court has jurisdiction. Miranda , 133 S.W.3d at 226. In determining whether the plaintiff has met this burden, we construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. Id. We indulge every reasonable inference and resolve doubts in the nonmovant's favor. Id. This standard generally mirrors a summary judgment standard under Texas Rule of Civil Procedure 166a(c) and the burden is on the governmental unit as movant to meet the standard of proof. Id. After the governmental unit asserts and provides evidentiary support for its plea, the nonmovant is required to show that a disputed material fact issue exists regarding the jurisdictional issue. Id.
Under the doctrine of sovereign immunity, governmental entities are not liable for the negligence of their employees absent a constitutional or statutory waiver of immunity. See Univ. of Tex. Med. Branch at Galveston v. York , 871 S.W.2d 175, 177 (Tex. 1994). The Texas Tort Claims Act ("Act") provides a limited waiver of sovereign immunity. Miranda , 133 S.W.3d at 224 ; TEX. CIV. PRAC. & REM. CODE §§ 101.001 –.109. Specifically, the Act provides as follows:
[a] governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment.
See CIV. PRAC. & REM. § 101.021(1)(A). The Act defines an "employee" as "a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority" and the "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Id. § 101.001(2), (5).
The City argued that Williamson was not in the scope of his employment because he was not acting under the direction of the Honey Grove police department, was not on duty at the time of the accident, was not being paid by Honey Grove, and had not received an assignment from the City. In response, Bond and CKJ Trucking argue that Texas law imposes a duty on peace officers to prevent crimes against persons committed in their presence outside their employer's geographical limits. We agree.
Appellants correctly assert the Texas Tort Claims Act does not require the vehicle to be government-owned. The statute's plain language supports this conclusion and the City cites no case actually holding the contrary to be true, which would require reading language into an unambiguous statute.
Bond and CKJ Trucking assert that pursuant to article 6.06 of the Code of Criminal Procedure, Williamson was required to act based on his suspicion that an offense was taking place and this duty placed him in the scope of his employment with the City. Article 6.06 provides as follows:
Whenever, in the presence of a peace officer, or within his view, one person is about to commit an offense against the person or property of another, including the person or property of his spouse, or injure himself, it is his duty to prevent
it; and, for this purpose the peace officer may summon any number of the citizens of his country to his aid.
See TEX. CODE CRIM. PROC. art. 6.06. This statute places no territorial constraint on this command to prevent crime to person or property. Garza v. Harrison , 574 S.W.3d 389, 402 (Tex. 2019).
Bond and CKJ Trucking also assert that articles 14.03(d) and 14.03(g)(2) of the Code of Criminal Procedure confer statewide jurisdiction on municipal officers:
A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace.
A "peace officer" includes marshals or police officers of an incorporated city, town or village, and those reserve municipal police officers who hold a permanent peace officer license. See Tex. Code Crim. Proc. art. 2.12(3).
See CRIM. PROC . art. 14.03(d).
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer described in this subdivision who is outside of that officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.
See id. art. 14.03(g)(2). Article 14.03(g)(2) applies only to certain peace officers, including city police officers, and explicitly authorizes a police officer who is "outside the officer's jurisdiction" to arrest a person without a warrant who commits any offense without the officer's presence or view. Id.; Garza , 574 S.W.3d at 404. Further, an officer's extraterritorial jurisdiction to act pursuant to article 14.03(g)(2) is statewide, except for certain traffic offenses which are not at issue in this case. Id.
We note that article 2.13 of the Code of Criminal Procedure also provides authority for the immunity waiver here:
(a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means.
(b) The officer shall:
(1) In every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime[.]
CRIM. PROC . art. 2.13(a), (b)(1). Officer Williamson was an "employee" under the Act. See CIV. PRAC. & REM. § 101.001(2) ; Ogg v. Dillard's, Inc. , 239 S.W.3d 409, 419–20 (Tex. App.—Dallas 2007, pet. denied) ; Turnage v. JPI Multifamily, Inc. , 64 S.W.3d 614 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (not designated for publication). And, he was within the scope of his employment. See CIV. PRAC. & REM. § 101.001(5). As the supreme court recently noted in Garza v. Harrison , police officers have a duty to prevent crime and arrest offenders twenty-four hours a day, and that public duty is triggered any time an officer observes a crime even outside the hours of his official work:
The Turnage case contains both a published and an unpublished section of the opinion. Any citation to the Turnage case in this opinion shall reference the portion which was not designated for publication.
Through [ article 6.06 and article 14.03(g)(2) ] and others, the Code explicitly contemplates that peace officers will, in certain circumstances, stop crime wherever it occurs. As defined in the Code, such action constitutes the lawful exercise of official power.
Peace officers are also expected to stop crime whenever it occurs. Peace officers "retain their status as peace officers twenty-four hours a day," which means that "a police officer's ‘off-duty’ status is not a limitation upon the discharge of police authority in the presence of criminal activity." "If an off-duty officer observes a crime, as a matter of law he becomes an on-duty officer." Peace officers are therefore relatively unique among governmental employees as they may be required to spring into action at a moment's notice, even while off duty. Accordingly, whether an officer is on or off duty does not determine whether the officer's conduct falls within the scope of employment.
... An officer enforcing general laws in accordance with a statutory grant of authority is acting in the course and scope of employment as a peace officer.
574 S.W.3d at 403 (internal citations omitted); see also Turnage , 64 S.W.3d 614 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (not designated for publication); Ogg , 239 S.W.3d at 420 ; Moore v. Barker , No. 14-17-00065-CV, 2017 WL 4017747, at *4 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A peace officer is not relieved of his duties merely because he is off duty. Garza , 574 S.W.3d at 403 ; Moore , 2017 WL 4017747, at *4. Rather, the dispositive question is whether the officer was enforcing general laws in accordance with a statutory grant of authority. Garza , 574 S.W.3d at 403. Thus, we must consider whether Officer Williamson's actions furthered enforcement of the law, not whether he was off duty when his actions occurred.
Although these types of cases generally involve an officer being triggered into action by witnessing a crime, an officer's public duty can also be triggered by reasonable suspicion. See Turnage , 64 S.W.3d 614 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (not designated for publication). "[I]t is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction." Derichsweiler v. State , 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). "[T]he Fourth Amendment will tolerate a certain degree of police proaction. Particularly with respect to information suggesting that a crime is about to occur, the requirement that there be ‘some indication that the unusual activity is related to crime’ does not necessarily mean that the information must lead inexorably to the conclusion that a particular and identifiable penal code offense is imminent. It is enough to satisfy the lesser standard of reasonable suspicion that the information is sufficiently detailed and reliable—i.e. , it supports more than an inarticulate hunch or intuition—to suggest that something of an apparently criminal nature is brewing." Id. at 916–17. Here, Williamson's authority to act was triggered by reasonable suspicion because, as described above, he observed a Trenton police car with its lights activated parked in a business parking lot and an unmarked SUV blocking the police car in. Williamson testified that the "scene did not appear to be secure" because he "didn't see any of the occupants from either vehicle either being detained or interviewed, which is a safety issue." Williamson testified that he thought this "atypical" situation raised serious concerns that the police officer might be ambushed, in distress, in need of assistance, or be in physical danger because the "patrol vehicle was blocked in at a liquor store after hours." As stated above, we indulge every reasonable inference and resolve doubts in the nonmovant's favor. Miranda , 133 S.W.3d at 228. Thus, we conclude that Williamson's authority to act placed him within the scope of his employment with the Honey Grove police department and the City's sovereign immunity has been waived. See CIV. PRAC. & REM. § 101.001 –.109; CRIM. PROC. arts. 2.13, 6.06.
"The reason is simple but fundamental. A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a warrantless investigative detention may be deemed ‘reasonable’ for Fourth Amendment purposes on the basis of a lesser quantum or quality of information—reasonable suspicion rather than probable cause. Likewise, because a detention is less intrusive than an arrest, the specificity with which the articulable information known to the police must demonstrate that a particular penal offense has occurred, is occurring, or soon will occur, is concomitantly less. It is, after all, only an ‘investigative’ detention." Derichsweiler , 348 S.W.3d at 916.
Also, Williamson testified that part of his concern was based upon temporal coincidence: this event occurred "right after the first ambush killings in New York" and right about the time the "Black Lives Matter had really started kicking off and threats against the police officers had been made." The objective facts that police officers had been recently targeted provide further support for Williamson's reasonable suspicion that, in his presence, someone was committing or about to commit an offense against his fellow officer.
CONCLUSION
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.
DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION
AMANDA L. REICHEK JUSTICE
DISSENT and Opinion Filed August 22, 2019
Upon internal request, a majority of the Court voted to deny en banc reconsideration of this case. I respectfully dissent from that decision and the panel's decision for the reasons stated below.
This case presents the question of whether the Texas Tort Claims Act waives governmental immunity for the actions of Honey Grove police officer Zachary Scott Williamson who, while off-duty and outside his employer's city limits, took it upon himself to investigate a scene of police activity in Trenton, Texas, and allegedly caused a car accident in the process. The panel's opinion sets forth the background facts in this case at length, and I will not reiterate those facts other than to note that Williamson testified he decided to investigate several unoccupied cars in a parking lot, including a police squad car with its lights activated, because the scene "did not appear to be secure." He stated he "didn't see any of the occupants from either vehicle being detained or interviewed, which is a safety issue." He elaborated that he "didn't see the Trenton officer in the process of issuing a citation or speaking to anybody," which made the situation "atypical" and raised the possibility that the absent police officer might be ambushed, in distress, in need of assistance, or be in physical danger. It was while Williamson was still some distance from the scene, and approaching it by car, that the accident occurred.
Even though, at the time of the accident, Williamson was (1) not on duty for the city of Honey Grove, (2) physically located outside Honey Grove city limits, (3) not being paid by Honey Grove, and (4) not undertaking a task that was assigned to him by Honey Grove, the majority opinion holds that Williamson was acting within the course and scope of his employment with the city such that it had waived governmental immunity. Because this conclusion is based on a misapplication of the relevant provisions of the code of criminal procedure, a misunderstanding of the Texas Tort Claims Act, and a misreading of Garza v. Harrison , 574 S.W.3d 389 (Tex. 2019), I disagree with the panel's holding in this case.
Governmental Immunity
Governmental immunity serves two important purposes; first, it precludes second-guessing of certain governmental actions and decisions. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170, 198 (Tex. 2004). Second, it serves to protect the public treasury by shielding the public from the cost and consequences of imprudent actions of their government. Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692 (Tex. 2003). Accordingly, it is well-established that (1) the waiver of governmental immunity is a matter addressed to the Legislature, and (2) the Legislature can waive governmental immunity only by "clear and unambiguous" language. City of LaPorte v. Barfield , 898 S.W.2d 288, 291 (Tex. 1995) ; Duhart v. State , 610 S.W.2d 740, 742 (Tex. 1980). A city may not be sued or held liable for the torts of its agents in the absence of a constitutional or statutory provision that waives its immunity for the alleged wrongful acts. Tex. Dep't of Transp. v. Able , 35 S.W.3d 608, 611 (Tex. 2000) ; Lowe v. Tex. Tech Univ. , 540 S.W.2d 297, 298 (Tex. 1976).
In this case the relevant statutory provision is found in the Texas Tort Claims Act, and the operative language is found at TEX. CIV. PRAC. & REM. CODE § 101.021 : A governmental unit in this State is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law. The outcome of this appeal hinges on whether Williamson was "acting within the scope of his employment" when he engaged in the actions that allegedly caused the accident. The Tort Claims Act defines "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee of competent authority." TEX. CIV. PRAC. & REM. CODE § 101.001(5). At the time of the accident Williamson was not on duty, not physically located within the jurisdictional limits of the City of Honey Grove, not being paid by the city, and not undertaking a task that was assigned to him by the City. The majority opinion nevertheless found that Williamson was acting within the course and scope of his employment with the City because Texas Code of Criminal Procedure articles 6.06, 14.03(d) & (g)(2), and 2.13 empower police officers to intervene to prevent crime statewide under certain circumstances even while off duty. The majority opinion further concludes that Williamson's intervention was warranted because he had "reasonable suspicion" of criminal activity. These statutes, however, do not authorize a police officer to intervene in the circumstances presented by this case, and neither does the common law principle of "reasonable suspicion."
Code of Criminal Procedure
In pertinent part, Texas Code of Criminal Procedure Art. 6.06 provides that "[w]henever, in the presence of a peace officer, or within his view, one person is about to commit an offense against the person or property of another, ... or injure himself, it is his duty to prevent it." In this case, Williamson did not observe and was not in the presence of a "person" at all, only vehicles. And, since there was no "person" in Williamson's presence or view, he could not have perceived that someone was "about to commit an offense" as required by the section.
Article 14.03(d) provides that "a peace officer who is outside his jurisdiction may arrest , without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace." (emphasis added). Here, again, there was no "person" observed by Williamson or in his presence, to say nothing of whether this non-existent person was committing a felony, a violation of Chapters 42 or 49, or committing a breach of the peace; nor do appellants contend that Williamson was in the process of making an arrest when he allegedly caused the car accident. This article is simply inapplicable.
Article 14.03(g)(2) is similar in that it provides that a peace officer may arrest without warrant a person who commits "any offense within the officer's presence or view" even while outside his jurisdiction. (emphasis added). So, like Art. 6.06, the actions an officer may take hinge on whether a "person" commits "an offense within the officer's presence or view," and like Art. 14.03(d) speaks to the circumstances under which an officer may make an arrest – facts that are not present in this case.
Article 2.13 authorizes peace officers to intervene without warrant to prevent or suppress crime "in every case authorized by the provisions of this Code." But the other provisions of the Code do not authorize peace officers outside their jurisdiction to intervene in the absence of a person committing or about to commit a crime in his presence. Accordingly, art. 2.13 is also unavailing on these facts.
Reasonable Suspicion
Perhaps recognizing the facts of this case are insufficient to support a waiver of governmental immunity under the language of the articles relied upon, the panel goes on to find that the City waived governmental immunity because Williamson's "public duty" to act was triggered by his "reasonable suspicion" that a crime was "about to occur," and this "duty to act placed him within the scope of employment with the Honey Grove police department." The panel opinion draws from criminal case law that addresses whether a police officer may conduct an investigatory detention with something less than "probable cause," e.g., "reasonable suspicion." But these cases do not involve a dispute over whether a police officer was acting within the scope of his employment for purposes of governmental immunity and, as such, do not support expanding the waiver of immunity beyond its clear language, or offer anything approaching "clear and ambiguous" evidence that the Legislature waived the City's immunity when it authorized peace officers to arrest or intervene in certain situations. Sw. Bell Tel., L.P. v. Harris County Toll Road Auth. , 282 S.W.3d 59, 68 (Tex. 2009) ("[b]ut as we have often noted, the Legislature is best positioned to waive or abrogate sovereign immunity ‘because this allows the Legislature to protect its policymaking function’ ").
Even if we could expand the waiver of governmental immunity in the manner suggested by the panel opinion, Williamson did not have "reasonable suspicion" as defined by the Texas Court of Criminal Appeals. Under the Fourth Amendment, "reasonable suspicion" exists when an officer is aware of specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity. York v. State , 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). This standard is objective; the subjective intent of the officer conducting the detention is irrelevant. Id. Under this standard, Williamson did not have "reasonable suspicion." He was aware of no "particular person" let alone any person who was engaged in or who would soon be engaged in criminal activity. He articulated "subjective intent," but under York , this is not enough. In summary, the panel opinion has held that off-duty police officers that are outside of their jurisdiction not only can, but must intervene in circumstances like those presented in this case, and, when they do, their city employers can be held liable. This result imposes far greater duties on peace officers, and far greater liability on cities, than called for by either the TTCA or code of criminal procedure.
Garza v. Harrison
The panel opinion relies heavily on the Supreme Court's recent opinion, Garza , v. Harrison , 574 S.W.3d 389 (Tex. 2019), to justify its finding that the City waived its governmental immunity. In Garza , the court found that an off-duty police officer who intervened in a crime beyond the jurisdiction of the city that employed him was acting within the "scope of his employment" for election of remedies purposes. The panel's reliance on this case is misplaced for several reasons. First, the officer in Garza actually witnessed a person committing a crime, bringing his actions within the purview of the statutes discussed above. Garza , 574 S.W.3d at 395.
Second, Garza does not address waiver of governmental immunity under section 101.021 ; rather it addresses the election of remedies provision of the TTCA found in section 101.106(f), as Justice Boyd's concurrence is careful to note. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). Although both section 101.106(f) and 101.021 incorporate "scope of employment" language, the analyses under these sections is quite different. Section 101.106(f) provides that a governmental employee is sued in an official capacity when the suit is based on conduct within the "general" scope of that employee's employment. Section 101.021, on the other hand, provides that a city surrenders its immunity if an employee acted "within the scope of his employment." Section 101.021 omits the word "general," which is a term of enlargement that serves to expand the conduct that could serve as a basis for finding that an employee sued in his individual capacity was in reality sued in his official capacity for election of remedies purposes. We must assume that the Legislature chose different words for these provisions for a reason, Chevron Corp. v. Redmon , 745 S.W.2d 314 (Tex. 1987), and approach the waiver question with a directive to find it only when such waiver is "clear and unambiguous." Unlike a waiver of immunity which must be clear and unambiguous, section 101.106(f) strongly favors the dismissal of the governmental employee. Univ. of Texas Health Sci. Ctr. at San Antonio v. Webber-Eells , 327 S.W.3d 233, 242 (Tex. App. 2010) ; Garza , at 405, n.77 (citing cases where Texas Supreme Court has articulated a broad construction of § 101.106(f) ).
See also Fitzgerald v. Advanced Spine Fixation Sys. , 996 S.W.2d 864, 866 (Tex.1999) (quoting Addison v. Holly Hill Fruit Prods. Inc. , 322 U.S. 607, 618, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944) ) ("One significant benefit is that by not reading language into the statute when the legislature did not put it there, we do not risk crossing the line between judicial and legislative powers of government as prescribed by article II of the Texas Constitution.").
I take as a given that a motor vehicle is "tangible personal property" under any understanding of that term.
Finally, Garza makes clear that it was not addressing whether suit "could have been brought under the [TTCA] against the governmental unit." The opinion specifically states that this determination – the one at issue in this case – was not before the Court because the parties stipulated that "suit ‘could have been brought’ under the Act against the City of Navasota, and so [the Court] need not substantively address [this matter]." Id. at *6. Justice Boyd, joined by Justice Lehrmann, wrote separately to reinforce this point: "I agree with the Court's analysis and join its opinion and judgment. I write separately only to emphasize that the Court does not decide or address whether this action ‘could have been brought’ against the City of Navasota."
Because I believe this Court's decision greatly expands the waiver of governmental immunity in a manner that is not supported by the law, I dissent from the Court's decision not to reconsider this case en banc.
DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION
DAVID J. SCHENCK JUSTICE
DISSENT; and Opinion Filed August 22, 2019.
Upon internal request, a majority of the Court voted to deny en banc reconsideration of this case. I agree that both relevant language of section 101.021 and canons controlling its interpretation foreclose a finding of waiver of immunity and, thus, jurisdiction here. I therefore join Justice Reichek's dissenting opinion in full. I write separately to address a related but perhaps more basic concern with the panel's opinion.
Jurisdiction over a governmental unit in the state's own courts is, for better or worse, a product of legislative munificence and discretion. The Texas Tort Claims Act ("TTCA") confers that jurisdiction in certain cases but does so in a fairly unique way: it makes the waiver of immunity to suit coterminous with the defendant's liability on the merits. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. As the Supreme Court observed in Miranda v. Texas Dep't of Parks & Wildlife , "[t]he Tort Claims Act creates a unique statutory scheme in which the ... immunities to suit and liability are co-extensive: ‘Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.’ " 133 S.W.3d 217, 224 (Tex. 2004) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a) ). For claims involving use of motor-driven vehicles, that point is arguably made twice more in section 101.021's immunity to liability waiver. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. As the panel opinion notes, a municipal employer is potentially liable in paragraph (1) of section 101.021 for personal injury, property damage and death claims arising from the use of a motor-driven vehicle, but only when "he acts within the scope of his employment. " Id. § 101.021(1) (emphasis added). Paragraph (2) of section 101.021, joined to its neighbor with a conjunctive "and," targets personal injury and death claims relating to "use" of "tangible ... personal property,"1 and allows the claim against the governmental defendant only if a private person would be liable. Id. § 101.021(2).
Ignoring any debate over the interplay of these substantive provisions, the sole question before the Court on this interlocutory appeal is the jurisdictional inquiry posed by section 101.025 as applied by Miranda and its progeny. Indeed, the merits of the arguments surrounding liability, and immunity to it, can only arise through that jurisdictional lens at this stage. E.g., Texas Dep't of Transp. v. City of Sunset Valley , 8 S.W.3d 727, 730 (Tex. App.—Austin 1999, no pet.) ; see also City of Dallas v. East Village Assoc. , 480 S.W.3d 37, 46 (Tex. App.—Dallas 2015, pet. denied) (differentiating TTCA appeals from others as inviting merits inquiry as essential to the jurisdictional question over which interlocutory appellate jurisdiction obtains).
Honey Grove's liability on the merits is the sine qua non of our appellate jurisdiction and the controlling question under the waiver to suit provision. While the panel opinion relies on Garza v. Harrison , it does not address this question. 574 S.W.3d 389 (Tex. Crim. App. 2019). To be sure, the defendant in Garza was dismissed under a broadly-worded statute that posed the question as whether he was acting in the "general duties of [his] office" as a licensed Texas peace officer. Id. at 401. As the Supreme Court explained in Garza and the panel addresses here the State , not the municipality, authorized Officers Garza and Williamson to inject themselves into the injury-causing events. Id. at 403–404. The conclusion that either or both were operating within the course and scope of their general duty as peace officers is neither surprising nor controlling of the question whether they were acting on behalf of their respective city employers. That question is grounded in ancient law—respondeat superior (let the master answer)—that makes A responsible for B's tort where B is acting as A's employee, but not, for example where A functions as an independent contractor, is engaged in a "frolic and detour" or otherwise off-duty and controlling his or her own decisions. Ginter v. Domino's Pizza, Inc. , 93 S.W.3d 300, 303 (Tex. App—Houston [14th Dist.] 2002, pet. denied) (accident caused by delivery driver after shift ended). The "supreme test" for determining whether vicarious liability applies is "whether the person being held responsible can be said to have had a right to control the activities of the wrongdoer." St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 541–42 (Tex. 2002).
See also Painter v. Ameritex Drilling , 561 S.W.3d 125, 132 (Tex. 2018) ("The defining characteristic of that relationship is the principal's right to control the agent's actions undertaken to further the principal's objectives.").
Here, of course, the City, acting as an employer has no ability to supersede or preempt the state law that confers extraneous authority on peace officers. See e.g., Texas Ass'n of Bus. v. City of Austin , 565 S.W.3d 425, 439 (Tex. App.—Austin 2018, pet. filed). A peace officer's decision to inject himself in what he perceives as an unfolding criminal event is his and his alone, as it must be. The city employing such a peace officer has the same right to prevent that engagement as a general employer would have to order its employees not to report for jury duty—that is to say none. TEX. CIV. PRAC. & REM. CODE ANN. § 122.001. Likewise a city or anyone hiring an attorney is obliged to accept that lawyers might, not by their terms of their employment, but by generally applicable law, disclose certain matters that the employer might prefer to remain confidential. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(c)-(d); Sarbanes Oxley Act of 2002, 116 STAT, 745 Public Law 107–204. Employees act as jurors and lawyers act as whistle-blowers, because of their prevailing obligations under general law and, perhaps, despite, rather than because of their employer's wishes.
The question, then, for purposes of examining the immunity to suit that determines jurisdiction here, is whether, to the extent liability created by this chapter of the TTCA extends to the facts of this case. No language in the TTCA suggests an intention to expand governmental liability beyond what a private employer would incur—much less does so "clearly and unambiguously." Tooke v. City of Mexia , 197 S.W.3d 325 (Tex. 2006) (statutory authorization that governmental immunity could "be sued" insufficiently clear).
Liability does not come to cities or anyone else like an asteroid, falling unannounced and without advance opportunity to avoid it. Even in those rare settings where one is strictly liable, that liability arises only after a choice has been made, whether it is to market a product capable of causing an injury or to engage in some ultra-hazardous activity. And yet, here, Texas cities and their taxpayers are apparently powerless to avoid liability for events taking place outside their borders or against their will. Their only decision giving rise to liability is to have a police department and hire one or more peace officers to staff it without unlawfully restraining them.
Of course, there is no doubting that Officer Williamson may well have been negligent or that his negligence caused serious harm. But, the fact that a peace officer himself has caused an injury that the Legislature may have absolved him (or her) of liability for does not compel the conclusion that someone else must be liable for it. All legal doctrines exist for a reason, and typically demand more than a breach of duty before legal liability is imposed as a consequence of loss, as Mr. Hadley and Ms. Palsgraf can attest. Sovereign immunity, in particular, as a doctrine operates with a contrary presumption—absent clear and unmistakable language waiving the immunity to suit, and in this case to liability—the claim fails despite the fact of the injury or someone else's lack of accountability for it. If language in a statute authorizing a governmental entity to "sue and be sued" is insufficiently clear to demonstrate intent to waive immunity to suit, then surely language authorizing a peace officer to be dismissed from a suit because he is acting within the general grant of authority from the State, is likewise insufficient to demonstrate that the employing city should be liable when the officer is acting on his own behalf and without any direction from the employing city.
The questions of whether the State acts as an "employer" here or whether an officer would be entitled to assert common-law immunity should the State not be subject to suit under section 101.106(f) are not before us.
Hadley v. Baxendale , 9 Exch. 341 (1854). Hadley suffered undeniable losses as a result of delay in repairing and returning the shaft for his mill.
Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 162 N.E. 99 (1928). Ms. Palsgraf was undeniably injured when an unsecured scale fell on her after an explosion on the train platform and had far less opportunity to avoid her injury than did the defendant.
Tooke , 197 S.W.3d 325.