Nicholas Hulick v. City of Houston ( 2022 )

Reversed and Remanded and Memorandum Opinion filed February 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00424-CV
NICHOLAS HULICK, Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2018-61725
MEMORANDUM OPINION
Nicholas Hulick appeals the trial court’s order granting the City of Houston’s
plea to the jurisdiction and dismissing Hulick’s negligence lawsuit against the City.
In his suit, Hulick alleged that a Houston police officer struck his motorcycle when
the officer attempted to make a left-hand turn, causing Hulick serious injuries. In its
plea to the jurisdiction, the City argued that the officer retained his official immunity,
and the trial court agreed.
On appeal, Hulick presents several reasons why the City failed to establish the
officer’s immunity, but the dispositive issue is whether the officer was performing a
discretionary act in this circumstance. For the reasons explained, we conclude he
was not. We reverse and remand for further proceedings.
Background
Houston Police Department (“HPD”) Officer Andrew De La Guardia
responded to a service call involving a homeless suspect causing a disturbance on
the street outside of a business located around the 200 block of Westheimer. The
officer drove his HPD vehicle eastbound on Westheimer looking for the suspect.
Because of heavy rain, he operated the vehicle’s windshield wipers at full speed.
After searching the immediate area, Officer De La Guardia decided to turn around
and head back to the original location of the call. Slowing to ten to fifteen miles per
hour, he looked through the rain for oncoming traffic. Seeing none, the officer
attempted to cross the westbound lanes of traffic but struck a motorcycle driven by
Hulick. Hulick was thrown and suffered numerous injuries. The officer stopped and
called for help. The accident report indicates that Officer De La Guardia “failed to
yield the right of way, turning left.”
Hulick filed a negligence suit against the City under the Texas Tort Claims
Act (the “TTCA”).1 The City answered and filed a plea to the jurisdiction, asserting
that the trial court lacked subject matter jurisdiction because Officer De La Guardia’s
official immunity shielded the City from Hulick’s claims. In support of its plea, the
City proffered the affidavits of Officer De La Guardia and his supervisor, Sergeant
Robert Steffan, and the accident report relating to the crash. In response, Hulick
asserted three arguments: (1) Officer De La Guardia was not performing a
1
See Tex. Civ. Prac. & Rem. Code §§ 101.001-.109.
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discretionary function at the time of the incident; (2) the City did not meet its initial
burden to establish Officer De La Guardia’s good faith; and (3) the court should
exclude Sergeant Steffan’s affidavit because the City failed to timely disclose it in
accordance with the rules of procedure.
Without ruling on Hulick’s objection to Sergeant Steffan’s affidavit, the trial
court granted the City’s plea and dismissed Hulick’s lawsuit. Hulick filed a motion
for new trial, which was overruled by operation of law. Hulick appeals.
Analysis
A. Plea to the Jurisdiction
We review a trial court’s ruling on a plea to the jurisdiction under a de novo
standard. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex.
2004). If, as here, a plea to the jurisdiction challenges the existence of jurisdictional
facts, a court must first determine if a question of fact exists before ruling on the
plea. Id. at 227. The court must consider the relevant evidence submitted by the
parties to resolve the jurisdictional issues raised. Id. If the evidence raises a fact
issue as to whether the court has subject matter jurisdiction, the court must deny the
plea to the jurisdiction, and the fact finder must decide the fact issue. Id. at 228.
This analysis mirrors that of a traditional motion for summary judgment, which
requires the court to take as true evidence favorable to the non-movant and indulge
every reasonable inference in the non-movant’s favor. Id.The City, as a municipality and political subdivision of the State, cannot be
vicariously liable for an employee’s acts unless its governmental immunity has been
waived. Gomez v. City of Houston, 587 S.W.3d 891, 896 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied) (en banc); City of Pasadena v. Belle, 297 S.W.3d 525,
529 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Under the facts of this case,
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the parties agree that the only possible waiver of the City’s immunity from suit and
liability is found in TTCA section 101.021, which provides in relevant part:
A governmental unit in the state is liable for . . . 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; and
(B) the employee would be personally liable to the claimant
according to Texas law . . . .
Tex. Civ. Prac. & Rem. Code § 101.021(1).
The parties do not dispute that Hulick’s alleged injuries arise from the
operation or use of a motor-driven vehicle or that Officer De La Guardia was acting
within the scope of his employment when the accident occurred. The dispute is
whether the officer “would be personally liable to the claimant under Texas law.”
The City contends that Officer De La Guardia would not be liable because he is
protected by official immunity.
“A governmental employee is entitled to official immunity: (1) for the
performance of discretionary duties; (2) within the scope of the employee’s
authority; (3) provided the employee acts in good faith.” Univ. of Houston v. Clark,
38 S.W.3d 578, 580 (Tex. 2000); see also Belle, 297 S.W.3d at 530; Harris County
v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
Woods v. Moody, 933 S.W.2d 306, 307 (Tex. App.—Houston [14th Dist.] 1996, no
writ). “The purpose behind official immunity is to free government officials to
exercise their duties without fear of damage suits that would consume their time and
energy and the threat of which might appreciably inhibit the fearless, vigorous, and
effective administration of policies of government.” Woods, 933 S.W.2d at 308. In
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other words, official immunity is “not designed to protect erring officials.” Id.
Because official immunity is an affirmative defense, the burden rests on the City to
establish all elements of the defense. See Gomez, 587 S.W.3d at 897; Clark, 38
S.W.3d at 580.
B. Ministerial v. Discretionary Acts
In his first issue, Hulick contends that Officer De La Guardia is not entitled to
official immunity because he was not engaged in a discretionary act when the
accident occurred.
If a government employee is performing a discretionary function, then he is
protected by official immunity, regardless whether he was negligent in the exercise
of his public duties. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994); City of Dallas v. Brooks, 349 S.W.3d 219, 225 (Tex. App.—Dallas 2011, no
pet.); Harless v. Niles, 100 S.W.3d 390, 396 (Tex. App.—San Antonio 2002, no
pet.). An action is discretionary if it involves personal deliberation, decision, and
judgment; on the other hand, an action that requires obedience to orders or the
performance of a duty as to which the 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) (citing Chambers, 883 S.W.2d at 654). The distinction between
ministerial and discretionary acts is often one of degree because any official act that
is ministerial still requires the employee to use some discretion in its performance.
Id. In determining whether an act is discretionary, the inquiry focuses on whether
an employee was performing a discretionary function—not on whether the employee
had the discretion to do an allegedly wrongful act while discharging that function,
or whether the job description at issue includes discretionary duties. Id.
As the City correctly observes, a law enforcement officer’s operation of a
vehicle is a discretionary function in certain circumstances, including high-speed
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chases, traffic stops, responding quickly to an officer’s call for assistance, or
responding to an emergency. See Chambers, 883 S.W.2d at 655 (officer engaging
in high-speed chase performs discretionary act); Webb County v. Lino, No. 04-19-
00891-CV, 2020 WL 4218714, at *5 (Tex. App.—San Antonio July 22, 2020, no
pet.) (mem. op.) (initiating routine traffic stop is discretionary act); Brooks, 349
S.W.3d at 226-27 (officer responding at high rate of speed to call for back-up
involving a combative/suicidal person was performing a discretionary duty); Collins
v. City of Houston, No. 14-13-00533-CV, 2014 WL 3051231, at *5 (Tex. App.—
Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.) (responding quickly to radio
broadcast requesting assistance to apprehend a reckless motorist is discretionary
act); 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.) (officer
responding to “Priority One” call for assistance and using emergency lights and
sirens while driving was performing discretionary act when accident occurred);
Harless, 100 S.W.3d at 397 (officer’s decision to violate traffic laws to quickly reach
scene of suspected criminal activity and assist another officer was discretionary act).
In these types of instances, officers retain official immunity due to their performance
of discretionary functions if the other immunity elements are met.
But absent such special circumstances, an officer’s operation of a motor
vehicle on official, non-emergency business is ministerial. See City of Houston v.
Jenkins, 363 S.W.3d 808, 817 (Tex. App.—Houston [14th Dist.] 2012, pet. denied);
Woods, 933 S.W.2d at 308. For example, in Woods, this court determined that an
officer who struck another driver’s car from behind while on duty and en route to
“Harris County business” was not entitled to official immunity because he was
engaged in the ministerial act of operating his police car. Woods, 933 S.W.2d at
307-08. This was so despite the officer’s statement that the accident occurred when
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his foot slipped off the brake when he decided to pick up a clipboard from the car’s
floorboard because he was concerned it might become dangerously lodged
underneath the car’s brake pedal. Id. Although the act of picking up the clipboard
may have been discretionary, we explained:
Unlike high speed chases or traffic stops, operating a car in a non-
emergency situation does not involve personal deliberation or the
exercise of professional expertise, decision, or judgment. To the
contrary, driving a car 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 . . . the
propriety of the act being done.” Thus, absent special circumstances
that suggest the officer was performing a discretionary function, such
as engaging in a high speed chase, we hold that an officer driving a
motor vehicle while on official, non-emergency business is performing
a ministerial act.
Id. at 308 (citations omitted).
Similarly, in Gibbons, an officer rear-ended Gibbons while at a stop light as
he was checking his on-board computer terminal to determine whether another
nearby vehicle had been stolen. Gibbons, 150 S.W.3d at 880. When the officer
glanced down to see the results of his computer query, his patrol car moved forward,
hitting Gibbons’s vehicle. Id.. We determined that the officer was performing the
ministerial act of driving a police vehicle when he struck Gibbons’s car from behind.
Id. at 886. And because the officer was operating his vehicle in a non-emergency
situation, “he was obligated to operate his patrol car in a safe manner in accordance
with traffic laws and was performing a ministerial function.” Id.In Jenkins, we were asked to determine whether a K9 officer was engaged in
a discretionary or ministerial act when his police dog attacked another officer
following a search for a suspect. Jenkins, 363 S.W.3d at 811-12. Ultimately, we
held that the officer had a ministerial duty to securely restrain the police dog while
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transporting him away from the search site. Id. at 818-19. In reaching this
conclusion, we compared the officer’s handling of the police dog to driving a patrol
vehicle. Id. at 817. We observed,
[L]ike the handling of a vehicle, different rules apply to the handling of
a dog when it is being used by a governmental employee in the
performance of a discretionary act—like pursuing a suspect. But as
Gibbons illustrates, the use of the same tool can be discretionary in
some circumstances and ministerial in others. An officer can exercise
discretion in deciding when and how to use a potentially dangerous
tool, and still have a ministerial duty in using the tool under other
circumstances.
Id. at 818 (citations omitted).
Here, as in the examples we have described, there is no evidence of an
emergency or any urgent circumstance. Officer De La Guardia was searching for a
suspect alleged to have caused a disturbance outside a business. He was not driving
the vehicle at a high rate of speed. Just before the accident, he slowed to ten to
fifteen miles per hour and checked for oncoming traffic before attempting a left turn.
To be sure, an officer’s operation of a vehicle can be discretionary even if
there is no emergency. See Collins, 2014 WL 3051231, at *4 (citing Ramos, 35
S.W.3d at 727-29). But cases like Brooks, Collins, Daniels, Halton, and Harless all
involved accidents that occurred in circumstances fairly characterized as urgent
when the officer was responding at an increased rate of speed. The distinction
between ministerial and discretionary acts is often one of degree,2 and that is true
here. The present case is more like Jenkins, Woods, and Gibbons, than the cases
cited by the City.
2
See Ramos, 35 S.W.3d at 727.
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Acknowledging that Officer De La Guardia was not responding to an
emergency, the City contends that his acts were discretionary nonetheless because
he was conducting an investigation. The City directs us to several cases holding that
an investigation is a discretionary function. See Dorough v. Faircloth, 443 S.W.3d
278, 288 (Tex. App.—San Antonio 2014, no pet.) (“Therefore, we hold that a deputy
game warden performs a discretionary function when the deputy investigates a
complaint.”); Wethington v. Mann, 172 S.W.3d 146, 151 (Tex. App.—Beaumont
2005, no pet.) (“Investigating and acting on gathered facts is a discretionary
function.”); City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App.—Houston
[1st Dist.] 1995, no writ) (“The duties incident to investigating a crime are
discretionary ones.”).
But none of these cases involved a claim arising from an officer’s alleged
negligence while driving a motor vehicle. See Dorough, 443 S.W.3d at 281-82
(plaintiffs sued officer for several intentional torts, none of which involved the use
of motor vehicle); Wethington, 172 S.W.3d at 148 (shooting an attacking dog is
discretionary); Kmiec, 902 S.W.2d at 120 (officer performs discretionary act when
investigating allegations and signing a probable cause affidavit).3 Although Officer
3
Several other cases cited by the City are likewise inapposite because the injury-causing
act did not involve the use of a motor vehicle. See Gonzales v. Kelley, No. 01-10-00109-CV, 2010
WL 2650615, at 1-3 (Tex. App.—Houston [1st Dist.] July 1, 2020, no pet.) (mem. op.) (no dispute
that officers performed discretionary duties during transfer of inmate from prison cell to prison
mental health unit); Wheelock v. Behrens, No. 04-01-00312-CV, 2002 WL 112545, at *2 (Tex.
App.—San Antonio Jan. 30, 2002, no pet.) (not designated for publication) (“Sheriff Hierholzer
confirms that the manner of unloading the inmates was left to Deputy Behrens’s discretion.
Therefore, Deputy Behrens was performing a discretionary act when Wheelock fell and injured
himself.”); Tex. Dep’t of Criminal Justice v. Watt, 949 S.W.2d 561, 566 (Tex. App.—Waco 1997,
no writ) (officers were performing discretionary act when moving prisoner from one cell to
another); Tex. Dep’t of Pub. Safety v. Perez, 905 S.W.2d 695, 699 (Tex. App.—Houston [14th
Dist.] 1995, writ denied) (officer’s decision to restrain and handcuff plaintiff following traffic stop
“to prevent escalation of the situation, for their security[,] and the security of others” was
discretionary act).
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De La Guardia may have been investigating a disturbance when the accident
occurred, that fact does not necessarily mean that even the ministerial operation of
his vehicle during the investigative process is protected by immunity. In Gibbons,
the accident occurred when the officer was investigating whether a nearby vehicle
was stolen But we explained that the officer’s “negligent operation of his vehicle
was separate and apart from his action of checking the license plate.” Gibbons, 150
S.W.3d at 886. The City’s argument fails to focus on the nature of Officer De La
Guardia’s conduct that allegedly caused Hulick’s injury—his failure to yield the
right-of-way to oncoming traffic in attempting a left turn. See Jenkins, 363 S.W.3d
at 815, 817. There are no governmental or investigative concerns that played any
role in how Officer De La Guardia should have operated his vehicle in simply
making a turn. Cf. id. at 819 (“Thomas identified no governmental concerns that
played any role in the decision not to securely restrain Rudy while transporting him
away from the search site”); Gibbons, 150 S.W.3d at 886 (officer’s failure to
maintain proper lookout and keep a proper distance caused accident, not his action
of checking license plate of vehicle he suspected was stolen). As we explained in
Woods, limiting the focus of our inquiry to any decisions requiring some judgment
prior to an accident would make it nearly impossible for a plaintiff to make a viable
claim under the TTCA; doing so would, “in effect, merge the discretionary function
element of the official immunity defense into the third element of the defense,
whether the employee was acting within the scope of his authority. An official
cannot be immune from liability simply because he is on duty.” Woods, 933 S.W.2d
at 308.
On this record, we cannot agree that the City met its burden to establish that
Officer De La Guardia is entitled to official immunity, and thus that its own
immunity remains intact. Because the City failed in its burden, we sustain Hulick’s
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first issue and hold that the trial court erred in granting the City’s plea to the
jurisdiction. Our resolution of this issue makes it unnecessary to reach his remaining
issues. See Tex. R. App. P. 47.1.
Conclusion
Because Officer De La Guardia was not performing a discretionary function
when he struck Hulick’s motorcycle while turning, the officer is not entitled to
official immunity, and the trial court erred by granting the City’s plea to the
jurisdiction. Accordingly, we reverse the trial court’s order dismissing this case, and
we remand to the trial court for further proceedings.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Poissant.
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