Oscar Pardo and Ricardo Eduardo Perez v. Rafael Iglesias III ( 2023 )

Reversed and Rendered and Opinion filed January 24, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00338-CV
OSCAR PARDO AND RICARDO EDUARDO PEREZ, Appellants
V.
RAFAEL IGLESIAS III, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2016-39532
OPINION
This is an interlocutory appeal from an order denying a motion to dismiss
under the Texas Tort Claims Act. The movants argue that they should be dismissed
from the suit because the claims against them arise out of conduct falling within the
general scope of their employment, and because the suit could have been brought
against their employer, a governmental unit. We agree with the movants and hold
that they conclusively established that they are entitled to dismissal. We further hold
that the nonmovant failed to raise a genuine issue of material fact. We therefore
reverse the trial court’s order and render judgment dismissing the movants from the
suit.
BACKGROUND
This case arises out of a disturbance that occurred at a night club, and there
are two competing versions of events.
In one version, the plaintiff below, Rafael Iglesias, alleged in his live pleading
that he was at the night club when a physical altercation broke out between his friend
and three other men. Iglesias came to the aid of his friend, and then two men from
the opposing side rushed towards Iglesias. In an act of self-defense, Iglesias struck
both of the men and knocked them to the floor. At this point, Iglesias alleged that
two off-duty police officers arrived, which brought the conflict with the opposing
side to a close.
Though off-duty, the officers were dressed in uniform, and Iglesias claimed
that when he saw them, he raised his hands up and signaled that he did not intend to
fight. Despite that gesture, Iglesias alleged that the officers tackled him to the
ground. They allegedly choked him, hit him with a flashlight, and beat his body until
they escorted him out of the night club. According to Iglesias, the officers caused
injury to his eyes, ribs, and hip.
Iglesias asserted common law torts against multiple parties, including the two
officers, Oscar Pardo and Ricardo Perez. Both officers were sued in their individual
capacities, not their official capacities. Their employer, the City of Houston, was not
sued at all.
The officers moved to dismiss the claims against them under the Texas Tort
Claims Act. The officers specifically invoked Section 101.106(f) of the Texas Civil
Practice and Remedies Code, which provides as follows:
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If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and
if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date
the motion is filed.
The officers attached evidence to their motion, and the evidence described a
second version of events that controverted the factual allegations in Iglesias’s live
pleading. In a deposition, Officer Pardo testified that he and Officer Perez were
working an extra job at the night club with the approval of their supervisor, and that
they were alerted by a patron outside of the night club that a disturbance had just
occurred inside of the night club. When they investigated the disturbance, they found
“a lot of finger pointing and drinks spilled all over the floor.” According to Officer
Pardo, Iglesias was the center of attention, and a group of individuals was physically
restraining him. Because no other person was being held back, the officers believed
that Iglesias was the cause of the disturbance. They accordingly escorted Iglesias out
of the night club. Officer Pardo denied that they ever struck Iglesias or used any sort
of physical force against him. Officer Pardo also testified that by breaking up the
disturbance, he was performing “a normal function of an HPD officer.”
Iglesias filed a response, which largely focused on the doctrine of official
immunity. Iglesias argued that the officers were individually liable and that official
immunity did not apply because the officers were not engaged in the performance of
a discretionary duty when they assaulted him. He further argued that official
immunity should not apply because the officers were acting outside the scope of
their authority, and because the officers were not acting in good faith.
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The trial court signed an order denying the officers’ motion to dismiss. The
officers now bring this interlocutory appeal of that order, as permitted by Section
51.014(a)(5) of the Texas Civil Practice and Remedies Code. See Singleton v.
Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(stating that Section 51.014(a)(5) “confers jurisdiction upon us to consider an
interlocutory appeal based upon a trial court’s denial of a motion to dismiss filed
pursuant to section 101.106”).
APPLICABLE LAW AND STANDARD OF REVIEW
Section 101.106 of the Texas Tort Claims Act is an election of remedies
provision, and it applies to suits involving employees of a governmental unit. Under
that statute, the plaintiff must elect to sue either the governmental unit or the
employee in his individual capacity. See Tex. Civ. Prac. & Rem. Code § 101.106(a)–
(b). If the plaintiff files suit against both the governmental unit and the employee,
then the employee must be dismissed on a proper motion. See Tex. Civ. Prac. &
Rem. Code § 101.106(e). If the plaintiff files suit against only the employee in the
employee’s individual capacity, but the suit is actually based on conduct within the
general scope of the employee’s employment and could have been brought against
the governmental unit, then the suit is considered to be against the employee in his
official capacity only, and the employee must also be dismissed on a proper motion.
See Tex. Civ. Prac. & Rem. Code § 101.106(f); see also Tex. Adjutant General’s
Office v. Ngakoue, 408 S.W.3d 350, 357 (Tex. 2013) (explaining that a suit against
an employee in his official capacity “is not a suit against the employee; it is, in all
but name only, a suit against the governmental unit”).
Iglesias only sued the officers in their individual capacities, but the officers
moved to dismiss the claims against them, arguing that they could not be held
individually liable under Section 101.106(f), and that the proper defendant was their
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governmental employer. This argument amounted to an assertion of governmental
immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (“By
moving for summary judgment on section 101.106(f), defendants were asserting
claims of governmental immunity.”). And through that assertion, the officers sought
to negate the trial court’s subject-matter jurisdiction. See Ryder Integrated Logistics,
Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam)
(“Governmental immunity defeats a court’s jurisdiction.”); Moore v. Barker, No. 14-
17-00065-CV, 2017 WL 4017747, at *2 (Tex. App.—Houston [14th Dist.] Sept. 12,
2017, no pet.) (mem. op.) (“A motion to dismiss filed by an employee pursuant to
section 101.106(f) is a challenge to the trial court’s subject-matter jurisdiction.”).
The officers also attached evidence to their motion, and we review a
jurisdictional challenge based on the presentation of evidence under the same
standard that applies to motions for summary judgment. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004). In other words, we first
consider whether the movants conclusively established that the trial court lacks
jurisdiction, and if we determine that the movants satisfied that burden, we then
consider whether the nonmovant raised a genuine issue of material fact regarding
the jurisdictional issue. Id. We also examine all relevant evidence, taking as true any
evidence favorable to the nonmovant and indulging every reasonable inference and
resolving any doubts in the nonmovant’s favor. Id. at 228. Our review is de novo.
Id.
THE OFFICERS’ MOTION
To negate the trial court’s jurisdiction, the officers had the burden of proving
the following three points: (1) that they were employees of a governmental unit;
(2) that the suit against them was based on conduct within the general scope of their
employment; and (3) that the suit could have been brought against the governmental
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unit. See Tex. Civ. Prac. & Rem. Code § 101.106(f). The briefing from both parties
focuses primarily on the second point, but we address all three points in turn.
I. Are the officers employees of a governmental unit?
A governmental unit means “a political subdivision of this state, including any
city.” See Tex. Civ. Prac. & Rem. Code § 101.001(3)(B). The officers established
that they are employees of a governmental unit—the City of Houston—because their
evidence showed (and Iglesias judicially admitted in his live pleading) that they
work for the City of Houston Police Department.
II. Is Iglesias’s suit based on conduct within the officers’ general scope of
employment?
Under the Texas Tort Claims Act, scope of employment means “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.” See Tex. Civ. Prac. & Rem. Code
§ 101.001(5). When deciding whether conduct satisfies this definition for purposes
of Section 101.106(f), the critical inquiry is whether, when viewed objectively, “a
connection [exists] between the employee’s job duties and the alleged tortious
conduct.” See Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). We begin this
inquiry with a general discussion of an officer’s duties.
An officer has a duty to preserve the peace within his jurisdiction. See Tex.
Code Crim. Proc. art. 2.13(a). He also has a duty to prevent the commission of an
offense. See Tex. Code Crim. Proc. art. 6.06. Because this latter duty has no
territorial constraint, an officer has a duty to stop crime wherever it occurs. See
Garza v. Harrison, 574 S.W.3d 389, 402–03 (Tex. 2019).
An officer also has a duty to stop crime whenever it occurs—i.e., even when
he is off-duty. Id. An officer remains an officer “twenty-four hours a day, which
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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.” Id. “If an off-duty officer
observes a crime, as a matter of law he becomes an on-duty officer.” Id.Because an officer is always an officer, the capacity in which an officer is
acting may raise a question of fact, especially in situations such as this one, where
the officer has undertaken private employment during his off-duty hours. Id. In such
situations, there are two guiding rules. First, if the officer is enforcing general laws
in accordance with a statutory grant of authority, then the officer is acting in the
course and scope of employment as an officer, even if the officer’s conduct also has
the incidental effect of benefitting the private employer. Id. Second, if the officer is
protecting a private employer’s property, ejecting trespassers, or enforcing rules and
regulations promulgated by the private employer, then there may be a fact question
as to whether the officer’s conduct is in a private or official capacity. Id.The officers here presented evidence that they were hired by the night club to
provide a police presence and to deter crime. Officer Pardo specifically testified that
their job was to “enforce the laws, not the club rules.”
The officers also presented evidence that they were actually enforcing the
general law when they removed Iglesias from the night club. Officer Pardo testified
in his deposition that he and Officer Perez “were alerted by a fellow patron or
whatever, hey there is a fight or whatever, a disturbance or something.” He then
described his enforcement decision in the following excerpts from his deposition:
Q. And does anything stand out to you about that night?
A. There was a disturbance that night.
Q. And can you tell me what happened in that disturbance?
A. We were standing outside the entrance of the establishment and
were alerted by [patrons] that there was a disturbance inside and
we went inside and there was a large crowd near the dance floor
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and people yelling, pointing and there was a male off to the right
side and he was being held back by people and there was a lot of
finger pointing and drinks spilled all over the floor, stuff like that.
Q. What did you do when you encountered that disturbance?
A. We walked towards him, saw that he was the cause of the
disturbance and escorted him out.
***
Q. Did you ever have to use physical force with him?
A. No, no, he kind of understood what was going on, we just
basically escorted him out.
***
Q. So you just put him outside?
A. Put him outside and basically he advised us he was a Marine and
we just said all right, let’s get out, don’t come back.
***
Q. And in your work as a police officer, is it normal to break up
fights?
A. Yes, ma’am.
Q. Is that something you normally do in your police duties?
A. Yes, ma’am.
Q. If you saw a fight out in public, would you try to stop it?
A. Yes, ma’am.
***
Q. Is it important to stop physical assaults if you believe that
someone could be physically injured?
A. Yes, ma’am.
Q. That’s a normal part of your job duties?
A. Yes, ma’am.
Q. Is it a normal part of being a police officer?
A. Yes, ma’am.
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Q. If you believed someone was the aggressor in the fight and you
threw them out and you knew they were in a fight with other
individuals at the bar, would be it be a good idea or bad idea to
throw all of them outside at the same time?
A. We didn’t see anybody else acting out of character. So he was
the only one we saw. He was the only one that attracted our
attention. But if there would have been other people, yeah
everybody would have been thrown out.
This testimony established that the officers believed that Iglesias was the
cause of the disturbance and that they removed him from the night club to bring a
stop to the fighting. By escorting Iglesias out of the night club, the officers
maintained the peace, which was their job responsibility. See Tex. Code Crim. Proc.
art. 2.13(a); Tex. Code Crim. Proc. art. 6.06. Thus, even though the officers were off
duty, they still established that they had been acting within the general scope of their
employment. See Rodriguez v. Duvall, No. 14-20-00402-CV, 2022 WL 619710, at
*4 (Tex. App.—Houston [14th Dist.] Mar. 3, 2022, no pet.) (mem. op.) (an off-duty
police officer, who was working an extra job by providing security during an event
at a hotel, was still acting within the scope of his employment when he injured a
person while effectuating an arrest because the officer saw that the person was
unlawfully possessing drugs); Moore, 2017 WL 4017747, at *5 (an off-duty officer,
who was working an extra job at a bar, was still acting within the scope of his
employment when he injured a patron because the officer was attempting to remove
the patron from a disturbance); Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016
WL 6277409, at *5 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem.
op.) (an off-duty police officer was acting within the scope of his employment when
he detained a group of late-night revelers whose behavior had been disturbing the
peace).
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III. Could Iglesias’s suit have been brought against the City of Houston?
The next question to be resolved is whether Iglesias’s claims “could have been
brought under [the Texas Tort Claims Act] against the governmental unit.” See Tex.
Civ. Prac. & Rem. Code § 101.106(f). A claim can be brought under the Texas Tort
Claims Act if the claim “is in tort and not under another statute that independently
waives immunity.” See Franka, 332 S.W.3d at 381; see also Mission Consol. Indep.
Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (providing that all tort
theories of recovery alleged against a governmental unit are presumed to be under
the Texas Tort Claims Act).
Here, Iglesias alleged claims against the officers for assault and negligence,
both of which sound in tort. The claims were also asserted under the common law,
and not a statute. Accordingly, the officers established that Iglesias’s common law
tort claims could have been brought against a governmental unit—i.e., their
employer, the City of Houston. See Alexander v. Walker, 435 S.W.3d 789, 792 (Tex.
2014) (per curiam) (“Walker’s common-law tort claims against the officers therefore
could have been brought under the TTCA against the government.”).
Based on the foregoing, we conclude that the officers conclusively established
their assertion of governmental immunity under Section 101.106(f), which negated
the trial court’s subject-matter jurisdiction. The burden therefore shifted to Iglesias
to raise a fact question on this jurisdictional issue.
IGLESIAS’S RESPONSE
Iglesias does not appear to have made any arguments concerning the first or
third points in the officers’ jurisdictional analysis. But he does make several
arguments concerning the second point. To raise a fact question as to that point,
Iglesias had to produce some evidence that the officers were not acting within the
general scope of their employment—or stated another way, Iglesias needed more
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than a scintilla of evidence to show that the officers were engaged in “an independent
course of conduct not intended by the employee[s] to serve any purpose of the[ir]
employer.” See Garza, 574 S.W.3d at 400. As explained below, we conclude that
Iglesias failed to produce such evidence.
Iglesias only attached two items of evidence to his response. The first was an
indictment showing that Officer Pardo had been criminally charged in an unrelated
incident. And the second was a full copy of Officer Pardo’s deposition (because the
officers had only attached selected excerpts to their motion). None of this evidence
supported Iglesias’s factual allegations that he was tackled, choked, hit, or beaten by
the officers. Even if we treated Iglesias’s live pleading as evidence, such that there
was a fact issue as to whether the officers had used physical force against Iglesias,
that dispute would not change the jurisdictional analysis because there was no still
evidence controverting Officer Pardo’s deposition testimony that the officers
removed Iglesias from the night club in order to end the disturbance. Assuming that
the officers tortiously injured Iglesias during that removal process, the officers’
conduct still had a clear connection with their job duties—i.e., maintaining the
peace—which means that Iglesias’s suit is based on conduct within the general scope
of the officers’ employment. Id. at 394 (“Even if work is performed wrongly or
negligently, the inquiry is satisfied if, when viewed objectively, a connection exists
between the employee’s job duties and the alleged tortious conduct.”); id. at 404
(concluding that the officer was acting in the scope of his employment,
notwithstanding the factual dispute as to whether the attempted arrest was improper).
In any event, Iglesias did not draw attention to any factual dispute regarding
the officers’ alleged use of physical force, either in his response below or in his
appellee’s brief in this court. Instead, Iglesias’s main argument in the trial court was
that the officers were not entitled to official immunity. Iglesias repeats that point to
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a lesser degree in his appellee’s brief, insofar as he argues that the officers’ conduct
was not discretionary. But that argument has no bearing on the statutory inquiry
raised by the officers in their motion to dismiss. Id. at 399–400 (“Unlike official
immunity, which is an affirmative defense that bars a governmental employee’s
individual liability, section 101.106(f) essentially prevents an employee from being
sued at all for work-related torts and instead provides for a suit against the
governmental employer.”).
Iglesias also argued in his trial response that the officers were not entitled to
relief under Section 101.106(f) because they did not personally witness the
commission of a crime. Iglesias has made this argument the primary focus of his
appellee’s brief, and he believes that many of the cases cited by the officers in their
appellants’ brief are distinguishable because the courts there determined that an off-
duty officer became an on-duty officer when the officer observed a crime committed
in his presence. E.g., id. at 404 (“Once Garza saw Santellana in possession of
marijuana he immediately became an on-duty peace officer enforcing general
laws.”); Rodriguez, 2022 WL 619710, at *4 (“Following this logic, Duvall
immediately became an on-duty police officer when he purportedly saw Rodriguez
attempting to conceal or destroy marijuana.”); Moore, 2017 WL 4017747, at *5
(“Once Moore observed Barker physically strike or threaten to strike the other man,
he had a duty as a police officer to intervene in the situation to prevent or suppress
the crime.”). Iglesias correctly notes that Officers Pardo and Perez did not witness a
crime, but that does not foreclose the officers’ relief, as none of the cited cases holds
that an off-duty officer must observe a crime in his presence before he can take action
pursuant to his job-related responsibilities.
An on-duty officer can stop and investigate a suspect after receiving a report
that the suspect committed a crime, even if the officer did not personally witness the
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crime, so long as the stop is supported by reasonable suspicion. See Smith v. Heap,
31 F.4th 905, 911 (5th Cir. 2022). An off-duty officer can take similar actions upon
a reasonable suspicion that a crime has been committed, is being committed, or is
about to be committed. See CKJ Trucking, L.P. v. City of Honey Grove, 581 S.W.3d
870, 877 (Tex. App.—Dallas 2019, pet. denied) (“An officer’s public duty can also
be triggered by reasonable suspicion.”). This reasonable-suspicion rule is consistent
with an officer’s duty and statutory grant of authority to prevent crime before it
occurs. See Tex. Code Crim. Proc. art. 2.13(a) (“It is the duty of every peace officer
to preserve the peace within the officer’s jurisdiction.”); Tex. Code Crim. Proc. art.
6.06 (“Whenever, in the presence of a peace officer, or within his view, one person
is about to commit an offense . . . it is his duty to prevent it.”).
The reasonable-suspicion rule also has direct application here. The officers
were told that a fight or disturbance had occurred inside the night club. They saw
drinks spilled all over the floor. And they saw Iglesias being restrained by other
patrons. Based on those specific and articulable facts, and the rational inferences that
can be made from those facts, there was reasonable suspicion for the officers to
conclude either that Iglesias had struck another person (as Iglesias admitted in his
live pleading), or that he might strike another person if no action were taken. See
State v. Duran, 396 S.W.3d 563, 568–69 (Tex. Crim. App. 2013) (stating that the
critical part of the reasonable-suspicion analysis is whether an officer’s action is
supported by “specific and articulable facts”). The officers’ decision to remove
Iglesias had a clear connection to their job duties, which were to enforce the law and
to maintain the peace. Any failure on the part of the officers to investigate the facts
more closely, or to arrest or charge Iglesias with an offense, does not change this
analysis. See Moore, 2017 WL 4017747, at *5 (holding that an off-duty officer was
acting within the general scope of his employment when he removed an unruly
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patron from a bar even though the patron “was not arrested for any offense such as
breach of the peace or assault involving the other bar patron”); Kraidieh, 2016 WL
6277409, at *5 (holding that an off-duty officer was acting within the general scope
of his employment even though he “neglected to file a police report and did not arrest
or cite anyone”); id. at *6 (“Whether an employee is acting within the ‘scope of
employment’ depends on whether he was performing the duties of his governmental
employer’s office, not on how adequately he performed such duties.”).
In one final argument, Iglesias counters in his appellee’s brief that Officer
Pardo actually admitted that he did not have a reasonable suspicion that a crime had
been committed. Iglesias bases this argument on the following deposition testimony:
Q. Okay. Did you try to find out if [Iglesias] was the victim or the
aggressor?
A. No, we didn’t see any injured parties, nobody was bleeding on
the floor, stuff like that, there was nothing to be hey, let’s
detained [sic] this guy, this guy is bleeding on his head, this guy
is knocked out. None of that.
This testimony does not amount to an admission that Officer Pardo had no
reasonable suspicion, or that he believed that no fight or crime had occurred. This
testimony merely establishes that Officer Pardo did not observe anyone who was
obviously injured at the time that he and Officer Perez entered the night club and
brought an end to the disturbance. Moreover, in a follow-up question on the same
page of the deposition transcript, Officer Pardo testified that, after he removed
Iglesias from the night club and then returned to make sure that the scene had been
cleaned up, he was never advised that a different patron had been responsible for the
disturbance. That testimony supports Officer Pardo’s reasonable suspicion that
Iglesias had been the cause of the disturbance.
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The officers’ evidence established that they had engaged in conduct to enforce
the general law, which means that they not only maintained the peace for the other
patrons, but they also served the larger public purpose of their governmental
employer. The mere fact that the night club, as the officers’ private employer, may
have also benefitted from their conduct does not negate the connection between the
officers’ conduct and their official duties. See Garza, 574 S.W.3d at 404 (concluding
that an off-duty officer was acting within the scope of his employment even though
the officer’s conduct also benefitted his private employer). Nor does it raise a
genuine issue of material fact as to whether the officers were acting within the
general scope of their employment. To have raised such a fact issue, Iglesias was
required to show that the officers’ conduct did not serve “any purposes” of their
governmental employer. Id. at 400. Iglesias could have satisfied that burden with
some evidence that the officers were only protecting the night club’s property, that
they were only ejecting a trespasser at the request of the night club, or that they were
only enforcing rules and regulations promulgated by the night club. Id. at 403.
Because no such evidence was produced here, we conclude that Iglesias failed to
raise a fact issue as to whether the officers were acting within the general scope of
their employment with their governmental employer.
We likewise conclude that Iglesias failed to raise a fact issue as to the officers’
jurisdictional challenge, and that the trial court reversibly erred by denying the
officers’ motion to dismiss.
CONCLUSION
The trial court’s order denying the officers’ motion to dismiss is reversed and
judgment is rendered dismissing the officers from the lawsuit.
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/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
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