Texas Department of Public Safety v. Ratan Zakir ( 2023 )

Affirmed and Majority and Concurring Opinions filed April 4, 2023.
In The
Fourteenth Court of Appeals
NO. 14-20-00679-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
RATAN ZAKIR, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2018-90845
MAJORITY OPINION
Ratan Zakir sued the Texas Department of Public Safety (“DPS”) under the
Texas Torts Claims Act (“TTCA”) alleging that she was injured when her vehicle
collided with one driven by a DPS peace officer. In this interlocutory appeal, DPS
challenges the trial court’s denials of its plea to the jurisdiction and motions for
summary judgment based on sovereign immunity. Specifically, in two issues, DPS
asserts that the trial court erred by failing to dismiss the case for want of
jurisdiction because DPS retained immunity both under the emergency exception
of the TTCA and because the officer was shielded by official immunity. We affirm
the denials of the plea and motions.
Background
On April 11, 2018, Zakir was involved in a vehicle collision with DPS
Sergeant Richard Standifer. At the time of the collision, Standifer had just entered
an intersection against a red light to pursue a vehicle that had run the red light
when the vehicle driven by Zakir hit the side of Standifer’s patrol car. In her
lawsuit, Zakir alleges that Standifer’s actions caused the collision and her resulting
“serious personal injury and property damage.” She further asserts that the TTCA
waives DPS’s sovereign immunity for claims involving personal injury and
property damage caused by the negligent operation or use of a motor-driven
vehicle by a DPS employee under the circumstances alleged. See Tex. Civ. Prac. &
Rem. Code § 101.021(1).
DPS answered the lawsuit and filed a plea to the jurisdiction and, in the
alternative, motions for traditional and no-evidence summary judgment. As
mentioned, DPS argued that sovereign immunity barred Zakir’s lawsuit both
because it retained immunity under the emergency exception to the TTCA and
because Standifer enjoyed official immunity as a governmental employee
conducting an emergency response in good faith. Zakir responded to the plea and
the motions, and both sides submitted evidence including affidavits by Standifer
and his supervisor, Lieutenant Craig Cummings; a DPS accident report; dash cam
video of the incident from Standifer’s patrol car; and deposition transcripts for
Zakir, Standifer, and eyewitness Maria Martinez.
The 30-second dash cam video starts when Standifer first pulls up to the
intersection and stops for a red light. The road he is on appears to be a little lower
than the main road; it is tree lined; and there appears to be a brick sign in the
2
median of the road that potentially limits visibility from the main road. When
Standifer comes to a stop, he is the fifth vehicle in the right lane and a Chevrolet
Cavalier is the only vehicle in the left, turn-only lane. When vehicles in the right
lane begin to turn right against the red light, the Cavalier also drives through the
intersection, making a left turn. It is impossible to tell whether the driver of the
Cavalier thought the light had changed because cars in the right lane had begun to
go or if the driver just decided to run the red light. As the Cavalier runs the light,
Standifer moves to the left lane and accelerates towards the intersection. Standifer
enters the intersection at the 23 second mark on the video and slows as he does so,
coming to a complete stop in the intersection at 25 seconds. Cars are still crossing
the far side of the intersection at this point, likely necessitating Standifer’s coming
to a stop. It would be reasonable to conclude that Standifer’s vehicle would have
hit at least one of the cars on the far side had he not stopped when he did. The
impact from Zakir’s vehicle occurs at the 26 second mark on the video, which ends
shortly thereafter.
In his affidavit, Standifer first detailed his training and experience and then
described the incident from his perspective. He stated that when he moved into the
left lane to pursue the Cavalier, he activated his emergency lights and utilized his
“air horn siren” as he approached the intersection. He explained that he looked in
both directions at the intersection and saw vehicles “slowing down and coming to a
stop prior to [his] entry” into the intersection. He said that he only proceeded once
the intersection was clear; he then proceeded slowly in an effort to pursue the
Cavalier and initiate a traffic stop. Once he was in the intersection, Standifer stated
that he saw Zakir’s vehicle approaching him but not slowing down. He stopped so
that she could swerve to avoid him, but instead, she hit his vehicle.
Standifer asserted that at all relevant times, he was in the course and scope
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of his employment, acting in good faith and not recklessly, and he made the
discretionary decision to activate his lights and air horn. He believed that the
Cavalier, having disregarded the red light after Standifer approached the
intersection, necessitated immediate pursuit, and he opined that a reasonable
officer in the same or similar circumstances would have determined that the need
for pursuit outweighed the potential risk to the public. He also stated that during
the event, he was constantly evaluating circumstances and risks and whether other
motorists could see him, and he noted it was a clear, sunny, and dry day.
In his deposition, Standifer explained that at the time of the incident, his
primary duties were as a public information officer, and he was on his way back
from lunch when he saw the Cavalier run the red light. This was his third vehicle
collision as a peace officer. He said that he looked both ways before entering the
intersection and made sure traffic was beginning to stop before entering, but he
acknowledged after watching the video that he did not pause before entering the
intersection. At one point, Standifer said that any time an officer activates his
emergency lights, it is probably an emergency situation or an enforcement action,
but he later said that activating the lights indicated it was an emergency. He also
stated his belief that there is no “such thing as a routine traffic stop” because you
do not know if the driver is going to stop. He considered the situation precipitating
the collision as an emergency because the Cavalier ran a red light. He said this
posed a high risk of danger to the public, and he did not believe the Cavalier driver
just made a mistake in running the light. He said he had no idea why the Cavalier
ran the red light but it did not matter. When he began his pursuit of the Cavalier, he
was attempting to enforce the traffic laws. He again asserted that after he activated
his lights, vehicles began to stop so the intersection was clear when he entered it.
Regarding visibility at that intersection, he stated that you cannot see both ways
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down the main street until you reach the crosswalk and the “mouth of the
intersection.” This is in part due to the fact there is a sign identifying the
neighborhood at the intersection. Because of this, he speculated that Zakir would
have had a maximum of three seconds to spot his vehicle before the collision.
Standifer testified the speed limit in that area for the road Zakir was on was 40
miles per hour. He said that she may not have been able to see him until he was
actually in the intersection. Standifer said he pushed his air horn siren only for “a
couple of blips.” He acknowledged the officer who investigated the incident found
him at fault, but Standifer disagreed with that conclusion.
In his affidavit, Lieutenant Cummings stated he was Standifer’s supervisor
and he had viewed the reports, dash cam video, and Standifer’s affidavit.
Cummings opined that at the time of the collision, Standifer was operating in the
course and scope of his employment and discharging a discretionary duty. He
further asserted that a reasonable officer in the same or similar circumstances could
have believed the conduct was justified and the pursuit was necessary, and he said
Standifer’s actions were neither reckless nor in conscious disregard for the safety
of others. Much of Cummings’ statements appeared to be based on Standifer’s own
assertions in his affidavit. Cummings said that the dash cam video showed traffic
in both directions yielded to Standifer, but this observation does not take into
account the several vehicles that did not yield to Standifer and apparently caused
him to have to stop in the middle of the intersection.
The Texas Peace Officer’s Crash Report does not provide much additional
information regarding the incident, but the officer completing the form noted as the
only contributing factor that Standifer had disregarded the traffic signal. In his own
incident report, Standifer noted that another motorist, Martinez, had offered to give
a statement at the scene.
5
In her deposition, Martinez confirmed that Standifer turned on his lights
before “barely accelerating” into the intersection but the other driver hit him
anyway. She also believed Standifer used his siren, but she did not know why he
ran the light. Martinez opined that Zakir should have seen Standifer and not hit
him.
In her deposition, Zakir testified that she was already in the intersection
when Standifer entered it. She said he came out without warning, and she
“slammed on [her] brakes” as soon as she saw him. She did not remember who hit
whom. She said that she was going the speed limit or less and while she tried her
best to stop, she could not have maneuvered to avoid the collision.
As part of her response to DPS’s plea and motions, Zakir objected to
Standifer’s affidavit and moved to strike it as a “sham affidavit” because of
conflicts between the affidavit and his deposition testimony. The trial court
sustained Zakir’s objections in part and struck from Standifer’s affidavit all
references to him activating his siren and to the driver of the Cavalier attempting to
evade a traffic stop. The trial court then denied DPS’s plea and motions.
Discussion
As stated, in two issues, DPS asserts the trial court erred by failing to
dismiss the case due to sovereign immunity because (1) DPS retained immunity
under the emergency exception of the TTCA, and (2) the officer was shielded by
official immunity through which DPS was immune by operation of respondeat
superior principles. We will begin by discussing the law governing our analysis
before turning to each of DPS’s issues.
I. Governing Law
DPS, as an arm of state government, enjoys sovereign immunity. See Univ.
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of the Incarnate Word v. Redus, 602 S.W.3d 398, 404–05 (Tex. 2020); Tex. Dep’t
of Pub. Safety v. Petta, 44 S.W.3d 575, 580–81 (Tex. 2001). Sovereign immunity
deprives a trial court of subject matter jurisdiction and is properly asserted in a plea
to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
225–26 (Tex. 2004). But a defendant may also raise a lack of subject matter
jurisdiction in a motion for summary judgment. Bland I.S.D. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000). Regardless of the procedural vehicle used, the trial court
may consider evidence and must do so when necessary to resolve the jurisdictional
issues raised. Id. at 555.
We review a challenge to the trial court’s jurisdiction de novo. State v.
Holland, 221 S.W.3d 639, 642 (Tex. 2007). We first look to the pleadings to
determine if the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegations in the pleadings. See id.
When, as here, the governmental unit challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties. See id.
at 227. The standard of review for a jurisdictional challenge based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c)” when, as here, the challenge implicates the merits of a
plaintiff’s cause of action. See id. at 227–28. Under this standard, we generally
credit evidence favoring the nonmovant and draw all reasonable inferences in the
nonmovant’s favor. See id. at 228. The defendant generally must assert the absence
of subject-matter jurisdiction and present conclusive proof that the trial court lacks
subject-matter jurisdiction. Id. If the defendant discharges this burden, then the
plaintiff must present evidence sufficient to raise a material issue of fact regarding
7
jurisdiction, or the jurisdictional challenge will be sustained. Id.
The TTCA provides a limited waiver of immunity for tort suits against
governmental units. See Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep’t of
Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). As relevant to this case, a
governmental entity may be liable for the tort of its employee “acting within his
scope of employment” when the tort arises from the operation or use of motor-
driven vehicles or equipment and if the “employee would be personally liable to
the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code §
101.021(1)(B); see also DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995).
As will be discussed in more detail below, if the employee is protected from
liability by official immunity, then the employee is not personally liable to the
claimant and the governmental unit retains its sovereign immunity. DeWitt, 904
S.W.2d at 653.
Additionally, under the “emergency exception,” the TTCA does not apply to
a claim arising:
from the action of an employee while responding to an emergency call
or reacting to an emergency situation if the action is in compliance
with the laws and ordinances applicable to emergency action, or in the
absence of such a law or ordinance, if the action is not taken with
conscious indifference or reckless disregard for the safety of others.
Tex. Civ. Prac. & Rem. Code § 101.055(2). The plaintiff has the burden of proof to
establish that the emergency exception does not apply. Quested v. City of Hous.,
440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also
Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 238–39 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). To satisfy this burden, the plaintiff must show either
that (1) the employee was not responding or reacting to an emergency, or (2) the
response or reaction was not in compliance with the laws and ordinances
8
applicable to emergency action, or in the absence of such a law or ordinance, the
action was taken with conscious indifference or reckless disregard for the safety of
others. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006).
II. Emergency Exception to TTCA
In DPS’s first issue, it contends the trial court lacked jurisdiction over
Zakir’s TTCA claims because the TTCA’s emergency exception applies. DPS
raised this issue in its plea to the jurisdiction as well as in its motions for no
evidence and traditional summary judgment.
The TTCA does not define the terms “emergency call” or “emergency
situation” as used in section 101.055, but Texas courts have interpreted the term
“emergency” in this context broadly. See City of Hous. v. Sauls, 654 S.W.3d 772,
786 (Tex. App.—Houston [14th Dist.] July 29, 2022, pet. filed). The parties here
dispute whether Standifer’s observing the Cavalier run a red light constituted an
emergency situation, but we will assume for purposes of this opinion without
deciding that Standifer encountered an emergency situation before running the red
light himself. We therefore turn to the question of whether Standifer’s response to
the situation was in compliance with the laws applicable to emergency action. See
Hartman, 201 S.W.3d at 672.
As the parties recognize, sections 546.001 through 546.005 of the
Transportation Code govern to some degree the operation of authorized emergency
vehicles. Tex. Transp. Code §§ 546.001–.005. As pertinent to this case, under
section 546.001, the operator of an emergency vehicle may “proceed past a red or
stop signal or stop sign, after slowing as necessary for safe operation.” Id. §
546.001(2). Section 546.002 limits the application of section 546.001(2) to certain
situations, including when the operator is “pursuing an actual or suspected violator
of the law.” Id. § 546.002(2). And under section 546.003, “the operator of an
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authorized emergency vehicle engaging in conduct permitted by Section 546.001
shall use, at the discretion of the operator in accordance with policies of the
department or the local government that employs the operator, audible or visual
signals.” Id. § 546.003. Section 546.005, however, states that the chapter as a
whole “does not relieve the operator of an authorized emergency vehicle from: (1)
the duty to operate the vehicle with appropriate regard for the safety of all persons;
or (2) the consequences of reckless disregard for the safety of others.” Id. §
546.005. The Texas Supreme Court has interpreted this final section as
“impos[ing] a duty to drive with due regard for others by avoiding negligent
behavior” but “only imposing liability for reckless conduct.” City of Amarillo v.
Martin, 971 S.W.2d 426, 431 (Tex. 1998). In other words, the Transportation Code
does not waive immunity for “mere negligence”; a showing of recklessness is
required. Id.“Under the Transportation Code, reckless driving consists of driving a
vehicle in ‘willful or wanton disregard for the safety of persons or property.’” City
of San Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022) (quoting Tex.
Transp. Code § 545.401(a)). “[T]his standard requires ‘conscious indifference,’ or
‘subjective awareness of an extreme risk.’” Id. (quoting Tarrant Cty. v. Bonner,
574 S.W.3d 893, 902 (Tex. 2019)). “Further, recklessness reflects more than a
‘momentary judgment lapse’ and instead ‘requires a showing that the driver
committed an act he knew or should have known posed a high degree of risk of
serious injury.’” Id. (quoting Perez v. Webb Cty., 511 S.W.3d 233, 236 (Tex.
App.—San Antonio 2015, pet. denied)). As relevant to the TTCA and the claims
made in this case, the emergency exception does not apply if the operator of the
emergency vehicle acted recklessly by an act or omission the operator knew or
should have known posed a high degree of risk of serious injury. Gomez v. City of
10
Hous., 587 S.W.3d 891, 902 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)
(citing Martin, 971 S.W.2d at 430).1
Cases involving collisions with emergency vehicles that ran red lights are
not uncommon in our jurisprudence. These cases often focus on such factors as
visibility at the intersection, whether the driver of the emergency vehicle activated
his lights and sirens, and whether the driver slowed or paused before entering the
intersection and waited for other cars to yield. Compare City of Killeen v. Terry,
No. 03-20-00071-CV, 2022 WL 221240, at *3–4 (Tex. App.—Austin Jan. 26,
2022, pet. filed) (mem. op.) (holding there was a fact issue as to recklessness
where officer accelerated through intersection despite his view of traffic being
partially blocked); City of Hous. v. Green, No. 14-20-00190-CV, 2022 WL 97334,
at *6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2022, pet. filed) (mem. op.)
(holding there was a fact issue as to recklessness where evidence supported an
1
The concurrence argues that because sections of the Transportation Code apply to the
situation presented here—particularly section 546.001(2) authorizing emergency personnel to
proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation—we
may not address the issue of recklessness. This argument, however, misreads both the governing
law and our analysis in this opinion. As set out above, we do not address recklessness under the
second prong of section 101.055 because there is indeed law applicable to the emergency
situation. Such law includes Transportation Code section 546.005, which states that operators of
emergency vehicles are not relieved of the consequences of reckless conduct simply by
compliance with other portions of the chapter, such as section 546.001(2). In other words,
recklessness is a requirement if the analysis falls under Transportation Code sections 546.001
through 546.005 or the recklessness prong of TTCA section 101.055(2). Our analysis in this
opinion is pursuant to section 546.005.
This is hardly a new or novel interpretation of the statutory scheme. See, e.g., Martin, 971
S.W.2d at 428–32 (analyzing recklessness without first assessing compliance with other
governing laws); City of Brazoria, Tex. v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at *7
(Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.) (explaining that
Transportation Code section 546.005 is law applicable to an emergency situation under TTCA
section 101.055(2)); Gomez, 587 S.W.3d. at 902–03 (analyzing recklessness without first
assessing compliance with other governing laws). The concurrence’s interpretation would allow
an emergency vehicle operator or, by extension, governmental employer to escape liability for
reckless conduct so long as they complied with the specific requirements of Transportation Code
sections 546.001 through 546.004. This is not the law.
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inference officer entered the intersection without stopping and without his sirens
on and his view of traffic was partially obstructed); Gomez, 587 S.W.3d at 902–03
(holding there was a fact issue as to recklessness when officer failed to slow his
speed, might not have used his emergency lights and siren, and was unable to stop
his patrol car before entering intersection in path of another vehicle); and Perez,
511 S.W.3d at 237–38 (holding there was a fact issue as to recklessness when
officer started to brake before entering intersection but then accelerated through it
even though he had a blind spot in his view of oncoming traffic); with Tex. Dep’t
of Pub. Safety v. Escobar, No. 13-20-00267-CV, 2021 WL 6129135, at *3–5 (Tex.
App.—Corpus Christi Dec. 29, 2021, pet. denied) (mem. op.) (holding there was
no evidence of recklessness where officer activated his siren and lights, slowed as
he reached the intersection, and dash cam video showed cross traffic had stopped);
Harris Cty. v. Spears, No. 14-17-00662-CV, 2018 WL 4571841, at *5–6 (Tex.
App.—Houston [14th Dist.] Sept. 25, 2018, no pet.) (mem. op.) (holding there was
no evidence of recklessness where officer activated his siren and lights, slowed
almost to a complete stop, and proceeded only after other vehicles moved out of
his way and he did not see any more approaching vehicles); Tex. Dep’t of Pub.
Safety v. Sparks, 347 S.W.3d 834, 841–42 (Tex. App.—Corpus Christi 2011, no
pet.) (holding there was no evidence of recklessness when officer activated lights
and siren, “slowed or stopped as he reached the intersection,” and entered the
intersection “cautiously”); and Smith v. Janda, 126 S.W.3d 543, 545–46 (Tex.
App.—San Antonio 2003, no pet.) (holding there was no evidence of recklessness
where ambulance driver activated lights and siren, “slowed down and looked
around” as he approached the intersection, and entered the intersection after
“seeing that all traffic had stopped or yielded to him”).
In this case, Standifer acknowledged visibility was limited at the intersection
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and Zakir may not have been able to see him until he was actually in the
intersection, leaving her with a maximum of three seconds to react once she saw
his vehicle. Standifer also acknowledged, upon viewing the dash cam video, that
when he accelerated toward the intersection, he did not slow or pause before
entering the intersection. Although Standifer activated his lights before entering the
intersection, he said that he only hit his airhorn siren for “a couple of blips.”
Additionally, the dash cam video from Standifer’s vehicle shows that he entered
the intersection before crossing traffic had stopped and he apparently had to stop in
the lanes going in the direction Zakir was traveling to avoid colliding with traffic
traveling in the opposite direction. The evidence presented in this case places it
squarely among those cases holding there was a fact issue as to recklessness. See,
e.g., Terry, 2022 WL 221240, at *3–4; Green, 2022 WL 97334, at *6; Gomez, 587
S.W.3d at 902–03; Perez, 511 S.W.3d at 237–38.
Viewing the evidence in the light most favorable to Zakir, it could be
reasonably concluded that Standifer acted recklessly in entering the intersection
against the red light. See Miranda, 133 S.W.3d at 226. Accordingly, the trial court
did not err in denying DPS’s plea to the jurisdiction and motions for summary
judgment asserting the emergency exception to the TTCA. We overrule DPS’s first
issue.2
III. Official Immunity Affirmative Defense
In its second issue, DPS asserts that it is shielded from Zakir’s TTCA claims
2
Instead of addressing the recklessness issue, the concurrence would hold that there is a
fact issue concerning whether Standifer complied with the laws applicable to this emergency
situation, specifically the provision that requires operators of emergency vehicles to slow before
entering an intersection against a red light. See Tex. Transp. Code § 546.001(2). However, it
does not appear that Zakir, who has the burden on this issue, raised this ground in the trial court.
See Sauls, 654 S.W.3d at 785. As explained, we instead conclude that there is a fact question
regarding whether Standifer acted recklessly.
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because of Standifer’s official immunity. DPS raised this issue in its traditional
motion for summary judgment.
A governmental unit “is vicariously liable for the acts of its employees only
to the extent its employees are not entitled to official immunity.” See K.D.F. v.
Rex, 878 S.W.2d 589, 597 (Tex. 1994); Romero v. Harris Cty., No. 14-19-00904-
CV, 2021 WL 5183586, at *2 (Tex. App.—Houston [14th Dist.] Nov. 9, 2021, no
pet.) (mem. op.). Official immunity is an affirmative defense that protects a
government employee from personal liability and, in doing so, preserves a
governmental employer’s sovereign immunity from suit for vicarious liability. Tex.
Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642–43 (Tex. 2015); Romero,
2021 WL 5183586, at *2. Because official immunity is an affirmative defense, the
burden rests on DPS to establish all required elements. See Gomez, 587 S.W.3d at
897. Under the official immunity defense, a government employee may be immune
from a lawsuit that arises from the performance of the employee’s discretionary
duties in good faith, provided the employee was acting within the scope of the
employee’s authority. See id. It appears to be undisputed in this case that Standifer
was performing discretionary duties within the scope of his authority at the time of
the collision. See Green, 2022 WL 97334, at *7. We therefore turn to the question
of whether DPS met its burden of conclusively proving Standifer was carrying out
his duties in good faith. See Gomez, 587 S.W.3d at 897.
We measure good faith in these circumstances under a standard of objective
reasonableness without regard to the officer’s subjective state of mind. Wadewitz v.
Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Therefore, to establish good faith
in a police pursuit case, an officer must conclusively prove that a reasonably
prudent officer in the same or similar circumstances could agree that the need to
immediately stop or apprehend the suspect outweighed the risk of harm to the
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public in continuing the pursuit. See Univ. of Hous. v. Clark, 38 S.W.3d 578, 583
(Tex. 2000) (holding that the good faith factors discussed in Wadewitz apply in the
police pursuit context). The need element requires an assessment of the importance
of immediately apprehending a suspect, considering the seriousness of the crime or
accident to which the officer responds, whether the officer’s immediate presence is
necessary to apprehend a suspect or to prevent injury or loss of life, and what
alternative courses of action, if any, are available to achieve a comparable result.
Id. The risk element requires assessments of the nature, severity, likelihood, and
obviousness of the risks of the officer’s actions. Id. “[A]n officer acts in bad faith
only if he could not have reasonably reached the decision in question.” Id.Regarding need, Standifer stated that in pursuing the Cavalier through the
red light, he was attempting to initiate a traffic stop in order to enforce a traffic
law. Standifer acknowledged in his deposition that running a red light was a low-
level offense only punishable by a fine and not as serious as other offenses such as
robbery. Citing Cummings’ affidavit, DPS suggests that the need for immediate
pursuit was elevated in this case because the Cavalier ran the light only after
Standifer pulled up to the intersection in his patrol vehicle; the implication being
that the Cavalier driver was fleeing from Standifer. It should be noted, however,
that the video shows Standifer was the fifth vehicle back in the right lane, and thus
not clearly visible to the driver of the Cavalier at the front of the left lane, and the
Cavalier only ran the light after vehicles in the right lane began turning right.
Standifer also testified that he had no idea why the Cavalier ran the light. Although
it is possible the Cavalier ran the red light because of Standifer’s presence, it
appears just as likely, if not more so, that the driver simply decided to run the light
or mistakenly thought the light had changed to green. Standifer further opined that
running a red light posed a high risk of danger to the public, but he did not explain
15
why it was important to immediately apprehend the suspect or how immediately
pursuing the suspect could prevent injury or loss of life.
DPS asserts that Standifer considered alternative courses of action but
neither DPS nor Standifer has discussed what alternatives were available or
whether they were viable under the circumstances. See Tex. Dep’t of Pub. Safety v.
Bonilla, 481 S.W.3d 640, 644 (Tex. 2015) (per curiam) (“Summary-judgment
proof does not provide a ‘suitable basis’ for determining good faith if it fails to
address several factors we have identified as bearing on the need/risk analysis,
including the availability of any alternative action.”); see also Gomez, 587 S.W.3d
at 897–98. Obviously, a peace officer in the same or similar circumstances could
decide to not pursue the traffic offender or to wait to do so until after the light had
changed; an officer could also stop or slow before entering the intersection, turn on
his lights and siren, and proceed only once the traffic had stopped or cleared.3
Regarding the risk element, DPS points to Standifer’s assertion in his
affidavit that at the time of the collision, it was a clear, sunny, and dry day. DPS
also emphasizes that Standifer had activated his lights and utilized his airhorn siren
before entering the intersection, and it relies on Cummings assertion in his affidavit
that “[t]he evidence indicates that the road was dry, it was daylight, there was no
rain or visibility obstructions, and the other vehicles on the road had either stopped
or were otherwise yielding the right of way.” But as discussed above, Standifer
3
In concluding that the evidence shows Standifer assessed the availability of alternative
courses of action, the concurrence insists that Standifer could not have discerned the Cavalier’s
license plate number and thus could not have otherwise identified the offending driver except by
pursuing the vehicle through the red light. The concurrence bases this conclusion not on
Standifer’s statement that he could not read the license number—as Standifer made no such
assertion—but on the fact the plate could not be read on the low-quality dash cam video. At the
time the Cavalier ran the light, Standifer was approximately three car lengths back. We decline
to hold that the evidence proves Standifer could not have read the license number or that DPS,
which does not make the argument put forth by the concurrence, established that Standifer
considered alternative courses of action.
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acknowledged visibility was significantly limited at the intersection, he did not
slow or pause before entering the intersection, and he only hit his airhorn siren for
“a couple of blips.” Additionally, the dash cam video shows Standifer entered the
intersection before crossing traffic had stopped and he had to come to a complete
stop in the intersection to avoid hitting traffic going in the opposite direction of
Zakir. The potential risk of this course of action seems clear. As the supreme court
has noted, “when an officer approaches a busy intersection with a red light and
intersecting traffic is approaching the intersection on a green light and at a high
rate of speed, the risk of collision significantly increases.” Clark, 38 S.W.3d at
584. On the evidence presented, DPS has failed to establish that a reasonably
prudent officer in the same or similar circumstances could agree that the need to
immediately stop or apprehend the suspect outweighed the risk of harm to the
public in continuing the pursuit. See id. at 583.
Because DPS’s evidence did not address alternative actions that Standifer
could have taken and did not otherwise establish that a reasonably prudent officer
in the same or similar circumstances could agree that the need to immediately stop
the Cavalier driver outweighed the risk of harm to the public, the burden never
shifted to Zakir to produce controverting evidence. See id.; Green, 2022 WL
97334, at *9. Accordingly, the trial court did not err in denying DPS’s motion for
summary judgment and we overrule DPS’s second issue.
Having overruled each of DPS’s issues, we affirm the trial court’s order
denying DPS’s plea to the jurisdiction and motions for summary judgment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Jewell, Bourliot, and Poissant. (Jewell, J., concurring).
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