Town of Highland Park v. Tiffany Renee McCullers, Individually and for the Benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, And Sonya Hoskins ( 2021 )

DISSENT and Opinion Filed June 29, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01431-CV
TOWN OF HIGHLAND PARK, Appellant
V.
TIFFANY RENEE MCCULLERS, ET AL., Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-08709
DISSENTING OPINION
Before Chief Justice Burns and Justices Pedersen, III and Goldstein
Dissenting Opinion by Chief Justice Burns
My colleagues rely on labels instead of function—here, the Town of
Highland Park’s coordination of private security services for a resident—to deny
deceased Officer McCullers’ family their day in court and conclude Town’s actions
qualified as police protection and served a governmental function. I disagree and
accordingly dissent.
When municipalities perform governmental functions they are cloaked with
the State’s sovereign immunity. Wasson Interests, Ltd. v. City of Jacksonville, 489
S.W.3d 427, 430 (Tex. 2016) (Wasson I) (“[A] municipality’s immunity extends
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only as far as the state’s but no further.”). Governmental functions are “those acts
which are public in nature and performed by the municipality as the agent of the
State in furtherance of general law for the interest of the public at large.” Gates v.
City of Dallas, 704 S.W.2d 737, 738–39 (Tex. 1986) (internal quotation omitted)).
In contrast, discretionary activities primarily for the benefit of the citizens (here one
citizen property owner) within the corporate limits of a town are proprietary
functions outside of the immunity conferred by the State. Id.; Tooke v. City of Mexia,
197 S.W.3d 325, 343 (Tex. 2006) (distinction lacks clarity, but generally,
“proprietary functions are those conducted in. . . [municipality’s] private capacity,
for the benefit only of those within its corporate limits, and not as an arm of the
government, while its governmental functions are in the performance of purely
governmental matters solely for the public benefit”) (internal quotation omitted)).
As discussed below, unless the function at issue is statutorily designated as
governmental, the municipality’s entitlement to immunity thus depends on “the
relationship, or lack thereof, between the municipality and the state, not the
relationship between the municipality and the party bringing suit.” Wasson
Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018) (Wasson II)
(internal quotation omitted)).
The legislature designated thirty-six municipal functions that are
governmental for purposes of immunity, including “police and fire protection and
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control.” TEX. CIV. PRAC. & REM. CODE §101.0215 (a)(1). Conduct enumerated in
the statute as governmental deprives us of discretion to treat that conduct as
proprietary. City of Plano v. Homoky, 294 S.W.3d 809, 814 (Tex. App.—Dallas
2009, no pet.). Notably, we focus on the conduct at issue, rather than the label used
by Town—police related or non-police related—or the existence of a written policy
utilized by Town.
The majority appears to rely on Town’s argument that “all actions related to”
a category included in the statute’s list of governmental functions deserve the same
treatment as the enumerated function, thereby foregoing any analysis of whether
coordination of private security services deserves immunity as police protection and
control. In support of this argument, Town cites City of Dallas v. Reata Construction
Corp., 83 S.W.3d 392, 395 (Tex. App.—Dallas 2002), rev’d on other grounds, 197
S.W.3d 371 (Tex. 2006), for its holding that “when the legislature changed a
classification from proprietary to governmental, it intended all actions taken by a
city within that category to be reclassified.” Reliance on this holding, however, begs
the question at issue here: whether coordination of private security falls within the
category of “police protection.” Certainly, all functions related to coordination of
police protection to be provided by on-duty officers, for instance added
neighborhood patrols, responses to suspicious persons, and traffic control in
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connection with a funeral1 or the Fourth of July parade that occurred earlier the same
day through Town’s streets would fall within the ambit of police protection. But
coordination of security services, to be provided by off-duty officers, on private
property, for one private citizen, warrants a closer examination.
In Martinez v. City of San Antonio, 220 S.W.3d 10, 15 (Tex. App.—San
Antonio 2006, no pet.), our sister court examined the City of San Antonio’s Gang
Rehabilitation Assessment and Services Program (GRAASP), in its Youth Crime
Services Unit. The program was funded by the U.S. Department of Justice and
although run independently of the City and the police department, the City managed
the funds for the program. The grant application described the program as
intervention strategies and different methods of police protection and services, for
the urban community and public at large. Under to the program, gang members were
recruited based on their degree of involvement in gang activity and crime, and the
severity of their criminal record. Each participant was interviewed and assessed for
vocational, educational, medical or psychological status, with the goal of enrolling
85% of the participants in school or vocational training. The criminal activity and
arrests of each participant were also monitored for increases or decreases, as was the
crime in the target neighborhoods. In addition to reducing gang violence committed
by the participants, the program sought to increase neighborhood participation in
1
See Blackwell v. Harris Cty., 909 S.W.2d 135, 139 (Tex. App.-Houston [14th Dist.] 1995, writ denied).
4
community events and associations as an additional avenue to reducing gang
violence. Id. at 13. The San Antonio court concluded GRAASP was a law
enforcement program, and therefore a governmental rather than proprietary function
for which the City was entitled to immunity. It refused to “split various aspects” of
the program to conclude that the counseling and job training altered the fundamental
purpose of the program: a “crime prevention and reduction program, implemented
and administered by the police department, funded by the Department of Justice . . .
[for the] benefit . . . [of] the general public.” Id. at 15.
In contrast, Town coordinated private security services for private property
owners, here, one private property owner. While the effect of these services may
ultimately have been crime reduction, their fundamental purpose was private loss
prevention. See, e.g., Elizondo v. State, 382 S.W.3d 389, 394 (Tex. Crim. App. 2012)
(private citizen providing loss-prevention services not acting as law enforcement).
Certainly, the effect of alarm monitoring or fencing would be the same, yet we would
have no difficulty concluding that coordination of those services would fall far
outside of police protection, particularly when those services were not provided for
the general public or indeed even all of Town’s citizens.
Moreover, unlike my concurring colleague, I find little persuasive relevance
and certainly nothing binding in Homoky, 294 S.W.3d at 813–14. Neither the
conclusion that operation of a golf course falls within the defined governmental
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function of a “recreational facility”2 nor the analysis utilized in reaching that
conclusion suggests coordination of private security services provided by off-duty
officers falls within the definition of “police protection.” Further, unlike Homoky in
which the plaintiff sought to split consideration of the golf course operation, which
easily fell within a defined governmental function, from operation of the club house
in which the plaintiff’s injury occurred and which did not fall so easily within the
same definition, no such splitting is required here. Id. at 813 (improper to split
operation of golf course from operation of a clubhouse for purposes of evaluating
proprietary versus governmental functions). We examine only coordination of
security services; no coupled activity exists.3
Likewise, Town’s reliance on Hallmark v. City of Fredericksburg for the
broad application of “police protection” fails to persuade. Hallmark v. City of
Fredericksburg, No. 04-99-00519-CV, 2000 WL 730601, at *3 (Tex. App.—San
Antonio June 7, 2000, pet. denied) (mem. op., not designated for publication). In
Hallmark, off-duty officers practicing softball at a law enforcement center
threatened the owner of adjacent property with arrest if he refused to return the ball
they had hit onto his property. Concluding such a threat fell within “police
2
`` TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(23).
3
I disagree with my concurring colleague that an analysis of Town’s coordination of private security
services divorces that function from “police services overall.” Relying on the fact that Town’s police
department had a policy and overall scheme for coordinating off-duty service eliminates the entire analysis.
Overall scheme or no, the question we examine is the purpose of Town’s activity.
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protection” does not inform our analysis, however, since we see no parallel between
that overt exercise of police authority and Town’s coordination of private security
services.
In his deposition, Town’s Chief of Police testified Town coordinated and
provided private security services because the residents wanted the service, “like if
they’re having a party or something,” which also provided “additional officers in the
city and additional security.” He also testified Town provided those services as a
courtesy and could decline to provide them. The officers were paid by the private
citizens who requested their services, although at least one of the officers who
coordinated such services did so while on duty for Town. Requests were made by
citizens directly to the police department with the Chief or his assistant then checking
if specific officers wanted the assignments, or were made directly to individual
officers who accepted the work or searched for others if they did not. Nowhere in
our record did the Chief describe the purpose or function of Town’s coordination of
these services as police protection or law enforcement.4 Instead, while performing
the services Town coordinated, Officer McCullers was in his private vehicle, and
rather than patrolling, was sitting in one place, essentially functioning as a night-
watchman for one citizen.
4
And notably for the summary judgment posture presented, appellees’ pleadings describe Town’s activity
as “coordinating private security guard services for the convenience of residents of the Town.”
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Evidence that Town communicated private security requests only to licensed
peace officers who in turn are potentially on duty 24 hours a day, provides the
apparent basis for the majority’s naked conclusion that “Officer Morden coordinated
with Officer McCullers in furtherance of police protection at the Property.” The fact
that a peace officer was assigned to this off-duty task, however, does not convert
Town’s actions (or the officer’s) to governmental conduct. Indeed, if we were
examining Officer McCullers’ entitlement to immunity for some action taken while
guarding the Property, we would look to whether he observed a crime so as to trigger
his on-duty status. See City of Balch Springs v. Austin, 315 S.W.3d 219, 225 (Tex.
App.—Dallas 2010, no pet.) (“If an off-duty officer observes and responds to a
crime, he becomes an on-duty officer.”); see also CKJ Trucking, L.P. v. City of
Honey Grove, 581 S.W.3d 870 (Tex. App.—Dallas 2019, pet. denied). Thus, the
potential for activation of on-duty status and the fact that a peace officer’s off-duty
status does not discharge his police authority has no bearing here, since those
possibilities exist in any off-duty work in which an officer might engage. If we
relied on the potential trigger to on-duty status, we would thus render the entire
question at issue irrelevant when the questioned task was performed in connection
with a municipality’s peace officers. See, e.g., City of Houston v. Shilling, 240
S.W.2d 1010, 1012 (Tex. 1951) (rejecting maintenance of garbage trucks as
necessary to provision of governmental garbage collection services, since “[s]urely
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all operations which make it possible for the city to collect garbage are not part of
that function in the sense that the city is immune to liability in its performance.”);
see also CKJ Trucking, L.P., 581 S.W.3d at 877 (in evaluating immunity triggered
by police protection, “we must consider whether Officer Williamson’s actions
furthered enforcement of the law, not whether he was off duty when his actions
occurred.”). Further, the Chief also testified that if no officers were available, Town
would recommend that the requesting resident call a private security company to
coordinate the security services. Given each of these facts, including the ability of
a private security firm to perform the services, for one citizen, when Town declined
to, McCullers’ off-duty status, and the lack of connection between Town’s
coordination service and “police protection,” I cannot conclude the activity was a
“purely governmental matter[] solely for the public benefit.” Tooke, 197 S.W.3d at
343.
Guillory v. Port of Houston Authority, 845 S.W.2d 812 (Tex. 1993), relied
upon by my concurring colleague, does not compel a different conclusion. In
concluding the Port Authority was a political subdivision of the State that could act
only in a governmental rather than proprietary capacity, the Guillory court rejected
the possibility that the Authority waived its immunity through proprietary conduct.
Id. at 812–13. In dicta, it then built on the impossibility of waiver premised on an
expansive definition of proprietary functions proposed by Guillory, which turned on
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whether a private entity could have provided the service at issue—leasing a truck
used for unloading cargo. Id. at 814. In contrast, my conclusion does not rest on
whether a private entity could have coordinated the security services at issue but
instead, considers the discretionary nature of the function as well as the additional
factors discussed above and below.
When the statute does not expressly designate a specific municipal activity as
either proprietary or governmental, we consider the following four factors in making
that determination: “(1) was the City’s act ‘mandatory or discretionary,’ (2) was the
City’s act ‘intended to benefit the general public or the City’s residents,’ (3) was the
City ‘acting on the State’s behalf or its own behalf’ in undertaking the activity; and
(4) was the City’s act ‘sufficiently related to a governmental function to render the
act governmental even if it would otherwise have been proprietary.’” Hays St.
Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 705 (Tex. 2019)
(quoting Wasson II, 559 S.W.3d at 150). These Wasson factors also support a
conclusion that in providing private security services, Town was acting in a
proprietary role. Town admits its coordination of these services was discretionary
and the services were for the benefit of Town’s residents. Moreover, and key to our
inquiry regarding Town’s relationship to the State with respect to the task in question
and the role of immunity, we have no evidence nor any argument that in coordinating
private security services, Town acted on the State’s behalf. And finally, given the
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supreme court’s caution that we may treat a proprietary action as governmental
under the final Wasson factor only if the action is “closely related to or necessary for
performance of” the activity described in the statute,5 I cannot conclude that even
this last factor supports the existence of governmental action here. See Wasson II,
559 S.W.3d at 150.
Particularly in the summary judgment posture applicable to an evidentiary
challenge to jurisdiction, where we resolve all doubts in favor of jurisdiction and
construe the facts and pleadings liberally in favor of the non-movant, I would affirm
the trial court.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
191431DF.P05
5
Wasson II, 559 S.W.3d at 153; see also City of Helotes v. Page, No. 04-19-00437-CV, 2019 WL 6887719,
at *4 (Tex. App.—San Antonio Dec. 18, 2019, pet. denied).
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