Harris County, Texas v. Joshua Jacob Mireles, Cristin Mireles, and Colonial County Mutual Insurance Company ( 2023 )

Affirmed in Part, Reversed and Rendered in Part, Remanded, and Majority
and Dissenting Opinions filed June 1, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00367-CV
HARRIS COUNTY, TEXAS, Appellant
V.
JOSHUA JACOB MIRELES, CRISTIN MIRELES, and
COLONIAL COUNTY MUTUAL INSURANCE COMPANY, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2019-61633
DISSENTING OPINION
The objective good faith element of the official immunity defense requires the
defendant official to prove that a reasonable official under the same or similar
circumstances could have believed the defendant’s conduct was justified. City of
Lancaster v. Chambers, 883 S.W.2d 650, 656–57 (Tex. 1994). Applying that general
test to a high-speed pursuit, the officer acts in good faith if “a reasonably prudent
officer, under the same or similar circumstances, could have believed that the need
to immediately apprehend the suspect outweighed a clear risk of harm to the public
in continuing the pursuit.” Id. at 656. “Requiring officers to assess alternatives
insures that public safety is not ’thrown to the winds in the heat of the chase.’” Univ.
of Hous. v. Clark, 38 S.W.3d 578, 584 (Tex. 2000) (quoting Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)).
Testimony on good faith must discuss what a reasonable officer could have
believed under the circumstances, and must be substantiated with facts showing that
the officer assessed both the need to apprehend the suspect and the risk of harm to
the public. Id. at 581; see Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.
1997) (“[N]eed is determined by factors such as the seriousness of the crime or
accident to which the officer responds, whether the officer’s immediate presence is
necessary to prevent injury or loss of life or to apprehend a suspect, and what
alternative courses of actions, if any, are available to achieve a comparable result.”).
Deputy Solis states in part in his declaration, upon which appellant relies to
substantiate both the risk and need factors: “I cannot think of any alternatives to the
course of action I took.” There are two problems inherent with this statement: (1)
Deputy Solis does not explain the basis for this conclusion; and (2) the assessment
of good faith depends on the assessment of a reasonably prudent officer of both the
need to which an officer responds and the risk of the officer’s course of action, which
is based on the officer’s perception of the facts at the time of the event. See Wadewitz,
951 S.W.2d at 467.
Deputy Solis’s Declaration addresses the first two need factors identified in
Wadewitz and subsequent authority: (1) the seriousness of the crime or accident to
which the officer responds and (2) whether the officer’s immediate presence is
necessary to prevent injury or death or to apprehend a suspect, but fails to address
the third factor: (3) the alternative courses of action, if any, that may have been
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available to achieve a comparable result. See Wadewitz, 951 S.W.2d at 467; City of
Houston v. Sauls, 654 S.W.3d 772, 781 (Tex. App.—Houston [14th Dist.] 2022, pet.
filed); Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 489–90 (Tex. App.—
Houston [1st Dist] 2011, no pet.); City of Houston v. Davis, 57 S.W.3d 4, 7 (Tex.
App. .—Houston [14th Dist.] 2001, no pet.).
Deputy Solis’s declaration does not state that there were no alternatives to his
course of action in suddenly “executing a wide left U-turn,” moving from the left
lane to the right lane and back to the left lane in attempting to make a U-turn, or that
he could not think of any alternative course of action at the time of the event, but
merely that “he cannot think of any alternatives. . . .”Cf. Clark, 38 S.W.3d at 584
(“For example, 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. Such an increase in risk could
affect the balance between the need and risk and thus, requires a reassessment.”);
see Sauls, 654 S.W.3d at 783 (“There is no language in Hewitt’s affidavit from which
we could conclude Hewitt reasonably discounted an available alternate action to
achieve a comparable result.”).
Because the evidence did not show that Deputy Solis assessed the availability
of any alternative courses of action to achieve a comparable result at the time of the
collision, or that he considered and discounted those courses of action, appellant did
not establish the necessary elements of good faith, and appellant’s immunity defense
fails. See Sauls, 654 S.W.3d at 783–84. Stated differently, without evidence of
consideration of other alternative courses of action, Harris County has not
substantiated the good-faith exception because the consideration of the need prong
of the balancing test is incomplete. See Wadewitz, 951 S.W.2d at 466–67; see also
Telthorster v. Tennell, 92 S.W.3d 457, 462 (Tex. 2002) (“To prevail, the movant’s
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proof must sufficiently assess the need and risk factors.”).
If the government official does not prove each element of official immunity,
then the burden never shifts to the plaintiff to come forward with controverting
evidence. City of Pasadena v. Belle, 297 S.W.3d 525, 531 (Tex. App.—Houston
[14th Dist.] 2009, no pet.); see also Telthorster, 92 S.W.3d at 465.
For the foregoing reasons, I respectfully dissent from the majority opinion that
concludes that Harris County is immune from all claims, and I would affirm the trial
court’s order denying Harris County’s plea to the jurisdiction.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant. (Jewell, J., majority).
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