Cypress Creek Emergency Medical Services, Inc. v. Steven Cosby and Kristen Lee Cosby, Individually and A/N/F of Brndyn Cosby and Peyton Cosby ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-399 CV ____________________

CYPRESS CREEK EMERGENCY MEDICAL SERVICES, INC., Appellant

V.

STEVEN COSBY and KRISTEN LEE COSBY, Individually and a/n/f of BRENDYN COSBY and PEYTON COSBY, Appellees

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 04-11-09161-CV

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MEMORANDUM OPINION

Cypress Creek Emergency Medical Services, Inc. ("Cypress Creek") perfected this interlocutory appeal following the trial court's denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006). Plaintiffs Steven Cosby and his wife Kristen, acting individually and as next friends of Brendyn Cosby and Peyton Cosby (collectively "Cosbys"), sued Cypress Creek and three other defendants ⁽¹⁾ for personal injuries sustained by Steven Cosby, an invited guest, during the course of a party at the home of co-defendant Eugene H. Williams, Jr. Apparently as a practical joke, Williams detonated an explosive device, referred to as a "noise flash diversionary device" ("NFDD"), in close proximity to where Steven Cosby was standing, resulting in severe injury to Cosby's right foot and ultimately necessitating its amputation. At the time of the incident, Williams was special operations coordinator for Cypress Creek which involved, inter alia, conducting certain training exercises for various EMS personnel during which NFDD's were used. As a former employee of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in his position as special operations coordinator, Williams was entrusted with Cypress Creek's supply of NFDD's, and was one of two Cypress Creek employees who purchased NFDD's. After the Cosbys filed their fifth amended original petition, Cypress Creek filed its plea to the jurisdiction asserting it was a governmental unit as defined under sections 101.001(1) and 101.001(3)(c) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(1), 3(c) (Vernon 2005); see generally Tex. Civ. Prac. & Rem. Code Ann. §§101.001 - .109 (Vernon 2005 & Supp. 2006) ("Texas Tort Claims Act" or "the Act"). As a governmental unit subject to the provisions of the Act, Cypress Creek argued that it was immune from suit as Williams, although an employee of Cypress Creek, was not acting within the course and scope of his employment with Cypress Creek when he detonated the explosive device that injured Steven Cosby. See id. § 101.021(1) (governmental unit is liable for personal injury caused by wrongful act or omission or negligence of an employee "acting within his scope of employment . . ."). The Cosbys filed a lengthy response in opposition to the plea to the jurisdiction arguing that Cypress Creek is not a governmental unit as it does not meet the statutory definition of "emergency service organization" under section 101.001(1) of the Act. See Tex. Civ. Prac. & Rem. Code § 101.001(1). Cypress Creek filed a reply to the Cosbys' response, with the Cosbys responding in opposition to Cypress Creek's reply. The trial court denied the plea to the jurisdiction. Cypress Creek's two appellate issues require us to determine whether it is a "governmental unit" for purposes of the Texas Tort Claims Act, and, if so, whether the Act provides a waiver of immunity under the facts and circumstances presented.

Sovereign immunity from suit defeats a trial court's subject matter jurisdiction unless the state expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Section 101.021 of the Texas Tort Claims Act waives the State's immunity from liability under certain circumstances. See Tex. Civ. Prac. & Rem. Code § 101.021. The Act also waives the State's immunity from suit to the extent of liability created by the Act. See id. § 101.025. A trial court's subject matter jurisdiction is a question of law and subject to de novo review. Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Whether a plaintiff has alleged sufficient facts to affirmatively demonstrate a trial court's subject matter jurisdiction is also a question of law that we review de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In resolving the jurisdictional issue raised, we are permitted to examine the plaintiff's pleadings as well as any evidence relevant to said issue submitted by the parties. See Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

I. IS CYPRESS CREEK A "GOVERNMENTAL UNIT?"

The record indicates the Cosbys' pleadings allege Cypress Creek lost its protection from liability under the Texas Tort Claims Act because it was no longer exclusively engaged in providing medical services, but was also "perform[ing] law enforcement duties in addition to emergency medical services[.]" Further illumination of this position is contained in the Cosbys' initial response in opposition to the plea to the jurisdiction. The Cosbys argue that for Cypress Creek to invoke the protection provided by the Act, it must meet the definition of "governmental unit." Among the entities defined by the Act as a "governmental unit" is an "emergency service organization." See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(C). This section further defines an "emergency service organization" in the following manner:

(1) "Emergency service organization" means a volunteer fire department, rescue squad, or an emergency medical services provider that is:

(A) operated by its members; and

(B) exempt from state taxes by being listed as an exempt organization under Section 151.310 or 171.083, Tax Code.

See id. § 101.001(1)(A),(B). Titled "Religious, Educational, and Public Service Organizations," section 151.310 of the Texas Tax Code includes, for our purposes, the following pertinent provision:

(a) A taxable item sold, leased, or rented to, or stored, used, or consumed by, and of the following organizations is exempted from the taxes imposed by this chapter:

. . . .

(2) an organization qualifying for an exemption from federal income taxes under Section 501(c)(3), (4), (8), (10), or (19), Internal Revenue Code, . . .

Tex. Tax Code Ann. § 151.310(a)(2) (Vernon 2002). Titled "Exemption - - Emergency Medical Service Corporation," section 171.083 states: "A nonprofit corporation that is organized for the sole purpose of and engages exclusively in providing emergency medical services, including rescue and ambulance services, is exempted from the franchise tax." Tex. Tax Code Ann. § 171.083 (Vernon 2002).

The Cosbys do not dispute the fact that Cypress Creek was incorporated in 1975, and received its tax-exempt status under section 501(c)(3) of the Internal Revenue Code from the Internal Revenue Service that same year. Attached to the plea to the jurisdiction is a letter dated May 18, 2006, from the Internal Revenue Service confirming Cypress Creek's continued tax-exempt status since the determination letter was issued in July 1975. However, the Cosbys do contend that Cypress Creek's tax-exempt status effectively ended in 1995, when its original corporate purpose was alleged to have been altered by Cypress Creek's formation of the Cypress Creek Advanced Tactical Team ("advanced tactical team" or "Team"), and with the subsequent requirement that, as a condition for participating in any "Team missions," members of the Team must become certified peace officers.

The Cosbys argue that when Team members who became peace officers were subsequently commissioned through the Southeast Texas Narcotics Task Force located in Silsbee, Texas, Cypress Creek operated "in the dual roles of medic and police officer." Although continuing to operate in this so-called dual role of emergency medical service provider and police agency, the Cosbys point out that Cypress Creek failed to modify its articles of incorporation "to amend the corporate purpose to include law enforcement services[,]" and failed to "notify the State of Texas or the Internal Revenue Service (IRS) of the change in its purpose to determine whether such changes would affect the tax exempt status." Therefore, the Cosbys contend the formation of the advanced tactical team materially changed Cypress Creek's corporate purpose from solely emergency medical services to emergency medical services and law enforcement, and because Cypress Creek failed to amend its articles of incorporation to reflect said material change and failed to re-apply for tax-exempt status under a properly amended corporate purpose, it was no longer a "governmental unit" as defined by the Texas Tort Claims Act.

The Cosbys attached a number of exhibits to their initial response in opposition, including copies of the depositions of Cypress Creek's executive director, Bradley J. England, and its director of special operations, Wrendell Re' Nealy, Jr., and of Charles A. Malouff, Jr., a former law enforcement officer. The Cosbys also attached a copy of the articles of incorporation of Cypress Creek which were executed in 1975, and a copy of a 1975 letter from the Texas Comptroller's office designating Cypress Creek as qualified for a franchise tax exemption.

In the trial court, and now before us, the Cosbys' argument that subject matter jurisdiction exists as to their claims against Cypress Creek is based entirely on the presumption that Cypress Creek is no longer tax exempt in the eyes of both the Internal Revenue Service and the Texas Comptroller's Office. At its core, this presumption is based in part on the Cosbys' reading of the various code provisions involved in defining "governmental unit," and in part on the Cosbys' strong reliance on Los Fresnos Volunteer Fire Dep't, Inc. v. Davalos, No. 13-05-491-CV, 2006 WL 1113521 (Tex. App.- -Corpus Christi Apr. 27, 2006, no pet.) (mem. op.). In Los Fresnos, Los Fresnos EMS responded to a medical emergency call and during the course of treating the injured party, EMS employees failed to properly intubate him. Id. at *1. He later died, and his wife filed suit against Los Fresnos EMS. Id. Plaintiff delivered notice of suit to "Los Fresnos [EMS] by serving its medical director, Dr. Carlos Chavez, M.D." Id. The entity filed an original answer referring to itself as "Los Fresnos EMS." Id. However, a subsequent plea to the jurisdiction was filed by an entity referring to itself as "Los Fresnos Volunteer Fire Department, Inc." In the plea to the jurisdiction the entity claimed it had been improperly named as "Los Fresnos [EMS]." Id. The Fire Department contended that it was a governmental unit because of its status as an "emergency service organization" as defined in the Texas Tort Claims Act. Id. The trial court denied the Fire Department's plea to the jurisdiction, and the Fire Department appealed. Id.

As did we, the Corpus Christi Court of Appeals traced the definition of "governmental unit" through the pertinent definitions in the Texas Tort Claims Act and the Texas Tax Code. Id. at *2. The Court also framed the issue it faced as "whether appellant fulfills the statutory definition of being an 'emergency service organization,' as this is necessary for appellant to qualify as a 'governmental unit.'" Id. The Court then set out the relevant facts before it: (1) the Fire Department received its articles of incorporation on July 3, 1974; (2) the stated corporate purpose was "to operate a non-profit volunteer fire department . . . and for such purpose to acquire, by purchase or otherwise, maintain and operate fire trucks and other fire fighting equipment[;]" (3) in September of 1999, the Fire Department received an IRS "determination letter" stating that the Fire Department was considered a 501(c)(3) exempt organization; (4) the IRS letter and accompanying materials warned the Fire Department that its tax exemption status might be jeopardized "if there is a material change, inconsistent with exemption, in the character, the purpose, or the method of operation of the organization[;] (5) in 2002, the Fire Department contracted with the City of Los Fresnos to take over operation of Los Fresnos EMS, and with this new contractual arrangement the Fire Department began paying taxes and wages for the Los Fresnos EMS employees - - something new to the Fire Department, which had previously been a volunteer organization. ⁽²⁾ Id.

The Corpus Christi Court of Appeals held that the Fire Department's "exempt organization" status changed when the Fire Department took on the responsibilities of operating the Los Fresnos EMS for two reasons: (1) the Fire Department's corporate purpose was solely fire fighting and no provision was made for any other services, including emergency medical services, and (2) case law addressing "immunity" distinguishes between volunteer organizations and those staffed by paid employees because of differing treatment each type of organization receives under relevant statutory provisions. Id. at *2-* 3. From this holding, the Court first concluded that the Fire Department could not claim the section 171.083 exemption "because it was not exclusively involved in the provision of emergency medical services but, rather, continued to retain its fire-fighting and rescue duties." Id. at *3. The Court then addressed the Fire Department's 501(c)(3) tax exemption status, ruling as follows:

It also could no longer rely on its determination letter from the IRS establishing its 501(c)(3) exempt status, given that it had substantially changed its character and purpose. It was no longer a volunteer organization with the sole purpose of fighting fires but instead had the dual purposes of fire fighting and providing emergency medical services, and also had wage-making employees. Thus, without being able to rely on its 501(c)(3) status, the Fire Department also could no longer claim to be exempt under section 151.310 of the tax code.

Id. (citations omitted).

In contrast, the record before us does not indicate that by establishing the Cypress Creek Advanced Tactical Team, Cypress Creek substantially changed its character and purpose. First, Cypress Creek's corporate purpose appears to be much broader in scope than that of the Fire Department's as described in Los Fresnos. We reproduce the corporate purpose of Cypress Creek as it appears in the record:

The purposes for which the corporation is organized are: To provide a means for the acquisition and management of funds with which the corporation shall fund and operate emergency medical and ambulance service for the residents, businesses, and business invitees, visitors and any persons in the F.M. 1960 - Cypress Creek area of Northwest Harris County, Texas; to solicit and provide for the training of volunteer workers to provide such services; to promote the goals of emergency medical service among the professional medical community and provide a liaison between the corporation and said medical community; and in general to promote the health, safety and welfare of the F.M. 1960 - Cypress Creek Area; and to engage in any and all other activities or functions which may be necessary or appropriate in furtherance of the purposes as herein set out. To own, buy, sell, lease or maintain real estate necessary to conduct operations; and to construct, own, buy, sell, lease, equip and operate necessary buildings and equipment and other appropriate facilities desirable and necessary in the conduct and operation of the foregoing.

Notwithstanding any of the aforementioned purposes and powers, this corporation will engage, otherwise than as an insubstantial part of its activities [sic] only in activities that in themselves are in furtherance of educational, and charitable purposes and in purposes that shall maintain the general health, safety and welfare of the aforesaid area.

The wording used here appears to be sufficiently elastic to allow Cypress Creek to provide any type of emergency medical services, including a type of emergency medical service presumably unforeseen by the drafters of the articles of incorporation in 1974. This is evidenced by the phrase "to engage in any and all other activities or functions which may be necessary or appropriate in furtherance of the purposes as herein set out" contained therein. As such, it cannot be said that its corporate purpose limited Cypress Creek to one type of emergency medical service with a set format.

Additionally, the problem with a volunteer organization suddenly taking on paid employees that was so vexing to the Corpus Christi Court is not present under the record before us. Indeed, precisely the opposite appears to be the case here. The following portions of the deposition of Bradley England, executive director of Cypress Creek, set out this distinction:

Q.[Cosbys' Counsel] We're sitting here today in the year 2005. Fair to say that you started work with Cy Creek EMS in 1990?

A.[England] '89 actually, yes.

Q. When you went to work for Cy Creek EMS, was that a paid position or a volunteer position?

A. Paid position.

Q. As executive director?

A. When I first started, I was a paramedic supervisor and then I became the executive director.

. . . .

Q. Other than volunteering for Hempstead Police Department, have you ever been employed by a police department or policing agency?

A. No, sir.

. . . .

Q. When was it that the initial contact was made with Cy Creek EMS about establishing the advanced tactical team?

A. Two or three months after Waco, and I think Waco happened in '94.

Q. And how long was it after that initial contact before the advanced tactical team was established?

A. I couldn't say. I don't remember. Six months.

Q. And who was the head of the advanced tactical team?

A. Myself.

. . . .

Q. Were all of the [members of that initial advanced tactical team] employees of Cy Creek EMS?

A. Yes.

Q. Paid employees?

A. Yes.

Q. No volunteers?

A. No.

. . . .

Q. But I guess getting back to my earlier point, since its inception, the Cypress Creek Advanced Tactical Team has been a part of Cypress Creek EMS?

A. That's correct.

Q. It's been a part of the day-to-day operations of Cypress Creek EMS since '94 or '95?

A. That's correct.

. . . .

Q. Do the members of the advanced tactical team get paid anything more for being on the team?

A. No.

Q. It's just something in addition to their duties as an employee of Cypress Creek EMS?

A. That is correct.

Q. Each of the members of the advanced tactical team are employees of Cypress Creek EMS, correct?

A. That is correct.

Q. No volunteers, right?

A. There has been in the past.

Q. Did something occur that made Cypress Creek EMS change its position on that?

A. As far as not volunteers?

Q. Yes.

A. No.

Q. Just the volunteer quit?

A. Yes.

From the preceding testimony, it appears that in our case the initial tax-exempt entity consisted of paid employees and later established a more specialized branch of the entity with no added compensation to those employees who choose to take on the added duties and risks. Recall that in Los Fresnos, the entity changed from a purely voluntary tax-exempt entity to one taking on an entirely separate and distinct entity made up of paid employees. See Los Fresnos, 2006 WL 1113521 at *3. Los Fresnos is therefore distinguishable on its facts. Additional evidence attached to the Cosbys' initial response in opposition indicates the advanced tactical team considered as its mission to provide medical services under certain logistical circumstances ["high-risk situations," or "crisis incident"] that have traditionally been considered too dangerous for the typical provider of emergency medical services.

The evidence before us indicates the overriding purpose of the advanced tactical team has always been to provide medical services, with law enforcement being a marginal purpose at best. Proof of this is again found in the deposition testimony of Bradley England:

Q.[Cosbys' Counsel] You were not authorized to carry firearms, correct?

A.[England] Not at the beginning, that's correct.

Q. It was purely a medical assistance team?

A. That's correct.

Q. Did that change from a pure medical assistance team to something else?

A. It changed where we were in the mix of the event. Being a - - truly a medical team, we were staged two or three blocks away. If an incident happened on scene, it would take us two or three minutes to get there. And then they had to make sure the scene was safe for us to go in. As the team progressed and we became police officers, we are at the scene. We are in the midst of whatever happens. So, if someone goes down, we're right there right then at the time and we don't have to worry about them securing the scene. We already are a part of that.

Q. And your role, then, changed from purely a medical role to one of being law enforcement/medical role. Is that fair?

A. Other way around. Medical role, but if we had to be a police officer, we could cuff the individual. We could take anything down that he would say. It would still be a law enforcement person hearing it, but our main role is a medical person.

Q. Whether it's the main role or not, there's still an additional role there, which is law enforcement, correct?

A. To protect ourselves, the patient and the people around us, yes.

Q. And I'm not trying to mince words with you here, but it's a medical and law enforcement role, correct?

A. Not necessarily. We are always a police officer and we are always a paramedic. Our main job for the team is a medic. We are not there to be the sniper. We are not there to take the shot. We are not there to - - we're not there for that. We're there for the medical part of it. If we need to protect ourselves, protect the patient or protect anyone around us, we switch roles and become a police officer.

At the request of counsel for the Cosbys, Bradley England was permitted to narrate a brief history of the advanced tactical team. The following is England's explanation for having the members of the advanced tactical team become certified peace officers:

[England]: A lot of doors got shut in Cypress Creek EMS face, per se, because we were not law enforcement agents or an agency. So, what they would do is "Hey, medic, you go stand outside. We'll talk to you later. This is an important briefing and you don't need to hear all this important stuff" when we did have things to say, "Hey, it's 105 degrees out there. You guys are going to get dehydrated fast. When you start getting a headache, you're getting dehydrated. You need us in there to help you out." So, for about the first year, a lot of doors were closed. The medics sat out about two or three blocks down the road, didn't really do anything.

After that, we became - - Gene [Williams] said, "Hey, you guys need to become law enforcement officers. That's the only way this is" - - "the program is going to work." We started going to school, did the basic class, the intermediate and the advanced class all within a year and a half, all became police officers. At that time, we became part of the Southeast Narcotics Task Force as a medic and as a police officer. When they were doing buys in a bar, we could go in the bar 30 minutes prior to the alleged person going in to sell the drugs and before the two undercover guys would go in and we would be their cover. We would sit there as a law enforcement agent just to make sure that everything was safe. As long as we never saw a weapon, a gun or a knife, we let them do the buy and they left. We left 30 minutes, 40 minutes after they did that. Those are some of the things that we did for that agency along with being a medic. If anybody got hurt, we were there at the time.

We recognize that this portion of Cypress Creek's plea to the jurisdiction ("governmental unit" issue) is not so much a challenge to the Cosbys's pleadings, but, instead, a challenge to the existence of jurisdictional facts. See Miranda, 133 S.W.3d at 226-27. Our examination of the relevant jurisdictional facts indicates Cypress Creek established it was a "governmental unit"as set out in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code §101.001(1), (3)(C). Cypress Creek presented a letter indicating it is "currently exempt under section 501(c)(3) of the Internal Revenue Code." The record also contains the letter of December 2, 1975, from the Texas Comptroller's Office further evidencing Cypress Creek's tax-exempt status. In their attempt to deconstruct that exemption status, the Cosbys have failed to present any probative evidence to the contrary, such as authoritative evidence from either the IRS or the Texas Comptroller's Office that calls into question Cypress Creek's current exempt status. Their argument that Cypress Creek acts as a law enforcement agency or provides law enforcement services completely separate and distinct from its established purpose of emergency medical services is not shown by the record evidence. All the evidence indicates the core function of the advanced tactical team is not inconsistent with the exemption granted to Cypress Creek by the IRS in 1975. The additional argument that Cypress Creek has lost tax-exempt status because its emergency medical services have not remained at what amounts to 1975 state-of-the-art levels, has no support in fact or in law. We find, therefore, that Cypress Creek EMS is a governmental unit and is entitled to invoke the protections set out in the Texas Tort Claims Act. Issue one is sustained.

II. HAVE THE COSBYS ESTABLISHED WAIVER OF IMMUNITY?

In their petition, the Cosbys allege, inter alia, that "at all times material to this matter Defendant Williams was employed by Defendant [Cypress Creek] and was acting within the course and scope of his employment when he misused tangible personal property that resulted in the injury and damages to Plaintiffs." For the limited waiver of sovereign immunity to be triggered under the Texas Tort Claims Act, the personal injury suffered must be, inter alia, "proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment . . . . See id. § 101.021(1). The Act defines scope of employment as "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 id. § 101.001(5).

Generally, "an employer is liable for its employee's tort only when the tortious act falls within the scope of the employee's general authority in furtherance of the employer's business and for the accomplishment of the object for which the employee was hired." Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971)). The Texas Supreme Court has further held that, for an employee's acts to be within the scope of his employment, "the conduct must be of the same general nature as that authorized or incidental to the conduct authorized." Id. (quoting Smith v. M Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957)). "In other words, if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation." Id. (citing ITT Consumer Fin. Corp. v. Tovar, 932 S.W.2d 147, 158 (Tex. App.--El Paso 1996, writ denied)).

In the instant case, the Cosbys do not contest the fact that Williams detonated the NFDD at his residence during a private party. There is a complete lack of any jurisdictional facts indicating that in doing so, Williams was acting in furtherance of Cypress Creek's business, or indicating that Williams' conduct was of the same general nature as conduct authorized by Cypress Creek. Nor is there any evidence that when the NFDD exploded injuring Steven Cosby, Williams was performing a task lawfully assigned to him by Cypress Creek. The Cosbys have, therefore, failed to establish a waiver by Cypress Creek of its immunity from suit pursuant to sections 101.021 and 101.025 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025. Issue two is sustained. As we have found that Cypress Creek is a governmental unit, and that the Cosbys have failed to establish a waiver of immunity or a consent to suit by Cypress Creek, the trial court lacked subject matter jurisdiction. We reverse the trial court's order denying Cypress Creek's plea to the jurisdiction, and we render judgment dismissing the Cosbys' claims against Cypress Creek Emergency Medical Services, Inc. for want of jurisdiction.

REVERSED AND RENDERED.

__________________________________

CHARLES KREGER

Justice

Submitted on December 7, 2006

Opinion Delivered March 8, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.

1. The remaining defendants, Eugene H. Williams, Jr., Charles A. Malouff, and Cypress Creek Advanced Tactical Team, Inc., are not parties to the plea to the jurisdiction or to this appeal.

2. All emphasis in this opinion is added unless otherwise noted.