City of El Paso, Texas v. Joanna Cangialosi, Individually, as Next of Friend of C.C., Minor Child, Surviving Daughter and Heir to the Estate of Annette Martinez Jose Aguilar Raymundo Aguilar Fidel Aguilar Eric Aguilar, Individually and as Surviving Sons and Heirs to the Estate of Annette Martinez ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
THE CITY OF EL PASO, TEXAS, No. 08-22-00155-CV
§
Appellant, Appeal from the
§
v. 171st District Court
§
JOANNA CANGIALOSI, individually, and of El Paso County, Texas
as next of friend of C.C., a minor child, §
surviving daughter, and as heir to the Estate (TC# 2018DCV0797)
of Annette Martinez; JOSE AGUILAR; §
RAYMOND AGUILAR; FIDEL AGUILAR;
and ERIC AGUILAR, individually and as §
surviving sons and heirs to the Estate of
Annette Martinez, §
Appellees. §
MEMORANDUM OPINION
Before us is Appellant The City of El Paso’s (El Paso) second interlocutory appeal of a
denial of a plea to the jurisdiction. In the first appeal, we affirmed the trial court’s denial of the
plea because Appellees—the victims of a traffic collision who allege was caused by the El Paso
Police Department’s (EPPD) improper vehicular pursuit of two suspected burglars—had raised
sufficient facts to implicate the motor-vehicle waiver to El Paso’s governmental immunity under
the Texas Tort Claims Act (TTCA). City of El Paso v. Cangialosi, 632 S.W.3d 611, 626
(Tex. App.—El Paso 2020, no pet.) (Cangialosi I); see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.021(1). Specifically, we held there were “sufficient facts to show some nexus between the
police use of a vehicle and the accident[.]” Cangialosi, 632 S.W.3d at 626. In its second plea to
the jurisdiction, which is the subject of this appeal, El Paso argues that even if Appellees’ damages
arose from the operation of a motor vehicle, they did not raise sufficient facts to satisfy the second
element of the motor vehicle waiver: that the involved police officers would be personally liable
under Texas law. We disagree. For the following reasons, we affirm the trial court’s denial of
El Paso’s second plea to the jurisdiction.
I. BACKGROUND
We laid out the facts of this case in detail in Cangialosi I. Consequently, here we only
provide the facts necessary to resolve this appeal.
In short, Appellees claim that on March 4, 2016, EPPD officers were conducting
surveillance in an El Paso neighborhood that had recently experienced several home burglaries.
After watching Aaron Roacho and Jacob Sanchez commit a suspected burglary, Officer Nicholas
Villalobos began to follow their vehicle in an unmarked police car. Several other unmarked police
vehicles and one marked police unit, which Officer Humberto Herrera was driving, also followed
the suspected burglars.
At approximately the same time, Appellee Joanna Cangialosi was driving with her then
six-month-old daughter, C.C., and her mother, Annette Martinez. The vehicle driven by Roacho
struck Cangialosi’s vehicle while she was waiting at a red light at the intersection of Stanton Street
and Schuster Ave. Moments later, Officer Villalobos struck another vehicle stopped at the same
intersection with his unmarked unit. EPPD’s traffic investigator calculated that Roacho was
traveling at a minimum speed of 57 miles per hour and that Officer Villalobos was going at least
2
60 miles per hour before the accident. “The speed limit is 30 mph along that part” of Stanton Street.
Cangialosi, 632 S.W.3d at 619. The accident killed Annette Martinez and injured both Cangialosi
and C.C.
El Paso filed its first plea to the jurisdiction in April 2019, arguing there was insufficient
evidence to demonstrate the applicability of the motor-vehicle waiver to the general rule of
governmental immunity under the TTCA. Specifically, it argued there was no evidence that the
officers were pursuing the suspected burglars, there was no evidence the suspected burglars knew
the police were following them, and the Appellees’ injuries were caused by the independent acts
of Roacho, not the EPPD officers’ use of a vehicle. The trial court denied the plea to the
jurisdiction, and this Court affirmed, holding that Appellees “have at least raised a fact issue as to
whether Roacho appreciated that the police were in pursuit at the time of the crash” and it was “the
pursuit by the police in their vehicles . . . that is alleged to have caused Roacho to speed, as he fled
to get away.” Id. at 623, 626. Because speed is the claimed cause of the accident, we found that
Appellees “raised sufficient facts to show some nexus between the police use of a vehicle and the
accident to defeat the plea to the jurisdiction.” Id. at 626.
Over three years later—and just weeks before trial—El Paso filed its second plea to the
jurisdiction. It correctly claimed the TTCA required a showing of two elements before the motor-
vehicle waiver applies: (1) that the damages arise “from the operation or use of a motor-driven
vehicle”; and (2) “the employee would be personally liable to the claimant according to Texas
law[.]” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). El Paso focused its second plea to the
jurisdiction on this second element, claiming the officers involved in the accident could not be
personally liable to Appellees because they are protected by official immunity. Consequently,
according to El Paso, the motor-vehicle waiver does not apply, and it is immune from suit.
3
To support its plea, El Paso provided the following evidence. Both Villalobos and Herrera
submitted affidavits outlining their thought processes the day of the accident. Regarding following
Roacho and Sanchez as they fled from an apparent burglary, Villalobos explained:
7. In my view I witnessed what I reasonably believed to be a burglary of a
habitation. This is a serious felony offense and inherently violent crime and
there is always a risk of serious injury or death to any occupants of the home,
especially because suspects of this type of serious offense often conduct
burglaries with deadly weapons. Once the suspects fled at a high speed, I
determined that the immediate apprehension of the suspects was necessary
given the nature of the offense and the manner in which the suspects were
driving. Additionally, we had probable cause based on the fact that I and my
colleagues saw the suspects fleeing the house in a hurry carrying property and
based on the search of the license plate. Based on my understanding at the
time, it was reasonable to believe that the same suspects had committed
another serious burglary of a habitation the day before and that there was a
high probability that they would continue to commit the same or similar
offenses if they were not immediately apprehended.
8. Once the suspects fled at a high rate of speed, I was the closest vehicle with
visual contact of the suspects’ vehicle and if I did not begin and continue to
follow their vehicle to maintain a visual contact, there was a chance that the
suspects would get away. None of my colleagues would likely be able to
reasonably locate or follow the suspects and visual contact was necessary to
assist my colleague Officer Herrera in the marked vehicle to conduct the
controlled stop. If I had not followed the suspects there is a likelihood that they
would have evaded arrest and had the opportunity to continue their criminal
activities.
Regarding his assessment of the risk his following the suspected burglars posed to the public,
Villalobos explained:
9. To maintain a visual contact of the suspects I had to travel at a rate of speed
faster than the regular traffic on Stanton travelling southbound. Given the time
of day, around 1:20 pm, four lanes of traffic with two in each direction, I
determined that there was plenty of space on the roadway to safely go around
the other vehicles on the [sic] Stanton. Additionally, I was very familiar with
the area as I worked out of the Westside Regional Command Center and the
incident occurred in broad daylight, with clear weather and roadway
conditions, and no issues with visibility. I considered these circumstances and
conditions in making my decision to continue to follow and maintain visual
contact with the suspects’ vehicle as they are related to the risk of harm to the
4
public. As with any type of pursuit or response to any emergency situation,
there is a risk of harm to innocent drivers and bystanders but based on the
circumstances and conditions at the time, and my experience and training, I
determined that it was reasonable to continue following because the need to
maintain a visual contact and ultimately apprehend the suspects and stop their
continuation of other serious offenses outweighed any risk to the public. Just
because the risk of harm to the public ultimately occurred, I do not believe that
the actions of me and my colleagues were in any way unreasonable or reckless
under the circumstances. Given that the suspects were traveling at a high rate
of speed and weaving in and out of travel, I determined based on this conduct
that the suspects did not have any regard for the safety of others and were only
concerned with fleeing the immediate area where they had just committed a
serious offense. Further, I did not proceed through any red lights or stop signs
until it was safe to do so.
Villalobos also stated he was “driving in an unmarked vehicle” that “did not have any police
lights.” He also claimed that the only alternatives to following Roacho and Sanchez as he did was
to “to pull back and lose visual contact of the suspects” or “to only drive at the posted speed limit,”
either of which, “would have likely allowed them to get away.”
Officer Herrera did not provide any additional facts in his affidavit regarding the officers’
need to follow Roacho and Sanchez, other than stating “Officer Villalobos and the rest of the TAC
Unit officers involved determined that the immediate apprehension of the suspects was necessary
given the nature of the offense and the manner in which the suspects were driving.” He provided
an assessment of the risk posed to the public by their chase that closely mirrored Villalobos’s:
10. In an attempt to conduct a controlled stop of the suspect vehicle, I had to travel
at a rate of speed faster than the regular traffic on Stanton travelling
southbound. Given the time of day, around 1:30 p.m., four lanes of traffic with
two in each direction, I determined that there was plenty of space on the
roadway to safely go around the other vehicles on the [sic] Stanton, especially
since I had activated my lights and siren. Additionally, I was very familiar with
the area as I worked out of the Westside Regional Command Center and the
incident occurred in broad daylight, with clear weather and roadway
conditions, and no issues with visibility. I considered these circumstances and
conditions in making my decision to continue to proceed in an effort to catch
up to the suspect vehicle. As with any type of response to any emergency
situation, there is a risk of harm to innocent drivers and bystanders but based
5
on the circumstances and conditions at the time, and my experience and
training, I determined that it was reasonable to continue because the need to
ultimately apprehend the suspects and stop their continuation of other serious
offenses outweighed any risk to the public. Although it is unfortunate that the
risk of harm to the public ultimately occurred, I do not believe that the actions
of me and my colleagues were in any way unreasonable or reckless under the
circumstances. Given the suspects were traveling at a high rate of speed and
weaving in and out of the lanes, it is safe to say that based on this conduct that
the suspects did not have any regard for the safety of others and were only
concerned with fleeing the immediate area where they had just committed a
serious offense. Further, I did not proceed through any red lights or past any
stop signs. In fact, once I had activated my lights and siren to turn on to Stanton
headed southbound, I only had green lights at the intersections.
El Paso also submitted an expert report prepared by Kelley E. Stone, Ph.D. Stone opined
that there were no alternatives to Villalobos’s course of action: “The alternative for Villalobos
would be not to follow or to follow at the posted speed limit, either of which may have resulted in
losing the suspects—so there were no reasonable alternatives to identify or apprehend the
suspects.” Stone also stated that a reasonably prudent officer in Villalobos’s position would have
assessed the need to follow the suspects as outweighing the risk posed to the public:
4. Officer Villalobos was the closest police unit with visual contact of the
suspects and their car. The suspects were traveling at a high rate of speed from
the time they left the driveway at [the house]. A reasonably prudent officer
could have believed that if he did not follow them, no other police unit could
reasonably locate or follow the suspects. If Officer Villalobos did not follow
the suspects, the suspects may have gotten away. To maintain visual contact
with the suspects’ vehicle, a reasonably prudent officer would have had to
travel faster than the regular traffic on Stanton. Given the time of day, 13:20
hours, the number of lanes on the street, 4 (2 in each direction), and the amount
of traffic on the street, moderate according to Officer Villalobos, any risk to
the other drivers associated with Officer Villalobos following at the speed he
was traveling was outweighed by the need to identify and apprehend the
suspects.
The trial court orally denied the plea to the jurisdiction after a hearing. It issued a written
denial a week later. This appeal followed.
6
II. STANDARD OF REVIEW
The standard of review here is the same as in Cangialosi I. There, we explained that
governmental immunity protects state political subdivisions from lawsuits based on their
performance of governmental functions unless the State has expressly waived its immunity.
Cangialosi, 632 S.W.3d at 619 (citing El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009)).
“Police protection is a governmental function.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.0215(a)(1)). As a result, El Paso is immune from lawsuits seeking monetary damages unless
its immunity is waived. Id.
Because immunity from suit defeats a trial court’s subject matter jurisdiction, such
immunity is properly asserted in a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea to the jurisdiction can challenge either the
pleadings or the existence of jurisdictional facts. Id. at 226-27. “As here, when a plea to the
jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties.” Cangialosi, 632 S.W.3d at 619 (citing Miranda, 133 S.W.3d at 226). “If
there is no question of fact as to the jurisdictional issue, the trial court must rule on the plea to the
jurisdiction as a matter of law.” Id. (quoting Heinrich, 284 S.W.3d at 378). “If, however, the
jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the
jurisdiction, and the issue must be resolved by the fact finder.” Id. at 620 (quoting Heinrich, 284
S.W.3d at 378). “‘This standard mirrors our review of summary judgments’ where the reviewing
court takes as true all evidence favorable to the non-movant, indulging every reasonable inference
and resolving any doubts in the non-movant’s favor.” Id. at 620 (quoting Heinrich, 284 S.W.3d at
378). We review a plea challenging the trial court’s jurisdiction de novo. State v. Holland, 221
S.W.3d 639, 642 (Tex. 2007).
7
III. DISCUSSION
El Paso presents three issues for this Court to consider. First, it claims the trial court erred
when it denied its second plea to the jurisdiction because the EPPD officer’s official immunity
makes the TTCA’s motor-vehicle waiver to its general governmental immunity inapplicable.
Second, it argues the trial court should have granted its plea to the jurisdiction even if the motor-
vehicle waiver applies because the emergency situation response exception found in Texas Civil
Practice and Remedies Code § 101.055(2) applies. Third, it claims the trial court erred when it
denied its plea to the jurisdiction because the intentional act exception found in § 101.057(2)
applies.
A. Waiver of governmental immunity under the TTCA
In its first issue, El Paso argues the EPPD officer’s official immunity makes the TTCA’s
motor-vehicle waiver inapplicable to its general governmental immunity. Appellees claim that the
TTCA’s motor-vehicle waiver applies to waive El Paso’s governmental immunity. The motor-
vehicle waiver makes a state government unit liable for personal injury or death, inter alia, if two
conditions are met: (1) the personal injury or death “arises from the operation or use of a motor-
driven vehicle . . .”; and (2) “the employee would be personally liable to the claimant according to
Texas law[.]” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). In Cangialosi I, we held the facts
were sufficient to show the possibility of a nexus between EPPD’s vehicle use and the accident
that injured the Appellees to defeat El Paso’s plea to the jurisdiction. Cangialosi, 632 S.W.3d at
626. El Paso now relies on the waiver’s second element, arguing Appellees cannot produce
evidence that the officers involved in the accident would be liable to Appellees under Texas law.
Specifically, it argues that the officers involved in the March 4 accident are protected by official
8
immunity and are therefore not personally liable to Appellees. Consequently, according to El Paso,
it is immune from suit. We disagree.
Official immunity
Official immunity is an affirmative defense that protects government employees from
personal liability. University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A government
employee is entitled to official immunity if he establishes that (1) he was performing a
discretionary duty (2) within the scope of his employment and (3) acted in good faith. Id. (citing
City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). A government entity is not
liable under the TTCA for the actions of its employees if the employees are protected by official
immunity. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995). Because official immunity
is an affirmative defense, the burden is on the government to conclusively prove each element of
the defense. Clark, 38 S.W.3d at 580; Texas Dep’t of Public Safety v. Bonilla, 481 S.W.3d 640,
643 (Tex. 2015) (“Summary judgment on official immunity requires that a movant establish facts
upon which the court could base its legal conclusion . . . .”). “[T]estimony 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.” Clark, 38 S.W.3d at 581.
Appellees do not dispute that the officers involved in the accident were performing a
discretionary duty within the scope of their employment with EPPD. As a result, we consider the
first two elements of the official immunity analysis as established and focus only on whether the
officers acted in good faith.
9
Good faith
“Good faith is a test of objective legal reasonableness.” Bonilla, 481 S.W.3d at 643. A law
enforcement officer can establish good faith in a pursuit case such as this by “proving that a
reasonably prudent officer, under the same or similar circumstances, could have believed the need
for the officer’s actions outweighed a clear risk of harm to the public from those actions.” Id.
(emphasis added). “The ‘need’ aspect of the test refers to the urgency of the circumstances
requiring police intervention,” including 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 action, if any, are
available to achieve a comparable result.” Wadewitz v. Montgomery, 951 S.W.2d 464, 467
(Tex. 1997); see also Clark, 38 S.W.3d at 582 (“We agree with Clark that the Wadewitz need and
risk factors apply to good faith determinations in police pursuits as well as emergency responses.”).
The “risk” aspect of good faith, on the other hand, refers to the countervailing
public safety concerns: the nature and severity of harm that the officer’s actions
could cause (including injuries to bystanders as well as the possibility that an
accident would prevent the officer from reaching the scene of the emergency), the
likelihood that any harm would occur, and whether any risk of harm would be clear
to a reasonably prudent officer.
Wadewitz, 951 S.W.2d at 467.
The Texas Supreme Court has held this good-faith standard to be “analogous to an abuse-
of-discretion standard that protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Bonilla, 481 S.W.3d at 643. Consequently, “[g]ood faith does not require proof that all
reasonably prudent officers would have resolved the need/risk analysis in the same manner under
similar circumstances.” Id. Thus, if the government meets its burden of proof of conclusively
showing the officer acted with objective reasonableness, good faith is established “unless the
10
plaintiff shows that no reasonable person in the officer’s position could have thought the facts
justified the officer’s actions.” Id. Therefore, evidence that a reasonable officer could have
resolved the need/risk analysis differently does not overcome competent evidence of good faith.
Id. at 644.
El Paso argues that Villalobos’s and Herrera’s sworn affidavits and Stone’s expert report
“sufficiently demonstrate[d] that the officers deliberately considered and weighed the need and
risk factors and determined that a reasonably prudent officer in the same or similar circumstances
could have agreed with their course of action.” 1 We disagree that the evidence conclusively shows
the officers appropriately assessed the risk factors.
Need factors
Villalobos appropriately assessed the need to follow the suspects. In his affidavit, he
describes the probable cause he developed that he had just witnessed a burglary, the evidence he
had that the suspects had committed a previous burglary, and his belief that they would continue
to commit burglaries in the future if not immediately apprehended. He also described that he
needed to “travel at a rate of speed faster than the regular traffic on Stanton” to maintain visual
contact with the suspects’ speeding vehicle.
Appellees claim Villalobos failed to address all the Wadewitz factors related to need
because he failed to consider alternatives to a high-speed chase. Specifically, they claim the
officers could have stopped the suspects before they left the house. Villalobos, however, addressed
this option and explained it was not a viable one because of the risk it posed to both the officers
1
El Paso also appears to be arguing that because its officers were not in “pursuit” of the suspected burglars as that
term is defined by the EPPD Vehicular Pursuit Policy, the need/risk factors outlined by the Texas Supreme Court in
Wadewitz do not apply. However, we held in Cangialosi I that the Appellees have at least raised a fact issue as to
whether there was a “pursuit” at the time of the accident.
11
and any individuals who may have been in the home. While a reasonable officer may disagree with
Villalobos’s analysis, “[g]ood faith does not require proof that all reasonably prudent officers
would have resolved the need/risk analysis in the same manner under similar circumstances.”
Bonilla, 481 S.W.3d at 643. As a result, Villalobos’s assessment of why the suspects were not
stopped at the house complies with the good-faith standard.
Appellees also argue the officers could have let the suspects go without a chase and arrested
them later because they had identified the registered address of the suspects’ vehicle. Indeed, the
record shows that Villalobos was aware of the vehicle’s registered address before the suspects sped
away from the house. Yet he does not address this alternative in his affidavit. Instead, he states
that the only alternatives to the high-speed chase were “to pull back and lose visual contact of the
suspects” or “to only drive at the posted speed limit,” either of which “would have likely allowed
them to get away.” It would have been helpful had Villalobos addressed whether he considered
this alternative and why he did not consider it a viable option. However, his failure to do so is not
fatal to a finding of good faith. The Texas Supreme Court has explained that “just because an
officer has identified a suspect and could apprehend him later but decides to pursue the suspect
anyway cannot alone defeat good faith.” Clark, 38 S.W.3d at 588.
Risk factors
While the officers appropriately assessed the need to follow the suspects, the officer’s risk
assessment was deficient. Officer Villalobos stated “[g]iven the time of day, around 1:20 pm, four
lanes of traffic with two in each direction, I determined that there was plenty of space on the
roadway to safely go around the other vehicles on the [sic] Stanton.” He continued that he was
“very familiar with the area,” that the “incident occurred in broad daylight, with clear weather and
roadway conditions, and no issues with visibility.” He said he considered these conditions in
12
deciding to “travel at a rate of speed faster than the regular traffic on Stanton” to maintain visual
contact with the suspects. Officer Herrera considered the same conditions in deciding to “travel at
a rate of speed faster than the regular traffic on Stanton” to conduct a controlled stop in his marked
police unit. Dr. Stone echoed both Officers Villalobos and Herrera by concluding that “[t]o
maintain visual contact with the suspects’ vehicle, a reasonably prudent officer would have had to
travel faster than the regular traffic on Stanton.”
This evidence is not sufficient to show that Officers Villalobos and Herrera adequately
assessed the risks of chasing Roacho and Sanchez. El Paso was required to show, with
substantiated facts, that Officers Villalobos and Herrera assessed the nature and severity of harm
that their actions could cause, including injuries to bystanders. Wadewitz, 951 S.W.2d at 467;
Clark, 38 S.W.3d at 581. The officers’ affidavits check the boxes regarding the time of day and
road and weather conditions, which are important factors they must consider in deciding to
continue a high-speed chase. Yet the officers do not provide any details regarding their assessment
of the risk their speed caused to the general public present that day on Stanton Street. Officers
Villalobos and Herrera and Dr. Stone’s only mention of speed is that the officers were “traveling
faster than the regular traffic on Stanton.” All three ignore the fact that the officers were traveling
at least double the posted speed limit, and none give any indication of how fast traffic was moving
at the time. For example, Officer Villalobos traveling at 60 miles per hour while the rest of the
traffic is going 10 miles per hour poses a significantly different risk than him going the same speed
while the rest of traffic is going 50 miles per hour. El Paso does not provide any evidence that
would allow a court to determine whether the officers’ risk assessment was objectively reasonable.
Further, while Officer Villalobos indicates that he was “driving an unmarked vehicle”
without “any police markings and did not have any police lights,” he did not provide any evidence
13
indicating he assessed the risk of driving at least double the speed limit without any way of alerting
the public to the danger he posed coming down Stanton Street. As a result, El Paso’s evidence
does not conclusively establish its claim that Officers Villalobos and Herrera were acting in good
faith. 2
Conclusion
Having found that El Paso did not meet its initial burden of establishing good faith, we
need not consider whether Appellees successfully controverted El Paso’s evidence. Clark, 38
S.W.3d at 588. Accordingly, we find the trial court did not err in denying El Paso’s plea to the
jurisdiction and overrule El Paso’s first issue.
B. Emergency exception
In its second issue, El Paso argues Appellees’ claims fall within the TTCA’s emergency
exception. If they do, then § 101.021(1)(A) does not waive El Paso’s immunity from those claims
even if they would otherwise fall within the scope of that waiver. City of San Antonio v. Maspero,
640 S.W.3d 523, 529 (Tex. 2022); TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A).
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 law or
ordinance, if the action is not taken with conscious indifference or reckless
disregard for the safety of others[.]
2
We do not express an opinion on whether El Paso could have conclusively established good faith if Officers
Villalobos or Herrera had presented evidence regarding their assessment of the risk their speed caused to the general
public. Today’s holding only recognizes that the lack of evidence regarding their speed precludes a finding of good
faith.
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TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). The Appellees bear the burden of negating
§ 101.055’s applicability. Maspero, 640 S.W.3d at 529. Appellees do not dispute that the officers
in this case were responding to an emergency situation. Therefore, they had the burden of raising
a fact issue that the officers either (1) violated a law or ordinance applicable to an emergency
response, or (2) (absent an applicable law or ordinance) acted with reckless disregard for the safety
of others. Id.
Ordinance applicable to an emergency response
Appellees identify City of El Paso Ordinance 12.12.010 as applicable here; this ordinance
gives emergency vehicle drivers in the city privileges to transgress certain traffic laws in
emergency situations. The relevant portion of the ordinance that allows an emergency vehicle to
drive faster than the posted speed limit states: “The driver of an emergency vehicle may . . .
[e]xceed the prima facia speed limits when such vehicle is operated . . . in the immediate pursuit
of an actual or suspected violator of the law . . . .” EL PASO, TEX., CODE OF ORDINANCES ch. 12.12,
§ 010(B)(3) (2016). But this allowance is provided only if the emergency vehicle uses appropriate
warning signals:
The exemptions herein granted to an authorized emergency vehicle shall apply only
when the driver of any such vehicle while in motion sounds audible signal by bell,
siren or exhaust whistle, as may be reasonably necessary, and/or when the vehicle
is equipped with at least one lighted lamp displaying a red light visible under
normal atmospheric conditions from a distance of five hundred feet to the front of
such vehicle, except that an authorized emergency vehicle operated as police
vehicle need not be equipped with or display a red light visible from in front of the
vehicle.
EL PASO, TEX., CODE OF ORDINANCES ch. 12.12, § 010(C) (2016) (emphasis added).
Appellees contend Officer Villalobos violated this ordinance when he sped in response to
an emergency situation without sounding an audible signal by siren or other means. While it is
15
undisputed that the car Officer Villalobos was driving did not have any type of audible siren,
El Paso responds that sirens are only needed “as may be reasonably necessary.”
We find the record raises a fact issue regarding whether it was “reasonably necessary” for
Officer Villalobos to have needed an audible signal or siren. Officer Villalobos does not provide
any details in his affidavit regarding his decision to follow the suspects without a siren; he only
generally claims that his actions in following the suspected burglars was reasonable and in no
way reckless. Yet Officer Herrera conditioned the reasonableness of his speed that day, at least
in part, on the fact that he had lights and sirens: “Given the time of day, around 1:30 p.m., four
lanes of traffic with two in each direction, I determined that there was plenty of space on the
roadway to safely go around the other vehicles on the [sic] Stanton, especially since I had
activated my lights and siren.” Further, another officer in an unmarked unit that day testified that
he did not think it was safe for him to speed that day because of the heavy traffic present on
Stanton Street. As a result, we are left with a question of fact regarding the reasonableness of
Villalobos’s actions in speeding in a vehicle without audible sirens. Because there is a fact
question regarding whether Villalobos violated an El Paso ordinance applicable to emergency
situations, the trial court did not err in denying the plea to the jurisdiction. Consequently, we
overrule El Paso’s second issue.
C. Intentional tort exception
In its third issue, El Paso argues Appellees’ claims fall within the TTCA’s intentional tort
exception: § 101.057 of the TTCA does not apply to a claim “arising out of assault, battery, false
imprisonment, or any other intentional tort . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 101.057.
The Texas Supreme Court has held that the TTCA’s intentional tort exception applies only when
it is the intentional tort of a governmental employee whose conduct is the subject of the complaint.
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Delaney v. University of Houston, 835 S.W.2d 56, 59 (Tex. 1992). Appellees’ claims here stem
from El Paso’s alleged negligence. There is no allegation in this case that any of the EPPD officers
committed an intentional tort. Consequently, the intentional tort exception is inapplicable. We
overrule El Paso’s third issue.
IV. CONCLUSION
Because the trial court did not err in denying El Paso’s plea to the jurisdiction, we affirm
its judgment.
LISA J. SOTO, Justice
April 11, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
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