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					              NO. _________



             IN THE
     SUPREME COURT OF TEXAS


       HARRIS COUNTY, TEXAS,
                  Petitioner

                     v.

              RAUL GARZA
                    Respondent


       On Petition for Review from the
Fourteenth Court of Appeals at Houston, Texas


       PETITON FOR REVIEW
     OF HARRIS COUNTY, TEXAS



                   VINCE RYAN
                   Harris County Attorney

                   By Frank Sanders
                   Assistant County Attorney
                   1019 Cosngress Ave., 15th Floor
                   Houston, Texas 77002
                   (713) 755-7961
                   (713) 755-8924 fax

                   ATTORNEYS FOR PETITIONER
                   HARRIS COUNTY, TEXAS
                    IDENTITY OF PARTIES AND COUNSEL


Parties:

      Harris County, Texas – Defendant/Appellee/Petitioner

      Raul Garza – Plaintiff/Appellant/Respondent


Trial and Appellate Counsel:

      Frank Sanders – Trial and appellate counsel for Harris County, Texas
      Assistant Harris County Attorney
      1019 Congress Ave., 15th Floor
      Houston, Texas 77002
      713-755-7961
      713-755-8924 fax

      R. Keith Weber – Trial and appellate counsel for Raul Garza
      Woodfill & Pressler LLP
      2 Houston Center
      909 Fannin, Suite 1470
      Houston, Texas 77010
      713-751-3080
      713-751-3058 fax




                                          ii
                                               TABLE OF CONTENTS

Identity of Parties and Counsel............................................................................................ ii

Table of Contents................................................................................................................iii

Index of Authorities............................................................................................................. v

Statement of the Case .......................................................................................................viii

Statement of Jurisdiction ..................................................................................................... x

Issues Presented

          1. Whether the court of appeals acted appropriately in reversing the trial
             court’s granting of Harris County’s Plea to the Jurisdiction in
             connection with a one car motor vehicle accident that occurred at a time
             when Harris County’s driver, a deputy constable, was attempting to
             follow, without speeding or violating any traffic laws, a car in which
             three individuals were fleeing that the deputy had observed trying to
             break into a closed bar while Raul Garza was a prisoner in the deputy’s
             vehicle because of the existence of a departmental policy against
             participating in vehicular pursuits if a deputy was transporting a
             prisoner. ............................................................................................................ xi

          2. Whether the court of appeals erred in holding that the existence of a
             departmental policy against participating in vehicular pursuits if a
             deputy was transporting a prisoner deprived the deputy/driver in
             question of discretion to act when he directly observes criminal activity
             so as to deprive Harris County and its deputy/driver of the defense of
             official immunity. ............................................................................................. xi

Statement of Facts ............................................................................................................... 2

Summary of the Argument .................................................................................................. 2

Argument ............................................................................................................................. 3

          Issues 1 and 2: The court of appeals erred in reversing the trial court’s
          grant of a plea to the jurisdiction on behalf of Harris County on the basis
          that a departmental policy against participating in vehicular pursuits
          deprived Harris County’s deputy/driver of the element of discretion
          necessary to support the defense of official immunity when the deputy


                                                                  iii
            attempted to follow three individuals who fled in a car when the deputy
            observed them attempting to break into a business (bar) that was closed. .............. 3

     I.        Ministerial vs. Discretionary............................................................................... 6

     II.       Policy ................................................................................................................ 11

     III.      Sovereign Immunity Preserved......................................................................... 14

Prayer................................................................................................................................. 15

Certificate of Service ......................................................................................................... 16

Appendix




                                                                   iv
                                        INDEX OF AUTHORITIES

Cases                                                                                                           page(s)

Anderson v. Higdon,
695 S.W.2d 320 (Tex. App.—Waco 1985, writ ref’d n.r.e.)............................................. 10

Antu v. Eddy,
914 S.W.2d 166 (Tex. App.—San Antonio 1995, no pet.) ............................................. 8, 9

Augustine v. Nusom,
671 S.W.2d 112 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) ....................... 6

Blackwell v. Harris County,
909 S.W.2d 135 (Tex. App.—Houston [14th Dist.] 1995, pet. denied)........................ 3, 13

Carpenter v. Barner,
797 S.W.2d 99 (Tex. App.—Waco 1990, writ denied)............................................. 7, 9, 10

Chambers v. City of Lancaster,
881 S.W.2d 650 (Tex. 1994) ............................................................................................. 13

Chapa v. Aguilar,
962 S.W.2d 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.)....................................... 8

Chapman v. Gonzales,
824 S.W.2d 685 (Tex. App.—Houston [14th Dist.] 1992, pet. denied).................... 6, 7, 13

City of LaJoya v. Herr,
41 S.W.2d 755 (Tex. App.—Corpus Christi 2001, no pet.) .............................................. 14

City of Lancaster v. Chambers,
883 S.W.2d 650 (Tex. 1994) ........................................................................................... 4, 8

City of Laredo v. Nuno,
94 S.W.3d 786 (Tex. App.—San Antonio 2002, no pet.) ................................................. 14

Clement v. City of Plano,
26 S.W.3d 544 (Tex. App.—Dallas 2000, no pet.) ........................................................... 15

Dent v. City of Dallas,
729 S.W.2d 114, 117 (Tex. App.—Dallas 1986, writ ref’d n.r.e.).................................... 10



                                                            v
DeWitt v. Harris County,
904 S.W.2d 650 (Tex. 1995) ............................................................................................. 14

Graham v. Connor,
490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ..................................................... 5

Harris County v. Gibbons,
150 S.W.3d 877 (Tex. App.—Houston [14th Dist.] 2004, no pet.) .................................. 14

Johnson v. Campbell,
142 S.W.3d 592 (Tex.App.—Texarkana 2004, pet. denied)............................................. 12

Moore v. State,
562 S.W.2d 484 (Tex.Crim.App. 1978) .............................................................................. 4

Rains v. Simpson,
50 Tex. 495 (1978) .............................................................................................................. 7

Rhodes v. Torres,
901 S.W.2d 794 (Tex. App.—Houston [14th Dist.] 1995, no pet.) .............................. 3, 12

Tex. Dep’t of Pub. Safety v. Cordes,
85 S.W.3d 342 (Tex. App.—Austin 2002, no pet.)........................................................... 14

Titus Regional Medical Center v. Tretta,
180 S.W.3d 271 (Tex.App.—Texarkana 2005, no pet.) ................................................... 12

Torres v. Owens,
380 S.W.2d 30 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e. .............................. 6

Univ. of Houston v. Clark,
38 S.W.3d 578 (Tex. 2000) ............................................................................................... 14

Vasquez v. Hernandez,
844 S.W.2d 802 (Tex. App.—San Antonio 1992, writ dism’d w.o.j.).............................. 13

Wyse v. Dep’t of Pub. Safety,
733 S.W.2d 224 (Tex.App.—Waco 1986, writ ref’d n.r.e.).............................................. 10

Statutes

TEX. CODE CRIM. PROC. ANN. art. 2.13 (Vernon 1977)............................................ passim



                                                                vi
TEX. CODE CRIM. PROC. ANN. art. 6.06 (Vernon 1995)............................ 4, 7, 8, 10, 13, 14

TEX. GOV’T CODE ANN. § 22.001(2)................................................................................... x

TEX. GOV’T CODE ANN. § 22.001(6)................................................................................... x




                                                        vii
                       STATEMENT OF THE CASE

Nature of the Case:    This is a case to recover monetary damages for personal
                       injuries allegedly sustained by Raul Garza when the constable
                       patrol vehicle in which he was being transported slid off a
                       roadway while the deputy/driver was attempting to follow
                       three individuals who fled in a car after the deputy observed
                       them attempting to break into a closed bar.

Name of the Judge:     The Honorable Randy Wilson was the district court judge
                       who signed the order appealed from.

Trial Court:           The trial court was the 157th District Court of Harris County,
                       Texas.

Disposition by Trial
Court:                 The trial court signed an order (CR 72) granting Harris
                       County’s plea to the jurisdiction and dismissing the case for
                       want of jurisdiction. The order is attached hereto as Appendix
                       1.

Parties in court of
Appeals:               The Appellant was Raul Garza and the Appellee was Harris
                       County, Texas.

District of Court
Of Appeals:            Court of Appeals, Fourteenth District of Texas, at Houston,
                       Texas.

Names of Justices:     Justice Sharon McCally authored the opinion, and Justices
                       John Anderson and Charles Seymore participated in the
                       decision.

Citation:              Garza v. Harris County; No. 14-10-00764-CV (Tex.App.—
                       Houston [14th Dist.] 2011, no pet. h.).

Court of Appeals
Disposition:           On February 1, 2011, the Fourteenth Court of Appeals issued
                       an opinion reversing the trial court’s grant of Harris County’s
                       plea to the jurisdiction holding that policy of the constable’s
                       office against participating in vehicular pursuits if a deputy
                       was transporting a prisoner deprived the deputy/driver of the
                       discretion necessary to support the defense of official


                                      viii
immunity. A copy of the court of appeals’ opinion is attached
as Appendix 2. Harris County filed a motion for en banc
reconsideration that was overruled on February 24, 2011. A
copy of the postcard stating that the motion for
reconsideration was overruled is attached as Appendix 3.




                ix
                          STATEMENT OF JURISDICTION

       The Supreme Court has jurisdiction pursuant to § 22.001(2), TEX. GOVT. CODE,

because the Fourteenth Court of Appeals holding that a departmental policy deprived a

deputy/driver who was a Texas peace officer of discretion to take action and attempt to

follow a vehicle in which three individuals who the deputy had observed attempting to

break into a closed business were fleeing conflicts with the following cases that hold the

existence of a policy does not deprive a governmental employee of discretion: Titus

Regional Medical Center v. Tretta, 180 S.W.3d 271, 274 (Tex. App.—Texarkana 2005,

no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet.

denied); Rhodes v. Torres, 901 S.W.2d 794, 800 (Tex. App.—Houston [14th Dist.] 1995,

no pet.). In addition the Supreme Court has jurisdiction pursuant to § 22.001(6), Tex.

Govt. Code, because an error of law has been committed by the court of appeal, and that

error is of such importance to the jurisprudence of the state that it requires correction by

the Supreme Court, because the court of appeals opinion in question deprives peace

officers of discretion in situations where they directly observe a crime in progress, a

situation where they necessarily have to exercise discretion, and in which they are

required by Article 2.13 of the Texas Code of Criminal Procedure to suppress such

criminal activity/breach of the peace.




                                             x
                                 ISSUES PRESENTED

        1.     Whether the court of appeals acted appropriately in reversing the trial
court’s granting of Harris County’s plea to the jurisdiction in connection with a one car
motor vehicle accident that occurred at a time when Harris County’s driver, a deputy
constable and peace officer, was attempting to follow, without speeding or violating any
traffic laws, a car in which three individuals were fleeing that the deputy had observed
trying to break into a closed bar while Raul Garza was a prisoner in the deputy’s vehicle
because of the existence of a departmental policy against participating in vehicular
pursuits if a deputy was transporting a prisoner.

       2.     Whether the court of appeals erred in holding that the existence of a
departmental policy against participating in vehicular pursuits if a deputy was
transporting a prisoner deprived the deputy/driver in question of discretion when he
directly observes criminal activity so as to deprive Harris County and its deputy/driver of
the defense of official immunity.




                                            xi
                                     NO. __________



                                    IN THE
                            SUPREME COURT OF TEXAS


                              HARRIS COUNTY, TEXAS,
                                         Petitioner

                                              v.

                                      RAUL GARZA
                                            Respondent


                             On Petition for Review from the
                      Fourteenth Court of Appeals at Houston, Texas


                              PETITON FOR REVIEW
                            OF HARRIS COUNTY, TEXAS



TO THE HONORABLE SUPREME COURT OF TEXAS:

       Petitioner, Harris County, Texas submits this Petition for Review from the

February 1, 2011, decision of the Fourteenth Court of Appeals at Houston, which issued

an opinion reversing the trial court’s grant of Harris County’s plea to the jurisdiction

holding that policy of the constable’s office against participating in vehicular pursuits if a

deputy was transporting a prisoner deprived the deputy/driver of the discretion necessary

to support the defense of official immunity. Further, Harris County filed a motion for en

banc reconsideration which was overruled on February 24, 2011.



                                              1
                               STATEMENT OF FACTS

       On March 14, 2008, Petitioner’s driver, Deputy Jose Gonzalez, was transporting

Appellant to the Harris County jail when he (Deputy Gonzalez) observed three

individuals attempting to break into a bar at approximately 3:30 in the morning. The three

individuals got into a vehicle and fled, and Deputy Gonzalez made the decision to

attempt to follow them and keep them in sight without using his emergency equipment,

speeding or violating any traffic laws. While making a turn Deputy Gonazalez’ vehicle

slid sideways into a pole, and Appellant claims he was injured as a result. (CR 34-36).

                          SUMMARY OF THE ARGUMENT

       At the time of the incident that is the basis of this lawsuit Harris County’s

employee/driver was a licensed, on-duty peace officer, driving a marked patrol vehicle

with a prisoner, Raul Garza in it, who had observed a felony in progress, and was

required by Art. 2.13 of the Texas Code of Criminal Procedure to do something to

prevent or suppress such crime/breach of the peace. In order to respond, the Deputy had

to exercise his discretion and make decisions about what to try to do and how to go about

doing it. The Precinct 6 Constable’s Office’s policy in question (CR 69) did not take

away the deputy’s discretion to do something in response to the felony in progress he

witnessed, and it did not take away his discretion to attempt to follow the car in which the

felons were fleeing so he could relay information about their location to his dispatcher.




                                             2
                                     ARGUMENT

Issues 1 and 2: The court of appeals erred in reversing the trial court’s grant of a
plea to the jurisdiction on behalf of Harris County on the basis that a departmental
policy against participating in vehicular pursuits deprived Harris County’s
deputy/driver of the element of discretion necessary to support the defense of official
immunity when the deputy attempted to follow three individuals who fled in a car
when the deputy observed them attempting to break into a business (bar) that was
closed.

      On February 1, 2011, the court of appeals issued its opinion in this cause and

remanded the case to the trial court for further proceedings. The court of appeals opinion

holds that violation of a departmental policy of the Harris County Precinct 6 Constable’s

Office by a deputy constable transporting a prisoner who was involved in a one-car

accident after the deputy observed three individuals attempting to break into a closed bar

takes away the discretion on the part of the deputy that is required for the defense of

official immunity to apply. This contradicts with and is in conflict with the Fourteenth

Court of Appeals’ holding in Rhodes v. Torres, 901 S.W.2d 794, 800 (Tex.App. —

Houston [14th Dist.] 1995, no pet.). The Fourteenth Court of Appeals wrote in Rhodes:

             Indeed, Officer Torres, in deciding to depart from the
             guidelines and proceed with the arrest was engaging in a
             discretionary act, inasmuch as he could decide either t act on
             the information he had, or postpone the arrest and await for
             further developments.

In Rhodes the Fourteenth Court of Appeals characterized the policies in question as

“guidelines” and in the case at bar the policy (CR 69) at issue states it is, “to provide

guidance …”The February 1, 2011, opinion also conflicts with Articles 2.13 and 6.06 of




                                            3
the Texas Code of Criminal Procedure 1 . In Blackwell v. Harris County, 909 S.W.2d 135,

139 (Tex.App. — Houston [14th Dist.] 1995, pet. denied), the Fourteenth Court of

Appeals wrote:

               Additionally, “it is the duty of every peace officer to preserve
               the peace within his jurisdiction.” Tex.Code Crim.Proc.Ann.
               art. 2.13 (Vernon 1977). Whenever a peace officer observes a
               “person about to commit an offense against the person or
               property of another … it is his duty to prevent it.” Tex.Code
               Crim.Proc.Ann. art. 6.06 (Vernon Supp. 1995). Peace officers
               are not relieved of this responsibility simply because they are
               “off duty.” Moore v. State, 562 S.W.2d 484, 486
               (Tex.Crim.App. 1978).

If an “off duty” officer is not relieved of his duty to prevent crime he observes, the fact an

on duty officer is transporting a prisoner should not abrogate his duty to prevent crime.

       In its opinion in this cause the Fourteenth Court of Appeals described the

underlying incident at page 2 of its opinion (Appendix 2) as follows:

               While in transport, Deputy Gonzalez observed what he
               believed to be a felony in progress. He saw a man with a
               crowbar who appeared to be attempting to break into a bar.
               Deputy Gonzalez radioed for back-up, but the suspect saw the
               deputy and got into a Mustang with two other passengers. The
               Mustang drove away quickly, and Deputy Gonzalez decided
               to follow. He was driving at approximately the speed limit
               with his emergency lights and siren turned off. His goal was
               to maintain a visual on the Mustang, observe the license
               number, and radio-in the vehicle’s location so another officer
               could initiate a stop. While attempting to follow the Mustang,

1
  Article 2.13 provides, It is the duty of every peace officer to preserve the peace within the
officer’s jurisdiction.” And, requires officers to, “… interfere without warrant to prevent or
suppress crime…” and to “… arrest offenders without warrant in every case where the officer is
authorized by law …” Article 6.06 provides, “Whenever, in the presence of a peace officer, or
within his view, one person is about to commit an offense against the person or property of
another, including the person or property of his spouse, or injure himself, it is his duty to prevent
it …”


                                                 4
              Deputy Gonzalez took a turn at thirty miles per hour, and his
              vehicle slid off the street and hit a pole.

This shows that Harris County’s deputy was in an extremely difficult situation, he

witnessed a serious crime taking place at a time he was transporting a prisoner in his

patrol car. Deputy Gonzalez had to make a decision as to what to do, and because the

individuals he saw committing the crime got into a Mustang and fled the scene he had to

make a series of decisions very quickly. In City of Lancaster v. Chambers, 883 S.W.2d

650, 653-54 (Tex. 1994), it was recognized that police officers need the protection of

official immunity in precisely this type of situation:

              The court of appeals held that because the officers did not
              have discretion to drive their vehicles without due regard for
              the safety of others, their actions could not be protected by
              official immunity. 843 S.W.2d at 149. We disagree; the
              court’s focus should be on whether the officer is performing a
              discretionary function, not on whether the officer has
              discretion to do an allegedly wrongful act while discharging
              that function. If official immunity existed only in the cramped
              sense used by the court of appeals, its qualified promise
              against personal civil liability

Likewise, the United Supreme Court in Graham v. Connor, 490 U.S. 386, 397 109 S.Ct.

1865, 1872 104 L.Ed.2d 443 (1989), recognized the unique situation police officers face

when they have to make quick decisions as to how to carry out their duties:

              The calculus of reasonableness must embody allowance for
              the fact that police officers re often forced to make split-
              second judgments – in circumstances that are tense, uncertain
              and rapidly evolving – about the amount of force that is
              necessary in a particular situation.

This is exactly the situation that Deputy Jose Gonzalez found himself in when he saw the

individuals trying to break into a closed bar at 3:30 in the morning while he was


                                              5
transporting Raul Garza in his vehicle. In Chambers this court rejected the argument that

the violation of a statutory traffic law took away the officers’ discretion, and here the

argument that a mere policy intended to provide “guidance” should deprive the officer of

discretion should be rejected.

I.     Ministerial vs. Discretionary

       Respondent Raul Garza judicially admitted at page 4 of his brief file in the court

of appeals that Deputy Gonzalez, was acting in good faith and within the scope of his

authority at the time of the accident that is the basis of this cause. Respondent argued, and

the court of appeals agreed, that the deputy was engaged in a ministerial act at the time in

question, and, therefore, was not exercising the discretion necessary for official immunity

to apply. Petitioner disagrees, the evidence clearly establishes that at the time in question

Deputy Gonzalez was faced with a situation that required him to make quick decisions

about what he should do, and how he should go about doing it. The making of such

decisions and carrying them out is the very essence of the exercise of discretion. The

exercise of discretion was described as follows in Chapman v. Gonzales, 824 S.W.2d

685, 687 (Tex. App.-Houston [14th Dist.] 1992, pet. denied):

              …duties which are discretionary involve acts requiring
              personal deliberation, decision, and judgment on the part of
              the officer or employee. Id. A state officer or employee who
              “is required to pass on facts and determine his action by the
              facts found” is performing duties that are “quasi-judicial” in
              nature and are discretionary. Torres, 380 S.W.2d at 33-34.
              See also Augustine v. Nusom, 671 S.W.2d 112, 115
              (Tex.App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.) (state
              employees that gather facts and act, perform discretionary
              duties).



                                             6
In Chapman the issue before the court was whether or not an employee of the Harris

County Sheriff’s Department was exercising discretion when she attempted to assist an

applicant who was taking a physical agility test or was engaged in a ministerial act. The

court described ministerial acts as follows at page 687:

               Where duties are prescribed and defined by the law “with
               such precision and certainty as to leave nothing to the
               exercise of discretion or judgment, the act is ministerial.”
               Carpenter, 797 S.W.2d at 101 (quoting Rains v. Simpson, 50
               Tex. 495, 501 (1978)). Ministerial duties require only
               obedience to orders, or the performance of a duty in which
               the employee or officer has no choice of his own.

Respondent and the court of appeals focused exclusively on the fact that at the time in

question Petitioner’s driver was transporting a prisoner 2 , and totally ignored the fact that

such driver was also seeing with his own eyes a felony in progress, and the persons

committing such felony get into a car and flee the scene of their crime. There is no

dispute that very shortly before Deputy Gonzalez’ vehicle slid into a pole, the deputy,

while transporting Raul Garza to jail, observed what amounted to a felony in progress,

three individuals breaking into a closed bar. (CR 34, 35, 44, 57, 58). Harris County

pointed out in its plea to the jurisdiction (CR 26) that pursuant to Article 2.13 of the

Texas Code of Criminal Procedure 3 Deputy Gonzalez had a duty to do something to


2
  While the Fourteenth Court of Appeals gave great weight to the Precinct 6 policy, they ignored
the statutory duty imposed on all peace officer to suppress and prevent crime by Articles 2.13
and 6.06 of the Texas Code of Criminal Procedure.
3
  Article 2.13 provides: “(a) It is the duty of every peace officer to preserve the peace within the
officer’s jurisdiction. To effect this purpose, the officer shall use all lawful means. (b) The
officer shall: (1) in every case authorized by the provisions of this Code, interfere without
warrant to prevent or suppress crime; (4) arrest offenders without warrant in every case where
the officer is authorized by law, in order that they may be taken before the proper magistrate or
court and be tried.


                                                 7
prevent or suppress the crime he directly witnessed. It has been expressly and specifically

held that, “An on-duty officer in his squad car is performing a discretionary duty within

the scope of his authority when he pursues a suspect.” Chapa v. Aguilar, 962 S.W.2d

111, 114 (Tex.App.-Houston [1st Dist.] 1997, no pet.) citing City of Lancaster v.

Chambers, 883 S.W.2d 655, 658 (Tex. 1994). Emphasis added.

         In Antu v. Eddy, 914 S.W.2d 166, 172 (Tex.App. — San Antonio 1995, no pet.), a

police officer entered a house after people across the street told the officer someone had

tried to break into their house then fled into a house across the street, and the Court

wrote:

               We conclude that Antu performed a discretionary act within
               his authority and in good faith when he entered the Eddy’s
               house in pursuit of a person whom he believed to be a fleeing
               felon. Because he is entitled to official immunity in this
               regard he is not liable for any negligent actions occurring
               during the course of his entry and pursuit of Bradley.

         The fact that Petitioner’s driver had a prisoner in his vehicle at the time he

observed a felony in progress did not take away his discretion to do something to respond

to that felony. Nor does such fact override or in any way negate the mandates of Articles

2.13 and 6.06 of the Texas Code of Criminal Procedure, that Deputy Gonzalez do

something to prevent or suppress the crime he witnessed. In his affidavit (CR 34 – 36),

Petitioner’s driver stated that when he observed the criminal activity he believed he had a

duty under the Code of Criminal Procedure to do something about such activity, that his

only recourse was to follow the fleeing felons so he could report their location, and that

he attempted to do so without speeding or breaking any traffic laws. (CR 35-36). So,



                                            8
while not engaging in a high-speed pursuit or a hot pursuit, Appellee’s driver was

following a vehicle and trying to maintain visual contact with it so that hopefully the

perpetrators of a crime could be apprehended. (CR 35). The fact that Deputy Gonzalez

did what he did and made decisions about what to do and how to go about doing it

absolutely shows that he was exercising his discretion in this matter; that he considered

the situation he was with a prisoner in his car and that he adapted his response

accordingly.. The mere fact that Deputy Gonzalez observed a serious crime in progress

and then had to make a series of decisions about how to respond to it establishes that he

was exercising discretion. Article 2.13 of the Texas Code of Criminal Procedure

mandated that Deputy Gonzalez do something to prevent or suppress the criminal activity

he observed, but it left the manner of doing so up to the deputy. Deputy Gonzalez had to

take into account all of the existing facts and circumstances 4 and make decisions as to

how to respond to the criminal activity he had witnessed with a prisoner in the back of his

car. Deputy Gonzalez was in a situation where he had to make quick decisions, and this is

the epitome of exercising discretion, and is exactly the type of difficult scenario in which

official immunity applies to protect officers and their governmental employers. ”This

immunity, variously known as governmental, official, quasi-judicial or qualified

immunity, evolved out of a public policy that encourages public officers to carry out their

duties without fear of personal liability. Carpenter v. Barner, 797 S.W.2d 99, 101

(Tex.App.-Waco 1990, writ denied). “Official immunity protects peace officers.” Id,


4
 The facts and circumstances, such as time of night, area, lack of traffic, lack of pedestrians, etc.
are set out in Deputy Gonzales’ affidavit. (CR 35).


                                                 9
citing Wyse v. Department of Public Safety, 733 S.W.2d 224, 227 (Tex.App. — Waco

1986, writ ref’d n.r.e.); Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.App.-Dallas

1986, writ ref’d n.r.e.); Anderson v. Higdon, 695 S.W.2d 320, 324 (Tex.App. —Waco

1985, writ ref’d n.r.e.). Carpenter at page 102 discusses how a deputy constable’s

decisions about what to do and how to go about doing it when he encountered a car with

no taillights late at night was discretionary.

       The court of appeals’ holding that Deputy Gonzalez had no discretion to try and

follow the fleeing criminals’ vehicle or to do anything other than to transport his prisoner

directly to jail ignores a peace officer’s responsibility to respond to criminal activity, and

is in direct conflict with Articles 2.13 and 6.06 of the Texas Code of Criminal Procedure.

Such holding also renders the concept of official immunity meaningless if it does not

apply in a situation such as this where a peace officer has to make decisions as to how to

respond to blatant criminal activity where he is operating under conflicting statutes, ruled

or guidelines.

       Also submitted as evidence in connection with Petitioner’s Plea to the Jurisdiction

was the affidavit (CR 37-40) of Sergeant Stacy Schuelke of the Precinct 6 Constable’s

Office, a supervisor with 18 years of experience in law enforcement, 12 years of which

were as a patrol officer. Sergeant Schuelke specifically stated that Deputy Gonzalez had a

prisoner in his vehicle, and when he observed the crime in progress he had an obligation

to respond to suppress such crime, and that Deputy Gonzalez had to exercise discretion in

dealing with the situation he was confronted with. Sergeant Schuelke went on to say that




                                                 10
is his opinion Deputy Gonzalez was acting in good faith, and that other reasonable

officers in Deputy Gonzalez’ would have acted just as he did. (CR 39).

       Respondent brought forth no evidence, other than a policy of the Precinct 6

Constable’s Office, that Deputy Gonzalez did not have the discretion to carry out his

sworn duty to uphold the law and to comply with Article 2.13 of the Texas Code of

Criminal Procedure.

II.    Policy

       First of all, there is no evidence that Deputy Gonzalez violated the policy that

Appellant relies on. The only evidence before the court is that Deputy Gonzalez

attempted to follow the car with the three fleeing felons in it without activating his

emergency equipment, without exceeding the speed limit 5 and without violating any

traffic laws. (CR 35). Respondent Raul Garza testified in his deposition that Deputy

Gonzalez was performing his job as a policeman, and was not trying to get into an

accident or to cause something bad to happen. (CR 58). Gonzalez’ decisions to follow the

fleeing car, and as to how he was going to go about following such car, and try to keep it

in sight involved the exercise of discretion.

       Secondly, Texas courts have held that the violation of a mere policy does not

deprive an officer of the protection of official immunity. In a case where a deputy entered

an intersection against a red light going 35 miles per hour with no lights or siren in use,


5
  Sergeant Schuelke stated in his affidavit that based on his observations at the scene and his
experience, the condition of the vehicle was consistent with a speed of 30 miles per hour. (CR
38). The Texas peace officer’s crash report (CR 52) states that the speed limit where the accident
occurred was 30 miles per hour.


                                                11
and testified at his deposition that according to the Sheriff’s Department’s written

policies he should have had his emergency lights and siren activated, the Texarkana

Court of Appeals held the deputy was entitled to official immunity and wrote, “We have

already noted that an officer’s good faith is not rebutted by evidence that he violated the

law or department policy in making his response.” Johnson v. Campbell, 142 S.W.3d

592, 596 (Tex.App. — Texarkana 2004, pet. denied). Emphasis added. “If the officer or

employee acts within the scope of his authority in the performance of discretionary duties

and acts in good faith, he is entitled to official immunity even though his acts are

negligent or against the governmental entity’s regulations or policy.” Titus Regional

Medical Center v. Tretta, 180 S.W.3d 271, 274 (Tex. App.—Texarkana 2005, no pet.).

Emphasis added. “Mandatory language in a statute or policy does not of itself, make an

act ministerial.” Titus Regional Medical Center v. Tretta at 275. Emphasis added. A

probation officer’s failure to follow the guidelines in a departmental manual did not

deprive the officer of the protection of official immunity in Rhodes v. Torres, 901 S.W.2d

794, 800 (Tex.App. — Houston [14th Dist.] 1995, no pet.). In fact, the Fourteenth Court

of Appeals’ holding in the case at bar conflicts with their holding in Rhodes where they

wrote at page 800:

             Indeed, Officer Torres, in deciding to depart from the
             guidelines and proceed with the arrest was engaging in a
             discretionary act inasmuch as he could decide either to action
             the information he had, or postpone the arrest and await for
             further developments.

In Rhodes the Fourteenth Court of Appeals characterized the policies in question as

“guidelines” in the case at bar, the stated purpose of the policy (CR 69) upon which


                                            12
Respondent and the court of appeals relied is, “to provide guidance…” The court of

appeals opinion in this case also conflicts with Articles 2.13 and 6.06 of the Texas Code

of Criminal Procedure and language contained in Blackwell v. Harris County, 909

S.W.2d 135, 139 (Tex. App.—Houston [14th Dist.] 1995, pet. denied):

             Additionally, “it is the duty of every police officer to preserve
             the peace within his jurisdiction.” Tex.Code Crim.Proc.Ann.
             art. 2.13 (Vernon 1977). Whenever a police officer observes a
             “person is about to commit an offense against the person or
             property of another … it is his duty to prevent it.” Tex.Code
             Crim.Proc.Ann. art. 6.06 (Vernon Supp.1995).


      Since neither negligence nor violations of statutes, such as traffic laws, on the part

of a police officer while operating a vehicle will defeat his entitlement to official

immunity, it follows that violations of departmental policy will not defeat immunity. This

Court wrote at page 655 in Chambers v. City of Lancaster, 881 S.W.2d 650 (Tex. 1994):

             Chambers’ argument that an officer is without discretion to
             drive in a manner which violates these statutorily-imposed
             standards of care, inexorably leads to the conclusion that an
             officer is not entitled to immunity if the officer is negligent.
             That formulation of the standard frustrates official
             immunity’s very function. If public officials perform their
             duties without negligence, they do not need immunity. The
             complex policy judgment reflected by the doctrine of official
             immunity, if it is to mean anything, protects officers from suit
             even if they acted negligently. See Chapman v. Gonzalez, 824
             S.W.2d 685, 687-88 (Tex.App.-Houston [14th Dist.] 1992,
             writ denied); Vasquez, 844 S.W.2d at 804 (“Questions of the
             officer’s individual negligence … are immaterial when
             deciding whether the officer was performing discretionary
             functions.”). (citing Carpenter, 797 S.W.2d 101).

The cited cases, along with Articles 2.13 and 6.06 of the Texas Code of Criminal

Procedure, show that as a matter of law Petitioner’s driver was exercising discretion


                                            13
when he attempted to follow a car containing three fleeing felons so he could keep it in

sight and report on its location. Accordingly, Petitioner’s driver, Deputy Jose Gonzalez,

should be protected by the doctrine of official immunity.

       The practical effect of the Fourteenth Court of Appeals’ opinion of February 1,

2011 is to abolish the doctrine of official immunity for Texas peace officers because the

various numerous policies of law enforcement agencies can in almost every case can be

held to overrule and take away the individual officer’s discretion when he is faced with

an emergency or dangerous situation involving criminal activity. The plain wording of

the policy (CR 69) in question that states it is merely a guideline shows that there is no

intent to take away the officer’s discretion, such officer still has a duty pursuant to

Articles 2.13 and 6.06 of the Texas Code of Criminal Procedure to take action when he

sees a crime being committed.

III.   Sovereign Immunity Preserved

       Since Harris County’s employee should be entitled to the protection of official

immunity there is no waiver of Harris County’s sovereign immunity. DeWitt v. Harris

County, 904 S.W.2d 650, 653 (Tex. 1995). “When official immunity shields a

governmental employee from liability, sovereign immunity shields the governmental

employer from vicarious liability.” University of Houston v. Clark, 38 S.W.3d 578, 580

(Tex. 2000); See also Harris County v. Gibbons, 150 S.W3d 877, 885 (Tex. App.—

Houston [14th Dist.] 2004, no pet.); City of Laredo v. Nuno, 94 S.W.3d 786, 789 (Tex.

App.—San Antonio 2002, no pet.); Texas Department of Public Safety v. Cordes, 85

S.W.3d 342, 244 (Tex. App.—Austin 2002, no pet.); City of LaJoya v. Herr, 41 S.W.2d


                                            14
755, 759 (Tex. App.—Corpus Christi 2001, no pet.); Clement v. City of Plano, 26 S.W.3d

544, 550 (Tex. App.—Dallas 2000, no pet.).

       WHEREFORE, PREMISES CONSIDERED, Petitioner, Harris County, Texas,

prays that its Petition for Review be granted, and that the opinion of the Fourteenth Court

of Appeals be reversed, and that this cause be dismissed for want of subject matter

jurisdiction due to the fact that Deputy Jose Gonzalez was protected by official immunity

at the time of the incident in question.



                                                 Respectfully submitted,

                                                 VINCE RYAN
                                                 Harris County Attorney


                                                 By: /s/ Frank Sanders
                                                 Frank Sanders SBN 17588500
                                                 Assistant County Attorney
                                                 1019 Congress Ave., 15th Floor
                                                 Houston, Texas 77002
                                                 (713) 755-7961
                                                 (713) 755-8924 fax

                                                 ATTORNEYS FOR PETITIONER
                                                 HARRIS COUNTY, TEXAS




                                            15
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Petition for Review

was mailed by certified mail, return receipt requested, to Mr. R. Keith Weber, Jr. at 909

Fannin, Suite 1470, Houston, Texas 77010 on this the 8th day of March, 2011.

                                                /s/ Frank Sanders
                                                Frank Sanders




                                           16
APPENDIX
                          APPENDIX

Tab No.   Description



1         Order [July 23, 2010]

2         Memorandum Opinion of Fourteenth Court of Appeals
          [February 1, 2011]

3         Notice from Fourteenth Court of Appeals-Motion for En
          Banc Consideration overruled [February 24, 2011]
      TAB 1

Order [July 23, 2010]
     06/07/2010 10:38:11 fM                                       713-755-9466                               Pa.gc 1   /   1
                                                                                                                       Filed 10 June 04 A12:00
                                                                                                                       Loren Jackson· District Clerk
                                                                                                                       Harris County

                                                            9Dv1- 5Y L51                                               FAX14971476




                     RAUL GARZA
                                                                       NO. 1(H$·54159

                                                                                      IN THE DISTRICT (,OrR!' OF,
                                                                                                                                   =?- (
                     VS.                                                              HARRIS COl'NT\" Tl,:X,\S                     fA<~
                     HARRIS COUNT'l, TEXAS                                             IS/!Il JtlI)JCIAL DISTRICT                         )   \

                                                                          OROER

                                      IJF IT RFi'vfF\:fBERED that on {he day hcreillbelow \vrinell, ihe Pic::! [0 tile



                     Cllnsidc:red :iuch P]e,j and        th,-,~   (Ipplicabk 1mx. and allY response thcrclll. becamc ni' the

                     opinion thai slich Plea iii gllOd. ami should be in all things granfcd and suc,lained. it is



                                  ORD[R[l) tnaf DcfcllCbl11 Harris COLl!l(~"S Plea lU tbe JU!'isdidion is hereby in

                     ~dl   things grn.l1kd. and the ab<)\"l' entitied and l1umbered         CHlS<':   is   dismjs~ed itlr      want u!"




                     /\Pt'I{OV[D AS TO FOR1'v1
                     AND FNTRY RLQLTSTED
.~
                     VINCI: R \{ A::-l
                     Count v i\Uornev
                           .--r'"/.        11' ./'
                     I3Yz;.~;..~~:~.:~::~." . "......_
                     Frank Sander:> SBN 175R8S00
                     A:;sistanr Counly AlI.omey
                     l 0 19 Con~r('ss .'\ venu\:', is''!' Flout"
                     Houston. Texas 77002
                     (713) 7S5-7%\              (71~) 755-X()24 tilx
     I, Chris Daniel, District Clerk of HatTis
     County, Texas celtify that this is a true and
     conect copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this elate.
     Witness 111Y official hand and seal of office
     this March 3. 2011


     Certified Document Number:        45906339 Total Pages: 1




     Chris DanieL DISTRICT CLERJ.:.
     H.-illRIS COC:\TY, TEXAS




In accordance with Texas Government Code -t06.013 electronically transmitted authenticated
documents are valid. If there is a question I'egar'ding the validity of this document and or seal
please e-mail suppOl·t@hcdistrictclerk.com
                    TAB 2

         MEMORANDUM OPINION OF
FOURTEENTH COURT OF APPEALS [FEBRUARY 1, 2011]
           .   ;,




M
                                                                                                  f-iJ
~                   Reversed and Remanded and Memorandum Opinion fIled February 1,2011.
--..
 M
--..
 N




                                                                                           FILED
                                                                                            Chris Daniel
                                                                                              District Clerk
                                                             In The                           FEB 0 1 20" .L)J.A
                                                                                                   If: i-z,T'"
                                         1lTnutiw1t4 C!tnuri nf!ApPU.~~~-:FJ!fi                                 . ::
                                                 .   NO.14-10-00764-CV

                                                  RAUL GARZA, Appellant

                                                               V.

                                                HARRIS COUNTY, Appellee

                                          On Appeal from the 157th District Court
                                                   Harris County, Texas
                                             Trial Court Cause No. 2009-54159



                                            MEMORANDUM OPINION

                          Raul Garza appeals from the trial court's order granting Harris County's plea to
                    the jurisdiction. The trial court found that the County was entitled to governmental
                    immunity based on the offici'!-l immunity of one of its employees. In' a single issue,
                    Garza argues that the trial court erred in granting the plea because the employee was not
       C
       I
                    performing a discretionary function. We reverse and remand.

                                                        BACKGROUND

                          Deputy Jose Gonzalez was an employee of Harris County Constable Precinct Six
                    and a certified peace officer in March 2008 when he arrested Garza. Deputy Gonzalez
                                                                                                            ...



          placed Garza in the back of his squad car and was transporting him to the County's jail.
           While in transport, Deputy Gonzalez observed what he believed to be a felony in
          progress. He saw a man with a crowbar who appeared to be attempting to break into a
          bar. Deputy Gonzalez radioed for back-up, but the suspect saw the deputy and got into a
          Mustang with two other passengers.            The Mustang drove away quickly, and Deputy
          Gonzalez decided to follow. He was driving at approximately the speed limit with his
     I'   'emetg~ncy lights and siren turned off. His goal was to maintain a visual on the Mustang,
                    .                                                                             .
          ob~enre'.1)1e     license plate number, and radio-in th.e vehicle's location so another officer
                                  r
                            "

          could initiate a stop. While attempting to follow the Mustang, Deputy Gonzalez took a
          turn at thirty miles per hour, and his vehicle slid off the street and hit a wooden pole.
          Garza was injured.

                 Garza sued for personal injury, and the County filed a plea to the jurisdiction,
          attaching several affidavits, accident reports, and a portion of Garza's deposition. Garza
          responded and attached as        ev~dence   a copy of a Harris County Constable Precinct Six
          "Instructional Guideline" with the subject "Transportation of Prisoners."          The policy
          provides in part as follows:

                 Purpose: To provide guidance relative to Officer Safety and Safe Delivery
                 of Prisoners
.2

                 The transporting officer of any prisoner shall adhere to the following unless
                 directed otherwise by The Chain of Command:
.3
.5
                        •       THE TRANSPORTING OFFICER SHALL NOT PARTICIPATE
                                IN ANY VEHICULAR PURSUITS, SPECIAL ASSIGNMENTS,
                                CALL OUT FOR MEALS, HANDLE PERSONAL BUSINESS
                                WHILE IN TRANSPORT MODE.

                 The district court granted the County's plea without specifying the grounds and
           dismissed the case. Garza appealed.



                                                           2
                                          ANALYSIS

       Garza argues that the trial court erred in granting the County's plea to the
jurisdiction because the County failed to prove that it was entitled to governmental
immunity as a result of Deputy Gonzalez's official immunity. Specifically, Garza argues
that Deputy Gonzalez was not entitled to official immunity because he was performing a
ministerial function when he engaged in a vehicular pursuit while transporting a prisoner,
which he was specifically prohibited from doing under the County policy. The County
responds that the policy did not remove Deputy Gonzalez's discretion to engage in a
pursuit, but even if it did, Deputy Gonzalez was not engaged in a pursuit when he
followed the Mustang from a distance and traveled within the speed limit without
activating his emergency lights or siren. We hold that the County failed to establish that
it was entitled to immunity as a matter of law.

   A. Standard of Review

       We review de novo questions of law decided by a trial court on a plea to -the
jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). A plea to the jurisdiction may challenge the pleadings, or the plea may rely upon
relevant evidence to challenge jurisdictional facts. Id. at 226-27. If this evidence leads
to a disputed issue of fact regarding jurisdiction that does not implicate the merits of a
claim or defense, then the trial court resolves the fact issue. See id. at 226-27; Bland
lndep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If, however, a disputed issue
of fact implicates the merits of a claim or defense, the trial court must employ the
standard applicable to summary judgment. Miranda, 133 S. W.3d at 227-28. Under
these circumstances, the plea to the jurisdiction would be granted if the defendant
conclusively established all fact issues that preclude jurisdiction and the plaintiff failed to
raise a genuine issue of material fact. Id. Further, the court is required to assume the
truth of all the evidence that favors the plaintiff and to indulge every reasonable inference



                                              3
and resolve any doubts in the plaintiff's favor. Id. We review de novo the trial court's
application of the summary judgment standard. Id.

       The County· has conceded in this case that it bears the burden of conclusively
establishing the affirmative defense of official immunity to prevail on its assertion of
governmental immunity.      Therefore, a jurisdictional fact implicates the merits' of a
defense, and we review the trial court's determination on the County's plea under the
summary judgment standard.

   B. Immunity: Discretionary or Ministerial Functions and the Effect of a
      Departmental Policy

      A county is entitled to immunity from suit and liability if immunity is not waived
by statute. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374-75 (Tex. 2006).
In Texas, a governmental unit's immunity is waived when (1) its employee acts within
the scope of employment, (2) the employee negligently acts or omits from acting, (3) the
act or omission proximately causes personal injury, (4) the injury arises from the
operation or use of a motor-driven vehicle, and (5) the employee would be personally
                                                                                        .
liable to the claimant according to Texas law. TEX. ClV. PRAC. & REM. CODE ANN.
§ 101.021 (West 2005); see also TEx. ClV. PRAC. & REM. CODE ANN. § 101.025 (West
2005) (waiving immunity to suit whenever liability is created under Chapter 101). An
employee is not "personally liable" under this statute when he or she is entitled to official
immunity. DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. erim. App. 1995). An
employee is entitled to official immunity if he or she proves that the allegedly wrongful
act or omission was committed while the employee was (1) performing a discretionary
function, (2) acting in good faith, and (3) operating within the scope of his or her
authority. City ofLancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. Crim. App. 1994).

       On appeal) Garza contends only that the trial court erred in dismissing the case
because Deputy Gonzalez was not performing a discretionary function. Accordingly, we
limit our discussion to this issue. The Texas Supreme Court distinguishes between two

                                             4
"




    types of functions: discretionary and ministerial. Id. at 654. The court has explained that
    discretionary functions are those actions that involve personal deliberation, decision, and
    judgment. ld. Ministerial functions are those actions that require obedience to orders or
    to the performance of a duty for which the actor has no choice. ld. When a police officer
    is driving a vehicle in a non-emergency setting, he or she is performing a ministerial
    function. Harris Cnty. v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.-Houston [14th
    Dist.] 2004, no pet.). But when an officer engages in a high-speed vehicular pursuit, the
    officer is usually performing a discretionary function. Chambers, 883 S.W.2d at 655.

            The threshold issue presented by this appeal is whether the departmental policy at
    issue eliminated any discretion Deputy Gonzalez had while transporting his prisoner,
    Garza. Statutes and policies describing and prohibiting negligent conduct in general
    terms will not make .an officer's conduct ministerial if it would otherwise be
    discretionary. See Chambers, 883 S.W.2d at 655 (noting that statutes dictating general
    conduct of safety, speed, and traffic obligations of operators of emergency vehicles were
    "not sufficiently specific so as to leave no choice to an officer in the performance of these
    duties," and thus, did not affect the discretionary nature of the conduct of police in
    pursuing a vehicle).

            However, we have previously held that local governmental units may enact
    departmental policies to remove an officer's discretion to enter into a vehicular pursuit.
    See Brown v. Ener, 987 S.W.2d 66, 69 (Tex. App.-Houston [14th Dist.] 1998, no pet.).
    Under these circumstances, an officer's decision to enter into a pursuit becomes a
    ministerial act. ld.; City of Pharr v. Ruiz, 944 S.W.2d 709, 713-14 (Tex. App.-Corpus
    Christi 1997, no writ).l This is so because the officer has no opportunity to deliberate,

             1 See also Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Comyn, J., concurring)
    (noting, in support of conclusion that an officer was engaged in discretionary function when the officer
    pursued a suspect, that the departmental policy left the decision of whether to pursue up to the pursuing
    officers); Chambers, 883 S.W.2d at 655 n.3 (noting the reference in Travis to the departmental guidelines
    and stating that the appellant did not raise in this case the issue of whether ''the specific pursuit guidelines
    of any of the municipalities involved affects our inquiry into whether actions in pursuit are discretionary
    or ministerial"); Mumm v. Momson, 708 N.W.2d 475, 491-92 (Minn. 2006) (holding that, although
                                                           5
decide, or judge whether to engage in the pursuit; the officer has no choice but to obey
orders. See Brown, 987 S.W.2d at 69.

        In Brown v. Ener, we encountered facts remarkably similar to those in this case
and held that a deputy in the Harris County Constable's Office was not entitled to
summary jUdgment on the defense of official immunity when the undisputed evidence
showed that (1) the County had policies that required .deputies to obtain permission from
a superior before carrying a civilian passenger and that prohibited emergency pursuits
while transporting a civilian passenger, and (2) the deputy had brought a civilian
passenger for a "ride-along" without prior authorization from superiors and engaged in a
high-speed pursuit. Id. at 67, 69. Because the County failed to introduce any evidence to
suggest that its policy was not mandatory, and because we were required to view the
evidence in the light most favorable to the nonmovant, we determined that we were
required to assume that the policy was mandatory. Id. at 69. With this assumption, the
policy '"would require the performance of a duty about which the Deputy Ener [sic] had
no choice, or in other words, Deputy Ener acted against department mandates and
performed an act, a high speed chase, in which he had no discretion." Id. 2

       During oral argument, the County urged that this case is distinguishable from
Brown because the policy at issue in this case is not mandatory. The policy, though
styled as an "Instructional Guideline," uses the mandatory "shall" to forbid a
''transporting officer" from engaging in a yehicular pursuit. As in Brown, the policy in
question, on its face, appears to completely remove any discretion from officers to
engage in a vehicular pursuit while transporting a prisoner-it does not merely proscribe
how an officer should make the decision to pursue or provide general standards of
negligence.

officers engaged in vehicular pursuits generally perform discretionary functions, officers were not
engaged in discretionary function when they pursued a suspect in violation of a departmental policy
prohibiting pursuits when the suspect did not commit an enumerated crime and the identity of the suspect
was known).
       2 Neither   party brought our decision in Brown to the trial court's attention.
                                                      6
v       ,




                   Unlike the record in City of Pharr v. Ruiz, this record contains insufficient
            evidence to eliminate the genuine issue of fact that the policy was not intended to be
            mandatory. See 944 S.W.2d at 714-15. The County submitted no evidence in response
            to Garza's, proffer of the policy, and none of the evidence submitted initially by the
            County references the policy in any way. Thus, viewing the plain language of the policy
            in the light most favorable to the nonmovant, we must assume the policy was mandatory.
            As such, Deputy Gonzalez had no discretion to engage in a vehicular pursuit while
            transporting a prisoner without receiving authorization from a superior officer.

                   Further, the County argues that "there is no evidence that Deputy Gonzalez
            violated the policy."     The County asks us to infer that Deputy Gonzalez was not
            "pursuing" the Mustang because of the relatively low speed and lack of emergency lights
            and siren. 3 The County's argument and, more importantly, its evidence are directed to
            establishing the absence of a high-speed or hot pursuit. Again, however, we are required
            to resolve any doubts in the evidence in Garza's favor. The evidence shows that the

'-'         occupants of the Mustang fled the scene after seeing Deputy Gonzalez, and he was
£   I       following the Mustang and trying to get close enough to read their license plate. He
            attempted to turn a comer at a speed of thirty miles per hour. A reasonable fact finder
            could infer from this record that Deputy Gonzalez was engaged in a ''vehicular pursuit"
            in violation of the policy. We must credit Garza with this inference.

-                  Finally, the County directs our attention to Article 2.13 of the Texas Code of

-~          Criminal Procedure, which establishes the general duties of peace officers in Texas and
            requires them to "interfere -without warrant to prevent or suppress crime" and "arrest
            offenders without warrant in every case where the officer is authorized by law." TEX.
            CODE CRIM. PROC. ANN. art. 2.13(b) (West 2005). The County essentially argues that


                     3 We note that conduct incident to the investigation of a crime is generally considered
            discretionary. See Davis v, Klevenhagen, 971 S.W.2d 111, 118 (Tex. App.-Houston [14th Dist.] 1998,
            no pet.); City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App.-Houston [1st Dist.] 1995, no
            writ).
                                                            7
                                                                                                      · ...


        this provision of the Code provided Deputy Gonzalez with unfettered discretion to
        apprehend the fleeing suspects, and the County cannot prohibit officers from exercising
        this discretion. We decline to interpret this statute as vitiating the power of     c~unty

        constables to specifically mandate or prohibit certain conduct by its deputies or to remove
        deputies' discretion.

               Accordingly, the County did not meet its burden to conclusively establish that
        Deputy Gonzalez was performing a discretionary function, and the trial court erred in
        granting the County's plea. We reverse the trial court's judgment and remand for further
        proceedings.




                                                 lsi       Sharon McCally
                                                           Justice


 C,)
 :>0
:::     Panel consists of Justices Anderson, Seymore, and McCally.
  I

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                                                       8
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                         ··.. 0             *            :-4 ,- .'
                                                        <:> •••••
                                ........... , .... , .......

     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this March 3.2011


     Certified Document Kumber:                                             47892403 Total Pages: 8




     Chris Daniel, DISTRICT CLERK
     HARRIS                    COu~lY,          TEX.-\S




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictderk.com
                  TAB 3

 NOTICE FROM FOURTEENTH COURT OF APPEALS-
MOTION FOR EN BANC CONSIDERATION OVERRULED
              [FEBRUARY 24, 2011]
           FOURTEENTH COURT OF APPEALS
           1307 San Jacinto, 11 th Floor
           Houston, Texas 77002
                                                                           Thursday, February 24, 2011


           RE·    Case No. 14-10-00764-CV

Style:     Raul Garza
    v.     Harris County

         Please be advised that: on this            dat:e,    t:he Court: OVERRULED mot:ion for en bane
co~sideration    in the above cause.


~   C. Case # 2009-54153                                                    Christopher A. Prine, Clerk
                                      FR~~~K   E.   S~EDERS
                                      ASSIST~~       COU~~Y ATTO~ffiY
                                      ? 0 :SOX 20130
                                      1019 CONGRESS 15TH          F~OOR
                                      HOUSTON TX 77002

				
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