City of Houston v. Samuel Salazar, Individually and as Next Friend of Sammy Salazar Justin Pacheco, Roza Salazar and Daisy Salazar

Reversed and Dismissed and Majority and Dissenting Opinions filed January
11, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00061-CV

CITY OF HOUSTON, Appellant
V.

SAMUEL SALAZAR, INDIVIDUALLY AND AS NEXT FRIEND OF
SAMMY SALAZAR; JUSTIN PACHECO, ROZA SALAZAR, AND DAISY
SALAZAR, Appellees

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2022-15403

MAJORITY OPINION

Appellees Samuel Salazar, individually and as next friend of Sammy
Salazar; Justin Pacheco, Roza Salazar, and Daisy Salazar were riding in a vehicle
that was hit by the patrol vehicle driven by Officer Cody Seidel of the Houston
Police Department. Officer Seidel was pursuing a fleeing suspect at the time of the
collision. Appellees filed suit against the City of Houston, alleging negligence.
Houston eventually moved for summary judgment arguing that appellees’ lawsuit
should be dismissed because it had not waived governmental immunity. The trial
court denied Houston’s motion and Houston filed this interlocutory appeal. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Because we conclude Houston
conclusively established that Officer Seidel acted in good faith, we reverse the trial
court’s order and render judgment dismissing appellees’ lawsuit for lack of subject
matter jurisdiction.

BACKGROUND

Officer Cody Seidel is a patrol officer with the Houston Police Department.
On December 24, 2021, Officer Seidel responded to an emergency call at an area
hotel. As other officers attended to that call, hotel staff notified some of the
responding officers to the original emergency that they believed an assault was
taking place in one of the hotel’s rooms. Officers called out over the radio that
they needed assistance in that hotel room. As Officer Seidel ran to the room, he
observed a bleeding female and two police officers attempting to handcuff a man,
who was resisting the officers. Officer Seidel first assisted the other officers in
handcuffing the man, who identified the female as Tammy Wilson. Officer Seidel
then tried to find Wilson to take her statement regarding the assault. At this point,
Officer Seidel realized that Wilson may have fled the scene.

Officer Seidel got into his patrol vehicle and drove through the hotel parking
lot looking for Wilson. Officer Seidel eventually saw Wilson in a black sedan with
Louisiana license plates. Officer Seidel parked behind Wilson and started to get
out of his patrol vehicle to speak with her. At that point, Wilson drove forward
and struck a parked car. Officer Seidel yelled for Wilson to stop, but she
proceeded on and moved toward the exit from the hotel parking lot.

At this point, rather than being a complainant whose statement was
2
necessary to ensure a conviction for the assault, Wilson had become a suspect in a
hit-and-run and felony evasion of a peace officer with a motor vehicle. Officer
Siedel believed that he needed to pursue Wilson “to address this crime that [he
had] witnessed.” Officer Seidel activated his siren and emergency lights and
pursued Wilson northbound on the West Sam Houston Parkway feeder road.
Wilson continued to evade Officer Seidel, traveling at a high rate of speed, running
red lights, and swerving around vehicles on the feeder road.

As Wilson approached the intersection of the West Sam Houston Parkway
and West Little York Road, she swerved into the far left lane so she could get
around the vehicles that were stopped for the red light, and then proceeded to turn
right from the far-left lane, disregarding the red light. Officer Seidel approached
the same intersection with his lights and siren activated, reduced his speed down to
around 30 miles per hour from 60-70 miles per hour. Officer Seidel checked for
cross-traffic and he believed the intersection to be clear for him to complete the
right turn and follow Wilson. Mid-way through completing that turn, Officer
Seidel’s patrol vehicle collided with Salazar’s vehicle.

Appellees filed suit against Houston and Officer Seidel individually,
asserting negligence claims. The trial court eventually granted Officer Seidel’s
Rule 91a Motion to Dismiss the claims against him. See Tex. R. Civ. P. 91a
(providing mechanism to dismiss lawsuits with no basis in law or fact). Houston
then filed a traditional motion for summary judgment arguing that the trial court
should dismiss appellees’ claims based on Houston’s governmental immunity.
Among other arguments, Houston asserted that the motor-vehicle waiver found in
the Texas Tort Claims Act did not apply because Officer Seidel would be shielded
from liability under the common law because of his official immunity.

The trial court reset the hearing on Houston’s motion so that appellees could

3
depose Officer Seidel. Appellees then filed a response to Houston’s motion and
they attached the entirety of Officer Seidel’s deposition to the response. Appellees
attached no other evidence to their summary judgment response. During the
deposition, appellees’ attorney questioned Officer Seidel about the video footage
taken by Officer Seidel’s body camera. Appellees also discuss the video footage in
their summary judgment response. Houston objected to the video footage as
summary judgment evidence and the trial court sustained Houston’s objection and
struck the footage from the summary judgment record.1 The trial court then denied
Houston’s motion. This interlocutory appeal followed.

ANALYSIS

Houston raises three issues in this appeal, but because we conclude that
Officer Seidel was entitled to official immunity and therefore Houston’s
governmental immunity was not waived, we need only reach Houston’s second
issue.

I. Standard of Review and Applicable Law

Governmental units are immune from suit unless immunity is waived by
state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). If a
governmental unit has immunity from suit, a trial court lacks subject matter
jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). A
challenge to a trial court’s subject matter jurisdiction may be asserted by a plea to
the jurisdiction or in a motion for summary judgment. Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a trial
court’s ruling on a plea to the jurisdiction de novo. Id. at 228.

A defendant’s plea may challenge either the plaintiffs’ pleadings or the

1
Appellees have not challenged this ruling on appeal.

4
existence of jurisdictional facts. Id. When, as here, the governmental unit
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties. See City of Houston v. Ranjel, 407 S.W.3d 880, 887
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Miranda, 133 S.W.3d at
228). If that evidence raises a fact issue as to jurisdiction, the governmental
entity’s plea must be denied because the issue must be resolved by the trier of fact.
Miranda, 133 S.W.3d at 227–28. If the relevant evidence is undisputed or fails to
present a jurisdictional fact issue, however, the governmental unit’s plea must be
granted. Maspero, 640 S.W.3d at 529. The standard of review for a plea to the
jurisdiction based on evidence generally mirrors that of a motion for summary
judgment. Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). We therefore must credit evidence favoring the
nonmovant and draw all reasonable inferences in the nonmovant’s favor. Id.

Houston, as a municipality and political subdivision of the State, cannot be
vicariously liable for an employee’s acts unless its governmental immunity has
been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). Under the facts of this case, possible waiver
of the City’s immunity from suit and liability is found in section 101.021 of the
Texas Tort Claims Act (the Act), which provides in relevant part:

A governmental unit in the state is liable for … property damage,
personal injury, and death proximately caused by the wrongful act or
omission or the negligence of an employee acting within his scope of
employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven equipment;
and
(B) the employee would be personally liable to the claimant according
to Texas law[.]

5
Tex. Civ. Prac. & Rem. Code § 101.021(1).

II. Houston conclusively established that it did not waive its governmental
immunity.

The parties agree that appellees’ claims arise from the use of a motor
vehicle. They also agree that Officer Seidel was acting within the scope of his
employment when he pursued Wilson’s vehicle. The parties’ dispute concerns
whether Officer Seidel could “be personally liable to the claimant[s] under Texas
law.” Houston contends the evidence conclusively shows that Officer Seidel
retained his official immunity because he responded to the disturbance call in good
faith. Houston then argues that Officer Seidel could not be personally liable to
appellees according to Texas law and, as a result, Houston retained its
governmental immunity. See City of San Antonio v. Riojas, 640 S.W.3d 534, 537
(Tex. 2022) (stating that if an “employee is protected from liability by official
immunity, the employee is not personally liable to the claimant and the
government retains its sovereign immunity”).

Official immunity is an affirmative defense, and therefore the burden rests
on Houston to establish all elements of that defense. Belle, 297 S.W.3d at 530; see
Green v. Alford, 274 S.W.3d 5, 16 n.11 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied) (en banc). Under that defense, a government employee may be
immune from a lawsuit that arises from (1) the performance of discretionary duties
(2) in good faith, (3) provided he was acting in the course and scope of his
authority. Id. Here, only Officer Seidel’s good faith is in dispute.

In this context, “good faith” is defined as a standard of objective legal
reasonableness that disregards the police officer’s subjective state of mind. Belle,
297 S.W.3d at 530 (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.
1997)). The defendant has the burden to prove conclusively that a reasonably

6
prudent police officer, under the same or similar circumstances, could have
believed his actions were justified based on the information he possessed at the
time. Id.; City of Lancaster, 883 S.W.2d at 656–57. That burden is not onerous
because official immunity protects all but the plainly incompetent or those who
knowingly violate the law. Riojas, 640 S.W.3d at 539–40. To rebut a defendant’s
showing of good faith, a plaintiff must establish that no reasonable person in the
officer’s position could have thought the facts were such that they justified the
officer’s actions. Belle, 297 S.W.3d at 530.

The good-faith standard of reasonableness weighs the need for the officer’s
actions against the risks entailed by such conduct based on the officer’s perception
of the facts at the time of the event. Wadewitz, 951 S.W.2d at 467. The need
aspect of the balancing test refers to the urgency of the circumstances requiring
police intervention and requires an evaluation of the following factors: (1) the
seriousness of the crime or accident to which the officer is responding; (2) whether
the officer’s immediate presence is necessary to prevent injury or loss of life or to
apprehend a suspect; and (3) what alternative courses of action, if any, are
available to achieve a comparable result. Id. The risk aspect refers to the
countervailing public safety concerns and requires an evaluation of the following
factors: (1) the nature and severity of the harm the officer’s actions could cause
(including injuries to bystanders as well as the possibility that the officer may not
reach the scene of the original emergency); (2) the likelihood that any harm would
occur; and (3) whether the risk of harm would be clear to a reasonably prudent
officer. Id.

To prevail, a governmental defendant’s proof must sufficiently address these
need and risk factors. Telthorster v. Tennell, 92 S.W.3d 457, 462 (Tex. 2002);
Harris County v. Mireles, No. 14-22-00367-CV, 2023 WL 3743585, at *5 (Tex.

7
App.—Houston [14th Dist.] June 1, 2023, no pet. h.). An expert giving testimony
regarding good faith must discuss what a reasonable officer could have believed
based on the officer’s perception of the facts at the time of the event, and this
discussion must be substantiated with reference to both the need and risk aspects of
the balancing test. Belle, 297 S.W.3d at 531 (citing Wadewitz, 951 S.W.2d at 466–
67). Magic words are not needed to establish that a law-enforcement officer
considered the need/risk balancing factors. Bonilla, 481 S.W.3d at 645. In
addition, the facts of the case may require evidence that the officer made a
continuing assessment of the need and risk factors because emergency responses
and police pursuits may involve rapidly changing circumstances. Belle, 297
S.W.3d at 531 (citing University of Houston v. Clark, 38 S.W.3d 578, 582–83
(Tex. 2000)). Whether a police officer considered the need/risk factors may be
implicit in the evidence. See Bonilla, 481 S.W.3d at 645 (“The fact that the trooper
did not expressly identify ‘alternatives’ that may have been considered does not
render the evidence deficient.”). A police officer’s own affidavit may establish
good faith. City of Houston v. Sauls, 654 S.W.3d 772, 781 (Tex. App.—Houston
[14th Dist.] 2022, pet. filed). A reviewing court analyzing these factors first must
determine whether the governmental unit met its initial burden to prove
conclusively the police officer’s good faith. Only when it has been determined that
the governmental unit met this burden does the court address whether the
nonmovant’s evidence raises a genuine issue of material fact on the issue of good
faith. Id.

We turn first to the question whether Houston met its initial burden to
conclusively prove that Officer Seidel was acting in good faith prior to the
collision. With respect to need, Officer Seidel recognized that the fleeing female
was initially not a suspect but a complainant for an incident of domestic assault, an

8
extremely serious issue, “particularly since the COVID-19 pandemic started.”
Officer Seidel had also observed that the assault had left her bloodied. According
to Officer Seidel, the charge for such an offense could range from a misdemeanor
up to a felony. Officer Seidel believed that it was vital to obtain a statement from
her to ensure the case could be prosecuted. Once the female attempted to flee the
scene, hit a parked car, and led Officer Seidel on a high-speed chase, Officer Seidel
believed that there was a tremendous need to get her off the road, before she hurt
someone. See Maspero, 640 S.W.3d at 531–32 (“[W]e have long recognized that
fleeing suspects may pose an even greater danger to the community”). With
respect to alternatives to pursuit, Officer Seidel chose not to discontinue the pursuit
because the vehicle had Louisiana license plates and the driver was staying at a
hotel. It was Officer Seidel’s belief that if he discontinued the pursuit, the police
would likely be unable to arrest her for the hit-and-run accident, felony evasion,
reckless driving, or arrest the man detained in the hotel room for assault. Indeed,
after the incident, Officer Seidel was unable to locate the fleeing female using the
name “Tammy Wilson,” the name and contact information provided by the male
assault suspect. See Martinez, 526 S.W.3d at 567 (“Johnson did not know the
identity of the driver or passenger during the pursuit, nor did he know whether
either had been identified based on the plate number or other information that he
provided to dispatch. Given the limited state of his knowledge, Johnson could not
evaluate the likelihood that the fleeing driver could have been apprehended later
had the pursuit been discontinued.”).

With respect to risk, Officer Seidel considered road, weather, and traffic
conditions. He described that the weather was clear, roads were dry, it was sunny
and bright outside, and traffic was light because it was Christmas Eve. Officer
Seidel also noted that the area where the chase occurred is primarily commercial.

9
Officer Seidel traveled approximately 60 to 70 miles per hour in the 45 miles per
hour zone on the access road, and he believed this speed to be safe and appropriate
based upon his training in driving in police pursuits, the fact that the multi-lane
access road was wide and straight with excellent visibility, as well as the fact that
he had his patrol vehicle’s emergency lights and siren activated. Then, based on
all of these facts, Officer Seidel opined that a reasonably prudent law enforcement
officer under the same or similar circumstances could have believed that Officer
Seidel’s actions were justified based on his perception of the facts at the time
because the need to immediately apprehend the female was greater than the
minimal risk of harm to others from Officer Seidel’s own driving. We hold
Houston conclusively established that Officer Seidel was acting in good faith when
the collision occurred, and the burden passed to appellees to produce sufficient
summary judgment evidence to create a fact issue as to Officer Seidel’s good faith.

We turn next to whether appellees produced summary judgment evidence
sufficient to raise a fact issue on whether Officer Seidel acted in good faith. The
only evidence appellees attached to their summary judgment response was Officer
Seidel’s complete deposition transcript. We have reviewed the complete
deposition and conclude that it reinforced Officer Seidel’s affidavit testimony that
he considered the need/risk factors during the pursuit. For example, Officer Seidel
described a technique he learned at the Houston Police Academy called “slow,
show, and go.” According to Officer Seidel, this technique requires the police
officer to initially slow down as he approaches an intersection, show his presence
through his patrol vehicle’s emergency lights and siren, and visibility, then proceed
through the intersection once it is clear. During his deposition, Officer Seidel
testified that he followed this technique prior to entering the intersection where the
collision occurred.

10
Appellees offered no evidence creating a genuine issue of material fact on
the issue of Officer Seidel’s good faith. Instead, appellees argued that Officer
Seidel’s conduct during the pursuit was reckless or that he failed to exercise due
caution. Appellees offered no evidence to substantiate this argument. Even if they
did, it would be insufficient to create a genuine issue of material fact on Officer
Seidel’s good faith because neither recklessness nor failure to exercise due caution
defeats good faith. Martinez, 526 S.W.3d at 563–64; Mem’l Vills. Police Dep’t v.
Gustafson, No. 01-10-00973-CV, 2011 WL 3612309, at *6 (Tex. App.—Houston
[1st Dist.] Aug. 18, 2011, no pet.) (mem. op.); City of Fort Worth v. Robinson, 300
S.W.3d 892, 900 (Tex. App.—Fort Worth 2009, no pet.) (“Nor does recklessness
in the performance of the officer’s duty belie his good faith.”); Johnson v.
Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied) (same).

Here, it is undisputed that Officer Seidel was using his emergency lights and
siren as he approached the feeder road intersection. It is also undisputed that
Officer Seidel considered the need/risk balancing factors throughout his pursuit of
the fleeing female. Further, the mere fact that an accident occurred during the
pursuit is not evidence that Officer Seidel did not act in good faith. Mireles, 2023
WL 3743585, at *8. We therefore conclude that Houston conclusively established
that Officer Seidel acted in good faith when he initiated and continued his pursuit
of the female identified as Tammy Wilson and that it retained its governmental
immunity as a result. See Riojas, 640 S.W.3d at 537. We sustain Houston’s
second issue on appeal. Because we have determined that Houston conclusively
established that Officer Seidel was entitled to official immunity and that, as a
result, its own governmental immunity was not waived, we need not address
Houston’s other issues raised in this appeal.

11
CONCLUSION

Having sustained Houston’s second issue on appeal, we reverse the trial
court’s order denying Houston’s summary judgment and render judgment
dismissing appellees’ claims against Houston for lack of subject matter
jurisdiction.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant
(Poissant, J., dissenting).

12