City of Houston v. Rachel Morris and Mia Sanders

Reversed and Rendered and Memorandum Opinion filed August 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00570-CV

CITY OF HOUSTON, Appellant

V.

RACHEL MORRIS AND MIA SANDERS, Appellees

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2022-50930

MEMORANDUM OPINION

In this interlocutory appeal,1 the City of Houston appeals the denial of its
motion for summary judgment contending that governmental immunity shielded it
from the lawsuit filed by Appellees Rachel Morris and Mia Sanders. We reverse the

1
This court has jurisdiction to consider an interlocutory appeal from the denial of a motion
for summary judgment by a governmental unit seeking a dismissal based on governmental
immunity. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019); see Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(8); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 541
(Tex. App.—Houston [14th Dist.] 2017, no pet.).
trial court’s order and render judgment dismissing the case for want of subject matter
jurisdiction.

BACKGROUND

At approximately 9:00 p.m. on August 14, 2021, Houston Police Officers
Kpotie and Young were working with the Houston Police Department crime
suppression team on a prostitution operation targeting an area in southwest Houston.
As part of the operation, an undercover officer was supposed “to engage the services
of a prostitution suspect and take them to a pre-arranged location in an unmarked
vehicle.” Officers Kpotie and Young sat in one of the marked police vehicles
involved in the operation. Both officers wore their police uniform and waited for a
surveilling unit to notify the marked units that there was “a good case.”

When Officers Kpotie and Young received the notification, Officer Kpotie
drove toward a pre-arranged location at which marked units were supposed to arrest
the suspect. As Officer Koptie was following the undercover unit, he was driving
his marked unit above the speed limit but did not activate the lights or siren. At a
traffic light, he made a left turn onto Bissonnet Street. As he continued westbound
following “the direction of travel being called out by the surveilling officer,” Officer
Young saw “a shadow suddenly appear in front of the passenger side of our vehicle.”
She told Officer Kpotie “to watch out.” Officer Kpotie did not see a pedestrian, who
was later identified as sixty-nine-year-old Steve Sanders, until Officer Young alerted
him that Sanders was running across Bissonnet Street. Sanders was dressed in black
and ran across the street outside of a crosswalk. Officer Kpotie steered the police
car to the left when he saw Sanders, but his attempt to avoid hitting Sanders failed.
He hit Sanders with the right front of the car and Sanders landed on the pavement.
Sanders died as a result of the collision.

Appellees, Sanders’s daughters, sued the City in August 2022, alleging that
2
(1) Sanders’s death was “brought about and caused to occur due to the negligence
and carelessness of the” City; (2) the City, “acting by and through the driver of its
police vehicle, believed to be Officer Kpotie, committed various acts and omissions,
each of which constitutes negligence, at common law or as a matter of law, which
was a proximate cause of the occurrence, damages and injuries complained of
herein”; (3) their claims against the City fall “under the Texas Tort Claims Act
(‘TTCA’)”; and (4) the trial court has jurisdiction over Appellees’ “claims because
through the TTCA, Defendant’s governmental immunity has been waived for claims
involving personal injury resulting from a motor vehicle collision.” In September
2022, the City filed an answer and special exceptions. The City asserted, among
other things, governmental immunity from suit and liability and official immunity
as an affirmative defense to all of Appellees’ claims.

On June 16, 2023, the City filed a traditional and no-evidence motion for final
summary judgment on immunity arguing the trial court lacked jurisdiction over
Appellees’ claims because the City’s immunity was not waived. In that regard, the
City argued that (1) Officer Kpotie did not breach a duty that proximately caused the
accident; (2) Sanders was the proximate cause of the accident; (3) “Officer Kpotie
would not be personally liable under the common law based upon the sudden
emergency inferential rebuttal;” (4) it was “shielded by the official immunity of its
employee” Officer Kpotie; and (5) “[t]he TTCA’s Emergency Exception preserves
Houston’s immunity.” As evidence in support of its motion, the City attached
affidavits from Officers Kpotie and Young.

Appellees filed their summary judgment response on July 3, 2023. In the
portion titled Response to No-Evidence Motion for Summary Judgment, Appellees
argued regarding breach of duty and proximate cause that “they have met their
burden to establish more than a scintilla of evidence that Officer Kpotie’s operation

3
of his police cruiser 20 m.p.h. above the posted speed limit in low light conditions
constitute a breach of the duties imposed on every Texas driver in the prudent
operation of a motor vehicle on Texas roadways and that this breach of duties was a
proximate cause of Mr. Sanders’ death.” Regarding sole proximate cause, Appellees
argued they “have presented more than a scintilla of evidence that Officer Kpotie’s
acts and omissions of driving 20 m.p.h. above the posted speed were a proximate
cause of the incident.” With respect to sudden emergency, Appellees argued that
Officer Kpotie’s “negligent operation of his vehicle negates the applicability of the
‘sudden emergency’ defense.”

In the portion titled Response to Traditional Motion for Summary Judgment,
Appellees contended that the City did not meet its burden of proving as a matter of
law that the official immunity defense applies because it “failed to prove both that
Kpotie acted in good faith and that Kpotie was engaged in a discretionary function
at the time of the crash.” Appellees also contended that the City failed to prove the
TTCA’s Emergency Exception preserves its immunity because “Officer Kpotie’s
excessive speed was unsafe and unwarranted as he was not responding to an
emergency call.” As summary judgment evidence, Appellees attached excerpts from
the Houston Police Department’s crash and incident reports relating to the accident.

A few days later, the City filed what purports to be a reply to Appellees’
summary judgment response. Therein, the City objected to Appellees’ summary
judgment evidence asserting their two exhibits should be stricken because they are
improperly authenticated and are “chock-full of hearsay and hearsay within
hearsay.” The City also argued that (1) Appellees’ “own evidence establishes the
accident was not caused by any breach of duty by [the City]’s driver, but by Steve
Sanders’ suddenly running into traffic outside of a crosswalk while intoxicated and
failing to yield the right of way to a vehicle”; (2) it is shielded by Officer Kpotie’s

4
official immunity because it proved Officer Kpotie acted in good faith and Appellees
“did not refute discretionary function and scope of authority;” and (3) Appellees
presented no evidence to overcome the TTCA’s emergency exception.

On July 19, 2023, the trial court signed an order denying the City’s “Motion
for No-Evidence Summary Judgment and Motion for Traditional Summary
Judgment.” The City filed an objection to the trial court’s failure to rule on the City’s
evidentiary objections, but the trial court did not make a ruling on the objection. The
City filed a timely notice of interlocutory appeal.

ANALYSIS

The City contends the trial court erroneously denied its motion for summary
judgment because it is entitled to governmental immunity. In that respect, the City
asserts that:

(1) its evidence establishes as a matter of law that it retains its governmental
immunity because (a) Officer Kpotie breached no duty that proximately
caused the death of Sanders, and (b) “Sanders’ choice to run into traffic at
night dressed in black was the proximate cause of his fatal injuries”;

(2) it is shielded by Officer Kpotie’s official immunity because the evidence
establishes as a matter of law that, at the time of the accident, Officer
Kpotie was (a) acting within the scope of his authority, (b) performing a
discretionary duty, and (c) acting in good faith;

(3) the TTCA’s emergency exception preserves its governmental immunity
because the evidence establishes that Officer Kpotie was reacting to an
emergency situation that Sanders created running into traffic; and

(4) Appellees did not present evidence to overcome Officer Kpotie’s official
immunity because (a) the evidence they proffered should have been

5
excluded because it was not properly authenticated and it constitutes
hearsay, and (b) even if the proffered evidence could be considered, it
actually supports the City’s governmental immunity.

Because we conclude that the City as a matter of law established that Officer
Kpotie would be entitled to official immunity and, thus, the City’s governmental
immunity was not waived, we need only reach the City’s arguments relating to
official immunity. Before turning to the standard of review and applicable law, we
note that it is unclear from the City’s summary judgment motion and briefing in this
court what specifically the City challenged on traditional and what on no-evidence
grounds. Appellees understood that the City in its motion for summary judgment
asserted a right to judgment regarding breach of duty, proximate cause, sole
proximate cause, and sudden emergency under the no-evidence standard and a right
to judgment regarding official immunity and the TTCA’s emergency exception
under the traditional standard. Appellees filed their response accordingly. We read
the City’s summary judgment motion as asserting a right to judgment based on
official immunity under the traditional summary judgment standard and, therefore,
address the City’s dispositive official immunity arguments under that standard.2

I. Standard of Review

2
To the extent the City moved for no-evidence summary judgment based on official
immunity, the trial court would not have erred in denying a no-evidence motion because the City
was not entitled to a no-evidence summary judgment on this ground as official immunity is an
affirmative defense and the City was required to conclusively prove all of its elements. See City
of Springtown v. Ashenfelter, No. 02-23-00204-CV, 2024 WL 1792380, at *7 (Tex. App.—Fort
Worth Apr. 25, 2024, no pet. h.) (mem. op.); see also Tex. R. Civ. P. 166a(i) (providing for no-
evidence summary judgment motion challenging element of claim or defense “on which an adverse
party would have the burden of proof at trial”); Grant v. Wind Turbine & Energy Cables Corp.,
No. 02-21-00036-CV, 2022 WL 2840142, at *2 n.9 (Tex. App.—Fort Worth July 21, 2022, no
pet.) (“But [defendant] bore the burden on its affirmative defense, and a party may file a no-
evidence motion to challenge only a claim or defense on which it does not bear the burden of
proof.”).

6
Subject matter jurisdiction is necessary to a court’s authority to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); City of
Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *4 (Tex. App.—
Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.). A plaintiff must allege
facts affirmatively showing the trial court has subject matter jurisdiction. Tex. Air
Control Bd., 852 S.W.2d at 446; Manning, 2021 WL 1257295, at *4. A party may
challenge the lack of subject matter jurisdiction by a plea to the jurisdiction or by
other procedural vehicles, such as a motion for summary judgment filed in this case.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Buzbee v. Clear
Channel Outdoor, LLC, 616 S.W.3d 14, 21 (Tex. App.—Houston [14th Dist.] 2020,
no pet.). Because subject matter jurisdiction is a question of law, we review the trial
court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004); Manning, 2021 WL 1257295, at *4.

To obtain a traditional summary judgment based on a lack of subject matter
jurisdiction, a movant must produce evidence showing that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. See Tex. R.
Civ. P. 166a(c); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex.
2019). A nonmovant may raise a genuine issue of material fact by producing “‘more
than a scintilla of evidence establishing the existence of the challenged element.’”
Swanson, 590 S.W.3d at 551 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004)). While the City asserted immunity by way of a traditional
summary judgment motion, the applicable standards generally mirror those
governing review of an order denying a plea to the jurisdiction. Manning, 2021 WL
1257295, at *4; see also Miranda, 133 S.W.3d at 228. A defendant’s jurisdictional
plea may challenge either the plaintiff’s pleadings or the existence of jurisdictional
facts. Miranda, 133 S.W.3d at 228; Manning, 2021 WL 1257295, at *4.

7
The City challenged the existence of jurisdictional facts; therefore, “we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do.” See Miranda, 133
S.W.3d at 227. “In both traditional summary judgment and plea to the jurisdiction
contexts, we take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts arising from such evidence in the
nonmovant’s favor.” Manning, 2021 WL 1257295, at *4; see also Miranda, 133
S.W.3d at 228. If the relevant evidence is undisputed or does not raise a fact question
on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law. Miranda, 133 S.W.3d at 228; Manning, 2021 WL 1257295, at *4. If
the evidence creates a fact question regarding the jurisdictional issue, the trial court
may not grant the plea, and the fact issue will be resolved by the factfinder. Miranda,
133 S.W.3d at 227-28.

II. Official Immunity

The City argues that the trial court erred in denying its summary judgment
motion because it is shielded by Officer Kpotie’s official immunity and thereby
retained its governmental immunity.

A. Applicable Law

A city performing governmental functions may not be sued for its employees’
conduct unless a plaintiff demonstrates the Legislature waived the city’s
governmental immunity. City of Houston v. Sauls, 690 S.W.3d 60, 69 (Tex. 2024);
Rattray v. City of Brownsville, 662 S.W.3d 860, 865 (Tex. 2023). To do so,
Appellees rely on Section 101.021(1) of the TTCA, which provides in relevant part:

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting

8
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[.]
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). This section makes a city liable
for a death arising from the operation of a motor vehicle and proximately caused by
an employee’s negligence if the “employee would be personally liable” under Texas
law. Sauls, 690 S.W.3d at 69; see Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1),
.025. Therefore, if a legal doctrine protects the employee from personal liability,
section 101.021(1) does not waive immunity. Sauls, 690 S.W.3d at 69.

Official immunity, a common law affirmative defense, is one such legal
doctrine. Id.; Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642 (Tex. 2015)
(per curiam). “Official immunity shields government employees from liability in
civil lawsuits that, with the benefit of hindsight, would second-guess their
performance of discretionary duties and force them to defend decisions that were
reasonable when made.” Sauls, 690 S.W.3d at 69; Telthorster v. Tennell, 92 S.W.3d
457, 463 (Tex. 2002). The purpose of official immunity is “to insulate the
functioning of government from the harassment of litigation, not to protect erring
officials.” Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see Sauls, 690 S.W.3d at
69. However, official immunity protects governmental employees only when they
are performing discretionary duties in good faith and within the scope of their
authority. Bonilla, 481 S.W.3d at 642-43; Gomez v. City of Houston, 587 S.W.3d
891, 896 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc). Because
official immunity is an affirmative defense, the burden rests on the City to establish
all elements of that defense. Manning, 2021 WL 1257295, at *5; Gomez, 587
S.W.3d at 897.
9
Arguing that Officer Kpotie’s actions satisfied these three elements, the City
moved for traditional summary judgment on the ground that it retained its
governmental immunity. Appellees only disputed whether Officer Kpotie acted in
good faith; they raised no arguments regarding discretionary duty or scope of
authority. We therefore proceed to address whether the City conclusively
established that Officer Kpotie acted in good faith.

B. Good Faith

Relying on the affidavits from Officers Kpotie and Young and citing
applicable authorities, the City claims, as it did in the trial court, it proved that
Officer Kpotie acted in good faith when the accident occurred. Appellees contend,
and did so in the trial court, that the City did not meet its burden to show Officer
Kpotie acted in good faith because the City (1) “failed to present any adequate
evidence that Officer Kpotie considered alternative courses of action;” and (2)
“failed to present any evidence showing that Officer Kpotie considered or weighed
the risks of his conduct.”

1. Good-Faith Test

A test of good faith is a test of objective reasonableness without regard to the
governmental employee’s subjective state of mind. Sauls, 690 S.W.3d at 73; City of
San Antonio v. Riojas, 640 S.W.3d 534, 538 (Tex. 2022). To be entitled to summary
judgment, the City must carry its initial burden to prove conclusively that a
reasonably prudent police officer, under the same or similar circumstances, could
have believed his actions were justified based on the information he had at the time.
Telthorster, 92 S.W.3d at 465; City of Lancaster v. Chambers, 883 S.W.2d 650, 656-
57 (Tex. 1994). The City does not have to prove that it would have been
unreasonable not to take these actions, or that all reasonably prudent officers would
have taken the same actions. See Riojas, 640 S.W.3d at 541; Telthorster, 92 S.W.3d
10
at 465; Manning, 2021 WL 1257295, at *5. Rather, the City must prove conclusively
that a reasonably prudent officer, under the same or similar circumstances, might
have reached the same decision. See Telthorster, 92 S.W.3d at 465; Gomez, 587
S.W.3d at 897.

That a police officer “was negligent will not defeat good faith; this test of
good faith does not inquire into ‘what a reasonable person would have done,’ but
into ‘what a reasonable officer could have believed.’” See Telthorster, 92 S.W.3d
at 465 (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1 (Tex. 1997)
(citing Chambers, 883 S.W.2d at 661 n.5)). The “objective good faith test ‘does not
place an onerous burden on law enforcement.’” Sauls, 690 S.W.3d at 75 (quoting
Riojas, 640 S.W.3d at 539). It is analogous to an abuse of discretion standard
protecting “‘all but the plainly incompetent or those who knowingly violate the
law.’” Riojas, 640 S.W.3d at 540 (quoting Bonilla, 481 S.W.3d at 643 (quoting City
of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam) (quoting
Chambers, 883 S.W.2d at 656, 657 n.7))).

Although the supreme court developed particularized need-risk factors to
substantiate conclusions about the existence of good faith in emergency response
cases, such a need-risk balancing analysis does not apply outside of the context of a
police emergency. Sauls, 690 S.W.3d at 73-4; Riojas, 640 S.W.3d at 535, 542. In
fact, the supreme court “expressly refused to” require and apply the need-risk factors
“‘outside the context of a high-speed chase or other emergency law-enforcement
response that carries an inherent risk of harm to the public.’” Sauls, 690 S.W.3d at
73-4 (quoting Riojas, 640 S.W.3d at 535). Thus, outside the context of a police
emergency, to demonstrate his good faith, a police officer is only required to show
that a reasonably prudent officer faced with the same circumstances could have
believed that his conduct was justified. See Riojas, 640 S.W.3d at 542; Telthorster,

11
92 S.W.3d at 465.

Only when it has been determined that the governmental unit met its initial
burden to conclusively prove the police officer’s good faith does the court address
whether the nonmovant’s evidence raises a genuine issue of material fact on the issue
of good faith. See Riojas, 640 S.W.3d at 541; Telthorster, 92 S.W.3d at 465. To
raise a fact issue, the nonmovant must do more than show that a reasonably prudent
police officer could have reached a different decision. See Riojas, 640 S.W.3d at
542; Bonilla, 481 S.W.3d at 643. Instead, the nonmovant must offer evidence that
no reasonable police officer in the officer’s position could have believed that the
facts were such that they justified the challenged actions. See Riojas, 640 S.W.3d at
542; Bonilla, 481 S.W.3d at 643.

2. Application

In determining whether the City conclusively established that Officer Kpotie
acted in good faith, we next turn to the evidence in this case. Appellees claim that
the City failed to establish good faith because it did not present evidence that Officer
Kpotie “subjectively considered alternative courses of action” or weighed the risks
of his conduct speeding “without lights or sirens at nighttime.”

Contrary to Appellees’ assertion, the good-faith test does not require that the
officer subjectively assessed certain factors while performing his duties. See Sauls,
690 S.W.3d at 74 (“Although the good-faith inquiry ‘must be filtered through the
lens of the officer’s perceptions at the time of the incident,’ the test’s focus is on the
objective facts and information the officer knew and perceived, not whether the
officer had subjectively considered and assessed certain factors. Ultimately, the
officer’s actions — not his or her subjective assessments — must be justified with
reference to what a reasonably prudent officer, possessed of the same information
and under the same or similar circumstances, could have believed.”).
12
Further, the test is a holistic inquiry with no magic words required, so that
“[a]lternative courses of action may be ‘implicitly discounted’ instead of ‘explicitly
address[ed]’” and risks “that are generally ‘present to some degree’ do not need to
be ‘explicitly mention[ed]’ and can be addressed through describing the facts and
circumstances that affected the risks.” Id. (quoting Bonilla, 481 S.W.3d at 645, and
Univ. of Houston v. Clark, 38 S.W.3d 578, 586 (Tex. 2000)). More importantly,
there is no emergency situation in this case (as Appellees acknowledged) and a need-
risk balancing analysis does not apply outside of the context of a police emergency.
Sauls, 690 S.W.3d at 73-74; Riojas, 640 S.W.3d at 535, 542.

Here, the City presented affidavits from Officer Kpotie and his partner Officer
Young. In relevant part, Officer Young stated in her affidavit as follows:

We headed out of the parking lot and . . . did not activate lights and
siren at this point because we were not directly behind the undercover
vehicle, and there were other prostitution suspects and other undercover
officers on the ground in that location; we did not want to tip off other
suspects or blow the cover of the undercover units who were still
participating in the operation.
The undercover officer was several vehicles ahead of us and made a left
turn at the intersection of Centre Parkway and Bissonnet Street
traveling westbound. We could not make the light so Officer Kpotie
exercised his individual discretion to wait at the red light while
continuing to listen to the surveillance officer provide updates on
direction of travel. As part of this operation, Officer Kpotie had the
discretion to proceed into this intersection against the light if he had
activated my emergency equipment. But he decided not to because it
is a very busy intersection, and it would have been too risky. Every
time we activate emergency equipment, there is a risk of an accident.
And the traffic was unusually busy that evening. Once the light turned
green, we made the left turn and went westbound on Bissonnet Street.
We passed through the green light at Woodfair Drive and continued
westbound on Bissonnet Street. I observed Officer Kpotie trying to
drive as safely as possible, by looking around, observing traffic
conditions and other motorists, and by using his blinkers. The roads

13
were dry, and the weather was clear. I do not know how fast he was
traveling but we were stuck in the middle of a bunch of cars that were
going roughly the same speed, which prohibited us from catching up
with the suspect vehicle. Based upon these facts, I believed Officer
Kpotie’s speed to be generally safe and appropriate for the situation and
the safety of other motorist[s] and others in the area.
In the 10,000 block of Bissonnet Street, I recall seeing a shadow
suddenly appear in front of the passenger side of our vehicle. I
remembered telling Kpotie to watch out but I don’t know whether I
completed the thought before the impact because it happened so fast.
* * *
It is my opinion that Officer Kpotie’s actions in traveling towards the
undercover vehicle without activating emergency equipment in support
of this operation were both reasonable and proper under the
circumstances. He considered both the need to assist the operation as a
marked unit who could not only make the arrest and protect the safety
of the undercover unit, as well as risk of harm to other drivers from his
driving as part of this operation. I believe that a reasonably prudent law
enforcement officer under the same or similar circumstances could
have believed that Officer Kpotie’s actions were justified based on his
perception of the facts at the time and that the need to immediately
reach the undercover vehicle to make the prostitution arrest outweighed
any minimal risk of harm to others from his own driving.
In his affidavit, Officer Kpotie stated he was driving one of the marked units tasked
with following the undercover unit to arrest the prostitution suspect at an agreed
McDonald’s location. As an officer in a marked unit, Officer Kpotie had to use his
“own judgment to decide how close [he] wanted to stay to the undercover unit who
had a suspect in his vehicle.” He “had the discretion to violate traffic laws if
necessary to stay closer to the undercover vehicle” and if he believed the undercover
officer’s safety was in jeopardy. Officer Kpotie also stated that marked units were
supposed to avoid using emergency equipment during the operation unless exigent
circumstances arose. He “determined that there did not seem to be exigent
circumstances that would have justified activating that equipment.”

14
Officer Kpotie stated that the undercover unit was four vehicles ahead of his
unit and made a left turn at an intersection onto Bissonnet Street. He explained that
because he was unable to make the light to follow the undercover officer through the
intersection, he “exercised [his] individual discretion to wait at the red light.” He
explained, “As part of this operation, I had the discretion to proceed into this
intersection against the light if I had activated my emergency equipment. But I
decided not to do that because it is a very busy intersection.” He also explained that
once the light turned green, he turned left and continued on Bissonnet Street trying
to reach the “McDonald’s as safely as possible.”

He stated the “roads were dry, weather was clear and traffic was medium. I
was traveling approximately 40-45 miles per hour.[3] I did not observe my speed to
be dramatically different from the other motorists around me; there were other
vehicles traveling near me that were going about the same speed as I was. Based
upon these facts, I believed my speed to be generally safe and appropriate for the
situation and the safety of other motorist[s] and others in the area.” Officer Kpotie
also stated:

I continued to follow the direction of travel being called out by the
surveilling officer, when I heard my partner tell me to watch out. I was
not distracted by my phone, the police radio, our unit’s MDT or any
other device, I just didn’t see the pedestrian until my partner alerted me
he was running across Bissonnet. I saw a pedestrian wearing all black
who was running from my right to my left across my lane of traffic

3
The speed limit was 35 m.p.h. in the area the accident occurred. In his report, Investigator
Romo of the vehicular crimes reconstruction unit stated that, based on the evidence, Officer
Kpotie’s “vehicle was traveling 55 mph approximately 70 feet from the area of impact.”
Investigator Romo reconstructed the accident at a speed of 35 m.p.h. and concluded that Officer
Kpotie would have hit Sanders even at the posted speed limit. Investigator Romo opined: “Based
on this information it is my conclusion that no action could be taken by the driver of the vehicle
that would have resulted in the crash not taking place. I have concluded that the factor which lead
to this crash was the pedestrian leaving a position of safety, not in a designated crossing area, when
it was unsafe and failed to yield right away to a moving vehicle.”

15
outside of a crosswalk. He was within a couple of feet of my patrol
vehicle in the 10,000 block of Bissonnet Street. I reacted by steering to
the left but the pedestrian impacted the right front of the patrol vehicle
and up onto the windshield before landing on the pavement. Due to the
poor lighting in this area and the pedestrian wearing all black, I did not
notice him before he was in the roadway and my partner alerted me.
* * *
It is my opinion that my actions in traveling towards the McDonalds
without activating emergency equipment in support of this operation
were both reasonable and proper under the circumstances. I considered
both the need to assist the operation as a marked unit who could not
only make the arrest and protect the safety of the undercover unit, as
well as risk of harm to other drivers from my driving as part of this
operation. I believe that a reasonably prudent law enforcement officer
under the same or similar circumstances could have believed that my
actions were justified based on my perception of the facts at the time
and that the need to immediately reach the McDonalds to make the
prostitution arrest outweighed any minimal risk of harm to others from
my own driving.
Officer Kpotie’s and Officer Young’s affidavits are sufficient to demonstrate that a
reasonably prudent police officer in Officer Kpotie’s shoes could have believed that
his conduct at the time of the accident was warranted and justified. Appellees
contend that Officer Kpotie was unnecessarily speeding without lights or sirens after
dark “instead of utilizing an alternative and safer method.”

But both officers explained in their respective affidavits that (1) Officer
Kpotie was driving “as safely as possible, by looking around, observing traffic
conditions and motorists”; (2) Officer Kpotie was not distracted by his phone, the
police radio, or any other device; (3) the roads were dry, the weather was clear, and
the “traffic was medium”; (4) other motorists around him “were going about the
same speed as [he] was”; and (5) Officers Kpotie and Young “were stuck in the
middle of a bunch of cars that were going roughly the same speed, which prohibited
[them] from catching up with the suspect vehicle,” causing the officers to believe

16
that “Officer Kpotie’s speed [was] generally safe and appropriate for the situation
and the safety of other motorist[s] and others in the area.”

The officers also discussed why it was reasonable for Kpotie to not activate
his marked unit’s lights and siren, namely (1) to not “tip off other suspects” and
“blow the cover of other undercover units”; (2) there is a risk of causing an accident
every time emergency equipment is activated; (3) the traffic was unusually busy that
evening; (4) there were no exigent circumstances that would have justified the
activation of emergency equipment; and (5) for the protection of the undercover
officer while attempting to reach the location to arrest the suspect.

Based on the officers’ affidavits, we conclude the City met its summary-
judgment burden to make a prima facie showing of Officer Kpotie’s good faith.

3. Controverting Evidence

Because we determined that the City met its initial burden to prove Officer
Kpotie’s good faith, the burden then shifted to Appellees to present controverting
evidence. See Riojas, 640 S.W.3d at 541. Thus, Appellees were required to offer
evidence that no reasonable police officer in Officer Kpotie’s position could have
believed that the facts were such that they justified his actions. See id. at 542;
Bonilla, 481 S.W.3d at 643. Appellees did not present any controverting evidence.
Therefore, the City conclusively proved that Officer Kpotie acted in good faith.

Based on the evidence presented, we conclude the City established as a matter
of law that Officer Kpotie would be entitled to official immunity for his conduct at
the time of the accident. Because section 101.021(1) of the TTCA waives immunity
only if the governmental employee would be personally liable under Texas law, the
City retained its governmental immunity from suit and has established that it is
entitled to summary judgment.

17
Accordingly, we sustain the City’s issue.

CONCLUSION

Having sustained the City’s issue, we reverse the trial court’s order denying
the City’s motion for summary judgment and render judgment dismissing Appellees’
claims against the City for want of subject matter jurisdiction.

/s/ Meagan Hassan
Justice

Panel consists of Justices Wise, Spain, and Hassan.

18