14th Court of Appeals holds officer was not entitled to official immunity – proper focus is on the actions which caused the plaintiff’s injury, not on the overall investigation the officer was performing

Nicholas Hulick v. City of Houston, 14-20-00424-CV  (Tex. App. Houston [14th Dist.], Feb. 1, 2022)

This is a Texas Tort Claims Act (“TTCA”)/ vehicle accident case where the Fourteenth District reversed the granting of the City’s plea to the jurisdiction based on the official immunity of its officer.

Officer Andrew De La Guardia responded to a service call involving a homeless suspect causing a disturbance on the street outside of a business. It was raining heavily while he was en route to the location. When he arrived, he drove around the area looking for the suspect, but was unable to find anyone matching the description.  When the rain became more severe he decided to turn around and head back to the station. Slowing to ten to fifteen miles per hour, he looked through the rain for oncoming traffic. Seeing none, the officer attempted to cross the westbound lanes of traffic but struck a motorcycle driven by Hulick.  Hulick sued.  The city filed a plea to the jurisdiction, arguing De La Guardia had official immunity at the time. Hulick appealed.

A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.  If the employee is immune, the employee would not be liable under Texas law to the Plaintiff, therefore the City retains its immunity from suit.  The court analyzed whether the officer was performing a discretionary function at the time. An action is discretionary if it involves personal deliberation, decision, and judgment; on the other hand, an action that requires obedience to orders or the performance of a duty as to which the employee has no choice is ministerial. The court noted the City correctly observed that a law enforcement officer’s operation of a vehicle is a discretionary function in certain circumstances, including high-speed chase and responding to an emergency.  However, absent such special circumstances, an officer’s operation of a motor vehicle on official, non-emergency business is ministerial.  De La Guardia discontinued his search for the suspect at that time and was attempting to return to the station. While the City asserts he was performing an investigation (which is discretionary) the court held the focus should be on the actions which caused the injury (i.e. failing to yield the right-of-way to oncoming traffic).  The record did not support a finding of official immunity in this circumstance and the order granting the plea was reversed.

If you would like to read this opinion click here.  Panel consists of Justice Jewell, Justice Bourliot and Justice Poissant. Memorandum opinion by Justice Jewell.