REVERSE and RENDER; and Opinion Filed August 7, 2019.




                                                                    In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                         No. 05-19-00045-CV

                                  CITY OF DALLAS, Appellant
                                            V.
                        ROSA RODRIGUEZ AND MARIO RODRIGUEZ, Appellees

                                  On Appeal from the 116th Judicial District Court
                                               Dallas County, Texas
                                       Trial Court Cause No. DC-17-14889

                                            MEMORANDUM OPINION
                                        Before Justices Bridges, Brown, and Nowell
                                                Opinion by Justice Bridges
           The City of Dallas appeals the trial court’s order denying its plea to the jurisdiction in the

underlying case involving Rosa Rodriguez’ collision with a marked police car. In three issues, the

City argues the trial court abused its discretion in sustaining Rodriguez’ objections to the City’s

evidence offered in support of its plea to the jurisdiction, the trial court erred in denying its plea to

the jurisdiction, and the City is immune from suit because its officer is entitled to official immunity.

We reverse the trial court’s order, grant the City’s plea to the jurisdiction, and dismiss appellees’

claims for want of subject matter jurisdiction.

           In October 2017, Rodriguez1 filed her original petition in which she alleged she was injured

when a vehicle operated by Veronica Alejandro, a Dallas police officer, disregarded a red light


    1
        Both Rosa and Mario Rodriguez are appellees in this case; however, for purposes of this opinion, we refer to “Rodriguez” in the singular.
and caused Rodriguez’ vehicle to strike Alejandro’s vehicle.         Rodriguez alleged claims of

negligence, gross negligence, respondeat superior, and negligence per se.

       In October 2018, the City filed a plea to the jurisdiction in which it argued Alejandro was

entitled to official immunity and the City was therefore shielded from liability by sovereign

immunity. Specifically, the City argued Alejandro was performing a discretionary function within

the scope of her employment and acting in good faith. The plea to the jurisdiction was supported

by Alejandro’s affidavit in which she described the circumstances of the accident and explained

her actions and perception of the urgency of the situation and the risks involved.

       In response to the City’s plea to the jurisdiction, Rodriguez first objected to Alejandro’s

affidavit as “hearsay and violations of the best evidence rule.” Rodriguez argued Alejandro’s

affidavit was fatally defective on the grounds that it failed to unequivocally show it was based on

personal knowledge and it made no representation that the facts disclosed were true. Rodriguez

also objected that Alejandro’s affidavit contained self-serving statements, legal conclusions, and

conclusory statements of fact. Accordingly, Rodriguez argued, five paragraphs of Alejandro’s

affidavit should be excluded.

       In addition, Rodriguez argued Alejandro approached the intersection where the traffic

signal controlling travel for Rodriguez was green, and the traffic signal for Alejandro was red.

Nevertheless, Alejandro approached the intersection without coming to a complete stop to ensure

she could safely cross the intersection and avoid a collision. Rodriguez alleged Alejandro entered

the intersection on a red light and proceeded through the intersection without her lights and sirens

on. Rodriguez attached a copy of the collision report which contained a “City Driver’s Statement”

in which Alejandro stated she came to a complete stop before entering the intersection and

proceeded very slowly through the intersection. Alejandro also stated that “all traffic on the

northbound side had stopped and was giving [her] passage.” Rodriguez argued that, although

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Alejandro stated she came to a complete stop at the intersection, her dash cam showed her speed

never read zero until after the collision.

        Rodriguez alleged the accident was investigated by the Dallas police, and the investigator

found that Alejandro’s disregarding a stop and go signal was a contributing factor in the accident.

The investigator also “noted that the vehicle in front of [Rodriguez] proceeded through the

intersection prior to [Rodriguez],” and this contradicted Alejandro’s statement that northbound

travel had stopped to allow her to proceed through the intersection. Rodriguez argued Alejandro’s

actions were not discretionary because a general order of the Dallas police chief required officers

to “come to a complete stop” before entering an intersection; therefore, because the order was

mandatory, Alejandro had no discretion to ignore the order and was required to obey the order.

Rodriguez also argued Alejandro did not act in good faith because she violated the order requiring

her to come to a complete stop and the traffic laws of Texas when she ran a red light without

coming to a complete stop. In making this argument, Rodriguez argues Alejandro’s dash cam

“shows the triggers for her lights and sirens to be going on and off up until the accident” and, “in

listening to the audio it is clear that Officer Alejandro’s overhead sirens were not activated and

cannot be heard until after the collision.” Rodriguez added “[i]t was later noted the sirens on

Officer Alejandro’s vehicle were not working properly.”

        In her brief, Rodriguez argues Alejandro’s dash cam shows that she never came to a

complete stop at the intersection. Rodriguez argues Mario Rodriguez testified Alejandro was

driving without her lights and siren when the collision occurred, and an incident report stated

Alejandro’s sirens did not work properly, contradicting Alejandro’s statement in her affidavit that

her emergency lights, siren, and air horn were activated. Rodriguez complains Alejandro did not

mention in her affidavit that her view was obstructed by another vehicle and that at least one other

vehicle besides Rodriguez’ did not stop and yield.

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       The dash cam video shows Alejandro constantly honking her patrol car’s air horn as she

approached the intersection where the collision occurred. The video’s GPS “speed” indication

shows Alejandro’s speed at 23 miles per hour just before Alejandro appears to come to a complete

stop. The speed indicator quickly drops to nine and then to two miles per hour after she stopped

and the indicator immediately shows her speed at three miles per hour as she slowly entered the

intersection. It is obvious from viewing the video in relation to the GPS speed indicator that the

indicator is delayed in its indication of Alejandro’s speed at a given instant. Alejandro’s stop at

the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS

simply did not have time to read zero before Alejandro was moving again. In effect, the laws of

physics showed Alejandro stopped, and the readout on the GPS was not accurate. Alejandro’s

speed fluctuated between two, three, six, three, and seven miles per hour as she proceeded through

the intersection, and she reached fourteen miles per hour and had almost cleared the intersection

when the collision occurred. As Alejandro proceeded, all other vehicles cleared the intersection,

giving her a clear line of sight at the road ahead.

       The video also indicates “Triggers” including lights, siren, and brakes. Just as Alejandro

stops at the intersection, the siren indicator flickers on and off for a second, but Alejandro was

continuously honking her air horn at the time, and it is difficult to hear the siren clearly until after

the collision when Alejandro stops honking the air horn.             However, the siren is audible

immediately before the collision as Alejandro pulls into the intersection. The lights indicator

stayed on continuously throughout Alejandro’s approach to the intersection and the following

collision, although the lights themselves are not visible in the video.

       On December 31, 2018, the trial court signed an order denying the City’s plea to the

jurisdiction. The order also sustained Rodriguez’ objections to Alejandro’s affidavit except for

her statement that “The potential danger posed by proceeding through the intersection was far less,

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considering the above factors, than the danger posed to the officers and victims involved in the

6XE major disturbance (violence) emergency.” This appeal followed.

        In its first issue, the City argues the trial court abused its discretion in sustaining Rodriguez’

objections to the City’s evidence offered in support of its plea to the jurisdiction. The City argues

the trial court erred in striking twenty sentences of Alejandro’s affidavit, effectively striking the

bulk of Alejandro’s testimony. Specifically, the City argues that, by “failing to identify which of

her general objections applied to the larger parts of Alejandro’s affidavit being challenged,

Rodriguez failed to put the district court on notice of the precise grounds on which she challenged

the affidavit.”

        The party contesting jurisdiction in a plea to the jurisdiction must meet the summary-

judgment standard of proof to support its contention that the trial court lacks subject-matter

jurisdiction. HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012,

pet. dism’d). An appellate court reviews a trial court’s ruling that sustains an objection to summary

judgment evidence for an abuse of discretion. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex.

App.—Dallas 2006, no pet.). An appellant has the burden to bring forth a record that is sufficient

to show the trial court abused its discretion when it sustained the appellee's objections to the

summary judgment evidence. See id.

        Rodriguez’ response to the City’s plea to the jurisdiction objected to Alejandro’s testimony

in her affidavit as “hearsay and violations of the best evidence rule,” evidence of an interested

witness, unsubstantiated opinions or unilateral subjective determinations of facts, self-serving

statements not susceptible of being readily controverted, legal conclusions, and conclusory

statements of fact. Rodriguez’ response then separately listed sections of Alejandro’s affidavit to

which Rodriguez objected. Rodriguez did not state the specific grounds on which each identified

section of the affidavit was objectionable. We conclude these objections were not sufficiently

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specific. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.)

(rejecting argument that evidence was substantively defective where objections identified only

number of particular paragraphs and exhibits with no description of particular basis for objection);

see Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler 2002, no pet.)

(objection that individual paragraph of affidavit “contains unsubstantiated legal conclusions” is

itself conclusory because it fails to identify which statements in individual paragraph are

objectionable or offer any explanation to trial court as to precise bases for objection); Garcia v.

John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio 1993, writ

denied) (objection that individual paragraphs contained “speculation” and “conclusion” failed to

give grounds to support inadmissibility argument). Under these circumstances, we conclude the

trial court abused its discretion in sustaining Rodriguez’ objections to Alejandro’s affidavit. See

Cantu, 195 S.W.3d at 871. We sustain the City’s first issue.

        In its second issue, the City argues the trial court erred in denying its plea to the jurisdiction.

In its third issue, the City argues it is immune from suit as a result of Alejandro’s official immunity.

        Immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly

asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a pleader

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are

questions of law. Id. at 226. Therefore, we review de novo a trial court’s ruling on a jurisdictional

plea. Id.

        When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. We

construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction

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but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

        However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do. Id. When the consideration of a trial court’s

subject matter jurisdiction requires the examination of evidence, the trial court exercises its

discretion in deciding whether the jurisdictional determination should be made at a preliminary

hearing or await a fuller development of the case, mindful that this determination must be made as

soon as practicable. Id. Then, in a case in which the jurisdictional challenge implicates the merits

of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence creates a fact

question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, if the

relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

        This standard generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate itself from

litigation if it is truly immune. Id. After the state asserts and supports with evidence that the trial

court lacks subject matter jurisdiction, the plaintiffs are required, when the facts underlying the

merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact

regarding the jurisdictional issue. Id. A summary judgment may be based on uncontroverted

testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise

                                                  –7–
credible and free from contradiction, and could have been readily controverted. TEX. R. CIV. P.

166a(c); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 698 (Tex. App.—Austin

2005, no pet.).

       When reviewing a plea to the jurisdiction in which the pleading requirement has been met

and evidence has been submitted to support the plea that implicates the merits of the case, we take

as true all evidence favorable to the nonmovant. Miranda, 133 S.W.3d at 228. We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

       Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951 S.W.2d 464,

465 (Tex. 1997). A governmental employee has official immunity for the performance of

discretionary duties within the scope of the employee’s authority, provided the employee acts in

good faith. Id. at 466. A court must measure good faith in official immunity cases against a

standard of objective legal reasonableness, without regard to the employee’s subjective state of

mind. Id. Good faith depends on how a reasonably prudent officer could have assessed the need

to which an officer responds and the risks of the officer’s course of action, based on the officer’s

perception of the facts at the time of the event. Id. at 467 (applying City of Lancaster v. Chambers,

883 S.W.2d 650, 656 (Tex. 1994) (good faith balancing test in context of emergency response

case). The “need” aspect of the test refers to the urgency of the circumstances requiring official

intervention. Id. In the context of an emergency response, need is determined by factors such as

the seriousness of the crime or accident to which the officer responds, whether the officer’s

immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and

what alternative courses of action, if any, are available to achieve a comparable result. Id. The

“risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns:

the nature and severity of harm that the officer’s actions could cause (including injuries to

bystanders as well as the possibility that an accident could prevent the officer from reaching the

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scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm

would be clear to a reasonably prudent officer. Id.

       In its plea to the jurisdiction, the City alleged that, on March 2, 2017, at approximately

2:40 p.m., Alejandro was on routine patrol duty in a marked Dallas police patrol car. Through the

911 call center, Alejandro was dispatched to a report of a person breaking windows and threatening

to shoot a woman at her home. The call was dispatched as a “code 3” assignment, which meant

the call was “to be given priority and answered without delay.”

       Here, Alejandro’s affidavit stated she understood that, in making discretionary decisions

during emergency calls, she must weigh the need to urgently respond to the emergency call against

the risk involved to the general public when responding to the emergency. Based on her law

enforcement experience and responding to emergency calls, Alejandro understood that “6X major

disturbance (violence) emergency calls” needed to be responded to immediately because fellow

officers and/or victims could be in imminent danger from the disturbance, and the immediate

presence of other police officers is necessary to prevent serious injury to the police officers and/or

the victims.

       Alejandro’s affidavit stated that, when she proceeded through the intersection after

stopping, she believed in good faith that the need to get to the scene of the disturbance emergency

outweighed what she perceived to be the minimal risk of an accident. Alejandro recognized that

there was some risk in deciding to proceed through an intersection on a red light. Alejandro came

to a complete stop, looked to her right and left, and activated the air horn on her patrol car. Given

the dry condition of the roadway at the time and the fact that traffic at the intersection appeared to

be yielding to her vehicle, Alejandro’s emergency lights, siren and air horn were activated, and

Alejandro had stopped at the light and proceeded slowly through the intersection, Alejandro did




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not perceive that proceeding through the intersection would cause any danger to any other driver

near her location.

       Alejandro’s affidavit stated that, considering the above factors, the potential danger posed

by proceeding through the intersection was far less than the danger posed to the officers and

victims involved in the 6X major disturbance (violence) emergency. Given that Alejandro had

been dispatched through the 9-1-1 system to respond and was expected to respond urgently to

provide assistance to other officers and victim(s), there was no other reasonable alternative but to

proceed through the intersection in the manner in which she proceeded. From her point of view at

the time and at all times while en route to the call, Alejandro did not engage in conduct she believed

would pose a likelihood of serious injury to anyone. Alejandro stated she was acting in good faith

and within the scope of her discretionary authority as a Dallas police officer. Alejandro stated her

actions were reasonable in light of the circumstances, and any reasonably prudent police officer,

under the same or similar circumstances, could have believed Alejandro’s actions were justified.

       Section 546.001(2) of the transportation code provides that the operator of an emergency

vehicle may proceed past a red or stop signal or stop sign after slowing as necessary for safe

operation. TEX. TRANSP. CODE ANN. § 546.001(2). The fact that a collision occurred does not

amount to a showing that an officer violated the statute and is insufficient to raise a genuine issue

of material fact as to whether the officer acted recklessly. See Tex. Dep’t of Pub. Safety v. Sparks,

347 S.W.3d 834, 842 (Tex. App.—Corpus Christi–Edinburg 2011, no pet.); see also City of

Laredo v. Varela, No. 04–10–619–CV, 2011 WL 1852439, *3–5 (Tex. App. —San Antonio

May 11, 2011, no pet.) (mem. op.) (holding officer’s failure to adhere to policy requiring

emergency vehicles to come to complete stop and failure to remember looking both ways

before entering intersection did not raise fact issue as to whether officer acted in conscious

indifference to or reckless disregard for safety of others).

                                                –10–
       A police officer’s own affidavit may establish good faith. City of La Joya v. Herr, 41
S.W.3d 755, 761 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (citing Barker v. City of

Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ denied)). An

officer’s good faith is not rebutted by evidence that he violated department policy. City of Fort

Worth v. Robinson, 300 S.W.3d 892, 900 (Tex. App.—Fort Worth 2009, no pet.) (citing

Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied)).

       The record shows the need to which Alejandro was responding was a potentially life

threatening emergency involving several unknown people beating on a woman’s door and

threatening her with a gun. Alejandro stopped at the intersection, and she believed in good

faith that the need to get to the scene of the emergency call outweighed the perceived minimal

risk of an accident. The road was dry, traffic “appeared to be yielding to [Alejandro’s]

vehicle,” and Alejandro’s emergency lights, siren, and air horn were activated. While there

may have been some malfunction with Alejandro’s lights and siren, they were nevertheless

activated, and Alejandro used her air horn continuously. Alejandro did not perceive that

proceeding through the intersection would cause any danger to any other driver near her

location. Alejandro recognized that there was some risk in deciding to proceed through an

intersection on a red light. However, the potential danger posed by proceeding through the

intersection was far less than the danger posed to the officers and victims involved in the 6X major

disturbance (violence) emergency. Under the facts and circumstances of this case, we conclude

appellees failed to raise a factual dispute as to whether Alejandro acted recklessly or in violation

of the Texas Transportation Code. See Sparks, 347 S.W.3d 834 at 842; Varela, 2011 WL 1852439

at *3–5. Further, we conclude the evidence conclusively established Alejandro acted in good faith.

See Wadewitz, 951 S.W.2d at 465-67. Accordingly, the trial court erred in denying the City’s plea

to the jurisdiction. We sustain the City’s second and third issues.
                                               –11–
       We reverse the trial court’s order, grant the City’s plea to the jurisdiction, and dismiss

appellees’ claims for want of subject matter jurisdiction.




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE


190045F.P05




                                               –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CITY OF DALLAS, Appellant                           On Appeal from the 116th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-19-00045-CV         V.                       Trial Court Cause No. DC-17-14889.
                                                     Opinion delivered by Justice Bridges.
 ROSA RODRIGUEZ AND MARIO                            Justices Brown and Nowell participating.
 RODRIGUEZ, Appellees

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:

       the City's plea to the jurisdiction is GRANTED, and Rosa Rodriguez and Mario
       Rodriguez' claims against the City are DISMISSED for want of subject matter
       jurisdiction.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 7th day of August, 2019.




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