City of Houston, Petitioner, v. Ruben Rodriguez and Frederick Okon, Respondents (2024)

When police officers act in good faith while performing discretionary duties within the scope of their authority, the common law shields them from personal liability and, in turn, the relevant statutory waiver of their governmental employer's immunity from civil suit does not apply.¹ At issue in this interlocutory appeal is whether an officer was acting in good faith when, while turning in pursuit of a suspected felon fleeing in a stolen vehicle, the patrol car hit the street curb and struck a pickup truck waiting at a stop sign. Relying solely on the officer's statement that he “hit the curb due to the brakes not working,” the court of appeals held that a fact issue precluded summary judgment for the city because the officer's testimony was silent about when he became aware that the brakes were not functioning and the risks of driving with defective brakes.²

We disagree and conclude that, as a matter of law, the officer was acting in good faith when he executed the turn and collided with the bystander's truck. Although we indulge every reasonable inference from the summary-judgment evidence in the nonmovant's favor, the officer's statement does not reasonably support an inference that he had prior awareness of any defective brakes; indeed, he clarified that he meant only that his brakes did not stop him, not that they were defective. The court of appeals' sua sponte supposition to the contrary was inaccurate speculation that conflicted with the parties' positions. We reverse and render judgment dismissing the case.

I

Early on a Saturday evening, Houston Police Department Officers Richard Corral and C. Goodman were assisting the Vice Division in running a sting operation with an undercover female detective posing as a sex worker. After an individual solicited the detective from his vehicle and paid $40 to engage in sexual activity at a nearby parking lot, Corral and Goodman drove to the lot to make an arrest. But when the suspect saw them, he fled in his red Mercedes “at a high rate of speed.” The officers pursued the suspect, activating their emergency lights and siren. While Corral focused on driving, Goodman called in the pursuit and the Mercedes's license-plate number. Approximately three minutes into the chase, dispatch relayed that the Mercedes had been reported stolen.

The pursuit lasted less than ten minutes with the suspect driving “erratically”; “at a high rate of speed, weaving in-and-out of traffic”; and “in an exceedingly dangerous manner,” including “driving the wrong direction” down a service road at one point. Corral tried to stay close enough to keep eyes on the unidentified suspect while maintaining enough distance to avoid a collision. As the suspect traveled north on a one-way, three-lane service road, Corral followed around fifty feet behind in the middle lane. Suddenly, the suspect turned right onto a side street, “barely missing” Ruben Rodriguez and Frederick Okon, who were in a pickup truck waiting at the stop sign to turn north onto the service road. As Corral followed in pursuit, he noticed the truck and attempted to avoid it but “hit the curb due to the brakes not working,” “lost control of the vehicle,” and “struck the bed of the truck.” At the time of the crash, Corral was traveling thirty-five to forty miles per hour. The investigating officer found that Corral caused the accident by making an improper wide turn from the middle lane. The police never apprehended the suspect but subsequently recovered the stolen vehicle.

Rodriguez and Okon sued the City of Houston, alleging that Corral's negligent driving caused them personal injuries for which the Tort Claims Act waives governmental immunity from suit.³ In response, the City asserted its immunity in a traditional motion for summary judgment supported with affidavits from Corral and his supervisor, Sergeant Kenny Li, Jr. The motion raised two grounds: (1) the Tort Claims Act waives immunity only when the employee would be personally liable, and official immunity shields Corral from liability because he was acting in good faith; and (2) the Act's emergency exception to the waiver applies because Corral was not acting recklessly in responding to an emergency.⁴ In response, the plaintiffs attempted to raise a fact issue that Corral recklessly made an improper wide turn by attaching deposition excerpts from Corral and the investigating officer, the police department's crash and offense reports, and related accident documents and photos. The trial court denied the motion, and the City appealed.⁵

A divided court of appeals affirmed.⁶ The court held that fact questions prevented summary judgment—specifically, whether and when Corral knew that his brakes were not functioning properly.⁷ The court found evidence creating a fact issue in Corral's statement that he “hit the curb due to the brakes not working” and his corresponding failure to discuss any prior awareness of the brakes' condition.⁸ According to the majority, if Corral had been driving with knowledge that his brakes were deficient, his course of action would have been reckless and not in good faith.⁹ The dissent accused the majority of “imagin[ing] the existence of a fact” based on this “single statement” and resting its opinion “not on reasonable inferences but on rank speculation.”¹⁰ In the dissent's view, the record provides no suggestion of any prior awareness that the brakes malfunctioned.¹¹ Rather, given Corral's description of accelerating and slowing the patrol car in pursuit, “[t]he only reasonable inference on that score is the opposite: that the brakes were functional.”¹²

The City petitioned for review, which we granted. Because the issue of official immunity is dispositive, we do not reach the City's emergency-exception issue.¹³

II

A

A city performing governmental functions may not be sued unless the Legislature waived the city's governmental immunity.¹⁴ By enacting the Tort Claims Act, the Legislature determined that a city's immunity is waived in a suit for personal injuries proximately caused by an employee's negligence in the course and scope of employment and arising from the operation or use of a motor vehicle but only if “the employee would be personally liable” under Texas law.¹⁵ And “[t]o the extent an employee has individual immunity from a tort claim for damages,” the Act provides that it is not affected by this waiver.¹⁶

One type of “individual immunity” that shields government employees from personal liability is the common-law affirmative defense of official immunity.¹⁷ “[P]erhaps most vital in police work,” official immunity protects officers “when they are performing (1) discretionary duties, (2) in good faith, and (3) within the scope of their authority.”¹⁸ The doctrine promotes the public good by encouraging energetic law enforcement and allowing officers to make good-faith, split-second judgments based on their experience and training without fear of liability for every mistake.¹⁹

Although official immunity is the employee's affirmative defense, not the governmental employer's,²⁰ the Legislature expressly chose language making the Act's waiver of the employer's immunity from suit contingent on the fact that “the employee would be personally liable.”²¹ As we have consistently recognized, this means that the governmental employer's immunity is not waived if its employee is protected by official immunity.²² Thus, in a suit against the governmental employer, governmental immunity and official immunity may be essentially entwined.²³ But unlike governmental immunity, official immunity is an affirmative defense that must be pleaded and proved to shield an employee from personal liability; otherwise, the defense is lost.²⁴ As a result, a plaintiff could meet its “burden of affirmatively showing waiver of [governmental] immunity” under the Act,²⁵ including that the employee would be personally liable, without affirmatively negating official immunity. For that reason, we conclude that a governmental employer bears the burden to assert and prove its employee's official immunity, in a manner analogous to an affirmative defense, to preclude enforcement of the Act's waiver of governmental immunity on that ground.²⁶

The City raised its governmental immunity via a traditional summary-judgment motion, attaching evidence to conclusively establish Corral's official immunity and to affirmatively negate his personal liability under Texas law.²⁷ In this appeal, only the good-faith element of the official-immunity defense is at issue.²⁸ Our review is de novo, and we view the evidence in the light most favorable to the nonmovants by indulging every reasonable inference and resolving any doubts in their favor.²⁹ But we do not disregard necessary contextual evidence or “evidence and inferences unfavorable to the [nonmovants] if reasonable jurors could not.”³⁰

B

The foundation of the court of appeals' analysis is the statement in Corral's affidavit that he “hit the curb due to the brakes not working.” From this, the court inferred that a fact question exists about Corral's awareness of the brakes' defective nature prior to this event and if the evidence so proved, Corral would not be acting in good faith.³¹ The City does not dispute that if this inference were reasonable, summary judgment would be improper. Absent this inference, however, the court's analytical edifice crumbles.

The reasonableness of the inference turns on the reasonably inferable meaning of Corral's statement. Although “not working” may mean defective or not functioning,³² the term may also signify that something is insufficient or not up to the task to accomplish an intended result.³³ The record establishes that Corral intended the latter meaning: the brakes were functional, but their use did not accomplish his intended result of stopping the car before it hit the curb.

As an initial observation, the plaintiffs neither pleaded nor alleged that the brakes were defective. And in Corral's deposition, the plaintiffs sought to clarify the meaning of his statement that his brakes were not working:

[Plaintiffs' Counsel]: Okay. Were your brakes working at that point [of making the turn]?

[Corral]: I would say not—I mean, I tried to brake as hard as I could.

[Plaintiffs' Counsel]: Okay. Well, I mean, clearly the brakes didn't stop you, but were they working?

[Corral]: Yes.

Corral also confirmed this understanding in the Houston Police Department Crash Questionnaire by marking “no” to the question “did faulty equipment cause the crash?”³⁴

The plaintiffs attached both pieces of evidence to their summary-judgment response, and they never argued in the lower courts that the brakes were defective—in fact, they never even mentioned the brakes. And in this Court, the plaintiffs expressly acknowledged that “[t]here is no indication that the brakes on Officer Corral's cruiser were not working.” The court of appeals nevertheless injected uncertainty into what was undisputed, relying on a sua sponte construction of Corral's statement as meaning that the brakes were defective.³⁵

The statement's textual context, which we have repeatedly emphasized is “a primary determinant of meaning,”³⁶ also reinforces Corral's intended meaning. In his affidavit, Corral made the statement after describing how he turned, accelerated, and decelerated his patrol car while pursuing the suspect in a high-speed chase without mentioning any operational trouble or defective brakes. We agree with the dissent in the court of appeals that considering the affidavit in its entirety—along with the undisputed summary-judgment evidence—the “only reasonable inference” is “that the brakes were functional.”³⁷

Finally, even if Corral had intended to communicate that he hit the curb because his brakes were defective, as the court of appeals concluded,³⁸ that statement alone would not give rise to a reasonable inference that he was aware of any defect before that point. Stating that a defect caused an event says nothing about one's prior awareness. Inferring prior awareness is no more plausible than inferring no prior awareness—either inference would be a pure guess, which is no evidence to raise a fact question about the officer's prior awareness.³⁹

In sum, the court of appeals erroneously inferred an issue of material fact to preclude summary judgment when the parties did not dispute the underlying fact and the evidence did not reasonably give rise to that inference.

C

We now turn to whether the City met its burden as the traditional summary-judgment movant. We conclude that the City conclusively established Corral's good faith in making a wide turn while pursuing a suspect fleeing in a stolen vehicle and that the plaintiffs failed to raise a fact issue controverting the City's proof.

The standard for an officer's good faith in a high-speed pursuit case is whether “a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.”⁴⁰ No magic words are required to satisfy this holistic inquiry; rather, the summary-judgment proof must sufficiently assess particularized need–risk factors with reference to specific facts.⁴¹ The focus is “on the objective facts and information the officer knew and perceived, not on whether the officer had subjectively considered and assessed certain factors.”⁴²

The “need” aspect of this balancing test refers to the urgency of police intervention, which is balanced against the “risk” aspect of the countervailing public-safety concerns.⁴³ The “need” factors include the seriousness of the crime to which the officer is responding, the necessity of the officer's immediate presence to prevent injury or loss of life or to apprehend a suspect, and the availability of any alternative courses of action to achieve a comparable result.⁴⁴ The “risk” factors address the nature, severity, and likelihood of any harm that the officer's actions could cause and whether such risk would be clear to a reasonably prudent officer.⁴⁵ As we recently reiterated, this standard “does not place an onerous burden on law enforcement” because the touchstone is “what a reasonable officer could have believed” under the circumstances.⁴⁶

To establish good faith, the City relied on affidavits from Corral and his supervisor, which provide similar accounts of the relevant events.⁴⁷ In their affidavits, the officers opined that a reasonable officer, under the same or similar circumstances, could have believed that the need to pursue the suspect, who was recklessly fleeing in a stolen vehicle, outweighed the risks of making a wide turn in pursuit. And the officers substantiated those conclusions by assessing the need–risk factors based on Corral's perception of the facts at the time of the event.

In addressing the need factors, both officers detailed the events leading up to the accident and discussed the seriousness of the suspect's alleged crimes. Corral explained that by the time he made the turn, he knew the suspect had committed two felonies and a misdemeanor—“theft of a motor vehicle,” “evading officers with a motor vehicle,” and “solicitation of prostitution”—and was “driving in an exceedingly dangerous manner.”⁴⁸ Given the purported offenses and the danger from the suspect's reckless driving, the officers opined that Corral's immediate presence was required to apprehend the suspect. They also implicitly discounted other alternatives by noting that Corral “lacked sufficient information to discontinue the pursuit and arrest the [unidentified] suspect at another time” and “would not be able to track down the suspect through [the stolen] vehicle['s] records.”⁴⁹

Regarding the risk aspect of the standard, we have explained that it is not necessary to expressly identify risks that are generally present; they “can be addressed through describing the facts and circumstances that affected the risks.”⁵⁰ Here, the officers described the conditions that minimized the risks: although it “was already dark outside,” the “weather was clear and roads were dry” with light to medium Saturday traffic.⁵¹ The officers also noted Corral's efforts to mitigate the risks: he activated the patrol car's lights and siren for the entire pursuit, he “repeatedly” used his air horn so that cars would yield to his vehicle, he focused on driving safely while his partner communicated on the radio, and he tried to “keep enough distance to avoid a collision” without allowing the suspect to evade capture.⁵²

No doubt, there are obvious and significant risks associated with pursuing a suspect who is recklessly driving at a “high rate of speed” and then makes a “sudden” turn.⁵³ The plaintiffs focus on the risks arising from Corral's improper wide turn from the middle lane of the service road while speeding.⁵⁴ By no means should these risks be minimized, and public safety should not be “thrown to the winds in the heat of the chase.”⁵⁵ And because of the “inherent risks that high-speed driving poses to those utilizing public streets and highways,” we crafted the particularized need–risk factors “in an attempt to tailor a test that would better weigh th[ose] risks.”⁵⁶

As we must acknowledge, however, speeding and making turns in a manner that would be improper and unreasonable in everyday driving are “ordinarily ‘part and parcel of a police chase.’ ”⁵⁷ While it should go without saying, it bears emphasizing that what may be unreasonable in one context could be justifiable in another, especially in the heat of a high-speed pursuit when officers must make split-second decisions under intense pressure.⁵⁸ On this record, we conclude that the City substantiated its officers' opinions that a reasonably prudent officer under the circumstances of the heat of this chase could have believed that the need to turn while speeding to maintain pursuit of an unidentified fleeing suspect outweighed the risks. To slow down and not make the turn would equate to discontinuing the pursuit, which Corral implicitly discounted given the stated need for police intervention and his inability to apprehend the suspect at another time. This evidence is sufficient to satisfy the City's summary-judgment burden to establish its officer's good faith under the requisite holistic inquiry. The burden then shifted to the plaintiffs to present evidence raising a fact issue as to that matter.

When the burden shifts on good faith, a plaintiff may defeat summary judgment only by satisfying an “elevated standard of proof.”⁵⁹ It is not enough to show that reasonable officers could disagree on the issue; a plaintiff “must show, with ‘reference to each aspect of the need and risk balancing test,’ that no reasonably prudent officer ‘in the defendant's position could have thought the facts were such that they justified defendant's acts.’ ”⁶⁰ In previous cases, we have considered whether expert testimony was more than conclusory to satisfy this burden and defeat summary judgment.⁶¹ But the plaintiffs here did not present any expert testimony. Instead, they relied on deposition transcripts and documentary evidence showing that Corral significantly damaged the truck's bed, made an improper wide turn, exceeded the speed limit, and could have gone straight instead of turning while providing dispatch with a description of the direction the subject was heading.

At most, this evidence raises a question about Corral's negligence or is some evidence that a reasonably prudent officer could have made a different decision.⁶² But it does not satisfy the elevated standard of showing that no reasonably prudent officer could have believed that Corral was justified in making the turn to pursue a felony suspect who was actively endangering the public. We therefore hold that the plaintiffs failed to controvert the City's proof.

III

As a matter of policy, the Legislature has determined that when a vehicular accident occurs during a high-speed chase while an officer is acting in good faith and protected by official immunity, the victim—rather than the city and its taxpayers—must bear the cost of his or her personal injuries.⁶³ Here, the City conclusively established that its officer made a wide turn during a high-speed chase in good faith, and the plaintiffs failed to controvert the City's proof. Because the officer would be protected from personal liability by official immunity, the City's governmental immunity was not waived under the Tort Claims Act. Accordingly, we reverse the court of appeals' judgment and render judgment dismissing the case.

The Court's opinion, which I join, should not be construed as sanctioning the decision to initiate a high-speed chase in these or similar circumstances. That decision is distinct from “a reassessment of whether to continue pursuit in response to changing circumstances during the pursuit.” Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex. 2000). The parties here focus solely on whether Officer Corral's decision to make a wide turn in pursuit of the unidentified suspect was a reasonable reassessment; the plaintiffs have not alleged or argued that initiating pursuit was negligent or improper. The Court's holding is therefore limited to concluding that a reasonably prudent officer could have believed that the need to make such a turn outweighed the risks in light of the changing circumstances during the pursuit. Ante at 15-16, 19.

I write separately to make a few additional observations. First, as the Court discusses, the good-faith element of the official-immunity defense requires proof that “a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.” City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994). The standard “is one of objective legal reasonableness” rather than “subjective good faith.” Id.

Some courts of appeals have concluded from a footnote in City of Lancaster that an officer's recklessness is immaterial to a determination of good faith,¹ but that is incorrect. Instead, as we later explained, the point of our footnote was that “[e]vidence of negligence alone will not controvert competent evidence of good faith.” Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1 (Tex. 1997) (emphasis added). But as the footnote also recognized, evidence of the officer's reckless disregard for the safety of others—such as that required to avoid the emergency exception to the Tort Claims Act's waiver of immunity ² —may “inferentially rebut the defense of official immunity.” City of Lancaster, 883 S.W.2d at 656 n.5.

Second, in conducting the need–risk analysis, courts should be mindful that a decision to initiate pursuit may meet the good-faith standard for official immunity even though a later reassessment does not, and vice versa.³ Crucially, the inquiry focuses on the information the officer possessed at the time of the challenged conduct.⁴ That focus protects officers from having their performance second-guessed based “on the facts as they appear through the clarity of hindsight.”⁵ But the focus cuts both ways. Hindsight and changing circumstances during the pursuit may not be used to immunize a contested decision to initiate pursuit in the first instance.

For example, when Officer Corral and his partner arrived at the parking lot to make an arrest for solicitation of prostitution, they gathered identifying information: the car's color, make, model, and license plate number, and the suspect's identity as a black male. But dispatch had not yet informed them that the vehicle had been reported stolen. From the “lens of the officer's perceptions” at this juncture,⁶ alternative courses of action were available to track and later apprehend the suspect through vehicle records and the identifying information.

Yet Corral stated that he made a “split-second decision” to pursue the suspect fleeing “out of the parking lot ․ at a high rate of speed.”⁷ The City did not produce its department's motor-vehicle pursuit policy, and Corral neither discussed the policy nor averred that his decision was consistent with it. Nor could the officers justify the decision by relying on hindsight that the suspect had committed felony motor-vehicle theft, as they later learned. Instead, they initiated a high-speed chase to pursue a suspect evading arrest for paying $40 to solicit sexual activity from another adult—a Class B misdemeanor offense at the time of the conduct in 2017.⁸

Had plaintiffs challenged Officer Corral's decision to initiate a high-speed chase, it may well be that the City could have offered further evidence supporting that decision. But on the present record, the “need” factors—the seriousness of the suspected crime, the necessity of the officer's immediate presence to apprehend a suspect, and the availability of any alternative courses of action to achieve a comparable result ⁹ —suggest that Corral's need to initiate pursuit was minimal when weighed against the inherent risks.

High-speed chases inevitably involve obvious, significant, and often fatal risks: to the public at large, to other drivers, to innocent bystanders or passengers, to the fleeing suspect, and to the pursuing officers.¹⁰ “On average, crashes occur in at least 30 percent of vehicle pursuits, and injuries or fatalities occur in 5 to 17 percent of pursuits.”¹¹

Incurring those risks may be reasonable and justifiable to stop fleeing suspects who pose a danger to our communities.¹² But unless there is an accompanying reasonable suspicion of potential harm or danger, violent behavior, or other criminal activity, the need to apprehend a suspected nonviolent misdemeanant is unlikely to support official immunity for initiating an urban high-speed pursuit with all the risks such a pursuit entails, especially when information is at hand to later apprehend and identify the suspect. For most nonviolent misdemeanors, a high-speed pursuit should not become the default response to apprehend suspects attempting to evade arrest.

FOOTNOTES

1.   TEX. CIV. PRAC. & REM. CODE §§ 101.021(1), .025; City of Houston v. Sauls, 690 S.W.3d 60, 65-66 (Tex. 2024).

2.   658 S.W.3d 633, 641-42 (Tex. App.—Houston [14th Dist.] 2022).

3.   See TEX. CIV. PRAC. & REM. CODE §§ 101.021(1), .025.

4.   See id. §§ 101.021(1)(B), .055(2).

5.   An interlocutory appeal may be taken from an order denying a governmental unit's motion for summary judgment that asserts governmental immunity. Id. § 51.014(a)(8); Sauls, 690 S.W.3d at 68 n.12.

6.   658 S.W.3d at 636.

7.   Id. at 641-43.

8.   Id.

9.   Id. at 642-43.

10.   Id. at 644-45 (Jewell, J., dissenting).

11.   Id. at 645.

12.   Id.

13.   In our contemporaneously issued opinion in City of Austin v. Powell, we explore the emergency exception's scope and contours. ___ S.W.3d ___, ___, 2024 WL ___ (Tex. Dec. 31, 2024) [22-0662].

14.   City of Houston v. Sauls, 690 S.W.3d 60, 68 (Tex. 2024); see Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019) (noting that cities, as political subdivisions, “share the state's immunity when performing governmental functions”). The judiciary determines the initial applicability of governmental immunity, but the prerogative to waive existing immunity remains with the Legislature, composed of the people's duly elected representatives. Rosenberg Dev. Corp., 571 S.W.3d at 741.

15.   TEX. CIV. PRAC. & REM. CODE §§ 101.021(1), .025.

16.   Id. § 101.026.

17.   See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422-24 (Tex. 2004) (discussing the history of official immunity in Texas law).

18.   Sauls, 690 S.W.3d at 69-70; see Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J., concurring) (“Nowhere else in public service is official immunity more appropriate or necessary than in police work.”).

19.   Sauls, 690 S.W.3d at 69; Telthorster v. Tennell, 92 S.W.3d 457, 463 (Tex. 2002).

20.   See Sauls, 690 S.W.3d at 70 n.30 (“Official immunity protects individuals; governmental immunity protects governmental entities.”).

21.   TEX. CIV. PRAC. & REM. CODE § 101.021(1)(B).

22.   See Sauls, 690 S.W.3d at 69; City of San Antonio v. Riojas, 640 S.W.3d 534, 537 (Tex. 2022); Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642 (Tex. 2015); Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex. 1995); DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995); K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex. 1994); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993). As we have noted, “we construe statutory language against the backdrop of common law, assuming the Legislature is familiar with common-law traditions and principles.” Marino v. Lenoir, 526 S.W.3d 403, 409 (Tex. 2017). The Tort Claims Act was adopted fifteen years after we recognized a “good faith” immunity for public officials. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, §§ 3-4, 1969 Tex. Gen. Laws 874, 875-76 (requiring for the waiver of sovereign immunity that “such officer or employee would be personally liable to the claimant in accordance with the law of this state”), repealed and recodified by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3303 (codified at TEX. CIV. PRAC. & REM. CODE § 101.021); Ballantyne, 144 S.W.3d at 422 (“Fifty years ago, we recognized a ‘good faith’ immunity for certain public officials.” (citing Campbell v. Jones, 264 S.W.2d 425 (Tex. 1954))).The original Act had a “tortuous history and a difficult passage.” J. Bonner Dorsey, Whither the Texas Tort Claims Act: What Remains After Official Immunity?, 33 ST. MARY'S L.J. 235, 242 (2002); see Joe R. Greenhill & Thomas V. Murto III, Governmental Immunity, 49 TEX. L. REV. 462, 467-68 (1971) (describing the Act's history). Although the legislative history does not inform our decision because the text is clear, we note that the original bill included a provision that individual immunity does not immunize the government, but this limitation was removed by committee amendment. See Tex. H.B. 117, 61st Leg., R.S. (1969) (introduced version) (“[T]he individual immunity of public officers ․ is hereby preserved to the extent and degree that such persons presently are immunized; provided, however, that the individual immunity of such persons shall not operate so as to immunize the unit of government[.]”); H. Comm. on Judiciary, Bill Analysis, Tex. H.B. 117, 61st Leg., R.S. (1969) (describing this section as the “[s]ame as [the] original bill except that it removes the limitation that immunity can not immunize the government”).

23.   See DeWitt, 904 S.W.2d at 653 (“Whether the Texas Tort Claims Act waives sovereign immunity in a given case does not affect whether the governmental employee may assert official immunity as a defense. On the other hand, whether the governmental employee is entitled to official immunity may affect whether the Texas Tort Claims Act's limited waiver of sovereign immunity is applicable.” (internal citations omitted)).

24.   Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117, 128 (Tex. 2015) (“[O]fficial immunity is an affirmative defense that must be pled and proved by the party asserting it.”); Clark, 38 S.W.3d at 580 (“Because official immunity is an affirmative defense, to obtain summary judgment on official immunity, the governmental employee must conclusively prove each element of the defense.”); Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991) (“As a general rule, an affirmative defense must be pleaded or it is waived.”).

25.   City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022); see City of Austin v. Powell,___ S.W.3d ___, ___, 2024 WL ___ (Tex. Dec. 31, 2024) [22-0662, slip op. at 4] (describing as the “foundational rule” that a plaintiff suing the government bears the burden to affirmatively show a waiver of immunity).

26.   By contrast, a plaintiff bears the burden to negate the Tort Claims Act's “various exceptions or caveats that function as a withdrawal of the waiver.” Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023). For example, a plaintiff would bear the burden to negate the application of the Act's emergency exception. See, e.g., Powell,___ S.W.3d at ___ [22-0662, slip op. at 8] (noting that the Act's emergency exception “withdraws” the waiver of immunity (citing TEX. CIV. PRAC. & REM. CODE § 101.055(2))).

27.   See TEX. R. CIV. P. 166a(c); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019) (noting that a jurisdictional challenge to the waiver of an entity's governmental immunity may be raised via a traditional summary-judgment motion); cf. Powell, ___ S.W.3d at ___ [22-0662, slip op. at 6] (“[A] plea [to the jurisdiction] may mirror a traditional motion for summary judgment by attaching evidence in an effort to conclusively negate jurisdiction.”).

28.   The City presented evidence establishing that Corral was performing a discretionary duty within the scope of his authority by pursuing the suspect in a high-speed chase while on duty, which the plaintiffs do not contest. See City of Lancaster v. Chambers, 883 S.W.2d 650, 655, 658 (Tex. 1994) (holding that “engaging in a high-speed chase” while “on duty, in a squad car” is generally a discretionary act within the scope of an officer's authority).

29.   City of Houston v. Sauls, 690 S.W.3d 60, 70 (Tex. 2024); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).

30.   Alamo Heights, 544 S.W.3d at 771.

31.   658 S.W.3d 633, 642 (Tex. App.—Houston [14th Dist.] 2022) (“By driving a vehicle with brakes that ‘were not working’, countervailing public safety concerns rose to a significant level,” and “a reasonably prudent police officer would not have believed that the need to which he was responding outweighed the risks of his course of action.”).

32.   See Working, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) (“adequate to permit work to be done”); Work, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2016) (“To function; operate”).

33.   See Work, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) (“to produce a desired effect or result”; “to function or operate according to plan or design”); Work, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2016) (“To have the desired effect or outcome; prove successful”).

34.   All caps omitted.

35.   Because our adversary system relies on courts to serve as neutral arbiters, not advocates, they must exercise caution to avoid manufacturing factual disputes not identified by the parties. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020). When it is unclear whether matters are truly contested, a court should rely on the tools provided by our rules. For example, the City requested oral argument, where the court of appeals could have inquired into the parties' positions on the condition of the brakes and the meaning of “not working.” See TEX. R. APP. P. 39.1 (providing a right to oral argument unless the court decides it is unnecessary). But the court denied the request. Although this may have saved the parties from expending additional resources in that court, it ultimately required the litigants and the judiciary to consume resources for an appeal to this Court to address what was factually undisputed.

36.   See, e.g., Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d 725, 735 n.35 (Tex. 2024) (quoting Brown v. City of Houston, 660 S.W.3d 749, 754 (Tex. 2023)).

37.   658 S.W.3d 633, 645 (Tex. App.—Houston [14th Dist.] 2022) (Jewell, J., dissenting).

38.   Id. at 641 (noting that “Officer Corral did not provide any further explanation regarding how his brakes' deficient condition contributed to his driving, his decision-making, or the cause of the collision”).

39.   See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (“Evidence that is so slight as to make any inference a guess is in legal effect no evidence.”); cf. McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 395 (Tex. 2019) (“When circumstantial evidence ‘is susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion[,]’ it is in legal effect no evidence.” (quoting Suarez v. City of Texas City, 465 S.W.3d 623, 634 (Tex. 2015))).

40.   City of Houston v. Sauls, 690 S.W.3d 60, 72-73 (Tex. 2024) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994)).

41.   Id. at 74-75.

42.   Id.

43.   Id. at 73.

44.   Id. (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997)).

45.   Id. (quoting Wadewitz, 951 S.W.2d at 467).

46.   Id. at 75 (quoting City of San Antonio v. Riojas, 640 S.W.3d 534, 539 (Tex. 2022); and Wadewitz, 951 S.W.2d at 467 n.1).

47.   Sergeant Li “was one of many supervisors monitoring the chase over the radio” and, as an officer for over a decade, has been involved in “dozens of high-speed chases.” He based his opinions on his “knowledge, skill, experience, training, and education as a police officer”; personal conversations with Corral; a review of Corral's affidavit and body-camera footage; and an evaluation of the events and circumstances of the accident.

48.   See City of San Antonio v. Maspero, 640 S.W.3d 523, 531-32 (Tex. 2022) (“[W]e have long recognized that fleeing suspects may pose an even greater danger to the community.”); Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 645 (Tex. 2015) (“DPS's summary-judgment evidence detailed the specific circumstances giving rise to pursuit and emphasized the potential danger to the public due to the subject vehicle's erratic and unsafe activity.”).

49.   See Sauls, 690 S.W.3d at 75 (reaffirming that alternative courses of action may be implicitly discounted instead of explicitly addressed); Bonilla, 481 S.W.3d at 645 (“Although not explicitly addressing alternatives to pursuit, the trooper implicitly discounted the viability of other alternatives based on his stated belief that immediate action was necessary and his inability to identify the driver at that time.”). The plaintiffs point out that Corral acknowledged in his deposition that he “could have gone straight to avoid any kind of collision and just given a description where the subject was heading to.” But consistent with his affidavit, Corral explained that he nevertheless “was just trying to catch up to the suspect and keep eyes on him.”

50.   Sauls, 690 S.W.3d at 75.

51.   See Univ. of Hous. v. Clark, 38 S.W.3d 578, 586 (Tex. 2000) (noting that the summary-judgment evidence addressed the specific circumstances present that affected the general risk of colliding with another vehicle by “assessing such facts as the time of day and traffic, weather and road conditions”).

52.   Although the test does not inquire into an officer's subjective good faith, Corral's efforts are part of the objective circumstances that mitigated risks. See Sauls, 690 S.W.3d at 73 (“This good-faith test, perhaps inaptly named given the subjective connotations, is ‘one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith.’ ” (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994))).

53.   Maspero, 640 S.W.3d at 531 (“[A]ll high-speed car chases involve obvious risk of serious injury to bystanders.”); Telthorster v. Tennell, 92 S.W.3d 457, 463 n.1 (Tex. 2002) (identifying concerns about the risks to the general public and bystanders that high-speed pursuits present).

54.   The side street had a posted thirty-five miles-per-hour speed limit, but the record does not indicate the service road's speed limit. The plaintiffs assert that “surely [Corral] was going much faster” than thirty-five to forty miles per hour on the service road because that was the speed at the time of the crash after Corral had hit the brakes and gone over the curb. And Corral acknowledged in his deposition that he did not remember how fast he was going on the service road as he approached the turn.

55.   Clark, 38 S.W.3d at 584 (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (plurality opinion)).

56.   Telthorster, 92 S.W.3d at 463-64.

57.   City of Austin v. Powell, ___ S.W.3d ___, ___ (Tex. Dec. 31, 2024) [22-0662, slip op. at 28] (quoting Maspero, 640 S.W.3d at 532).

58.   See City of Houston v. Sauls, 690 S.W.3d 60, 79 (Tex. 2024) (“Good faith does not require that the officer made the best decision or eliminated all risk, especially when the officer has acted in the heat of an emergency response[.]”); Clark, 38 S.W.3d at 583 (“Police officers must make their decisions about pursuing a suspect rapidly and while under pressure.”).

59.   Sauls, 690 S.W.3d at 75 (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994)).

60.   Id. at 75-76 (footnote omitted) (quoting Clark, 38 S.W.3d at 587; and Chambers, 883 S.W.2d at 657).

61.   Id. at 79 (holding that the expert's “opinion is ‘a one sided analysis’ insufficient to satisfy the [plaintiffs'] elevated burden and defeat summary judgment” (quoting City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007))); Clark, 38 S.W.3d at 587 (concluding that because the expert “testimony on good faith is not substantiated with reference to each aspect of the need and risk balancing test, it is conclusory and is insufficient to controvert the defendant's proof on good faith”); see Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (“[A]n expert witness's conclusory statement that a reasonable officer could or could not have taken some action will neither establish good faith at the summary judgment stage nor raise a fact issue to defeat summary judgment.”).

62.   See Sauls, 690 S.W.3d at 80 (observing that “evidence of negligence alone” or “that a reasonably prudent officer could have made a different decision” is “not enough to controvert proof of good faith”).

63.   See TEX. CIV. PRAC. & REM. CODE § 101.021(1); supra note 22.

1.   See, e.g., City of Houston v. Gomez, 693 S.W.3d 523, 532 (Tex. App.—Houston [14th Dist.] 2023, pet. filed); 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.); City of Fort Worth v. Robinson, 300 S.W.3d 892, 899-900 (Tex. App.—Fort Worth 2009, no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied).

2.   See TEX. CIV. PRAC. & REM. CODE § 101.055(2). To avoid the exception, a plaintiff must show that “the operator has committed an act that the operator knew or should have known posed a high degree of risk of serious injury.” City of Amarillo v. Martin, 971 S.W.3d 426, 430 (Tex. 1998); see also City of San Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022).

3.   See Univ. of Houston v. Clark, 38 S.W.3d 578, 584 (Tex. 2000) (providing example of officer entering blind or busy intersection and noting that “a reassessment of need versus risk” is required even if initial decision to pursue is justified); Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex. 1992) (plurality opinion) (noting that “[t]he decision to initiate or continue pursuit may be negligent”).

4.   See, e.g., Telthorster v. Tennell, 92 S.W.3d 457, 466 (Tex. 2002) (holding officer acted in good faith when his drawn gun inadvertently discharged and injured suspect and noting that the court of appeals' “focus on the fact that [the suspect] turned out to be unarmed and thus presented no risk of harm” was “unduly informed by hindsight”).

5.   Id. at 463; see City of Houston v. Sauls, 690 S.W.3d 60, 69 (Tex. 2024) (“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.”).

6.   Sauls, 690 S.W.3d at 74 (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)).

7.   Perhaps because plaintiffs never contested the propriety of initiating pursuit, Corral provided minimal justification for this initial decision:We traveled to the restaurant parking lot where the suspect was going to wait for the undercover detective. We observed a suspect to be a black male, located at the parking lot south of 9500 block of Ponderal Ln in a red Mercedes C30. Officers were informed by vice undercover officers that the suspect attempted to pick up a female vice undercover officer for sex for money. My partner and I were attempting to conduct a traffic stop for prostitution arrest. As we approached the suspect, he began to leave the parking lot, which required immediate response on our part. In a split-second decision, Officer Goodman and I decided to pursue the suspect, and activated emergency lights and siren. The suspect did not stop and instead fled out of the parking lot onto Ponderosa Ln. then heading southbound on the HWY 59 south service road at a high rate of speed. Officer Goodman relayed the information over the air and informed dispatch of our vehicle pursuit and gave the license plate for the red Mercedes.

8.   Since that time, the Legislature has made the offense of solicitation of prostitution a state jail felony. See Act of May 28, 2021, 87th Leg., R.S., ch. 807, § 29, sec. 43.021(a), (b), 2021 Tex. Gen. Laws 1929, 1939 (codified as amended at TEX. PENAL CODE § 43.02). Officer Corral did not identify any indication of human trafficking or involvement of minors, which would significantly elevate the seriousness of the suspected crime. See TEX. PENAL CODE § 12.03 (describing classification of misdemeanors into three categories according to the relative seriousness of the offenses).

9.   See Sauls, 690 S.W.3d at 73 (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997)). As the U.S. Court of Appeals for the Tenth Circuit has noted:The public interest being served by the officer's pursuit or response may vary with the severity of the suspected crime. Thus, there may be more justification for a high-speed pursuit to apprehend a suspected murderer/terrorist/armed bank robber, or a suspected drunk driver, or to respond to a domestic disturbance call, than, say, to apprehend someone who has committed a minor traffic violation or non-violent misdemeanor.Green v. Post, 574 F.3d 1294, 1310 n.15 (10th Cir. 2009).

10.   See City of San Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022) (“[A]ll high-speed car chases involve obvious risk of serious injury to bystanders.”); Telthorster, 92 S.W.3d at 463 n.1 (identifying concerns about the risks to the general public and bystanders that high-speed pursuits present). These risks include not only “that the suspect will injure a third party” but also “that the officer himself will injure a third party,” as occurred here. Clark, 38 S.W.3d at 583.

11.   Police Executive Research Forum, Vehicular Pursuits: A Guide for Law Enforcement Executives on Managing the Associated Risks (2023); see, e.g., Maspero, 640 S.W.3d at 531 (describing an expert report in the record as concluding that “41% of urban police pursuits will end in an accident” and “33–34% of police fatalities will be innocent bystanders”); Telthorster, 92 S.W.3d at 464 n.1 (collecting articles and noting that “commentators have expressed concern about the risks to the general public that high-speed pursuits present,” including “that high-speed pursuits cause hundreds of deaths each year”); Travis, 830 S.W.2d at 99 n.4 (citing national data that “one pursuit in five leads to a traffic fatality (and) in only one percent of the cases was someone in the car wanted for violent crimes” (quoting Travis v. City of Mesquite, 764 S.W.2d 576, 579 (Tex. App.—Dallas 1989) (Thomas, J., dissenting))).

12.   The public good is also promoted when police officers “show that flight from the law is no way to freedom.” Sacramento v. Lewis, 523 U.S. 833, 853 (1998). On the other hand, the law already disincentivizes a suspected misdemeanant from fleeing in a vehicle by making such flight a state jail felony. TEX. PENAL CODE § 38.04(a), (b)(1). And “[t]hose suspected of minor offenses may flee for innocuous reasons and in non-threatening ways.” Lange v. California, 594 U.S. 295, 307 (2021) (collecting examples).

John P. Devine Justice