Christopher Leron Clegg v. City of Fort Worth, 02-17-00040-CV

On May 23, 2014, Mark Madrigal ran a red light while driving intoxicated, colliding with Marcy Howell’s vehicle; Christopher Clegg, a passenger in Madrigal’s car, suffered serious injuries.
Fort Worth police Officer Olimpo Hernandez witnessed the crash, prepared a report noting alcohol odor and beer containers in Madrigal’s vehicle, but did not take custody of Madrigal or otherwise intervene before the collision.
Clegg sued the City of Fort Worth, the Fort Worth Police Department, and Officer Hernandez alleging negligence and asserting that the Texas Tort Claims Act (TTCA) waived the City's immunity under §§ 101.021 and 101.0215 (warning signals and traffic regulation), and under § 101.106(f) for respondeat superior liability.
The City moved to dismiss Officer Hernandez and the Police Department; Hernandez was dismissed per § 101.106(e), and the City filed a plea to the jurisdiction arguing the Police Department is not a separate jural entity and that TTCA did not waive immunity for Clegg’s claims.
The trial court granted the City’s plea to the jurisdiction, concluding Clegg’s claims were essentially challenges to the City’s provision or method of providing police protection (excluded from TTCA waiver) and that no negligent use of a City motor vehicle caused the accident.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claims under §101.0215(a) (warning signals/traffic regulation) waive immunity	Clegg: §101.0215 acts as basis for waiver because Hernandez failed to warn/use warning signals or regulate traffic	City: §101.0215 merely lists governmental functions and does not itself waive immunity; TTCA excludes claims based on failure to provide police protection	Held: No waiver — §101.0215 does not waive immunity and §101.055 excludes failure-to-provide-police-protection claims
Whether §101.021 motor-vehicle waiver applies (injury arose from employee’s operation/use of vehicle)	Clegg: Hernandez’s conduct while in patrol vehicle (not using flashers, failing to regulate) makes §101.021 applicable	City: No allegation or evidence that Hernandez’s operation/use of his patrol vehicle proximately caused the accident; nexus required	Held: No waiver — no nexus between Hernandez’s vehicle use and Clegg’s injury; §101.021 inapplicable
Whether the trial court improperly limited Clegg’s allegations to failure to provide police protection	Clegg: Trial court improperly characterized his claims as only failure-to-protect and should have allowed factfinder to decide duty/neglect	City: Allegations are properly characterized as complaints about police protection method, which are excluded from TTCA waiver	Held: No error — allegations amount to failure/method of providing police protection and are barred by immunity

City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010) (plea to the jurisdiction standard)
Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (scope of review when plea challenges pleadings vs. facts)
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (pleader’s burden to plead jurisdictional facts)
Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379 (Tex. App.—Fort Worth 2008) (distinction between governmental and proprietary functions for municipal immunity)
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003) (requirement that vehicle use must actually cause the injury for §101.021 waiver)
Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864 (Tex. 2001) (non-use of property cannot support TTCA claim)
City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995) (no waiver for claims arising from formulation of police policy or method of providing protection)
State v. Terrell, 588 S.W.2d 784 (Tex. 1979) (when negligent operation of a state vehicle in executing policy causes injury, immunity may be waived)