City of Houston v. Jenkins
363 S.W.3d 808
Tex. App.2012Background
- Jenkins sued the City of Houston and Officer Thomas for injuries from a police-dog bite during a right-to-search operation.
- The dog, Rudy, was trained and owned by the City and was on a leash during deployment.
- Incident occurred May 4, 2007 in Harris County; Jenkins was bitten while Thomas walked Rudy back toward the road.
- Jenkins asserted TTCA liability for negligent use of tangible personal property and claimed Thomas lacked official immunity.
- The City moved to dismiss the City claims under election-of-remedies and moved for summary judgment on immunity; the trial court denied the former and granted the latter.
- The appellate court upheld denial of the plea to the jurisdiction for lack of proven governmental immunity but reversed the summary judgment on official immunity, remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TTCA waives immunity and whether election-of-remedies bars City claims | Jenkins argues TTCA waives immunity for tangible property use; no consent required beyond TTCA. | City argues §101.106(b) bars City claims since Jenkins sued an employee. | Election-of-remedies barred City claims absent consent; but TTCA waiver remains valid. |
| Whether Thomas is entitled to official immunity for handling the dog | Jenkins alleges negligent handling, not discretionary conduct. | City contends Thomas acted within discretionary functions. | City failed to prove Thomas acted on discretionary basis; official immunity not conclusively established. |
| Whether the dog’s dangerous propensities negate discretionary factors | Rudy's history of biting shows non-discretionary duty to restrain. | City argues discretion in police-dog usage; propensities irrelevant to duty. | Dangerous-propensity evidence supports non-discretionary duty, undermining official-immunity defense. |
| Whether the trial court properly granted summary judgment on immunity | Jenkins argues genuine issues of material fact remain. | City contends undisputed facts show discretionary conduct. | City did not conclusively establish discretionary conduct; summary judgment reversed and remanded. |
Key Cases Cited
- Mission Consolidated ISD v. Garcia, 253 S.W.3d 653 (Tex. 2008) (TTCA consent/waiver issues under immunity framework)
- City of Houston v. Cooper, No. 14-11-00092-CV, 2011 WL 5595559 (Tex. App.—Houston (14th Dist.) 2011) (mem. op. on reh'g addressing immunity with TTCA)
- City of Houston v. Johnson, No. 14-11-00220-CV, 2011 WL 5595716 (Tex. App.—Houston (14th Dist.) 2011) (immunity/election-of-remedies considerations)
- Amadi v. City of Houston, No. 14-10-01216-CV, 2011 WL 5099184 (Tex. App.—Houston (14th Dist.) 2011) (official-immunity issues in city-dog context)
- Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994) (factors for determining discretionary vs ministerial duties)
- Gibbons v. Harris Cnty., 150 S.W.3d 877 (Tex. App.—Houston (14th Dist.) 2004) (ministerial vs discretionary act—officer driving motor vehicle)
- Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974) (strict liability vs negligent handling interplay)