Town of Highland Park v. Tiffany Renee McCullers, Individually and for the Benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, And Sonya Hoskins
05-19-01431-CV
| Tex. App. | Jun 29, 2021Background
- Appellees sued the Town of Highland Park after Officer Tiffany McCullers (serving an off-duty security assignment coordinated by the Town) died in a flash flood; pleadings allege negligence in coordinating off-duty security (failure to warn of flood risk and provide post orders).
- The Town’s police department maintains an Off‑Duty Employment Policy: it coordinates off‑duty assignments, classifies them as Police‑Related or Non‑Police‑Related, requires approval by the Chief (and limits coordination to licensed peace officers), and sometimes offers assignments to officers from other agencies.
- Appellees argued the Town’s coordination of off‑duty officers is a proprietary function (thus not immune under the TTCA); the Town argued the coordination is an enumerated governmental function—"police protection and control"—so immunity applies.
- The court considered a plea to the jurisdiction under the Texas Tort Claims Act (TTCA), including whether plaintiffs gave the written notice required by Tex. Civ. Prac. & Rem. Code § 101.101(a) or whether an "actual subjective awareness" exception applied (Cathey).
- Justice Goldstein concurred with the Majority: because the Town’s off‑duty coordination falls within the TTCA’s enumerated governmental function of police protection and control, plaintiffs needed to satisfy the TTCA notice prerequisites and failed to do so, so immunity barred the tort claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether coordination of off‑duty officers is a proprietary or governmental function under the TTCA | Coordination of off‑duty security is proprietary because private parties could hire private guards and the service benefited a private property owner | Coordination is an exercise of police protection and control (an enumerated governmental function); it’s part of police policy/oversight | Held governmental: coordination falls within TTCA’s "police protection and control," so immunity framework applies |
| Whether plaintiffs satisfied TTCA notice prerequisites (written notice or actual subjective awareness) | Plaintiffs implied actual notice or equitable reasons excused formal written notice | Plaintiffs failed to provide timely written notice and there was no evidence of the Town’s actual subjective awareness of fault | Held plaintiffs failed to satisfy notice requirements; immunity bars suit |
| Whether Officer McCullers’s death "arose from" the Town’s coordination (cause‑in‑fact under the TTCA) | Coordination caused the officer’s presence and thus the injury; liability should attach | The Town’s coordination merely furnished a condition (presence) and may not be a cause in fact of the death | Not decided definitively by concurrence; noted as a potential independent ground that the coordination may not have been the factual cause of the death |
| Whether police protection includes coordinating off‑duty assignments for private‑property security (response to dissent) | Dissent/plaintiffs: policy’s primary purpose was private loss‑prevention, not public police protection | Concurrence: police duties include protecting persons/property whether on private or public property; coordinating presence for protection is police protection | Held coordination for private security still constitutes police protection and control under TTCA |
Key Cases Cited
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (actual subjective awareness test limits the written‑notice exception to TTCA notice requirement)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (governmental immunity principles and municipal immunity analysis)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (immunity from suit vs. immunity from liability; plea to the jurisdiction framework)
- Guillory v. Port of Houston Authority, 845 S.W.2d 812 (Tex. 1993) (rejecting test that proprietary activities are anything a private entity could do; classification is legislative)
- City of Plano v. Homoky, 294 S.W.3d 809 (Tex. App.—Dallas 2009) (may not dissect a municipal function into discrete proprietary components when the activity is interrelated and enumerated governmental function applies)
- Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) (Wasson I) (application of governmental–proprietary dichotomy to contract claims; influential framework)
- Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) (Wasson II) (continued analysis of governmental vs. proprietary in contract context)
- City of San Antonio v. Tenorio, 543 S.W.3d 772 (Tex. 2018) (discussing Cathey and legislative scope; courts decline to alter statutory notice/waiver rules)