University of Houston v. Clark

HOUSTON, UNIVERSITY OF Matthew

Stewart, Williams, and Jon

Petitioners,

v. CLARK, Respondent.

Demetria Gary County,

Steven Ener and Harris

Texas, Petitioners, Thomas, Jr.,

Francis G. and John Roarke,

Alexander

Respondents. 98-1080,

Nos. 99-0326.

Supreme Court of Texas. 8,

Argued Dec. 1999.

Decided June

Rehearing Aug. Overruled

Rehearing Overruled Oct. of opinion BAKER delivered

Justiсe Court, in which Chief Justice PHILLIPS, HECHT, Justice Justice ABBOTT, OWEN, Justice Justice HANKINSON, and Justice GONZALES joined. present two consolidated cases

These (1) faith factors issues: v. Montgomery, in Wadewitz (Tex.1997), emergency response (2) case; case, in a apply in these consoli- whether the defendants good faith as dated cases have established law. a matter of apply hold that the Wadewitz factors police pur- determinations University suit cases. Houston Clark, Williams Sergeant we conclude good faith Stewart established Officer as a matter of we reverse law. judgment on the appeal’s the court of of appeals faith issue. Because court consider whether Officer performing a ministerial or discretion- function, ary case we remand the appeals to determine issue. Thomas, Dep- Ener v. conсlude uty Ener did establish Constable law, and therefore we as matter appeals’judgment. affirm the court of

I. BACKGROUND A Clark Andy Nelly Taylor, Cornyn, John R.

Herrera, Keister, Eads, morning, S. Linda At a.m. one Kevin Ronald about 2:00 Talbot, Jr., David Attorney fight A. Office of the Thomas was involved fist on the Texas, Austin, University campus. Universi- General for Petitioner Houston ty No. 98-1080. of Houston officers arrived at the jeep into got scene. Thomas his Sanders, E. Frank Assistant Harris told Thomas not to leave the officers Houston, Attorney, County for Petitioner But scene. before the officers could iden- in No. 99-0326. him, tify Thomas fled. As Thomas left Williams campus, Jon turned Hovnatanian, Levon G. The Holman Thomas, try stop patrol sideways car Firm, Houston, Respondent Law jeep but Thomas drove his around No. 98-1080. car. Thomas. pursued Williams’ then Carrigan Lapin E. & Williams saw another Lapin, Robert Houston, Wardell, Landа, position intercept patrol Ronald Law Of- Houston car Wardell, Houston, that car’s driv- fices of Ronald for Re- Thomas. Williams radioed er, Stewart, stop Matthew spondent No. 99-0326. Officer Thomas. Stewart activated his lights anything from the time he was about a pursued siren and Thomas. During the block from the intersection where the colli- chase, red light Thomas ran a and collided sion he woke up occurred until in the vehicle, injuring another Demetria hospital. and Roarke Thomas sued Ener Clark. County and Harris for negligence and gross Ener negligence. moved for sum- Williams, Stewart, Clark sued and the mary judgment immunity based official negligence, of Houston for neg- County Harris moved for summary se, ligence per civil rights violations.1 judgment sovereign immunity, based on Williams and moved for summary Stewart relying on official immunity. Ener’s The judgment official immunity. based on The trial court denied judgment. University of Houston moved for summary affirmed, The appeals judgment holding that sovereign based on immunity, Ener relying good did not on Williams’ and establish as a Stewart’s official matter of immunity. granted The trial court law. 20 sum- S.W.3d defendants, mary judgment for appealed.

Clark II. APPLICABLE LAW On appeal, did not dispute Clark immunity Official is an affirma Williams and were acting Stewart within tive protects government defense that em the scope authority, of their but claimed ployees liability. from personal City See they acting good were faith and Chambers, 650, Lancaster v. 883 S.W.2d that Stewart performing a ministerial (Tex.1994). 653 immunity When official discretionary rather than task in pursuing governmental shields a employee from lia Thomas. appeals The court of reversed bility, immunity sovereign gov shields the trial court’s on the ground ernmental employer vicarious liabili that Williams and did not conclu- ty. See DeWitt v. Harris County, 904 sively they pm-sued establish that Thomas (Tex.1995). govern S.W.2d 653 A good faith. 979 S.W.2d 707. Accord- employee mental entitled im is to official ingly, the court of did not consider (1) munity: performance for the of discre functioning Stewart was in a min- (2) duties; tionary scope within the of the discretionary capacity, isterial or and we’ (3) employee’s authority; provided the em do not consider that issue here. Chambers, ployee acts in good See 883 S.W.2d at Because official immu B. Ener defense, nity is an affirmative to obtain Ener early also involves an morning po- summary judgment immunity, on official Gary lice Steven a Harris the governmental employee must conclu Constable, County Deputy patrol. was on sively prove each of the element defense. According plaintiffs’ response to the Hatley, Seе Kassen v. 887 S.W.2d 8-9 judgment, motion for summary Ener had a (Tex.1994). Thomas, Jr., civilian passenger, Francis G. ‍‌‌‌​​‌‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​‌​​​​​​​​‌‌​‌‌‌​​​‌​​​‍Chambers, In formulated a we test for him, riding with in violation of Harris official immunity’s faith element in County policies. Constable Ener observed Chambers, police pursuit See car, cases. 883 speeding which Ener’s radar indicat- so, doing we recognized going per ed was 71 miles hour in a 55 the competing Ener interests involved in mile-per-hour pursued zone. the car (1) and, intersection, injustice at faith cases: of imposing an Ener collided with result, liability job requires another car. As a an officer whose Thomas and him to injuries. danger John Alexander Roarke suffered exercise discretion and the According to deter plaintiffs’ summary judg- liability willingness such response, ment does public Ener not remember to exercise that discretion for the party appeаl. 1. Clark also sued Thomas but Thomas is not a to this

581 (2) applied the Chambers who good; rights for first time and elabo- an bad faith acts. faith test are affected officer’s Chambers, To and need elements at 656. rated on the test’s risk See S.W.2d interests, emergency response. competing accommodate these in the context of an faith that is at 467. we constructed a test See “urgency to the abuse of discretion stan- element refers to analogous Chambers, requiring police interven- dard review. circumstances test, tion,” of the crime or n. 7. Under this “the seriousness responds, if he to which the officer only officer acts bad could accident presence immediate reached decision whether the officer’s question. necessary prevent injury or loss Landry suspect, n. 7 Ins. and what (citing Travelers life or tо (hold- Co., 649, (Tex.1970) action, any, 651 courses if are 458 S.W.2d alternative only result.” ing comparable that abuse of discretion is shown a available to achieve reasonably Wadewitz, if a trial court could not have at The risk 951 S.W.2d question)). in “the reached the decision faith refers to coun- good element of concerns,” or tervailing safety “the public Thus, summary we held that to obtain severity harm that the nature and offi- case, judgment good on faith in a injuries (including could cer’s actions cause reasonably police prove officer must that a possibility the that bystanders well as officer, prudent under same or the similar accident would officer from prevent an the circumstances, could have believed that the reaching emergency), the scene of the immediately need to the sus- apprehеnd occur, any that harm would likelihood pect outweighed a clear of harm the risk would be clear to harm public continuing pursuit. in See Wadewitz, officer.” Chambers, 883 An offi- S.W.2d at 656-57. 951 S.W.2d at 467. prove cer not have to that does it would have stop been unreasonable to emphasized conclusory We also that reasonably or that all prudent officers that a reasonable officer could statements have pursuit. would continued the See have taken some action will or could not Chambers, Instead, 883 at 656. S.W.2d summary good neither on establish prove only officer must reason- fact judgment nor raise a issue defeat ably might officer believed See 951 judgment. that he should have continued the pursuit. Instead, testimony on at 467. S.W.2d Chambers, See 883 S.W.2d at 656-57. a reasonable offi- faith must discuss what could under the circum- cer have believed But to controvert a sum- officer’s stances, must be substantiated with faith, mary judgment proof facts the officer assessed nonmovant must do than show that a more apprehend both de- prudent officer could have public. and the risk of harm to the See Chambers, stop pursuit. cided to 951 S.W.2d at 883 657. The nonmovant must S.W.2d in person show no reasonable position thought

officer’s could have III. ANALYSIS justified the officer’s acts. See facts A. Does Wadewitz apply Chambers, 883 656. Because S.W.2d at A POLICE PURSUIT CASE? legal this faith test was a new stan- Chambers, dard, Clark and court it in but both apply appeals analyzed the defendants’ sum the case to the trial court for of remanded mary proceedings with our evidence under Wa- further consistent 713; 707, Chambers, 979 S.W.2d opinion. See dewitz factors. University 715. The Hous- lar, ton argues that the Wadewitz do 114 (Tex.App factors . -Hous nоt apply in case. It ton pet.). [1 st no Dist.] contends that the risk considerations agree that the Clark Wadewitz emergency cases police pur- apply and risk factors suit fundamentally cases are different. pursuits determinations in police as well as difference, The primary the University ar- emergency responses. The Chambers bal- gues, is that emergency response ancing inherently test includes all the Wo- case, the officer more has control over the dewitz requires, factors. Chambers consequences actions in responding of his context, summary judgment that an officer to an emergency and therefore can more in a police pursuit conclusively prove case easily assess the risks involved in his ac- officer, that a reasonably prudent under tions. The risk that an typical cirсumstances, the same or similar could faces to an responding emergency have believed that the need to immediately that he will with a party collide third But, suspect outweighed way clear emergency. to the the Uni- risk of versity case, harm to argues, police pursuit continuing typical risk is criminal

being pursued injure party. third 656. The Chambers need element re- Thus, contends, it is more quires an officer to assess the need to difficult consequences to control the of a immediately apprehend suspect. police pursuit and evaluate its risks. The both an emergency response and a police that, University also in argues responding pursuit, such an assessment necessarily to an emergency, an officer has the benefit includes the general considerations Wa- a point defined in time spaсe and provides: dewitz the seriousness of the ‍‌‌‌​​‌‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​‌​​​​​​​​‌‌​‌‌‌​​​‌​​​‍respond balance the need to and risks of crime or which accident to the officer re- responding make and then a decision. But sponds, whether officer’s immediate in police pursuits, argues, it officers must presence necessary to apprehend is a sus- respond ongoing to an and evolving situa- life, pect prevent injury or to or loss of and tion. action, what any alternative courses of if

Clark that counters distinction be are comparable available to achieve a re- emergency responses tween police and Wadewitz, sult. See 951 S.W.2d at 467. pursuits does not necessitate different risk Similarly, the risk Chambers element—“a and need assessments. Clark notes that public clear risk of harm to the in continu- a whether the risk criminal suspect is col ing pursuit” necessarily includes con- — liding party with a or third the officer nature, siderations of severity, likeli- colliding party, with a third the officer hood, and obviousness risks of the retains the same amount of discretion to Wadewitz, officer’s 951 actions. initiate or his pursuit continue or emergen cy scenarios, response. In both his deci arguments The University’s per- do not Further, sions impact the risks. Clark First, suade us the University otherwise. points analysis out risk in both that, points emergency out in response, an emergency response police pursuit and a typically officer has fixed destination only cases does not on a specific focus and in Rather, police pursuit, a the officer in does not point time. in officers both know ultimately where the chase will situations will end. have evaluate risks and responses But both emеrgency make and decisions in to changing pursuits may rapidly changing cir- Lastly, points situations. Clark out that involve See, e.g., cumstances. applied courts of have 951 Wadeimtz Saenz, at contrary See State v. S.W.2d to the cases. 967 University’s arguments, S.W.2d 914 both situations re- (Tex.App. Corpus - denied); pet. Chapa Agui- quire continuing Christi a assessment of need and control, beyond as the his such risk. See at cumstances decision, necessity split-second make a an officer to an (holding responding risk inability particular to foresee a good faith or emergency did not establish suspect or otherwise. by fleeing caused although because prevent pursu- an officer from Nor it he does why pro- evidence described chose to suspects for traffic violations or ing and he emergency why ceed on an basis or оther scene, suspects residential pursuing chose a certain route to the it high The or traffic areas. populated not include facts evaluated whether, all the considering is faith test way the risks created his actions on the circumstances, offi- Chambers, emergency); to the have believed that cer could (“[A]n that a prove 656-57 officer must suspect is out- immediately apprehend a might officer have be- harm weighed by a clear risk of lieved that the should been continuing public initiating continued.”). 883 S.W.2d at 656. Second, differences, their despite pursu- that, on the recognize depending to an ing responding emer- circumstances, may an officer not be able gency risk general involve same risk analyze each need or thoroughly party. The third —collision factor, pre this alone should University distinguishes betwеen emer- establishing good vent officer from responses gency police pursuits based officers make their de faith. Police must is risk of colliding who with a third pursuing suspect rapidly cisions about party. argues that pressure. under See Travis v. while emergency response, the is that an risk (Tex. Mesquite, 830 City party, collide with a third while 1992). time, cir the same even if the At police pursuit, require cumstances an officer’s immediate suspect party. will collide with a third On a in response, pursuing suspect an officer as contrary, the the facts in Ener demon- and should be good faith should be able strate, an must police pursuit required quickly to balance the need to suspect assess both the risk that will the apprehend suspect, based immediately the injure party a the third and the risk that the and the seriousness situation injure will party. a third offiсer himself actions, any existence of alternative in multiple pursuit These risks a are degree and of the risks of the likelihood always almost more difficult to than assess 951 the officer’s actions. an emergency response’s And al- risks. the though general risks of a police that estab- Accordingly, we conclude to foreseeable, fleeing suspect’s spe- are the case, an police pursuit faith in a lish during likely cific actions are to be conclusively rea- that a prove officer must unpredictable create unforeseeable the sonably officer in same risks. But both Wadewitz and Chambers agree that the similar circumstances could that acknowledge the circumstances immediately to the sus- apprehend need every in case that risk balancing differ outweighed the risk of harm to the pect in of light and need must be done those continuing pursuit, taking public in the Chambers, particular circumstances. See into account all the Wadewitz factors. 656; Wadewitz, 883 S.W.2d Wadewitz n Indeed, at 467. one of risk B. The Dissent is harm factors “whether would police pur- The that recognizes be clear to a officer.” dissent of whether to applying require the Wadewitz factors suits reassessment chang- inability to penalize does not an officer for continue during pursuit. 22 cir- perceive ing or evaluate risk due to circumstances S.W.3d 927. But the asserts continuing pursuit.” dissent a particular entering intersection or mak- The S.W.2d at 656. need ing particular immediately U-turn does not necessi- de- risk, tate a reassessment of because these pends, among things, other significantly circumstances do not change be apprehendеd could at a later involved, time, simply present i.e., risks but whether there is an alternative already risks contemplated the initial would pursuing suspect that achieve pursue. Second, decision to 22 S.W.3d 927. a comparable policy We result. as a matter, disagree that these circumstances can nev- given pub- inherent risk to the present er a change in risks that would lic in every pursuit, officers should be re- require a reassessment need versus quired recognize reasonable alternatives risk. generally S.W.2d to justify and to their decisions to (holding at 467 pursue an officer did not when those exist by alternatives good faith in an emergency establish re- need to neverthe- sponse because he did not assess the risks Requiring less outweighed risks. offi- actions, by his including entering created cers to insures assess alternatives intersection). blind example, For when an public safety is not “thrown to winds in Travis, officer approaches busy intersection with the heat of the chase.” light intersecting a red traffic ap- at 98. on a

proaching green light intersection C. high and at a rate speed, the risk of Here Have Defendants significantly collision increases. Such an Established Good Faith as in risk increase could affect the balance a Matter Law? thus, requires between need and risk and a We next consider whether defen- reassessment. dants met their burden conclusive- not, requirement ly The prove good reassess does faith under Chambers and change argues, that, the dissent standard Wadewitz. conclude Universi- Houston, liability ty faith to negligence. Offi- judged officer’s actions are still under cer proved good faith as a matter however, a reasonаbly test —whether of law. We conclude prudent officer could have believed that Ener Deputy conclusively did not es- continue the out- tablish faith because his weighed public. a clear risk of harm to the sufficiently evidence did not sub- Chambers, at he testimony S.W.2d 656-57. stantiate his that acted Again, prove the officer need not that it

would have been to stop unreasonable the 1. Clark pursuit, prove nor must the officer that all reasonably officers would have appeals Sergeant The court of held that pursuit. the continued 883 Williams Officer did not and es- recognizes, As the dissent tablish ‍‌‌‌​​‌‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​‌​​​​​​​​‌‌​‌‌‌​​​‌​​​‍as a matter law be- if a prudent officer could have adequately cause their affidavits did not the the despite change continued in discuss risk and need ele- Wadewitz’s risk, acting officer in good the continues element, ments. Specifically on the need faith. 22 S.W.3d at 926-27. appeals the neither affi- held that Further, disagree with the davit discussed the seriousness adequately dissent availability alleged that or alterna- pur- suspect’s the of alternatives assault immediately suit is irrelevant tives to the sus- apprehending case. First, requires pect. an officer to bal- at 712. The court of Chambers immediately ance “need to held that neither affidavit ad- the also public, the suspect” equately the with “a clear risk of harm to considered the risk to to apprehend actions ability the of alternative severity and including the nature suspect. a reason- the and whether risk to the a dear- perceive officer would ably prudent considered theWadewitz Williams also at risk of harm. risks to the assessing the risk factors appeals. with the court of disagreе that when his He stated public of affidavits Both Williams’ and Stewart’s a.m., occurred, 2:00 the around need risk un- sufficiently discuss both and pavement the clear and “the weather was that der Wadewitz conclusively prove and He light.” and the traffic was dry was officer, under the same or a reasonable area commercial the was observed circumstances, have balanced could similar than cars other and there were “no and risk as these officers did. need Stewart’s suspect the vehicle Officer further stated: roadway.” Williams on the a. Williams proceeded suspect vehicle When affidavit dis Sergeant Williams’ Blvd., I knew that onto M.L.K. cusses Wadewitz' n all factors. On and that was divided a median street he of the situation was the seriousness green and to to the left was a belt to, Williams stated: responding therefore, no traffic right park; stop I made the decision to When M.L.K. Blvd. intersecting would be ... I knew that the was a jeep, driver point was no traffic from There suspect in assaultive conduct and he (1) Blvd. and no entrance to M.L.K. one attempting fled officers who were Spanish Trail. traffic M.L.K. Old him to detain and had committed the professional I was my experience, From evading criminal offense of detention suspect vehicles often aware class Fur- which is a B misdemeanor. stop time having to flee but after appear thermore, suspect had been emergency lights and siren observe patrol identified before he fled the foot to pursue them. behind When decided manner in which the officers.... vehicle, I believed that suspect suspect operated his vehicle minimal traf- night that time of with the speed which he high rate of traveled fic the street the nature of suspect caused me believe that traveled, in which I diminished area posed danger public. itself, from the while further stated that when he and the manner which suspect suspect’s way car in the parked patrol his posed significant operated vehicle him, the stop drove around believed, my public. risk to high speed. vehicle at rate of Williams’ opinion any reasonably prudent police Therefore, although Williams does de- position would also my allegedly tail the seriousness of the assault believed, during campus, committed on he does discuss vehicle was stop need to whole, the seriousness of situation as safety pub- to the essential insure Chambers Wadewitz require. and the way attempting lic to follow Wadewitz, 467; 951 S.W.2d at suspect vehicle. On whether his 883 S.W.2d 656-57. the not usе Although to Williams did immediately necessary ap- presence was Wadewitz can language employs, suspect availability and on the exact prehend the that with pursuit, agree to stated not the alternatives the na affidavit does not assess he the had not Williams’ suspect that knew that likelihood, Thus, ture, obviousness severity, and Williams’ affidavit been identified. namely public, risks the pursuit’s of the situation of his the seriousness discussed to, party. with a third the risk of collision was the need to immedi- responding he at 467. Sum- suspect, and the avail- 951 S.W.2d ately the 586

mary judgment requires that a ... aware that the driver the speeding movant upon engaged the establish facts which court could vehicle was believed conclusion, fight báse that on the and legal par campus its not evaded by University police ties detention particular use words. See officers.” 467; State, He further stated: Siders 189, 194 (Tex.App. hearing Sergeant After Williams’ radio - Dallas denied); Neal, pet. transmission, Pena v. my I looked over shoulder (Tex.App. Antonio green and jeep saw Suzuki rocket - San denied). writ Just because passed my patrol Williams’s affi I vehicle. activat- [sic] explicitly davit did not mention the emergency lights risk of ed my overhead colliding party attempted with third does not mean siren speed- to follow the that he not risk. ing suspect merged did assess this This risk vehicle. The vehicle present to some onto M.L.K. Boulevard and degree every continued at speed pursuit. assessing high facts rate which estimated such as the traffic, m.p.h. to rise 80 to 90 day posted time of weather and road conditions, speed m.p.h. was 35 limit assessing spe Williams was cific present circumstances that affected suspect He that thought vehicle’s And, this risk. speed “was a clear that the indication driv- record not does indicate that there were er of no suspect regard vehicle had other circumstances that increased or de safety the public and needed to be presented creased this risk or that a dif stopped.” ferent risk to the public. agree with On alternatives to Stewart stat- Justice Edelmaris dissent the court of suspect ed that “followed at a he dis- an appeals that not should be re get enough tance and was not able to close quired in his affidavit affirmatively ne its suspect vehicle to obtain license gate the existence of all circumstances or plate expected number. had the suspect actually risks did not that exist. 979 stop vehicle to when the driver observed J., (Edelman, dissenting). my lights him,” overhead and siren behind but he did not.

Further, we conclude that Williams’ affi- davit that acted in good established he public, On risk to the Stewart stated affidavit upon His includes facts that he was familiar with the upon streets which a officer in the which the area traveling, he was that was same or similar agree circumstances could commercial, primarily there was that (con- suspect time, very light traffic at that about 2:00 sidering allegedly had a.m. He stated he observed no car committed assault and was driving the suspect’s other than and Williams’ recklessly) outweighed pursuit’s risk to when he started the He stated public (considering that there was very proceed through lights that he red night, little at that traffic time of that the until stop signs it was safe to do so and commercial, area primarily he go he did as fast as could have weather and road conditions were good, keep vehicle up be- and that were intersecting there few roads recognized cause to the public. the risk occurred). road where Further, suspect approached when actually intersection where the collision oc-

b. Officer Stewart curred, decided to end the slowing began and his vehicle. Stewart Officer Stewart’s affidavit also es also stated: matter of good tablished as a law. element, I to suspect

On the need Stewart stated: When decided vehicle, I ... I that at that time of by ‘While was ordered believed vehicle, stop night I minimal on the street suspect Williams to was traffic testimony good on I Turner’s of the area in which Because and the nature to traveled, with reference from the faith is not substantiated diminished the risk balancing itself, and risk aspect of the need suspect while the vehicle each test, insufficient to conclusory and is it is person engaged operated was proof and that the defendant’s assault and fled the controvert at 467. significant public. risk to the posed believed, opinion any in my and reason- Therefore, that Williams we conclude posi- ably my officer in good faith as and Stewart established believed, that tion would also have dur- matter of law. stop to ing the need was to insure suspect vehicle essential 2. Ener by way of at- safety public held appeals the court of vehicle. tempting to follow Ener’s Deputy affidavit Constable affidavit shows that he consid- Stewart’s it did not establish faith because ered all need and risk factors Wadewitz’s Ener’s assessment substantiate supports and his claim that to his of the need risks of prudent officer could have assessed risk availability of alter specifically the pursue, and need as he did. appeals pursuit. to court of natives summary judgment

met burden on his affidavits expert that Ener’s also held good faith. conclusory were were and therefore competent summary judgment evidence. Judgment Summary c. Clark’s agree with the Evidence contain facts affidavit does not Ener’s to the defendants’ motions adequately that Ener assessed summary judgment, Clark submitted specifically, pursue, Turner, expert H. the affidavit of Richard any pursuit. there were alternatives the chief executive officer of the National Wadewitz, 951 at 467. Tur- Academy Driving. for Professional explained Ener pursue, On the need contends that ner Williams and Stewart patrol, he saw in his affidavit that while on acting were not faith and indicated His radar speeding. a vehicle enforce- “another law going per 71 miles vehicle was officer, ment under the or similar same put mile-per-hour zone. He hour circumstances, have believed the could not pur- lights and siren on his overhead immediately apprehend need to sus- [the one- for approximately sued the vehicle a clear risk of harm to pect] outweighed approaching mile before fourth to one-half may who be other members ulti- accident the intersection where the using highway during pursuit.” “At He further states: mately occurred. Further, Turner stated that Williams’ and acting speeder time I this believed industry actions “did not meet Stewart’s danger and that recklessly and was Houston, for the University standards definitely apprehend him.” should Houston, County, Harris State of City of Texas, Ener men- America” in his affidavit does or the United States of Nowhere wheth- that he assessed of Houston tion facts show and “violated any Turner there were alternatives regarding pursuit.” bases er policies viability Ener not mention his review of “facts sur- does opinion apprehending identifying “numerous docu- rounding pursuit,” To alternative. him later or other deposi- but not limited to including, ments Wadewitz, Ener taken, under policies procedures establish tions that he assessed required to show discovery process,” and was in the presented availability alternatives scene. his visit part balancing pursue of the need to and IV. CONCLUSION pursuit’s risk to the public. See Wa- conclusively prove good We hold that to dewitz, 951 467. Without as- case, in pursuit an officer alternatives, sessing availability of must prove that a offi- Ener not did suitable for basis cer in the same or similar circumstances concluding that a reasonable officеr in his could have determined that to need position “could have believed that need apprehend suspect outweighed risk immediately apprehend suspect out- pursuit to the continuing the and weighed a clear of risk harm the public that the officer must substantiate his de- in continuing the pursuit.” termination with facts that he as- added); 656 (emphasis Wa- see sessed all Wadewitz’s and fac- dewitz, Therefore, we tors. agree appeals court of that Ener’s Clark, we conclude that affidavit does adequately not substantiate and conclusively Officer Stewart of good his claim faith. express no proved good faith and that Clark’s sum- whether, if opinion on Ener had assessed mary judgment evidence success- availability alternatives to Therefore, fully proof. controvert their good affidavit would have establishеd appeals’ reverse the court of judgment faith. Nor do we mean imply that had good Ener’s affidavit shown that he faith issue. Because the court of had a viable appeals alternative ‍‌‌‌​​‌‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​‌​​​​​​​​‌‌​‌‌‌​​​‌​​​‍to did not pur- and decided to determine whether Stew- art anyway, acting discretionary sue con- or minis- we would clude that he terial good capacity, did not establish faith. we remand the case to the availability The alternatives to for determination just one factor balancing of the that issue. need/risk test and the existence of alternatives to we conclude Ener did not good does not alone determine meet prove his burden to acted Therefore, just because an officer Therefore, good faith. we affirm the court has identified a and appre- could appeals’ judgment denying summary hend him later but decides to judgment County. and Ener Harris suspect anyway cannot alone defeat dissent, disagree faith. We with the there- concurring Justice ENOCH filed a fore, opinion that our reheves officer of opinion. dissenting duty a suspect whenever pursuit. there is an alternative sitting. Justice O’NEILL S.W.3d at 925. affidavit, In addition to his ENOCH, Ener also concurring Justice experts submitted affidavits of Assis- dissenting. Rick tant Chief Jim Captain Sadler Court, again, adopt fails to a critical Sumner of the Harris County Constable’s piece Also, analysis. affidavit, office. like But Ener’s affi- these Court applies factor from Wadewitz v. davits omit reference to the availabili- Montgomery1 that is in police irrelevant

ty alternatives to Consequently, cases. concur they faith, cannot establish either. judgment the Court’s Because we conclude that Ener did not Clark, Hоuston v. and I its dissent from faith, meet his initial to prove burden judgment in Ener v. Thomas. we need not consider whether Thomas Roarke controverted Ener’s To begin, note that referring cases, evidence. police “response” referring I’m (Tex.1997). 1. 951 only knows the officer re- of travel. Rather police the officer

those cases where the point pursuit begins; at the requested call and is route emergency the ceives is, that, the fleeing suspect That the dictates report to a crime scene. the after to this, can’t all A to the risks traveling point route. Because officer be consequent- referring police “pursuit” beginning; to at the point B. be assessed cases, referring police to those cases where so must the ly, change, I’m as risks the chasing suspect. to police the is the in order officеr those risks officer reassess in If we pursuit good faith. continue the respect opinion, to the the With Court’s to the initial decision conclude that good faith piece critical left out of the good analysis faith then the proper, when an analysis piece determining is that point along us to determine requires faith be As good officer’s should assessed. good reevaluate way at which we the my in dissent in “Our I said minimum, should a the reassessment At as must be on the officer’s decision focus changed, risks have only after the begin response her rather than on she initiated very the risk certainly just because circumstance that confronts each discrete The already weighed is encountered. act at each moment of her course of her significance of recognize the Court fails said, otherwise, To аs I also ion.”2 do framework. analytical this immunity as a viable eliminates “official 3 Thus, in an public policy protection....” immunity teeth For official like a emergency response case cases, response in police all examine good the officer’s court should officer’s good must not re-examine an we response begins. faith when the officer’s the the officer encounters faith each time factors, Taking into account the Wadewitz begin- in considered risks the officer be, question reasonably should could a only if the ning. That also means that in prudent responded officer have change significantly in pursuit a case risks manner and the route officer chose? officer reevaluate situation must the response in began If the officer to immediate- whether the need determine faith, balancing respond quick the need to to out- ly apprehend continues ly against the clear risks of harm the public. harm to the weigh a clear risk of guess it is not for us to second public, officer could have If a just contemplat risk decision because the in the manner the continued is, fact, ed in encountered. risks, changed officer did under acting good faith. officer continues apply analysis would the same decides pursuit cases like these Court City we Lancas- Importantly, said today. An faith be officer’s should officer risk the ter v. Chambers4 pursuit begins, assessed at moment harm weigh must the “clear risk, light clear balancing against continuing pursuit.”5 Wadewitz factors. relevant that when assess again emphasize reasonably if acts in reasonably we must look at whether pur- officer could have decided prudent have continued prudent officer could the same sue in the same manner under not, example, circumstances. have en- officer could intersection, or made But, particular there is an tered recognizes, the Court incrementally To look particular U-turn. that differenti- to a case element activity along the chase piece at each case. ates it from a officer’s decision case, reassess the the route route and pick officer can’t (Tex.1994). J., (Enoch, dissenting). 883 S.W.2d 650 Id. at 468 added). (emphasis 5. Id. at 656 Id. pursue at each intersection or cross-street er. Ener’s affidavit described the condi- along way reduces stan- tions that he assessed when he decided to nothing dard negligence. more than Again, pursue. considering the short dis- therefore, Negligence, becomes the stan- tance, mile, a a quarter about and that liability, dard for when sup- is same, remained route we do not posed protect an if officer even reassessing move to good faith. There- negligent.6 officer is fore, only question is whether he began pursuit my in good opinion, faith. prove my point, To I don’t need look conclusively established that he did. any posited further than the example the Court: an officer approaching busy a Court, however, concludes that he intersection a light with red and intersect- did not because his affidavit fails to show ing traffic approaching quickly green a any he assessed to pur- alternatives risk, light.7 I can’t of any conceive howev- disagree suit. And this is I where slight er in relation to the officer’s need to the Court about its application of the Wa- apprehend, grow that wоuld not to over- dewitz factors. Wadewitz advises an offi- whelm significantly any respond need to as cer to consider “what alternative courses the officer comes closer and closer to that action, if any, are a available to achieve example intersection. The Court’s de- comparable may result.”9 That factor be nothing scribes different people than what appropriate case in which an ordinarily negligence— understand to be B, officer moving point A to point is, continuing whether the officer’s consider, and can example, a through busy intersection was reason- B may other officers to point who be closer able. No keeps matter how the Court could respond quickly, more or which of a trying to dress its reasoning, the courts of variety of routes would be safer faster. appeals have the attack seen for what it is: But it is not necessarily appropriate for a simple negligence.8 We have not given case, it pursuit where to me seems that an immunity” any “official meaning. officer has two only pursue alternatives — I turn now to the cases at hand. I or don’t pursue. question whether there Clark, University Houston v. we first any are alternative a courses of action in focus Williams’ and Officer deciding case short not to simply pursue Stewart’s initial decision to Kevin apprehend “alternative” —an short, Thomas. Because the chase was that an officer who pursue decides to lasting following along less than mile and necessarily have considered. pursuit began, the route on which the we do not move to the reassessment of good that, Aside from practical the fact as a faith which required would be had there matter, an responses officer’s alternative significant change been the clear risks case, are policy limited only before the collision. matter I that requiring doubt an officer to question is whether assess alternatives makes sense in conclusively they established that initiated assign police cases. We officers the task agree with apprehending those break the law who they Court that did. important because we an recognize societal Thomas, hand, Ener v.

Similarly, in doing our benefit in so. On the other focus task, assigned Deputy having give should first be on Constable this we don’t Ener’s initial decision to speed- officers unfettered discretion. insist 1998, pet.); (Tex.App.-Houston [14 6. See id. th no Dist.] Saenz, 910, (Tex. State v. 967 S.W.2d 7. See 22 S.W.3d at 921. denied). App. Corpus writ Christi - Clark, See, 712; e.g., see 979 S.W.2d 9.Wadewitz, 951 S.W.2d at Ener, also Brown 70-71 with the Court’s I concur Accordingly, they apprehend balance Clark, dissent. but risks suspect with clear particular particular posed to the under terms, this In concrete

circumstances.10 violator, when an sees

means that want that officer

violator, unreason- creating without but And that necessar- public. risk to the

able make that officer will have to

ily means the a rule I support cannot quickly. decision COMPENSATION WORKERS’ TEXAS duty an officer of of law that relieves Subsequent COMMISSION clear risks not because the apprehend, Fund, Appellants, Injury public outweigh appre- hend, else simply because someone but farther may be able catch LEAGUE MUNICIPAL TEXAS INTERGOVERNMENTAL down ‍‌‌‌​​‌‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​‌​​​​​​​​‌‌​‌‌‌​​​‌​​​‍road. POOL, Appellee. RISK that, upon the facts hold based would No. 03-98-00169-CV. affidavit, Ener in his established be- might officer have Texas, Appeals Court speeder that his lieved Austin. Thom- I would further hold that proper.11 14, 2000. Sept. that “‘no reasonable failed to show person position could have [Ener’s] they jus-

thought the facts were such that no

tified acts.’”12 Thomas offered [his] Ener’s; to controvert

affidavits of own

rather, pointed he to evidence about

Ener’s conduct as he entered the intersec- This the accident occurred.

tion where

evidence, may negli- while it be relevant

gence, relevant to Ener’s it already explained,

For reasons his decision to nothing

has do with to do speeder, everything a risk

with his conduct as encountered

already considered. that Ener violated suggests

Thomas also by engaging regulations

departmental a civilian in emergency may this indicate

car. While evidence might reasonably prudent officers

some it falls continued the

not have that no reasonable

short

could have. City Fort (quoting Post v. Id. at 657 8B3 S.W.2d at 656. (11 Lauderdale, th Cir. 7 F.3d 1993)). Id. at 656-57.

Case Details

Case Name: University of Houston v. Clark

Court Name: Texas Supreme Court

Date Published: Oct 12, 2000

Citation: 38 S.W.3d 578

Docket Number: 98-1080, 99-0326

Court Abbreviation: Tex.