* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40090

(Summary Calendar)

 

PEDRO COVARRUBIAS, JR.,

Plaintiff-Appellant,

versus

CITY OF BROWNSVILLE, TEXAS; ET AL.,

Defendants,

CITY OF BROWNSVILLE, TEXAS; VICTOR RODRIGUEZ,

Chief of Police, City of Brownsville; 

RAYMUNDO SALINAS, JR., City of Brownsville Police Officer,

Individually and in his official capacity,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(B-96-CV-195)

--------------------

October 20, 2000

Before HIGGINBOTHAM, WIENER, BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Pedro Covarrubias appeals the grant of

summary judgment in favor of the City of Brownsville and

Brownsville Police Officer Raymundo Salinas as to Covarrubias’s

state-law claims. Our review is de novo, see St. Paul Mercury Ins.

Co. v. Fair Grounds Corp., 123 F.3d 336, 338 (5th Cir. 1997), and
2

we apply the familiar test for summary judgment set forth in

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 

We reject the defendants’ claims that the City is entitled to

sovereign immunity. Salinas’s alleged tortious acts arise not from

the formulation of policy by the City, which would entitle the City

to immunity, but from the execution of that policy. See State v.

Terrell, 588 S.W.2d 784, 787 (Tex. 1979); Bridges v. Robinson, 20

S.W.3d 104, 107, 114 (Tex. App. 2000).

With respect to Salinas’s official immunity, however, there

are genuine issues of material fact regarding his good faith, so

summary judgment is precluded. As an initial matter, we disagree

with the plaintiff’s contention that the “good faith” test of City

of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), should

be limited to cases involving police pursuit. The Texas courts of

appeal have consistently declined to restrict Chambers to its facts

and have applied it in a variety of contexts. See, e.g., City of

Beverly Hills v. Guevara, 911 S.W.2d 901, 904 (Tex. App. 1995);

Murillo v. Gomez, 881 S.W.2d 199, 202 (Tex. App. 1994). We rely on

these decisions as setting forth Texas law on this matter. See

Texas Dep’t of Hous. & Community Affairs v. Verex Assurance, Inc.,

68 F.3d 922, 928 (5th Cir. 1995). 

The question in this case, therefore, is are there genuine

fact issues whether a reasonably prudent officer could have

believed that his actions were appropriate in light of clearly

established law and the information he possessed at the time his

conduct occurred. See Guevara, 911 S.W.2d at 904. According to
3

the testimony of Robert Nixon, the manner in which Officer Salinas

restrained Covarrubias - placing him face down on the rear floor of

his squad car - was not appropriate. Neither was it reasonable,

according to Mr. Nixon, to ignore Covarrubias’s complaints about

fire ants and the burning he felt while on the floor. Mr. Nixon

testified that there were other, preferable options for restraining

Mr. Covarrubias, such as restraining his feet or having another

officer sit in the car with him. 

Contrary to the defendants’ assertions, Mr. Nixon’s deposition

testimony shows that he did consider the risk involved and the

potential harm, as required under the Chambers balancing test. See

Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997). Mr.

Nixon noted both the danger that Mr. Covarrubias posed to himself

and to the police vehicle, as well as the risk of harm to Mr.

Covarrubias, such as restricted breathing or choking, involved in

placing him face-down on the rear floor of the squad car. Mr.

Nixon expressed the opinion in his affidavit that no reasonable

officer could have believed that it was appropriate to ignore

Covarrubias’s complaints of burning and continue transporting him

in that manner. Mr. Nixon offered the same opinion in deposition

testimony that no reasonable officer would have transported

Covarrubias in such a manner. Thus, Mr. Nixon’s testimony as a

whole is sufficient to establish the presence of a genuine issue of

material fact on the question whether Officer Salinas acted in good

faith. See Wadewitz, 951 S.W.2d at 466-67. We shall not consider

the defendants’ contention that Mr. Nixon’s testimony is unreliable
4

under the Supreme Court’s standard in Kumho Tire Co. v. Carmichael,

525 U.S. 137 (1998), as they failed to raise this issue in the

district court. See Williamson v. United States Dep’t of

Agriculture, 815 F.2d 368, 383 (5th Cir. 1987). 

The defendants have the burden of demonstrating good faith,

see Chambers, 883 S.W.2d at 653, but they fail to point to any

evidence establishing good faith or otherwise negating Mr. Nixon’s

testimony. In fact, they do not argue at any point in their brief

that Officer Salinas acted in good faith. Although we imply no

opinion as to the ultimate resolution of this question, we conclude

that there are genuine issues of material fact as to Officer

Salina’s good faith such that summary judgment should not have been

granted. 

Accordingly, we vacate the district court’s order granting

summary judgment and remand this matter for further proceedings.

VACATED AND REMANDED.