Reversed and Rendered and Memorandum Opinion filed August 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00570-CV

CITY OF HOUSTON, Appellant

V.

RACHEL MORRIS AND MIA SANDERS, Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2022-50930

MEMORANDUM OPINION

In this interlocutory appeal,1the City of Houston appeals the denial of its 

motion for summary judgment contending that governmental immunity shielded it 

from the lawsuit filed by Appellees Rachel Morris and Mia Sanders. We reverse the 

1 This court has jurisdiction to consider an interlocutory appeal from the denial of a motion 

for summary judgment by a governmental unit seeking a dismissal based on governmental 

immunity. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019); see Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(8); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 541 

(Tex. App.—Houston [14th Dist.] 2017, no pet.).
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trial court’s order and render judgment dismissing the case for want of subject matter 

jurisdiction.

BACKGROUND

At approximately 9:00 p.m. on August 14, 2021, Houston Police Officers 

Kpotie and Young were working with the Houston Police Department crime 

suppression team on a prostitution operation targeting an area in southwest Houston. 

As part of the operation, an undercover officer was supposed “to engage the services 

of a prostitution suspect and take them to a pre-arranged location in an unmarked

vehicle.” Officers Kpotie and Young sat in one of the marked police vehicles 

involved in the operation. Both officers wore their police uniform and waited for a 

surveilling unit to notify the marked units that there was “a good case.”

When Officers Kpotie and Young received the notification, Officer Kpotie 

drove toward a pre-arranged location at which marked units were supposed to arrest 

the suspect. As Officer Koptie was following the undercover unit, he was driving 

his marked unit above the speed limit but did not activate the lights or siren. At a 

traffic light, he made a left turn onto Bissonnet Street. As he continued westbound 

following “the direction of travel being called out by the surveilling officer,” Officer 

Young saw “a shadow suddenly appear in front of the passenger side of our vehicle.” 

She told Officer Kpotie “to watch out.” Officer Kpotie did not see a pedestrian, who 

was later identified as sixty-nine-year-old Steve Sanders, until Officer Young alerted 

him that Sanders was running across Bissonnet Street. Sanders was dressed in black 

and ran across the street outside of a crosswalk. Officer Kpotie steered the police 

car to the left when he saw Sanders, but his attempt to avoid hitting Sanders failed. 

He hit Sanders with the right front of the car and Sanders landed on the pavement. 

Sanders died as a result of the collision.

Appellees, Sanders’s daughters, sued the City in August 2022, alleging that 
3

(1) Sanders’s death was “brought about and caused to occur due to the negligence 

and carelessness of the” City; (2) the City, “acting by and through the driver of its 

police vehicle, believed to be Officer Kpotie, committed various acts and omissions, 

each of which constitutes negligence, at common law or as a matter of law, which 

was a proximate cause of the occurrence, damages and injuries complained of 

herein”; (3) their claims against the City fall “under the Texas Tort Claims Act 

(‘TTCA’)”; and (4) the trial court has jurisdiction over Appellees’ “claims because 

through the TTCA, Defendant’s governmental immunity has been waived for claims 

involving personal injury resulting from a motor vehicle collision.” In September 

2022, the City filed an answer and special exceptions. The City asserted, among 

other things, governmental immunity from suit and liability and official immunity 

as an affirmative defense to all of Appellees’ claims.

On June 16, 2023, the City filed a traditional and no-evidence motion for final 

summary judgment on immunity arguing the trial court lacked jurisdiction over 

Appellees’ claims because the City’s immunity was not waived. In that regard, the 

City argued that (1) Officer Kpotie did not breach a duty that proximately caused the 

accident; (2) Sanders was the proximate cause of the accident; (3) “Officer Kpotie 

would not be personally liable under the common law based upon the sudden 

emergency inferential rebuttal;” (4) it was “shielded by the official immunity of its 

employee” Officer Kpotie; and (5) “[t]he TTCA’s Emergency Exception preserves 

Houston’s immunity.” As evidence in support of its motion, the City attached 

affidavits from Officers Kpotie and Young.

Appellees filed their summary judgment response on July 3, 2023. In the 

portion titled Response to No-Evidence Motion for Summary Judgment, Appellees 

argued regarding breach of duty and proximate cause that “they have met their 

burden to establish more than a scintilla of evidence that Officer Kpotie’s operation 
4

of his police cruiser 20 m.p.h. above the posted speed limit in low light conditions 

constitute a breach of the duties imposed on every Texas driver in the prudent 

operation of a motor vehicle on Texas roadways and that this breach of duties was a

proximate cause of Mr. Sanders’ death.” Regarding sole proximate cause, Appellees 

argued they “have presented more than a scintilla of evidence that Officer Kpotie’s

acts and omissions of driving 20 m.p.h. above the posted speed were a proximate 

cause of the incident.” With respect to sudden emergency, Appellees argued that 

Officer Kpotie’s “negligent operation of his vehicle negates the applicability of the 

‘sudden emergency’ defense.”

In the portion titled Response to Traditional Motion for Summary Judgment, 

Appellees contended that the City did not meet its burden of proving as a matter of 

law that the official immunity defense applies because it “failed to prove both that 

Kpotie acted in good faith and that Kpotie was engaged in a discretionary function 

at the time of the crash.” Appellees also contended that the City failed to prove the 

TTCA’s Emergency Exception preserves its immunity because “Officer Kpotie’s 

excessive speed was unsafe and unwarranted as he was not responding to an 

emergency call.” As summary judgment evidence, Appellees attached excerpts from 

the Houston Police Department’s crash and incident reports relating to the accident.

A few days later, the City filed what purports to be a reply to Appellees’ 

summary judgment response. Therein, the City objected to Appellees’ summary 

judgment evidence asserting their two exhibits should be stricken because they are 

improperly authenticated and are “chock-full of hearsay and hearsay within 

hearsay.” The City also argued that (1) Appellees’ “own evidence establishes the 

accident was not caused by any breach of duty by [the City]’s driver, but by Steve 

Sanders’ suddenly running into traffic outside of a crosswalk while intoxicated and 

failing to yield the right of way to a vehicle”; (2) it is shielded by Officer Kpotie’s 
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official immunity because it proved Officer Kpotie acted in good faith and Appellees 

“did not refute discretionary function and scope of authority;” and (3) Appellees 

presented no evidence to overcome the TTCA’s emergency exception.

On July 19, 2023, the trial court signed an order denying the City’s “Motion 

for No-Evidence Summary Judgment and Motion for Traditional Summary 

Judgment.” The City filed an objection to the trial court’s failure to rule on the City’s 

evidentiary objections, but the trial court did not make a ruling on the objection. The 

City filed a timely notice of interlocutory appeal.

ANALYSIS

The City contends the trial court erroneously denied its motion for summary 

judgment because it is entitled to governmental immunity. In that respect, the City 

asserts that: 

(1)its evidence establishes as a matter of law that it retains its governmental 

immunity because (a) Officer Kpotie breached no duty that proximately 

caused the death of Sanders, and (b) “Sanders’ choice to run into traffic at 

night dressed in black was the proximate cause of his fatal injuries”;

(2)it is shielded by Officer Kpotie’s official immunity because the evidence 

establishes as a matter of law that, at the time of the accident, Officer 

Kpotie was (a) acting within the scope of his authority, (b) performing a 

discretionary duty, and (c) acting in good faith;

(3)the TTCA’s emergency exception preserves its governmental immunity 

because the evidence establishes that Officer Kpotie was reacting to an 

emergency situation that Sanders created running into traffic; and 

(4)Appellees did not present evidence to overcome Officer Kpotie’s official 

immunity because (a) the evidence they proffered should have been 
6

excluded because it was not properly authenticated and it constitutes 

hearsay, and (b) even if the proffered evidence could be considered, it 

actually supports the City’s governmental immunity. 

Because we conclude that the City as a matter of law established that Officer 

Kpotie would be entitled to official immunity and, thus, the City’s governmental 

immunity was not waived, we need only reach the City’s arguments relating to 

official immunity. Before turning to the standard of review and applicable law, we 

note that it is unclear from the City’s summary judgment motion and briefing in this 

court what specifically the City challenged on traditional and what on no-evidence 

grounds. Appellees understood that the City in its motion for summary judgment 

asserted a right to judgment regarding breach of duty, proximate cause, sole 

proximate cause, and sudden emergency under the no-evidence standard and a right 

to judgment regarding official immunity and the TTCA’s emergency exception

under the traditional standard. Appellees filed their response accordingly. We read 

the City’s summary judgment motion as asserting a right to judgment based on 

official immunity under the traditional summary judgment standard and, therefore, 

address the City’s dispositive official immunity arguments under that standard.2

I. Standard of Review

2 To the extent the City moved for no-evidence summary judgment based on official 

immunity, the trial court would not have erred in denying a no-evidence motion because the City 

was not entitled to a no-evidence summary judgment on this ground as official immunity is an 

affirmative defense and the City was required to conclusively prove all of its elements. See City 

of Springtown v. Ashenfelter, No. 02-23-00204-CV, 2024 WL 1792380, at *7 (Tex. App.—Fort 

Worth Apr. 25, 2024, no pet. h.) (mem. op.); see also Tex. R. Civ. P. 166a(i) (providing for noevidence summary judgment motion challenging element of claim or defense “on which an adverse 

party would have the burden of proof at trial”); Grant v. Wind Turbine & Energy Cables Corp., 

No. 02-21-00036-CV, 2022 WL 2840142, at *2 n.9 (Tex. App.—Fort Worth July 21, 2022, no 

pet.) (“But [defendant] bore the burden on its affirmative defense, and a party may file a noevidence motion to challenge only a claim or defense on which it does not bear the burden of 

proof.”). 
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Subject matter jurisdiction is necessary to a court’s authority to decide a case. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); City of 

Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *4 (Tex. App.—

Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.). A plaintiff must allege 

facts affirmatively showing the trial court has subject matter jurisdiction. Tex. Air 

Control Bd., 852 S.W.2d at 446; Manning, 2021 WL 1257295, at *4. A party may 

challenge the lack of subject matter jurisdiction by a plea to the jurisdiction or by 

other procedural vehicles, such as a motion for summary judgment filed in this case. 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Buzbee v. Clear 

Channel Outdoor, LLC, 616 S.W.3d 14, 21 (Tex. App.—Houston [14th Dist.] 2020, 

no pet.). Because subject matter jurisdiction is a question of law, we review the trial 

court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

226 (Tex. 2004); Manning, 2021 WL 1257295, at *4.

To obtain a traditional summary judgment based on a lack of subject matter 

jurisdiction, a movant must produce evidence showing that no genuine issue of 

material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. 

Civ. P. 166a(c); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 

2019). A nonmovant may raise a genuine issue of material fact by producing “‘more 

than a scintilla of evidence establishing the existence of the challenged element.’” 

Swanson, 590 S.W.3d at 551 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 

600 (Tex. 2004)). While the City asserted immunity by way of a traditional 

summary judgment motion, the applicable standards generally mirror those 

governing review of an order denying a plea to the jurisdiction. Manning, 2021 WL 

1257295, at *4; see also Miranda, 133 S.W.3d at 228. A defendant’s jurisdictional 

plea may challenge either the plaintiff’s pleadings or the existence of jurisdictional 

facts. Miranda, 133 S.W.3d at 228; Manning, 2021 WL 1257295, at *4.
8

The City challenged the existence of jurisdictional facts; therefore, “we 

consider relevant evidence submitted by the parties when necessary to resolve the 

jurisdictional issues raised, as the trial court is required to do.” See Miranda, 133 

S.W.3d at 227. “In both traditional summary judgment and plea to the jurisdiction 

contexts, we take as true all evidence favorable to the nonmovant and indulge every 

reasonable inference and resolve any doubts arising from such evidence in the 

nonmovant’s favor.” Manning, 2021 WL 1257295, at *4; see also Miranda, 133 

S.W.3d at 228. If the relevant evidence is undisputed or does not raise a fact question 

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a 

matter of law. Miranda, 133 S.W.3d at 228; Manning, 2021 WL 1257295, at *4. If 

the evidence creates a fact question regarding the jurisdictional issue, the trial court 

may not grant the plea, and the fact issue will be resolved by the factfinder. Miranda, 

133 S.W.3d at 227-28.

II. Official Immunity

The City argues that the trial court erred in denying its summary judgment 

motion because it is shielded by Officer Kpotie’s official immunity and thereby 

retained its governmental immunity.

A. Applicable Law

A city performing governmental functions may not be sued for its employees’ 

conduct unless a plaintiff demonstrates the Legislature waived the city’s 

governmental immunity. City of Houston v. Sauls, 690 S.W.3d 60, 69 (Tex. 2024); 

Rattray v. City of Brownsville, 662 S.W.3d 860, 865 (Tex. 2023). To do so, 

Appellees rely on Section 101.021(1) of the TTCA, which provides in relevant part:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by 

the wrongful act or omission or the negligence of an employee acting 
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within his scope of employment if:

(A) the property damage, personal injury, or death arises from the 

operation or use of a motor-driven vehicle or motor-driven equipment; 

and

(B) the employee would be personally liable to the claimant according 

to Texas law[.]

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). This section makes a city liable 

for a death arising from the operation of a motor vehicle and proximately caused by 

an employee’s negligence if the “employee would be personally liable” under Texas 

law. Sauls, 690 S.W.3d at 69; see Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1), 

.025. Therefore, if a legal doctrine protects the employee from personal liability, 

section 101.021(1) does not waive immunity. Sauls, 690 S.W.3d at 69.

Official immunity, a common law affirmative defense, is one such legal 

doctrine. Id.; Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642 (Tex. 2015) 

(per curiam). “Official immunity shields government employees from liability in 

civil lawsuits that, with the benefit of hindsight, would second-guess their 

performance of discretionary duties and force them to defend decisions that were 

reasonable when made.” Sauls, 690 S.W.3d at 69; Telthorster v. Tennell, 92 S.W.3d 

457, 463 (Tex. 2002). The purpose of official immunity is “to insulate the 

functioning of government from the harassment of litigation, not to protect erring 

officials.” Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see Sauls, 690 S.W.3d at 

69. However, official immunity protects governmental employees only when they 

are performing discretionary duties in good faith and within the scope of their 

authority. Bonilla, 481 S.W.3d at 642-43; Gomez v. City of Houston, 587 S.W.3d 

891, 896 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc). Because 

official immunity is an affirmative defense, the burden rests on the City to establish 

all elements of that defense. Manning, 2021 WL 1257295, at *5; Gomez, 587 

S.W.3d at 897.
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Arguing that Officer Kpotie’s actions satisfied these three elements, the City 

moved for traditional summary judgment on the ground that it retained its 

governmental immunity. Appellees only disputed whether Officer Kpotie acted in 

good faith; they raised no arguments regarding discretionary duty or scope of 

authority. We therefore proceed to address whether the City conclusively 

established that Officer Kpotie acted in good faith. 

B. Good Faith

Relying on the affidavits from Officers Kpotie and Young and citing 

applicable authorities, the City claims, as it did in the trial court, it proved that 

Officer Kpotie acted in good faith when the accident occurred. Appellees contend, 

and did so in the trial court, that the City did not meet its burden to show Officer 

Kpotie acted in good faith because the City (1) “failed to present any adequate 

evidence that Officer Kpotie considered alternative courses of action;” and (2) 

“failed to present any evidence showing that Officer Kpotie considered or weighed 

the risks of his conduct.”

1. Good-Faith Test

A test of good faith is a test of objective reasonableness without regard to the 

governmental employee’s subjective state of mind. Sauls, 690 S.W.3d at 73; City of 

San Antonio v. Riojas, 640 S.W.3d 534, 538 (Tex. 2022). To be entitled to summary 

judgment, the City must carry its initial burden to prove conclusively that a 

reasonably prudent police officer, under the same or similar circumstances, could 

have believed his actions were justified based on the information he had at the time. 

Telthorster, 92 S.W.3d at 465; City of Lancaster v. Chambers, 883 S.W.2d 650, 656-

57 (Tex. 1994). The City does not have to prove that it would have been 

unreasonable not to take these actions, or that all reasonably prudent officers would 

have taken the same actions. See Riojas, 640 S.W.3d at 541; Telthorster, 92 S.W.3d 
11

at 465; Manning, 2021 WL 1257295, at *5. Rather, the City must prove conclusively 

that a reasonably prudent officer, under the same or similar circumstances, might 

have reached the same decision. See Telthorster, 92 S.W.3d at 465; Gomez, 587 

S.W.3d at 897.

That a police officer “was negligent will not defeat good faith; this test of 

good faith does not inquire into ‘what a reasonable person would have done,’ but 

into ‘what a reasonable officer could have believed.’” See Telthorster, 92 S.W.3d 

at 465 (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1 (Tex. 1997) 

(citing Chambers, 883 S.W.2d at 661 n.5)). The “objective good faith test ‘does not 

place an onerous burden on law enforcement.’” Sauls, 690 S.W.3d at 75 (quoting 

Riojas, 640 S.W.3d at 539). It is analogous to an abuse of discretion standard 

protecting “‘all but the plainly incompetent or those who knowingly violate the 

law.’” Riojas, 640 S.W.3d at 540 (quoting Bonilla, 481 S.W.3d at 643 (quoting City 

of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam) (quoting 

Chambers, 883 S.W.2d at 656, 657 n.7))).

Although the supreme court developed particularized need-risk factors to 

substantiate conclusions about the existence of good faith in emergency response 

cases, such a need-risk balancing analysis does not apply outside of the context of a 

police emergency. Sauls, 690 S.W.3d at 73-4; Riojas, 640 S.W.3d at 535, 542. In 

fact, the supreme court “expressly refused to” require and apply the need-risk factors 

“‘outside the context of a high-speed chase or other emergency law-enforcement 

response that carries an inherent risk of harm to the public.’” Sauls, 690 S.W.3d at 

73-4 (quoting Riojas, 640 S.W.3d at 535). Thus, outside the context of a police 

emergency, to demonstrate his good faith, a police officer is only required to show 

that a reasonably prudent officer faced with the same circumstances could have 

believed that his conduct was justified. See Riojas, 640 S.W.3d at 542; Telthorster, 
12

92 S.W.3d at 465.

Only when it has been determined that the governmental unit met its initial 

burden to conclusively prove the police officer’s good faith does the court address 

whether the nonmovant’s evidence raises a genuine issue of material fact on the issue 

of good faith. See Riojas, 640 S.W.3d at 541; Telthorster, 92 S.W.3d at 465. To 

raise a fact issue, the nonmovant must do more than show that a reasonably prudent 

police officer could have reached a different decision. See Riojas, 640 S.W.3d at 

542; Bonilla, 481 S.W.3d at 643. Instead, the nonmovant must offer evidence that 

no reasonable police officer in the officer’s position could have believed that the 

facts were such that they justified the challenged actions. See Riojas, 640 S.W.3d at 

542; Bonilla, 481 S.W.3d at 643.

2. Application

In determining whether the City conclusively established that Officer Kpotie 

acted in good faith, we next turn to the evidence in this case. Appellees claim that 

the City failed to establish good faith because it did not present evidence that Officer 

Kpotie “subjectively considered alternative courses of action” or weighed the risks 

of his conduct speeding “without lights or sirens at nighttime.” 

Contrary to Appellees’ assertion, the good-faith test does not require that the 

officer subjectively assessed certain factors while performing his duties. See Sauls, 

690 S.W.3d at 74 (“Although the good-faith inquiry ‘must be filtered through the 

lens of the officer’s perceptions at the time of the incident,’ the test’s focus is on the 

objective facts and information the officer knew and perceived, not whether the 

officer had subjectively considered and assessed certain factors. Ultimately, the 

officer’s actions — not his or her subjective assessments — must be justified with 

reference to what a reasonably prudent officer, possessed of the same information 

and under the same or similar circumstances, could have believed.”). 
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Further, the test is a holistic inquiry with no magic words required, so that 

“[a]lternative courses of action may be ‘implicitly discounted’ instead of ‘explicitly 

address[ed]’” and risks “that are generally ‘present to some degree’ do not need to 

be ‘explicitly mention[ed]’ and can be addressed through describing the facts and 

circumstances that affected the risks.” Id. (quoting Bonilla, 481 S.W.3d at 645, and 

Univ. of Houston v. Clark, 38 S.W.3d 578, 586 (Tex. 2000)). More importantly, 

there is no emergency situation in this case (as Appellees acknowledged) and a needrisk balancing analysis does not apply outside of the context of a police emergency. 

Sauls, 690 S.W.3d at 73-74; Riojas, 640 S.W.3d at 535, 542.

Here, the City presented affidavits from Officer Kpotie and his partner Officer 

Young. In relevant part, Officer Young stated in her affidavit as follows:

We headed out of the parking lot and . . . did not activate lights and 

siren at this point because we were not directly behind the undercover 

vehicle, and there were other prostitution suspects and other undercover

officers on the ground in that location; we did not want to tip off other 

suspects or blow the cover of the undercover units who were still 

participating in the operation.

The undercover officer was several vehicles ahead of us and made a left 

turn at the intersection of Centre Parkway and Bissonnet Street 

traveling westbound. We could not make the light so Officer Kpotie 

exercised his individual discretion to wait at the red light while 

continuing to listen to the surveillance officer provide updates on 

direction of travel. As part of this operation, Officer Kpotie had the 

discretion to proceed into this intersection against the light if he had 

activated my emergency equipment. But he decided not to because it 

is a very busy intersection, and it would have been too risky. Every 

time we activate emergency equipment, there is a risk of an accident. 

And the traffic was unusually busy that evening. Once the light turned 

green, we made the left turn and went westbound on Bissonnet Street.

We passed through the green light at Woodfair Drive and continued 

westbound on Bissonnet Street. I observed Officer Kpotie trying to 

drive as safely as possible, by looking around, observing traffic 

conditions and other motorists, and by using his blinkers. The roads 
14

were dry, and the weather was clear. I do not know how fast he was 

traveling but we were stuck in the middle of a bunch of cars that were 

going roughly the same speed, which prohibited us from catching up 

with the suspect vehicle. Based upon these facts, I believed Officer 

Kpotie’s speed to be generally safe and appropriate for the situation and 

the safety of other motorist[s] and others in the area.

In the 10,000 block of Bissonnet Street, I recall seeing a shadow 

suddenly appear in front of the passenger side of our vehicle. I

remembered telling Kpotie to watch out but I don’t know whether I 

completed the thought before the impact because it happened so fast.

* * *

It is my opinion that Officer Kpotie’s actions in traveling towards the 

undercover vehicle without activating emergency equipment in support 

of this operation were both reasonable and proper under the 

circumstances. He considered both the need to assist the operation as a

marked unit who could not only make the arrest and protect the safety 

of the undercover unit, as well as risk of harm to other drivers from his 

driving as part of this operation. I believe that a reasonably prudent law 

enforcement officer under the same or similar circumstances could

have believed that Officer Kpotie’s actions were justified based on his 

perception of the facts at the time and that the need to immediately 

reach the undercover vehicle to make the prostitution arrest outweighed 

any minimal risk of harm to others from his own driving.

In his affidavit, Officer Kpotie stated he was driving one of the marked units tasked 

with following the undercover unit to arrest the prostitution suspect at an agreed 

McDonald’s location. As an officer in a marked unit, Officer Kpotie had to use his

“own judgment to decide how close [he] wanted to stay to the undercover unit who 

had a suspect in his vehicle.” He “had the discretion to violate traffic laws if 

necessary to stay closer to the undercover vehicle” and if he believed the undercover 

officer’s safety was in jeopardy. Officer Kpotie also stated that marked units were 

supposed to avoid using emergency equipment during the operation unless exigent 

circumstances arose. He “determined that there did not seem to be exigent 

circumstances that would have justified activating that equipment.” 
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Officer Kpotie stated that the undercover unit was four vehicles ahead of his 

unit and made a left turn at an intersection onto Bissonnet Street. He explained that 

because he was unable to make the light to follow the undercover officer through the 

intersection, he “exercised [his] individual discretion to wait at the red light.” He 

explained, “As part of this operation, I had the discretion to proceed into this 

intersection against the light if I had activated my emergency equipment. But I 

decided not to do that because it is a very busy intersection.” He also explained that 

once the light turned green, he turned left and continued on Bissonnet Street trying 

to reach the “McDonald’s as safely as possible.”

He stated the “roads were dry, weather was clear and traffic was medium. I 

was traveling approximately 40-45 miles per hour.[3]I did not observe my speed to 

be dramatically different from the other motorists around me; there were other 

vehicles traveling near me that were going about the same speed as I was. Based 

upon these facts, I believed my speed to be generally safe and appropriate for the 

situation and the safety of other motorist[s] and others in the area.” Officer Kpotie 

also stated:

I continued to follow the direction of travel being called out by the 

surveilling officer, when I heard my partner tell me to watch out. I was 

not distracted by my phone, the police radio, our unit’s MDT or any 

other device, I just didn’t see the pedestrian until my partner alerted me 

he was running across Bissonnet. I saw a pedestrian wearing all black 

who was running from my right to my left across my lane of traffic 

3 The speed limit was 35 m.p.h. in the area the accident occurred. In his report, Investigator 

Romo of the vehicular crimes reconstruction unit stated that, based on the evidence, Officer 

Kpotie’s “vehicle was traveling 55 mph approximately 70 feet from the area of impact.” 

Investigator Romo reconstructed the accident at a speed of 35 m.p.h. and concluded that Officer 

Kpotie would have hit Sanders even at the posted speed limit. Investigator Romo opined: “Based 

on this information it is my conclusion that no action could be taken by the driver of the vehicle 

that would have resulted in the crash not taking place. I have concluded that the factor which lead 

to this crash was the pedestrian leaving a position of safety, not in a designated crossing area, when 

it was unsafe and failed to yield right away to a moving vehicle.”
16

outside of a crosswalk. He was within a couple of feet of my patrol 

vehicle in the 10,000 block of Bissonnet Street. I reacted by steering to 

the left but the pedestrian impacted the right front of the patrol vehicle 

and up onto the windshield before landing on the pavement. Due to the 

poor lighting in this area and the pedestrian wearing all black, I did not 

notice him before he was in the roadway and my partner alerted me.

* * *

It is my opinion that my actions in traveling towards the McDonalds 

without activating emergency equipment in support of this operation 

were both reasonable and proper under the circumstances. I considered 

both the need to assist the operation as a marked unit who could not 

only make the arrest and protect the safety of the undercover unit, as 

well as risk of harm to other drivers from my driving as part of this 

operation. I believe that a reasonably prudent law enforcement officer 

under the same or similar circumstances could have believed that my

actions were justified based on my perception of the facts at the time 

and that the need to immediately reach the McDonalds to make the 

prostitution arrest outweighed any minimal risk of harm to others from 

my own driving. 

Officer Kpotie’s and Officer Young’s affidavits are sufficient to demonstrate that a 

reasonably prudent police officer in Officer Kpotie’s shoes could have believed that 

his conduct at the time of the accident was warranted and justified. Appellees 

contend that Officer Kpotie was unnecessarily speeding without lights or sirens after 

dark “instead of utilizing an alternative and safer method.” 

But both officers explained in their respective affidavits that (1) Officer 

Kpotie was driving “as safely as possible, by looking around, observing traffic 

conditions and motorists”; (2) Officer Kpotie was not distracted by his phone, the 

police radio, or any other device; (3) the roads were dry, the weather was clear, and 

the “traffic was medium”; (4) other motorists around him “were going about the 

same speed as [he] was”; and (5) Officers Kpotie and Young “were stuck in the 

middle of a bunch of cars that were going roughly the same speed, which prohibited 

[them] from catching up with the suspect vehicle,” causing the officers to believe 
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that “Officer Kpotie’s speed [was] generally safe and appropriate for the situation 

and the safety of other motorist[s] and others in the area.” 

The officers also discussed why it was reasonable for Kpotie to not activate 

his marked unit’s lights and siren, namely (1) to not “tip off other suspects” and 

“blow the cover of other undercover units”; (2) there is a risk of causing an accident 

every time emergency equipment is activated; (3) the traffic was unusually busy that 

evening; (4) there were no exigent circumstances that would have justified the 

activation of emergency equipment; and (5) for the protection of the undercover 

officer while attempting to reach the location to arrest the suspect.

Based on the officers’ affidavits, we conclude the City met its summaryjudgment burden to make a prima facie showing of Officer Kpotie’s good faith.

3. Controverting Evidence

Because we determined that the City met its initial burden to prove Officer 

Kpotie’s good faith, the burden then shifted to Appellees to present controverting 

evidence. See Riojas, 640 S.W.3d at 541. Thus, Appellees were required to offer 

evidence that no reasonable police officer in Officer Kpotie’s position could have 

believed that the facts were such that they justified his actions. See id. at 542; 

Bonilla, 481 S.W.3d at 643. Appellees did not present any controverting evidence. 

Therefore, the City conclusively proved that Officer Kpotie acted in good faith.

Based on the evidence presented, we conclude the City established as a matter 

of law that Officer Kpotie would be entitled to official immunity for his conduct at 

the time of the accident. Because section 101.021(1) of the TTCA waives immunity 

only if the governmental employee would be personally liable under Texas law, the 

City retained its governmental immunity from suit and has established that it is 

entitled to summary judgment.
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Accordingly, we sustain the City’s issue.

CONCLUSION

Having sustained the City’s issue, we reverse the trial court’s order denying 

the City’s motion for summary judgment and render judgment dismissing Appellees’ 

claims against the City for want of subject matter jurisdiction.

/s/ Meagan Hassan

 Justice

Panel consists of Justices Wise, Spain, and Hassan.