### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00898
- CV

City of Killeen Police Department , Appellant

v. Gloria Fonseca, Individually and as Next Friend of Julia Fonseca; and Alberto Fonseca, as Next Friend of Julia Fonseca , Appellee s

F ROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 304,579
- B , THE HONORABLE JACK WELDON JONES , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
This appeal arises from a collision between a police cruiser driven by Officer Boehmker of the Killeen Poli ce Department and a vehicle driven by Gloria Fonseca. Gloria, on behalf of herself and as next friend to Julia Fonseca, along wi th Alberto Fonseca, acting only as next friend of Julia, subsequently sued the Department for the officer’s alleged negligence and gross negligence. In a single issue on appeal, the De partment contends the district court erred by o v erruling a plea to the juri sdiction predicated on governmental immunity from suit. The Fonsecas respond that the Texas Tort Claims Act (TTC A), Tex. C iv. Prac. & Rem. Code § 101.021(1) (providing exception to s overeign and governme ntal immunity where inj u r y arises from use of motor vehicle ) , applies such that they can proceed wi th their claims

. Because we conclude that the Fonsecas have produced eviden ce sufficient to create a fact issue as to whether Office Boehmker ’ s conduct was reckless , see id

. § 1 0 1

. 0 55( 2) (setting forth2 emergency - response exception to TTCA and limitation on that exception ), and, consequently, whether the claim falls within the sco pe of the TTCA ’s waiver of immunity, we will affirm.

BACKGROUND On December 2, 2016, a l ieutenant with t he Harker H eights Police Department called Officer Rollins, a D epartment offic er , to inform him of a vehi cle that she was “ going to
repo rt ” as stolen

. Officer Rollins sent a text message to Officer Larson and Officer B oehm k e r telling th em that “ ther e wa s no report and the complain ant just wanted it b ac k. ” T he next d ay , Officer Rollins received a call from the lieutenant describing the vehicle ’ s locat i on
. Officer Ro llins was not working t hat da y a nd asked another of f ic er to respond , but the vehicle

was go ne w hen that officer arrived. Later that day , Officer Ro llins cont acted Officer Boehmker , descr i bi ng the vehicle as a red Ford Mus tang with a white h ood and a possible lic ense p l a t e of
BSH 4019 . Officer Rollins indicated th at the vehicle would likely b e in Officer Boehm ker ’s
pa trol a rea that day and wou ld so o n be reported as stolen

. Acco r ding to Officer Boehmker, this vehicle was then “ considered a s uspicious vehicle

. ”
It was over cast and raining w hen Officer Boehmker ’ s shift started at 2 p.m. He bega n his patrol at a gas station , where he saw a re d Mus t an g with a white ho od

. H e call ed in the license plate as BSM 4019 , l ater explaining in depositi on that he had “ mad e a mistake in run ning plates , ” as the first three characters turned out to be “ BSH ” no t “ BSM

. ” Disp atch identified
BSM 4019 a s assign ed to a Buick , a nd Officer Boehmker made “ the assumption t hat if somebody was goi n g to s teal a vehicle , they ’ re going to change th e plates on the veh ic le in an attempt to try to hide it in some way; so wh en t he plates did not match, I knew that that was th e

ve h i cle I was looking for. ” He then called for a back

- up officer

.3 O fficer Larson arrived at the g as station , and Officer Boeh mke r p ointed out the
M ustang

. When O fficer Boehm ker walked to the driver ’ s si de and asked to see identification , t he driver patted his pockets a s though looking for his wallet and rolled up the window. Officer Boehmke r turn ed to Office r Larson an d warned , “ He ’ s going to run ! ” T he Mustang “ left the parking lot at a high rate o f sp eed befo re he had even hit the road way
. ” O fficer L ar s on began
purs uit wit h h is emergency lights and si rens engaged and followed the Mustang westbound on FM 3 470

. Officer Boehmker returned to his cruiser , turned on his lights and siren s

— which remained on for the entirety of his pursuit

— and follow ed

. Office r Boehm ker lat er explained that he joined the pursuit because he “ h ad a suspicious vehicle that, from [his] viewpoin t, had a
l i c en se plate that didn ’ t mat ch the original license plate given. ” He con tinu ed, “ I had an individual that when confronted by a po l ic e officer fled the scene; an d so we pursued. ” As Offic ers Lars on and Boehmker bega n their pur su it, t he Mustang wa s “ driving n o t only erratically but a lso at a very high rate of spe ed, ” “ weaving i n an d out of traffic , ” and “ driv [ ing ] in

a direct ion oppo s it e to tr affic , ” at times exceeding 70 miles per hour. In inci den t reports , Officer Larson stat ed that the Mustang ra n a red light , an d an other offic er stated , “ T he [M] ustang drove into oncoming tr affi c multiple times

. ” Officer Boehmker ’ s da sh

- cam vide o r eve als that Officer B oehm ker could see Officer Lars on ahead of him at the beginning of the pur suit and that the o fficer s remained in

“ constant co mmunicatio n ” by radio. Over the course of the pur s uit, Offi c er Boehmker proceeded through s eve ral interse c t io ns against red and yellow lights , sounding his air horn frequently

. After a few blocks, the Mu stang turned right on to Trimmier Road, a four

- lane b y way that runs through much of downtown K illeen. Now no rth bound o n Trimmier , Officer Boehm ker approached T ri mmier ’ s intersection with Bacon Ranch R o a d . A lthough Of ficer Boehm ker could4 no longer see Offi cer Larson , Of ficer Larson told him that he h ad already pas sed through the in tersection, continuing n o rthb ound on Trimmier

. As he approached the intersection , O fficer Boehmk er was t r avel ing 66 miles per hour in a 30

- mile

- p er - hour zone
. Trimmier ’ s outside northbound lane was clo sed for construction, and there were over a dozen vehicles stoppe d in the ins i de n orthbound lan e waiting at the light. In addition, a ve hicle was stopped i n th e outside southbound lane, b ut there were no vehicles in the inside so u t hbound lane

. As Officer Boehmker later characterized it, he had “ no oth er method of continuing the p u rsui t, ” so he decided to tra vel no rth bound o n the inside so uthbound lane to pass the stopped ve hicles

. After changing lanes, Officer Boehmker slow ed d own from 66 miles per h o ur to 51 miles per hour to get a better view of the intersection , which dash

- ca m vide o reveals was almost entire ly obscured by the lines of northbound and eastbound vehicles waiting at the light

. Confident that he had “ visually cleared ” the intersection, he then accel erated to 56 miles per hour to proceed through the red light and c o ntinue northbound on Trimmier . He could not do so, howe v er, be cause before he reached the intersection, the Fonsecas ’ vehicle, heading west bound
on Bacon R anch , proceeded on a green light and turned directly into Boehmker ’ s intended path. Although Boeh m k er swe rved to his left and tried to slow down, he was u n able t o avoid a head

- on collision with the Fonse cas. Dash

- cam video su ggests that Boehmk er would no t have been able to see the Fonsecas turning toward him due to the line of vehicles in the northbo un d lane

. After the collision with the Fonsecas ’ vehicle , Boehmker ’ s cruis er then collided with a second vehicle, which was waiting at the light in the eastb ound lane of Bacon Ranch.
T he Tex as Pe ace Offic er ’ s Crash Report of the incident include s the fo llowing di agram:5 The diagram was accompanied by a summary of the incident :
Unit 1, police unit, was pursuing a vehicle northbound on Trimmier Rd. approaching Bacon Ranc h Rd. (KPD 16

- 015303) Unit 2 [ the Fonseca s ’ vehicle ] , was westbound on Bacon Ranc h Rd. attempti ng to turn southbound onto Trimmier Rd. U nit 3 was sto pped, facing eastbound waiting to proceed eastbound on Bacon Ranch Rd. At the time of the wrec k, it was raining; the roadway on the southside of the intersection has four lanes (2 NB 2 S B)

. On the no rth side of the intersection there is fiv e lanes (3 SB 2 NB); Bacon Ranch Rd. has two lanes (1 EB 1 WB ) and it is not marked with stripes. On the wes t side of the intersection, is a private driver enter/exit into a business area that does n ot have marked lanes. On the west side of Trimmier Rd. t here is a sidew alk. The northbound outside lane is shut down with barriers for ongoing construction; there w ere no construction workers present. As u nit 2 was turning southbound, unit 1 proceeded no rt hbound, passi ng multiple vehicles on the left (oncomi n g lane of trave l) in a congested area where visibility was limited. Once unit 2 completed the turn, unit 1 m ade faulty evasive action by ap plying brakes and going from the inside southbound lane to t he outside sout hbound lane. After the first impact, un i t 1 continued n orthbound and struck unit 3.6 Officer Boehmker subsequently learned the Department had classifi ed the collision as

“ preventable. ” He later disputed these characterizations , explaini ng , “ I personally d on ’ t believe I

c om mitted a f aulty ev a sive action

. ”

Following the collision, Officer Larson continued pursuing the Mustang. He

u ltimately apprehende d t h e Mustang ’ s driver , whom a background check identified to be a

con v ic ted felon

. As it turned out, how ever, the Mustang was not stolen. The driver was one of
two registered owner s of the veh icle , and his co - owner had “ attempte d to f ile the vehi c l e as stolen ” due to a domestic dispute. The Fonsecas sued the Department for Officer Boe hm ker ’ s alleged neglige nce and per se negligence . The Depa rtment responded with a plea to the jurisdiction, a rguing t hat the suit is barred by governmental immunity and tha t no exception applies. The Fonsecas amended their suit to include a cl aim of gros s negligence , and the D epartment amended its plea

acco r ding ly. After an evidentiary hearing on jurisdiction, the district court denied the Department ’ s plea, and this appea l followed.

STANDARD OF REVIEW
Imm u nity f rom suit implicates a court ’ s subject m a tt er jurisdiction and is properly asserted in a p lea to the jurisdict ion , Nettles v. GTECH Corp. , 606 S .W.3 d 7 26, 73 1 (Tex. 2020) ; Alamo Heights Indep. Sch. Dist. v. Clark , 54 4 S.W.3d 755, 770 (Tex. 2018)

. When a
governm ent a l ent i ty challenges jurisdictio n on im munity ground s, th e plaintiff’s burden to affirmatively demonstrate jurisdiction includes the burden of demonstrating a waiver of immunity. See Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019); Ryder7 Integrated Logisti c s, Inc . v. Faye tte County , 453 S.W.3d 922, 927 (Tex. 2 01 5) (per curiam) ; Texley Inc. v. Hegar , 613 S.W.3d 322, 326 (Tex. A pp.

— Austin 2020, no pet .)

. A j urisdictional plea m ay ch allenge the pl eadin gs, the existence of jurisdictional
f acts , or both. Alamo Heights , 544 S .W.3d at 7 71

. W hen a jur i sdictional plea challenges the pleadings, we determi ne if the plaintiff has alleged facts affirma tively demonstrating subject
matter juris diction. I d. When determinin g whether the pla intiff has satisfi ed that burden, we liberall y cons true the pleadings and look to the plaintiff ’ s in te nt

. Tex as Dep ’ t of C riminal Justic e v. Range l , 595 S. W .3d 19 8, 205 ( Tex. 2020)

. If the movant ’ s plea c hall enges the e xistence of j uri sdictional fact s and, as in thi s case, thos e jurisdictional fact s implicate the mer its of the plain tiff ’ s claim , the standar d of review m i rrors that of a t ra ditional summary judgme nt. Alamo Heights , 544 S.W.3d at 77 0

– 71 . I f th e plea is a ccompanied by supporting evidence , to avoid dismissal , the pla intiffs must raise at least a genuine issue of mate rial fact to overcome the challenge to the trial court ’ s subject matter jurisdiction. Id. at 771

. We rev iew the dis position o f

a plea to the juris diction de novo

. Nettles , 606 S .W.3d at 73 1

.
DISCUSSION In a single iss u e c onsisting of two discre te arguments, the Department contends th e district court erred by overruling its plea to the jurisdiction because it is entitled to governmental immun ity. Generall y , governmental entit ies a r e immune from sui ts seeking to impose t ort liabili ty , see Harr is Coun ty v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004 ) , but t he
TTC A provides a limited waiver of immunity for damages ari sing from the use of a m otor vehic le , see Tex. Civ. Prac. & Rem. Cod e § 101.02 1 (1) , and R y der , 453 S.W.3d at 9 27

. Th e Fonsecas r el y on this wa iver as a basis to pursue their claims . In response, the Department8 asserts the emerg ency - resp onse exception to that waiver , which provides, “ Thi s chapter does not apply to a claim arising

. . . f rom the a ction of an employee whi le .

. . reac ting to an emergency situation if the action is in com pliance with the l aws and ordinances app licable to emergency action [

. ] ” Tex. Ci v. P rac. & R em. Code § 1 0 1

. 055( 2) (the emergency

- response exception )

. Yet
t he exception itself also has a li mitation: it is only a pplicable “ if the action is i n compliance with the laws and ordinances applicable to emergency action, or in th e abse nce of such a law or ordinance, i f the action is not taken with conscious indifference or reckless disregard for t he safety of others

. ” Id

. Here, the Department argue s : (1) that the TTC A does not apply because

“ the officer was reacting to a n e mergency si tuation , ” and (2) that the Fonse cas cannot avail themselves of the limi tation on the emergency

- response exception bec ause “ Officer Bo e hmke r did not act recklessly or in conscious disregard of the safety of others

. ” Assuming that the Department is correct that the emergency

- response exce ption otherwise applies, we wi ll consider whe ther the Fonsecas have satisfied thei r bur den to generate a f act issue as to whether the y benefit from the exception ’ s limitation. See Tex. R. App. P. 47.1. The limitation on the emer gency - response exception is phrased in the disjunctive. The per son underta king the action must either comply with all applicable law s and ordinances, or, i f no such law or ordinance applies, avoid acting with conscious indifference or reckless disreg ard f or the safety of others. T he parties have not identifi ed any ap plicable local ordinance ,

c f

. id

. R. 38. 1 (i), 38 .2 (a)(1) (requ iring p arties to include citations to relevant a uthority ), but

u nder state law, the pursuit is governed by certain provisions in C hapter 54 6 of the Transport ation Code :
In operating a n authorized emergency vehicle [,] the operator may:9 ( 1) park or stand, irrespect ive of another provision of this subtitle; (2) proceed past a red or stop signal or stop sign, after slowing as ne cessa ry for safe operation; (3) exce ed a maximum speed limi t, except as pr ovided by an ordinance adopted under Se ction 545.365, as long as the operator does not endanger life or property; and (4) disregard a regulation governing the direction of movemen t or turning in specified d irections.

T ex. Tr ansp. Code § 546.001. This provision, however, “ does not relieve th e operator of an authorized emer gency vehicle from : (1) the duty to operate the vehicle with appropriate regard for the safety of all persons ; or (2) the cons equences of reckless dis re gard for the sa fe ty of others. ” Id

. § 546.005. The question thus beco mes whether the Fonsecas have pr oduced sufficient evidence to generate a genuine issue of material fact as to whether Officer Boe hmker fai led to operate the vehicle with appropriate regard for the safety of o thers or operated it with rec kless dis regard for the safety of others. The Supr eme Court of T exas has made clear that the statutory phrases “ app r opriate regard ” and “ reckless d isregard ” both require a showing of recklessness befo re liabilit y may be imposed

. See City of Amarillo v. Martin , 971 S.W.2d 4 26, 4 30

– 3 1 (Tex. 1998) (analyzin g similar language in statutory predecessor). The Court further clarifie d, “ [T] o recover damages resu ltin g from the em e r gency operation of an e me rgen cy vehicle, a plaintiff
must show that the operator has co mmitted an act t hat the operator kn ew or should have known posed a high degree of ris k of serious injury

— in other words, that the operator has ac ted

r eckl essly. ” Kolster v. City of El P aso , 972 S.W .2d 58, 59 (Tex. 1998)

. I n this case, the interlocutory record include s certain undisputed evidence that suggests Officer Boehmk e r knew or should have known his actions would pos e a likelihood of10 ser ious inju ry to others on or near FM 3470, Trimmier, and Bac on Ran ch. It is undispu ted that it wa s overcast, raining, and that the roads were slick and dangerous . Furthermore, Officer Boehmker conceded in deposition that he was aware of these facts. It i s equally undisputed that Officer Boehmker was travelin g nearly t wice the speed lim it on these slick ro ads and was in fact acce lerating toward the intersection , notwithstanding the weather conditions and the hea vy traffic at the intersection , before brakin g to try to avoid the collision when his cruiser collid ed with the Fonsecas ’ vehicle

. Cf. Gomez v. City of Houston , 587 S.W.3d 891, 902 (Tex. App.

— Houston [14 th Dist.] 2 019 , pet. denied ) (reversing trial court ’ s grant of plea to jurisdiction where undisputed evi dence showe d officer “ was aware of the rain y wea ther and wet streets, but he did not reduce his speed below the posted s peed limit to mitigate these risks ” ). Offi cer Boehm k e r also knew he was serving as “ back up ” to Officer Larson a nd maintained constant communication with Officer Larson throughout the chase , and yet pro ceeded as though he was the only one in pursuit. And while his Department ’ s policy doe s require pursuing

v ehicles to “ stay as close behind the fleeing vehicle ” as poss ible, that is true only to the extent that “ safety allows

. ” Kill een, Te x., General , Orders, Policies, and Procedures

— Part B

— Enforcement Oper ations

— Vehicle Pursuit Poli cy § 41 .2. 3 a (20 15)

. Tu rning to disputed evidence on the issue , Officer Boehmk e r testified at deposition that he ha d slowed down a nd vis ually “ cleared the intersection of any k ind of traffic , ” but that c haracterization is under mined by the dash

- cam video, w hich shows th e intersection almos t entirely obscured by the vehicles lined up along Trimmier and Bacon Ranch, and in his affidavi t Officer Boehmk e r himsel f characterized his view as “ blocked ” by the traffic.
See Rogers v. Cit y of Houston , 627 S.W.3d 777, 790 (Tex. App

. — Houston [14 th Dist. ] 2021 , no pet. ) (explaining that video can generate question of fact). In addition , the De part ment ’ s11 crash report desc ribed the area as “ congested ” with “ limited visibility. ” And although
O fficer Boehmk e r disagrees with the charact e rization , his own Depar tment concluded that he had executed a “ faulty evasive action ” that led to the collision and that the collis ion could have been prevented

. Finally, there is at least some evidence that O ffice r Boehmker violated his Departm ent ’ s p olic y g overning the pursuit of suspects

. That policy provides:
3. The pursuing officer shall consider the following factors in determinin g whe ther to initiate pursuit :

a. The performance capabilities of the pursuit vehi cle; b. The conditions of the roa d surfa ce upon which the pursuit is being conduct ed;

c. The amount of vehicular and pedestrian tr affic in the area; d. We ather conditions; an d e. Th e nature o r seriousness of the traffic violation giving rise to the attempt ed st op
. Killeen, Te x., General , Orders, P olicies , and Procedures

— Part B

— Enforcement Operations

— Vehicle Pursuit Poli cy § 41.2.2a (2015)

. Here, at least three of the five factors w eigh agains t pursuit. Knowing violation of policy can, in some circumstanc es, r ise to the level of

rec klessness. Se e Kaufma n C ounty v. Leggett , 396 S.W.3d 24, 30 (Tex. App.

— Dallas 2012 , pet. denied ) ( affirming denial of plea to jurisdiction where plainti ff alleged [officer ’ s] conduct “ was in violation of department policies for the operation of patrol units ” ); but see C ity of Laredo v. Varela , No. 04

- 10

- 00619

- CV, 2011 WL 1852439, at *5 (Tex. App.

— San Antonio May 11, 2011 , pet. denied ) (mem. op.) (reversin g denial of plea to jurisdiction even though officer “ f ail [ed] to comply wi th the depa rtment ’ s policy ” )

.12 In its pl e a to the jurisdiction and in its brief to this C ourt , the Department heavily emphasizes th e undisputed facts that Officer Boehmk e r cont inuously used h is emergency lights and sirens and frequently used his air hor n “ as an extra precaution ” while engaged in th e pursu it, and that he slowed down to inspect the intersection between Trimmier and Bac on Ranch before attempting to enter it. But w e are aware of no authority holding that the use of lights and sirens is alon e suffici ent to prec lude a finding of reck le ssness. The Depa rtment also emphasizes the fundamental purpose of the emergency

- re sponse ex ception , w hich is to allow law enf orcement to conduct its business without fear of post hoc ju dicial second

- guessing of its actions

. See Martin , 971 S.W

. 2d at 429

– 30

. Ye t while the De partment is c orrect about the purpose of the exception , we must not construe that purpose so b roadly as t o render the legislative protection of the public, as set forth in Section 546 .005, me aningless. See Kerrville State Ho sp. v. Fer nandez , 28 S.W.3d 1 , 8

– 9 (Tex. 2000)

. On this record, viewed under the governing standard, we conclude that the Fonsecas hav e satisfied their burden to raise a genuine issue of material fact as t o whether Offic er Boehmk e r acted reck le ssly and w ith out re g ard for the safety of others during his pursuit of the suspect

. As such, the Department ’ s plea to the jur isdictio n wa s properly overruled . We

overru le the Department ’ s sole issue on appeal

.
CONCLUS ION Findi ng no error in the distr i ct cou rt ’ s order o ver ruling the plea to the jurisdiction, we aff irm.13 __________________________________________ Edward Sm ith , Justice Before Justi c es Goodw in, Kelly, a nd Smith

Dissenting Opinion by Justice Goodwin Affirmed Filed: December 23, 2021