NO. 13-15-00122-CV

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

THE CITY OF BAY CITY, TEXAS

Appellant/Defendant

v.

WADE MCFARLAND

Appellee/Plaintiff

On Appeal from the 23rd District Court, Matagorda County, Texas

Trial Court Cause No. 12-H-0516-C;

Honorable Ben Hardin, Presiding

APPELLANT’S BRIEF

Steven D. Selbe

State Bar No. 18004600

Andrew J. Pratka

State Bar No. 24079159

GORDON & REES, LLP

1900 W. Loop S., Ste. 1000

Houston, TX 77027

Telephone: (713) 961-3366

Facsimile: (713) 961-3938

sselbe@gordonrees.com

apratka@gordonrees.com

Counsel for Appellant

The City of Bay City, Texas

ORAL ARGUMENT REQUESTED

ACCEPTED

13-15-00122-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

5/12/2015 9:09:27 AM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/12/2015 9:09:27 AM DORIAN E. RAMIREZ Clerk
ii

PARTIES AND COUNSEL

The parties to the trial court's judgment and the names and addresses of all 

trial and appellate counsel are listed below. TEX. R. APP. P. 38.1(a).

Defendant/Appellant The City of Bay City, Texas

Steven D. Selbe

State Bar No. 18004600

Andrew J. Pratka

State Bar No. 24079159

GORDON & REES LLP

1900 West Loop South, Suite 1000

Houston, Texas 77027

Telephone: (713) 961-3366

Facsimile: (713) 961-3938

sselbe@gordonrees.com

apratka@gordonrees.com

Plaintiff/Appellee Wade McFarland

David Romagosa

State Bar No. 24047493

FARRAR & BALL, LLP

1010 Lamar, Suite 1600

Houston, TX 77002

Telephone: (713) 221-8300

Facsimile: (713) 221-8301

david@fbtrial.com
iii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..............................................ix

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF JURISDICTION..........................................................................2

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF ARGUMENT.................................................................................4

ARGUMENTS AND AUTHORITIES .....................................................................5

I. STANDARDS OF REVIEW...........................................................................5

II. STANDARD FOR PLEA TO THE JURISDICTION ....................................5

III. TRADITIONAL SUMMARY JUDGMENT STANDARD...........................6

A. Governmental Immunity .......................................................................7

B. Official Immunity..................................................................................7

IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF 

GOVERNMENT IMMUNITY AND THE CITY’S SOVEREIGN 

IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ 

OPERATED HER PATROL CAR IN COMPLIANCE WITH THE 

LAW AND NOT IN A RECKLESS MANNER OR WITH 

CONSCIOUS INDIFFERENCE. ....................................................................8

A. The Emergency Exception to Immunity Waiver is Applicable ............8

1. Officer Kunz Complied With Texas Traffic Laws.....................9

2. Officer Kunz Did Not Act Recklessly or With Conscious 

Disregard for the Safety of Others............................................11

a. Texas Department of Public Safety v. Sparks.................14

b. City of Pasadena v. Kuhn ...............................................19

c. Smith v. Janda.................................................................20
iv

d. No Evidence of Recklessness.........................................22

V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL 

IMMUNITY BECAUSE OFFICER KUNZ ACTED IN GOOD 

FAITH AND A REASONABLY PRUDENT POLICE OFFICER, 

UNDER THE CIRCUMSTANCES, WOULD HAVE REACHED 

THE SAME DECISION................................................................................26

A. Officer Kunz is Entitled to Official Immunity and the City is Entitled 

to Sovereign Immunity........................................................................27

1. Officer Kunz Performed Discretionary Duties within Her 

Scope of Authority....................................................................28

2. Officer Kunz Acted in Good Faith ...........................................28

3. City of San Angelo Fire Department v. Hudson.......................30

4. Affidavit and Testimony of Officer Kunz ................................32

a. Imminent Need ...............................................................32

b. Immediate Danger Outweighed Risk .............................33

5. Green v. Alford Is Distinguishable From the Present Case ......35

6. Plaintiff’s Expert’s Opinion Fails to Offer Any Reliable 

Evidence of Bad Faith...............................................................37

C. Public Policy Underlying Official Immunity......................................39

CONCLUSION........................................................................................................40

PRAYER..................................................................................................................40

CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3).............41

CERTIFICATE OF SERVICE ................................................................................42

APPELLANT’S APPENDIX ..................................................................................43
v

TABLE OF AUTHORITIES

CASES

Barker v. City of Galveston,

907 S.W.2d 879 (Tex. App.–Houston [1st Dist.] 

1995, writ denied)............................................................................................... 30

Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000).................................................................................. 6

Cathey v. Booth,

990 S.W.2d 339 (Tex. 1995)................................................................................ 6

City of Amarillo v. Martin,

971 S.W.2d 426 (Tex. 1998)............................................ 9, 12, 13, 20, 22, 23, 24

City of Arlington v. Barnes,

No. 02-07-249-CV, 2008 Tex. App. LEXIS 

2236 (Tex. App.—Fort Worth Mar. 27, 2008, 

pet. denied) ............................................................................................. 17, 25, 43

City of Dallas v. Garcia,

1998 Tex. App. LEXIS 1785 (Tex. App.—

Dallas 1998, no pet.)........................................................................................... 30

City of Lancaster v. Chambers,

884 S.W.2d 650 (Tex. 1994).............................................. 7, 8, 27, 28, 29, 37, 40

City of Laredo v. Varela,

2011 Tex. App. LEXIS 3485 (Tex. App.—San 

Antonio, 2011, pet. denied).............................................................. 18, 22, 26, 43

City of Pasadena v. Kuhn,

260 S.W.3d 93 (Tex. App.—Houston [1st Dist.] 

2008, no pet.).................................................................. 11, 13, 19, 20, 22, 24, 25

City of San Angelo Fire Dep’t v. Hudson,

179 S.W.3d 695 (Tex. App.—Austin 2005, no 

pet.)........................................................................... 13, 18, 22, 24, 25, 30, 31, 32

City of San Antonio v. Hartman,

201 S.W.3d 667 (Tex. 2006).................................................................... 9, 11, 14
vi

Cont’l Coffee Prod. Co. v. Cazarez,

937 S.W.2d 444 (Tex. 1996)................................................................................ 5

DeWitt v. Harris County,

904 S.W.2d 650 (Tex. 1995).......................................................................... 7, 27

Green v. Alford,

274 S.W.3d 5 (Tex. App.—Houston [14th Dist.] 

2008, pet denied) .......................................................................................... 35, 36

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................................................................... 40

Kaufman County. v. Leggett,

396 S.W.3d. 24 (Tex. App.—Dallas 2012, pet. 

denied) .................................................................................................................. 9

Lamar Univ. v. Doe,

971 S.W.2d 191 (Tex. App.—Beaumont 1998, 

no pet.).................................................................................................................. 7

Lowe v. Tex. Tech Univ.,

540 S.W.2d 297 (Tex. 1976)................................................................................ 7

Mem’l Villages Police Dep’t v. Gustafson,

2011 Tex. App. LEXIS 6595 (Tex. App.—

Houston [1st Dist.] 2011, no pet.)...................................................................... 30

Montgomery County v. Fuqua,

22 S.W.3d 662 (Tex. App.—Beaumont 2000, no 

pet.)....................................................................................................................... 7

Nixon v. Mister Prop. Mgmt. Co.,

690 S.W.2d 546 (Tex. 1995)................................................................................ 6

Smith v. Janda,

126 S.W.3d 543 (Tex. App.—San Antonio 2003, 

no pet.).................................................................................. 13, 20, 21, 22, 24, 34

State v. McGeorge,

925 S.W.2d 105 (Tex. App.–Houston [14th 

Dist.] 1996, writ denied)..................................................................................... 30
vii

Telthorster v. Tennell,

92 S.W.3d 457 (Tex. 2002)................................................................................ 39

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993)................................................................................ 5

Tex. Dep’t of Pub. Safety v. Sparks,

347 S.W.3d 834 (Tex. App.—Corpus Christi 

2011)................................................................... 14, 15, 16, 17, 18, 22, 23, 25, 39

Tex. Dept. of Parks and Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004)............................................................................ 5, 7

Tex. Highway Dep’t v. Jarrell,

418 S.W.2d 486 (Tex. 1967)............................................................................ 5, 6

Torres v. Owens,

380 S.W.2d 30 (Tex. Civ. App.—Corpus Christi 

1964, writ refused n.r.e.) .................................................................................... 28

Travis v. City of Mesquite,

830 S.W.2d 94 (Tex. 1992) (Cornyn, J., 

concurring).......................................................................................................... 39

Univ. of Houston v. Clark,

38 S.W.3d 578 (Tex. 2000)............................................................................ 8, 39

Wadewitz v. Montgomery,

951 S.W.2d 464 (Tex. 1997).............................................................................. 29

STATUTES

TEX. CIV. PRAC. & REM. CODE § 101.021(1)(B).................................................. 7, 9

TEX. CIV. PRAC. & REM. CODE § 101.055(2)..............ix, 8, 9, 11, 14, 19, 20, 21, 26

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8)......................................................... 2

TEX. GOV’T CODE ANN. § 312.002 ........................................................................ 11

TEX. TRANSP. CODE § 545.156............................................................... 9, 10, 24, 34

TEX. TRANSP. CODE § 546.001(2).................................... 3, 9, 10, 16, 18, 22, 24, 26
viii

RULES

TEX. R. APP. P. 38.1(a)............................................................................................. ii

TEX. R. APP. P. 39.7................................................................................................. ix

TEX. R. APP. P. 9.4(i)(2)(B)......................................................................................41
ix

STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument of this appeal. TEX. R. APP. P. 39.7. Oral 

argument will be helpful to the court in deciding whether the waiver of government 

immunity exclusion contained in Section 101.055(2) of the Texas Practices & 

Remedies Code applies in order to determine whether or not the trial court has 

subject matter jurisdiction to determine the issue in controversy. 
TO THE HONORABLE COURT OF APPEALS:

Appellant the City of Bay City, Texas (the “City” or “Bay City”) requests 

that this Court reverse the trial court’s Order denying its Plea to the Jurisdiction 

and Traditional Motion for Summary Judgment and render judgment for Appellant.

STATEMENT OF THE CASE

This is a case for damages arising out of injuries Plaintiff/Appellee Wade 

McFarland (“McFarland” or “Plaintiff”) alleges he received in an 

automobile/motorcycle accident with Bay City Police Officer Kimberly Kunz 

(“Officer Kunz” formerly “Officer Martinez”) that occurred on June 5, 2011, in 

Bay City, Texas. (CR 5-8). Plaintiff filed suit against Bay City alleging negligent 

hiring, training, supervision, and retention of Officer Kunz, and for vicarious 

liability under the theory of respondeat superior for the negligence, negligence per 

se, gross negligence and/or malice of Officer Kunz. (CR 5-8).

On June 9, 2014, the City filed a Plea to the Jurisdiction and Traditional 

Motion for Summary Judgment asking the Court to grant judgment for the City and 

dismiss Plaintiff’s claims with prejudice for lack of subject matter jurisdiction. 

(CR 14-49). On March 6, 2015, after oral hearing, the Court denied the City’s Plea 

to the Jurisdiction. (CR 79). The City timely filed its Notice of Interlocutory 

Appeal on February 27, 2015. (CR 80-81). 
2

STATEMENT OF JURISDICTION

This court has jurisdiction under Section 51.014(a)(8) of the Texas Civil 

Practice & Remedies Code because this is an accelerated appeal from an 

interlocutory order denying a plea to the jurisdiction of a governmental unit in a 

civil lawsuit in the 23rd Judicial District of Matagorda County, Texas, and the 

denial of a motion for summary judgment based on the official immunity of 

Officer Kunz.
3

STATEMENT OF FACTS

On June 4, 2011, Officer Kunz of the Bay City Police Department was

responding to a domestic disturbance call involving multiple combatants with 

weapons in a household with children. (CR 11, 35). Officer Kunz was driving a 

marked patrol car following another officer to the disturbance. (CR 30, 35). Both 

vehicles had their lights and sirens activated in response to the disturbance call and 

were approaching a one way stop sign intersection in a residential neighborhood. 

(CR 30-31, 35). The lead patrol car reached the intersection and proceeded 

through the stop sign ahead of Officer Kunz. (CR 30-31, 35). 

Officer Kunz reached the intersection a short time later and slowed down to 

check for oncoming traffic. (CR 31, 35). As Officer Kunz was approaching the 

intersection, she observed Plaintiff on her left approaching the intersection on a 

motorcycle. (CR 31, 35-36). Plaintiff was required to yield the right of way for an 

emergency vehicle under Texas law, however, Plaintiff failed to do so. (CR 33, 

35-36). Officer Kunz continued through the intersection rolling through the stop 

sign at a low rate of speed as permitted by TEX. TRANSP. CODE § 546.001(2). (CR 

30-32, 35-36, 38).

Plaintiff failed to yield and proceeded through the intersection despite the 

fact that Officer Kunz’s patrol car’s emergency lights and siren were activated. 

(CR 30-31, 35-36, 38). Plaintiff testified that he saw the lead patrol car go through 
4

the intersection with its lights and sirens activated, but Plaintiff simply never 

looked to see if another patrol car was following behind the lead car. (CR 42). 

Officer Kunz was not driving at a high rate of speed and tried to avoid Plaintiff’s

motorcycle, but was unable to prevent a collision. (CR 30-32, 35-36).

Plaintiff allegedly sustained injuries to his back and wrist as a result of the 

incident. (CR 43). Plaintiff subsequently filed suit against Bay City alleging 

negligent hiring, training, supervision, and retention of Officer Kunz, and for 

vicarious liability under the theory of respondeat superior for the negligence, 

negligence per se, gross negligence and/or malice of Officer Kunz. (CR 4-6).

SUMMARY OF ARGUMENT

The trial court erred in denying the City’s Plea to the Jurisdiction and

Traditional Motion for Summary Judgment and the City is entitled to a dismissal of 

Plaintiff’s claims on the following grounds:

1. The City is entitled to a presumption of entitlement to

government immunity and the City’s sovereign immunity is not 

waived because Plaintiff failed to show Officer Kunz operated 

her patrol car in a reckless manner for immunity to be waived;

and

2. The City is entitled to immunity because Officer Kunz is 

immune from liability for discretionary acts performed in good 

faith within the scope of her authority and a reasonably prudent 

police officer, under the circumstances, would have reached the 

same decision.
5

ARGUMENTS AND AUTHORITIES

I. STANDARDS OF REVIEW

Appellate courts reviewing a challenge to a trial court’s subject matter 

jurisdiction review the trial court’s ruling de novo. Tex. Dept. of Parks and 

Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When reviewing a plea to 

the jurisdiction in which the pleading requirements have been met and evidence 

has been submitted to support the plea that implicates the merits of the case, the 

appellate court must take as true all evidence favorable to the non-movant. Id. 

II. STANDARD FOR PLEA TO THE JURISDICTION

It is well established under Texas law that a plaintiff bears the burden of 

demonstrating that the Court has subject-matter jurisdiction over a claim asserted 

against a governmental entity. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440, 446 (Tex. 1993). Subject-matter jurisdiction is essential to the power 

of a tribunal to decide a case, and without subject-matter jurisdiction a court cannot 

render a valid judgment. Id. at 443. Subject-matter jurisdiction cannot be 

presumed and cannot be waived. Cont’l Coffee Prod. Co. v. Cazarez, 937 S.W.2d 

444, 448-49 n.2 (Tex. 1996).

A plea to the jurisdiction is proper when a court lacks subject-matter 

jurisdiction to determine the subject to the controversy. Tex. Highway Dep’t v. 

Jarrell, 418 S.W.2d 486, 488 (Tex. 1967). A plea to the jurisdiction raises defects 
6

in jurisdiction that cannot be cured; therefore, the goal of the plea to the 

jurisdiction is to have the court dismiss the cause of action. Jarrell, 418 S.W.2d at 

489. The purpose of a plea to the jurisdiction is to defeat a cause of action without 

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 

34 S.W.3d 547, 554 (Tex. 2000).

III. TRADITIONAL SUMMARY JUDGMENT STANDARD

The standard for traditional summary judgment is well established: (1) the 

movant for summary judgment has the burden of showing there is not genuine 

issues of material fact and is entitled to summary judgment as a matter of law; (2) 

in deciding whether there is a disputed material fact issue precluding summary 

judgment, evidence favorable to the non-movant will be taken as truth; and (3) 

every reasonable inference must be indulged in favor of the non-movant and any 

doubts resolved in its favor. Nixon v. Mister Prop. Mgmt. Co., 690 S.W.2d 546, 

548-49 (Tex. 1995). Summary judgment is proper for a defendant when the 

evidence conclusively negates an essential element of plaintiff’s cause of action or 

conclusively establishes of the elements of an affirmative defense so that the 

defendant must be granted judgment as a matter of law. Cathey v. Booth, 990 

S.W.2d 339, 341 (Tex. 1995).
7

A. Governmental Immunity

Governmental immunity from suit defeats a trial court’s subject matter 

jurisdiction and is properly asserted in a plea to the jurisdiction. Miranda, 133 

S.W.3d at 226. A governmental unit may not be sued for the torts of its agents in 

the absence of a constitutional or statutory provision that waives its governmental 

immunity for alleged wrongful acts. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 

298 (Tex. 1976). As such, dismissal for want of jurisdiction is proper when a 

lawsuit is barred by governmental immunity. Lamar Univ. v. Doe, 971 S.W.2d 

191, 196 (Tex. App.—Beaumont 1998, no pet.). If a plaintiff fails to allege facts 

within a petition which establish a waiver of immunity, dismissal for lack of 

subject-matter jurisdiction is appropriate. Montgomery County v. Fuqua, 22 

S.W.3d 662, 665 (Tex. App.—Beaumont 2000, no pet.). 

B. Official Immunity

Official immunity is an affirmative defense that protects government 

employees from personal liability. City of Lancaster v. Chambers, 884 S.W.2d 

650, 653 (Tex. 1994). When official immunity shields a governmental employee 

from liability, sovereign immunity shields the governmental employer from 

vicarious liability. TEX. CIV. PRAC. & REM. CODE § 101.021(1)(B). DeWitt v. 

Harris County, 904 S.W.2d 650, 653 (Tex. 1995). Official immunity protects law 

enforcement officers from liability for (1) the performance of discretionary duties; 
8

(2) within the scope of the officer’s authority; (3) provided the officer acts in good 

faith. Chambers, 883 S.W.2d at 653. Univ. of Houston v. Clark, 38 S.W.3d 578, 

580-81 (Tex. 2000). Notably, official immunity has a different standard than mere 

negligence. Chambers, 884 S.W.2d at 665.

IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF 

GOVERNMENT IMMUNITY AND THE CITY’S SOVEREIGN 

IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ 

OPERATED HER PATROL CAR IN COMPLIANCE WITH THE 

LAW AND NOT IN A RECKLESS MANNER OR WITH 

CONSCIOUS INDIFFERENCE.

The Court erred in denying the City’s Plea to the Jurisdiction because the 

City is entitled to a presumption of entitlement to government immunity, Officer 

Kunz acted in compliance with the laws applicable to an emergency action and did 

not drive her car recklessly or with conscious indifference to the safety of others.

A. The Emergency Exception to Immunity Waiver is Applicable

The Texas Tort Claims Act waives immunity from liability and suit only 

under narrow and specific circumstances listed in the Act. In addition, the Act 

excludes and/or excepts the waiver of immunity in emergency situations even if 

the waiver of immunity would otherwise apply. Section 101.055(2) of the Act 

governs the waiver of government immunity in emergency actions and states: 

This chapter does not apply to a claim arising . . . from the action of 

an employee while responding to an emergency call or reacting to an 

emergency situation if the action is in compliance with the laws and 

ordinances applicable to emergency action, or in the absence of 
9

such law or ordinance, if the action is not taken with conscious 

indifference or reckless disregard for the safety of others . . .

TEX. CIV. PRAC. & REM. CODE § 101.055(2). Courts interpreting this provision 

have held that “[w]hen the exception applies, the [Act] is unavailable as a waiver 

of immunity even if the facts otherwise fall within a waiver found in Section

101.021.” Kaufman County v. Leggett, 396 S.W.3d. 24, 29 (Tex. App.—Dallas 

2012, pet. denied) (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 

(Tex. 2006)). 

Accordingly, government immunity is not waived pursuant to Section 

101.055(2) of the Act if the government employee acted in compliance with 

applicable laws and/or ordinances, or in the absence of such, if the government 

employee’s actions were not taken with conscious indifference or reckless 

disregard for the safety of others. 

1. Officer Kunz Complied With Texas Traffic Laws

Government immunity is not waived in this instance, because Officer 

Kunz’s actions while responding to the emergency complied with Texas traffic 

laws.

Under Texas law, a peace officer has the right-of-way at an intersection 

when operating under emergency circumstances. City of Amarillo v. Martin, 971 

S.W.2d 426, 432 (Tex. 1998); TEX. TRANSP. CODE §§ 545.156 and 546.001 et seq. 

Section 546.001(2) of the Texas Transportation Code allows police officers to 
10

proceed through a stop sign, after slowing as necessary for safe operation. TEX.

TRANSP. CODE § 546.001(2). Section 545.156 of the Texas Transportation Code 

further provides that, on the immediate approach of an emergency vehicle using 

audible and visual signals, an operator, unless otherwise directed by a police 

officer, shall yield the right-of-way, immediately pull over to the edge of the 

roadway clear of any intersection, and stop and remain standing until the 

emergency vehicle has passed. TEX. TRANSP. CODE § 545.156.

In this instance, Officer Kunz operated her patrol car in compliance with the 

Texas Transportation Code while responding to the emergency call for the 

domestic disturbance. Officer Kunz had her warning lights and sirens activated 

when responding to the call and slowed down and safely cleared the roadways 

before proceeding through the intersection. (CR 30-33, 35-36). Officer Kunz 

observed Plaintiff approaching the intersection and found no indication that he 

would not yield the right of way. (CR 36). Plaintiff was aware that police officers 

are allowed to proceed through stop signs under these circumstances, yet he did not 

yield despite the fact that it was apparent Officer Kunz was responding to an 

emergency and had her lights and sirens activated. (CR 30-33, 35-36, 38, 41). 

Because Officer Kunz’s had her lights and sirens activated when responding 

to the domestic disturbance call and slowed down before entering the intersection, 

she was in compliance with Section 546.001(2) of the Texas Transportation Code, 
11

and government immunity is not waived pursuant to Section 101.055(2) of the Act. 

Accordingly, the trial court erred in denying the City’s Plea to the Jurisdiction 

because Officer Kunz’s actions while responding to the emergency complied with 

Texas traffic laws and, therefore, immunity is not waived pursuant to Section 

101.055(2) of the Act. 

2. Officer Kunz Did Not Act Recklessly or With Conscious 

Disregard for the Safety of Others

Texas law requires a showing of recklessness for government immunity to 

be waived in claims arising out of an emergency situation or action. Plaintiff failed 

to show any evidence Officer Kunz acted recklessly in order to overcome the 

immunity exception under Section 101.055(2) of the Act, and the Court erred in 

denying the City’s Plea to the Jurisdiction because the Court lacks subject-matter 

jurisdiction to determine the subject in controversy.

“Reckless” means something more than taking calculated risk or momentary 

lapses in judgment. The terms “conscious indifference” and “reckless disregard” 

are not defined, and therefore courts give them their ordinary meaning. TEX.

GOV’T CODE ANN. § 312.002; Hartman, 201 S.W.3d at 672 n. 19 (Tex. 2006); City 

of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no 

pet.). The Texas Supreme Court has stated that these terms “require proof that a 

party knew the relevant facts but did not care about the result.” Kuhn, 260 S.W.3d 

at 99 (quoting Hartman, 201 S.W.3d at 672 n.19). 
12

The Texas Supreme Court also established a test to govern the recovery of 

damages for claims arising out of a public servant’s use of a motor vehicle in an 

emergency. Martin, 971 S.W.2d at 430. In Martin, the Texas Supreme Court held 

that public servants cannot be liable for mere negligence and requires a showing of 

recklessness. Id. at 432. “To recover damages resulting from the emergency

operation of an emergency vehicle, the Plaintiff must show that the operator has 

committed an act that the operator knew or should have known, posed a hire 

degree of risk of serious injury.” Id at 430. In creating a reckless standard, one of 

the Court’s concerns was to serve the “public’s interest minimizing emergency 

response and delays.” Id. at 433. 

This is consistent with this State’s policy in emergency cases to balance the 

rights of by-standers or other innocent parties against the injustice of subjecting to 

liability emergency vehicle operators (who are required to exercise discretion in 

their jobs) and the dangers of threat of such liability would deter their willingness 

to execute their duties with the decisiveness and judgment required by the public 

good. Id at 431. It is important to allow those in the police officer’s position to 

exercise the duties of their respective officers without fear of liability as they are 

“charged with protecting the public’s health, safety and property, and a few 

minutes and even seconds could make the difference between life and death.” Id. 
13

The essence of “recklessness” is in showing more than a mere “momentary 

judgment lapse.” Martin, 971 S.W.2d at 430. This standard allows emergency 

vehicle operators to take “calculated risks” in order to save life or property. Id. 

Officials are not required to eliminate all risk, or proceed only when there is no 

possibility that injury will occur. An officer does not act recklessly and, therefore, 

is not liable, if he proceeds in an intersection against a red light or a stop sign even 

though some risk of harm exists. See Kuhn, 260 S.W.3d at 100 (holding evidence 

that there was a blind intersection, that plaintiff’s vehicle sustained a great deal of 

damage and conclusory statements that officer was driving at a high rate of speed 

was insufficient to raise fact issue as to “reckless disregard”); City of San Angelo 

Fire Dep’t v. Hudson, 179 S.W.3d 695, 701-02 (Tex. App.—Austin 2005, no pet.)

(holding no evidence of reckless disregard for safety of others where officer 

entered intersection without stopping and witness did not hear brakes being 

applied); Smith v. Janda, 126 S.W.3d 543 (Tex. App.—San Antonio 2003, no pet.)

(holding that evidence was insufficient to establish recklessness when ambulance 

driven to emergency with lights and sirens and slowed down without coming to a 

complete stop at an intersection).

In the present case, Plaintiff can only show that Officer Kunz took a 

calculated risk in driving through the intersection under the circumstances 

perceived by her. In order to prove recklessness it requires proof “that a party 
14

knew the relevant facts but did not care about the result.” Hartman, 201 S.W.3d at

672 n.19. Furthermore, to avoid a dismissal a plaintiff must actually adduce 

evidence of recklessness and cannot rely on pleadings and allegations alone. Id. at

671-72.

a. Texas Department of Public Safety v. Sparks

In a similar emergency collision case, the Corpus Christi Court of Appeals 

reversed a trial court’s denial of the Texas Department of Public Safety’s (“DPS”) 

plea to the jurisdiction and motion for summary judgment, holding that the DPS 

retained government immunity from suit based upon the emergency exception 

contained in Section 101.055(2) of the Act. Tex. Dep’t of Pub. Safety v. Sparks, 

347 S.W.3d 834 (Tex. App.—Corpus Christi 2011).

In that case, several DPS units were pursuing a speeding motorcycle in 

Victoria, Texas. Id. at 836. During the pursuit, one DPS patrol car attempted to 

prevent the motorcycle from turning towards a school zone and entered an 

intersection against a red light and collided with another vehicle. Id. The DPS 

moved for summary judgment seeking to establish that the DPS officer was not 

reckless as a matter of law and that no subject matter jurisdiction existed because 

the city was immune from suit under the emergency exception contained in Section 

101.055(2) of the Act. Id. 
15

In response, the plaintiff attempted to raise a fact issue with testimony from 

the plaintiff’s accident reconstruction expert and two other DPS officers, arguing 

that the officer acted recklessly by not stopping at the red light and/or not properly

clearing the roadway before entering the intersection. Id. at 839-40. Specifically, 

the plaintiff argued that the officer violated Section 546.001 of the Texas 

Transportation Code, and that the officer should not have entered the intersection 

until it was apparent that all drivers had yielded the right of way. Id. 

According to deposition testimony from the plaintiff’s expert, plaintiff’s 

expert reviewed the patrol car video and concluded that the officer exhibited 

reckless disregard and conscious indifference to public safety by entering the 

intersection against the red light. Id. at 843. The expert conceded that the officer 

slowed down before entering the intersection and noted that the officer was not 

required to stop for the red light. Id. The expert further testified that the officer 

cleared the left lane as he was slowing down to approach the intersection, but did 

not clear the left lane again before entering the intersection. Id. 

The plaintiff also relied on the deposition testimony and report of the 

officer’s supervisor to raise a fact issue as to whether the officer acted recklessly. 

According to the supervisor’s report, the supervisor acknowledged that the officer 

slowed down before entering the intersection, but believed that the officer failed to 

exercise due caution by disregarding the red light and should have waited until he 
16

was certain that other drivers had yielded the right of way before entering the 

intersection. Id. at 842. The supervisor testified that he did not believe the officer 

needed counseling about the incident, but was instructed by his supervisors to 

counsel the officer. Id. at 843. 

The plaintiff also relied on the report and deposition testimony of another 

DPS officer charged with investigating the incident. According to the 

investigating officer’s incident report, the investigating officer found that the 

officer had violated Section 546.001 of the Texas Transportation Code by failing to 

properly clear the other roadways before proceeding through the intersection. Id. 

When asked about the basis for this assertion during his deposition, the 

investigating officer responded that his opinion that the officer violated Section 

546.001 was based solely on the fact that a collision had occurred. Id. 840. After 

reviewing this evidence, the trial court denied the DPS’ motion for summary 

judgment and plea to the jurisdiction. Id. at 836. 

Upon review, the appellate court found the expert’s conclusory opinion that 

entering the intersection against the red light constituted reckless disregard and 

conscious indifference, without any further support or explanation, was no 

evidence as to whether the officer acted recklessly to raise a genuine issue of 

material fact. Id. The court also found that the expert’s testimony did not offer 

any evidence demonstrating when or how far away the officer was when he first 
17

cleared the left lane and/or how this made it unable for the officer to determine 

whether he could proceed through the intersection. Id. The court specifically 

noted that the patrol car video did not have footage of the officer while he was 

driving and, therefore, could not independently confirm whether or when the 

officer cleared the left lane. Id. at 843 n.10. Based upon these reasons, the 

appellate court found the expert’s testimony failed to raise a genuine issue of 

material fact as to whether the officer acted recklessly for subject matter 

jurisdiction to exist. Id. at 843-44.

Regarding the testimony and report from the officer’s supervisor, the 

appellate court found the supervisor’s assertions that the officer failed to exercise 

due caution by disregarding the red light was merely conclusory and no evidence 

of the officer’s recklessness. Id. Relying on similar opinions from other Texas 

appellate courts, the court further found the evidence about the officer’s 

counseling/reprimand and the supervisor’s allegations that the officer failed to 

exercise due caution may have demonstrated that the officer was negligent, but did 

not demonstrate that the officer acted recklessly to raise a fact issue. Id. at 842-43; 

See also City of Arlington v. Barnes, No. 02-07-249-CV, 2008 Tex. App. LEXIS 

2236, at **12-14 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (holding 

written reprimand stating that officer failed to exercise due care and failed to 
18

comply with transportation code did not raise fact issue on reckless disregard); 

Hudson, 179 S.W.3d at 702.

The appellate court found the investigating officer’s report and testimony 

were conclusory and that the mere fact that a collision had occurred with an 

emergency vehicle did not necessitate that the driver had been reckless and/or that 

Section 546.001(2) had been violated. Id. at 842. Again, the appellate court noted 

that even if the evidence presented demonstrated negligence, this would not raise a 

genuine issue of material fact as to whether the officer acted recklessly. Id. at 843, 

n. 11.

The appellate court found that the undisputed evidence showed the officer 

was responding to an emergency, had his lights and sirens activated, approached a 

red light intersection, slowed down and cleared the roadways before proceeding 

through the intersection. Id. at 841. On this basis, the appellate court found that 

the officer was not reckless as matter of law under Section 101.055 of the Act, and 

reversed the denial of the DPS’ Plea to the Jurisdiction and rendered judgment 

dismissing the plaintiff’s claims. Id. at 844; See also City of Laredo v. Varela, 

2011 Tex. App. LEXIS 3485 (Tex. App.—San Antonio, 2011, pet. denied)

(reversing district court and finding no fact issue on reckless disregard even where 

department review board found the accident to be preventable. Actions of officer 

in using emergency lights, siren and brakes negated reckless disregard).
19

b. City of Pasadena v. Kuhn

In an almost identical emergency case, a plaintiff collided with a police 

officer at an intersection while the officer was responding to an emergency call for

a house fire. Kuhn, 260 S.W.3d at 99-100. The officer’s emergency lights and 

siren were activated in response to the emergency. Id. The officer approached a 

red light intersection and slowed down to clear the adjacent roadways before 

proceeding through the intersection. Id. The plaintiff failed to yield the right of 

way and collided with the patrol car in the intersection. Id. 

The City filed a plea to the jurisdiction pursuant to Section 101.055(2) of the 

Texas Tort Claims Act, arguing that it maintained its immunity from suit because 

the plaintiff did not plead or prove the officer’s actions were reckless or violated 

Section 546.001 of the Texas Transportation Code. Id. at 97. In response, the 

plaintiff submitted photographs of a “blind spot” on the corner of the intersection 

and argued that the intersection was dangerous and that an officer responding to an 

emergency call would know or should have known that entering the intersection on 

a red light with this blind spot would create a high degree of risk of injury. Id. 97-

98. There was a factual dispute over whether the officer slowed down or stopped 

before entering the intersection, but it was undisputed that the officer was driving 

faster than the speed limit. Id. at 98. The plaintiff argued that the evidence of the 

dangerous configuration of the intersection and the undisputed fact that the officer 
20

was speeding was sufficient to show that the officer was driving recklessly. Id. 

The trial court denied the city’s plea to the jurisdiction on this basis. Id. at 95. 

On appeal, the appellate court applying the “reckless disregard” test 

established by the Texas Supreme Court in City of Amarillo v. Martin, reversed the

trial court’s order and rendered judgment for the city. Id. at 101. The appellate 

court held that the undisputed evidence that the officer was responding to an 

emergency, had his lights and sirens activated, and slowed down and cleared the 

roadways before proceeding through the intersection was insufficient to show 

reckless conduct or that the officer lacked regard for the safety of others as a matter 

of law. Id. The court further noted that it did not matter whether the officer had 

stopped or slowed down at the intersection, because the officer was only required 

to slow down as necessary for safe operation under Section 546.001(2) of the 

Texas Transportation Code. Id. at 100. 

c. Smith v. Janda

Finally, in another similar emergency case, the San Antonio Court of 

Appeals reversed a trial court’s denial of a city’s motion for summary judgment 

because the city was immune from suit pursuant to Section 101.055(2) of the Act. 

Janda, 126 S.W.3d at 543. The court further held that a driver who operated an 

ambulance in conformity with the provisions of the Texas Transportation Code did 

not act recklessly as a matter of law. Id. In that case, an ambulance driver was 
21

driving an ambulance in an emergency situation with the lights and sirens 

activated. Id. at 546. As he approached an intersection, he slowed down and 

looked around. Id. He perceived that traffic had stopped or was yielding to him 

and proceeded into the intersection without coming to a complete stop. Id. 

Moving for summary judgment, the city sought to establish that the driver 

was not reckless as a matter of law and that no subject matter jurisdiction existed 

because the city was immune from suit. Id. at 545-56. In response, the plaintiff 

argued that there was a fact dispute about whether or not the ambulance driver ran 

the red light and whether or not the plaintiff had the right of way. Id. After 

reviewing the evidence, the appellate court found that the driver was in an 

emergency situation with his lights and sirens activated, other drivers at the 

intersection could hear and see the lights and sirens, the driver slowed down at the 

intersection and cleared the other roadways, and proceeded through the intersection 

without coming to a complete stop. Id. 

Applying the Texas Supreme Court’s “reckless disregard” test, the appellate 

court found that the ambulance driver was not reckless as matter of law under 

Section 101.055(2) of the Act, because he was responding to an emergency, 

activated his ambulance’s lights and siren, slowed when approaching intersection 

and observed drivers yielding to ambulance. Id. Further, the San Antonio Court of 

Appeals also noted that the Texas Transportation Code entitles emergency vehicle 
22

operators to presume that other motorists will “respect emergency vehicle 

priorities” and heed to audible or visual emergency signals. Id. at 546 (citing 

Martin, 971 S.W.2d at 431) (also citing TEX. TRANSP. CODE ANN. § 546.001(2)). 

Like the officers in Kuhn, Sparks, and Varela, and the ambulance driver in 

Smith, the conduct of Officer Kunz has not and cannot be shown to be reckless as a 

matter of law in that she was responding to an emergency incident, had her 

emergency lights and siren on, and clearly slowed down as she proceeded into the 

intersection in question. (CR 30-33, 35-36). As stated by the Texas Supreme 

Court, “civilian drivers generally have an advantage in anticipating and preventing 

a collision” due to the fact that emergency vehicles “stand out” from other 

vehicles. Martin, 971 S.W.2d at 432. Even though a fact question may exist as to 

whether Officer Kunz was negligent on the occasion, this is not enough to 

demonstrate that she acted recklessly or with conscious disregard for the safety of 

others for immunity to be waived in this instance. Kuhn, 260 S.W.3d at 100; 

Hudson, 179 S.W.3d at 701-02 (holding no evidence of reckless disregard for 

safety of others when officer entered intersection without stopping and witness did 

not hear brakes being applied); Janda, 126 S.W.3d at 545-46.

d. No Evidence of Recklessness

As discussed, the City conclusively showed that Officer Kunz was not 

reckless as a matter of law because (1) she was responding to an emergency, (2) 
23

had her emergency lights and siren activated, and (3) slowed down and cleared the 

roadway as necessary to proceed safely through the neighborhood intersection. 

The court erred in denying the City’s Plea to the Jurisdiction because Plaintiff’s 

expert opinion is no evidence that Officer Kunz acted recklessly and does not raise 

a genuine issue of material fact in order for government immunity to be waived. 

Like the accident reconstruction expert opinion in Sparks, Chief Kowalski’s 

expert report and opinion amount to nothing more than surmise and speculation

and are not evidence that Officer Kunz acted recklessly. Specifically, Chief 

Kowalski continuously uses the term “reckless” when forming his opinions, but 

fails to define reckless or apply the reckless standard established by the Texas 

Supreme Court in City of Amarillo v. Martin. (CR 67-70). In addition, like 

Sparks, Chief Kowalski’s allegations may demonstrate that Officer Kunz was 

negligent on the occasion, but is not evidence of recklessness. See Sparks, 347 

S.W.3d at 843, n. 11. For example, Chief Kowalski states that because Officer 

Kunz was a few blocks behind Officer O’Bryant, a question of the criticality of 

Officer Kunz’s driving tactics is raised. (CR 67). Such argument lacks merit, as 

the distance between Officer Kunz and Officer O’Bryant has no relevance to 

Officer Kunz’s driving tactics. Chief Kowalski also opines that safety protocol 

allows the first officer to arrive at a scene to await the arrival of a second officer 

and thus Officer Kunz had no reason to be operating her vehicle in a reckless 
24

manner. (CR 67). Whether or not Officer O’Bryant had the ability to wait for the 

arrival of Officer Kunz to the dispatch call location is irrelevant as to whether 

Officer Kunz’s actions in driving to the scene were reckless. In addition, Chief 

Kowalski misconstrues Texas law by claiming that Plaintiff had the right-of-way

because there was no traffic control device at the intersection governing the 

direction Plaintiff was traveling. (CR 68). Texas law is unequivocally clear that a 

peace officer has the right-of-way at an intersection when operating under 

emergency circumstances. Martin, 971 S.W.2d at 432; TEX. TRANSP. CODE §§ 

545.156 and 546.001 et seq. Whether or not Officer Kunz was negligent is 

immaterial because a reckless finding is necessary before Plaintiff can recover in 

this emergency response case and Chief Kowalski’s report and testimony offers no 

evidence as to “recklessness.”

Moreover, as in Sparks, Chief Kowalski’s conclusory opinion that Officer 

Kunz was reckless because she did not come to a complete stop at the intersection 

is no evidence that Officer Kunz acted recklessly or violated Section 546.001(2) of 

the Texas Transportation Code, which specifically allows an officer to “proceed 

past a red light after slowing as necessary for safe operation.” (CR 68, 70); See

Kuhn, 260 S.W.3d at 100; Hudson, 179 S.W.3d at 701-02 (holding no evidence of 

reckless disregard for safety of others where officer entered intersection without 

stopping and witness did not hear brakes being applied); Janda, 126 S.W.3d at 543 
25

(holding that evidence was insufficient to establish recklessness when ambulance 

driven to emergency with lights and sirens and slowed down without coming to a 

complete stop at an intersection);

Furthermore, Chief Kowalski claim that Officer Kunz was traveling at a 

reckless speed prior to the incident because the “patrol car is seen bouncing into 

the air as it travels over a hump at a reckless speed,” is pure speculation and not 

supported by any evidence of Officer Kunz’s speed prior to the intersection. (CR 

70). As in Sparks, the patrol car video does not contain footage or images of the 

speedometer in order to independently confirm Chief Kowalski’s unsupported 

claims that Officer Kunz “failed to alter her speed in any meaningful way.” (CR 

70); compare Sparks, 347 S.W.3d at 843; Kuhn, 260 S.W.3d at 101. As in Sparks

and Kuhn, Chief Kowalski’s unsupported claims regarding Officer Kunz’s speed 

before and/or during the incident is no evidence that Officer Kunz acted recklessly. 

Kunz, 260 S.W.3d at 100 (conclusory statements that officer was driving at a high 

rate of speed was insufficient to raise fact issue as to “reckless disregard.”).

Finally, Chief Kowalski’s reliance on witness testimony and reports citing 

Officer Kunz for not stopping at the stop sign and referencing Officer Kunz’s 

verbal counseling/reprimand after the incident is also no evidence that Officer 

Kunz acted recklessly. (CR 69-70); See Hudson, 179 S.W.3d at 702; Barnes, 2008 

Tex. App. LEXIS 2236, at *11-15 (holding written reprimand stating that officer 
26

failed to exercise due care and failed to comply with transportation code did not 

raise fact issue on reckless disregard); See also Varela, 2011 Tex. App. LEXIS 

3485, at*12-14 (reversing district court and finding no fact issue on reckless 

disregard even where department review board found the accident to be 

preventable because actions of officer in using emergency lights, siren and brakes 

negated reckless disregard).

Accordingly, the City is entitled to immunity because it has conclusively 

shown that Officer Kunz was not reckless as a matter of law because she was (1) 

responding to an emergency, (2) had her emergency lights and sirens activated, (3) 

slowed down as necessary in entering the intersection in conformity with Section 

546.001(2) of the Texas Transportation Code. Moreover, Plaintiff failed to raise a 

genuine issue of material fact that Officer Kunz acted recklessly, because Chief 

Kowalski’s conclusory report is no evidence that Officer Kunz’s actions were 

reckless or made without regard to public safety in violation of Section 101.055(2). 

Therefore, the City is immune from suit and the trial court erred in denying the 

City’s Plea to the Jurisdiction because the court is without subject matter 

jurisdiction to determine the subject in controversy.

V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL IMMUNITY 

BECAUSE OFFICER KUNZ ACTED IN GOOD FAITH AND A 

REASONABLY PRUDENT POLICE OFFICER, UNDER THE 

CIRCUMSTANCES, WOULD HAVE REACHED THE SAME 

DECISION.
27

The Court erred in denying the City’s Traditional Motion for Summary 

Judgment because Officer Kunz is entitled to official immunity for her 

discretionary acts performed in good faith within the scope of her authority, and 

City is entitled to summary judgment because the official immunity of Officer 

Kunz precludes vicarious liability under Plaintiff’s theory of respondeat superior. 

A. Officer Kunz is Entitled to Official Immunity and the City is 

Entitled to Sovereign Immunity

The court erred in denying the City’s Traditional Motion for Summary 

Judgment because Officer Kunz is entitled to official immunity for discretionary 

acts performed in good faith within the scope of her authority as a police officer 

and Officer Kunz’s official immunity precludes the City from vicarious liability 

under Plaintiff’s theory of respondeat superior. 

Official immunity is an affirmative defense that protects governmental 

employees from personal liability. Chambers, 883 S.W.2d at 653. A

governmental employee is entitled to official immunity (1) for the performance of 

a discretionary duty; (2) within the scope of the employee’s authority, (3) provided 

that the employee acts in good faith. Id. at 653. When official immunity shields a 

governmental employee from liability, sovereign immunity shields the 

governmental employer from vicarious liability as well. DeWitt, 904 S.W.2d at

653. 
28

1. Officer Kunz Performed Discretionary Duties within Her 

Scope of Authority 

Public officials and employees are not liable for discretionary acts 

performed in good faith within the scope of their authority. Torres v. Owens, 380 

S.W.2d 30, 34-36 (Tex. Civ. App.—Corpus Christi 1964, writ refused n.r.e.). An 

act is discretionary if it requires personal deliberation, decision and judgment. 

Chambers, 883 S.W.2d at 654. In this instance, Officer Kunz was on duty acting

within her authority as a police officer in responding to the domestic disturbance 

call involving a deadly weapon. Officer Kunz exercised her discretion and 

personal judgment in deciding how to get to the disturbance as quickly and safely 

as possible as police officers, firefighters, and ambulance drivers are entrusted to 

do.

2. Officer Kunz Acted in Good Faith

Public officials and employees are entitled to official immunity for their 

discretionary actions, even if they misinterpret the law, as long as their actions 

were taken in good faith. Owens, 380 S.W.2d at 34-36. Good faith is measured by

how a reasonably prudent officer could have assessed both the “need” to which an 

officer responds, and the “risk” of the officer’s course of action based on the 

officer’s perception of the facts at the time of the event. Chambers, 883 S.W.2d at 

656. In Chambers, the Texas Supreme Court recognized the competing interests 

involved in good faith cases and created a “good faith” test that focuses on both the 
29

injustice of imposing liability on police officers whose job requires them to 

exercise discretion, and the danger that such liability will deter their willingness to 

exercise their discretion for the public good. Id. at 665. These concerns are also 

balanced against the need for public safety. Id.

In the context of emergency response cases, the Texas Supreme Court 

elaborated on the Chamber’s good faith test providing guidance on both the “need” 

and “risk” aspects of the test:

“The “need” aspect of the test refers to the urgency of the 

circumstances requiring police intervention. In the context of an 

emergency response, need is determined by factors such as the 

seriousness of the crime or accident to which the officer responds, 

whether the officer’s immediate presence is necessary to prevent 

injury or loss of life or to apprehend a suspect, and what alternative 

courses of action, if any, are available to achieve a comparable result.

The “risk” aspect of good faith, on the other hand, refers to the 

countervailing public safety concerns: the nature and severity of harm

the officer’s actions could cause (including injuries to bystanders as 

well as the possibility that an accident would prevent the officer from

reaching the scene of the emergency), the likelihood any harm would 

occur, and whether any risk of harm would be clear to a reasonably 

prudent officer.”

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). 

Typically, Texas courts have granted summary judgment and pleas to the 

jurisdiction in favor of governmental entities once an officer’s good faith is 

established – when a reasonably prudent officer, under same or similar 

circumstances, could have believed that the need to respond to the emergency
30

outweighed a clear risk of harm to the public, and have held that good faith may be

established by the officer’s own affidavit or testimony. See Mem’l Villages Police 

Dep’t v. Gustafson, 2011 Tex. App. LEXIS 6595 (Tex. App.—Houston [1st Dist.] 

2011, no pet.) (plea to the jurisdiction granted because the officer’s affidavit 

showed he considered alternative courses of action and the facts demonstrated a 

need to immediately apprehend the driver); City of Dallas v. Garcia, 1998 Tex. 

App. LEXIS 1785 (Tex. App.—Dallas 1998, no pet.); State v. McGeorge, 925 

S.W.2d 105 (Tex. App.–Houston [14th Dist.] 1996, writ denied) (summary 

judgment granted where the State established good faith and demonstrated a 

reasonably prudent officer might have believed to continue the pursuit); Barker v. 

City of Galveston, 907 S.W.2d 879, 888 (Tex. App.–Houston [1st Dist.] 1995, writ 

denied). 

3. City of San Angelo Fire Department v. Hudson

In Hudson, a city fire truck was dispatched in response to a fire at a daycare 

center. Hudson, 179 S.W.3d at 697. The fire truck had its emergency lights and 

sirens activated and was a few blocks away from the daycare center when the 

driver came to a red light intersection. Id. The driver slowed down as he 

approached the intersection and observed the traffic stopped in all directions. Id. 

The driver believed the traffic was yielding for the fire truck and entered the 

intersection against a red light. Id. The plaintiff had a green light and collided 
31

with the fire truck in the intersection. Id. The plaintiff’s claimed she did not hear 

the sirens or see the emergency lights when she entered the intersection. Id. at 701. 

The plaintiff filed suit against the city and the city moved for summary 

judgment asserting that the plaintiff’s claims were barred by official immunity 

because the driver was acting in good faith in the performance of his discretionary 

duties as a city employee. Id. at 698. In support of summary judgment, the city 

submitted an affidavit from the fire truck driver discussing the risks he considered 

when entering the intersection against the light and his perceived need to respond 

quickly to the emergency. Id. at 705-06. The driver was aware that traffic was 

congested and that the traffic light stayed red as he approached the intersection. Id. 

The driver considered the fact that a collision could occur if someone did not hear 

the sirens and air horn, or see the emergency lights. Id. The driver also considered 

the fact that a collision might prevent him from timely reaching the scene to offer 

aid. Id. The driver weighed these risks against the perceived need to respond to 

the emergency as quickly as possible because he was the closest unit to the daycare 

center. Id. 

In her response to the city’s motion, the plaintiff argued that the driver was 

not performing a discretionary function in responding to the call because he did not 

choose whether or not to respond to the call. Id. at 704. The plaintiff also argued 

that the need and risk involved did not meet the Chamber’s good faith test because 
32

other fire trucks had already arrived at the daycare center and there was no need for 

the driver to enter the intersection against the red light. Id. at 705. The trial court 

questioned whether the driver’s affidavit conclusively met the good faith test and 

whether the driver was performing a discretionary act and denied the city’s motion 

for summary judgment. Id. at 699.

After reviewing the evidence submitted by the parties on summary 

judgment, the Austin Court of Appeals reversed the trial court’s order denying the 

city’s motion and rendered judgment in favor of the city. Id. at 707. The court 

found the driver’s affidavit conclusively demonstrated that he considered the risks, 

looked for traffic that might pose a danger, and weighed the risks and need before 

proceeding through the light, and that a reasonable fire truck driver could have 

believed the need to reach the scene of the emergency was compelling under the 

circumstances. Id. at 705.

4. Affidavit and Testimony of Officer Kunz

a. Imminent Need

In the present case, the “need” to respond to the domestic disturbance call as 

quickly as possible is obvious in that Officer Kunz and Officer O’Bryant were 

responding to an ongoing fight between two individuals involving deadly weapons 

in a household with children. (CR 35). According to Officer Kunz’s Affidavit,

Officer Kunz also believed it was a priority for her to respond to the scene as 
33

quickly as possible in order to safely support her fellow officer due to the 

dangerous nature of the call and the fact that weapons were involved. (CR 35-36). 

Clearly, a reasonable police officer could have believed that their was an imminent

need to respond to the scene as quickly as possible to prevent further deadly 

violence and assist a fellow officer secure the scene safely.

b. Immediate Danger Outweighed Risk 

In addition, the “risk” factors weigh in Officer Kunz’s favor and her 

deposition testimony and affidavit demonstrate that she considered and weighed 

the risks against the perceived need. According to Officer Kunz’s Affidavit, 

Officer Kunz and Officer O’Bryant responded to the call from separate locations 

and Officer Kunz was forced to navigate through several city streets before she 

was able to pull behind Officer O’Bryant. (CR 35). Both Officer Kunz and 

Officer O’Bryant’s emergency lights and sirens were activated while they

proceeded through the residential neighborhood towards the scene of the 

disturbance. (CR 35). Officer Kunz was several seconds behind Officer O’Bryant 

as they approached a one way stop sign. (CR 35-36). Officer Kunz slowed down 

three or four car lengths before the stop sign and checked for traffic as Officer 

O’Bryant proceeded through the intersection ahead of her. (CR 35-36; Ex. “B,” 

pg. 2). 
34

Officer Kunz recognized the possibility that if she proceeded through the 

stop sign, such action could increase the risk of a collision. (CR 35-36). However, 

she also considered that her patrol car’s emergency lights and sirens were 

activated, she was traveling in a residential neighborhood with little or no traffic, 

slowed down before the intersection, and was not traveling at a high rate of speed.

(CR 31-32, 35-36). In addition, she considered the fact that Officer O’Bryant had 

traveled through the same intersection only seconds before and believed other 

vehicles in the vicinity would have been alerted by Officer O’Bryant’s emergency

lights and sirens in addition to her own. (CR 35-36, 41). 

Officer Kunz was also entitled to rely on the fact that civilian vehicles have

a duty to yield the right-of-way (irrespective of the current traffic signals) when 

she is responding to an immediate emergency with her emergency lights and sirens 

activated. (CR 35-36); TEX. TRANSP. CODE § 545.156; See also Janda, 126 S.W.3d 

at 546 (transportation code entitles emergency vehicle operators to presume that 

other motorists will “respect emergency vehicle priorities”). 

Taking all of these factors into account, the potential danger posed by 

Officer Kunz traveling through the intersection in a residential neighborhood with 

little or no traffic was far less than the immediate threat of injury or loss of life

posed by the multiple combatants fighting with weapons in a house with children. 

Under the circumstances, a reasonably prudent police officer, under similar 
35

circumstances, would have reached the same decision based upon her perception of 

the facts at the time. Therefore, Officer Kunz acted in good faith and is entitled to 

official immunity as a matter of law. As a result, official immunity bars the 

Plaintiff’s vicarious liability claims against the City and Plaintiff’s claims should 

be dismissed with prejudice.

5. Green v. Alford Is Distinguishable From the Present Case

Plaintiff cites to Green v. Alford in his Response to support the position that 

Officer Kunz was reckless and acted in bad faith. (CR 54-55). The Green case is 

readily distinguishable from the present case because the fire fighters in that case

were responding to an automatic fire alarm which posed no immediate threat of 

injury or loss of life and the fire truck driver suffered from a debilitating eye 

disease and driving without glasses or corrective lenses. Green v. Alford, 274 

S.W.3d 5, 18 (Tex. App.—Houston [14th Dist.] 2008, pet denied). 

In Green, the court noted that the fire fighters were responding to an 

electronic fire alarm, which the court admitted the overwhelming majority of 

which are false alarms and do not require immediate assistance. Id. In 

determining bad faith, the court focused primarily on the fact that the driver

suffered from a progressive and debilitating eye disease (not disclosed to his 

supervisors), and failed to wear corrective lenses as required by his driver’s 

license. Id. Other evidence showed that other fire fighters were available to drive; 
36

the driver knew that traffic would be heavy at the intersection due to it being 

evening rush hour on the Friday before labor day weekend; the driver was 

operating a fire truck that weighed 39,500 pounds; and there was a genuine issue of 

material fact as to whether the driver was using the fire truck’s siren or other 

audible warning signal at the time of the collision. Id. at 18-19, 28.

Unlike the firefighter in Green who was responding to an automatic fire

alarm, which did not require the immediate presence of a firefighter, Officer Kunz 

was responding to a domestic disturbance with multiple combatants reportedly 

involving deadly weapons with a high potential for serious injury or loss of life. 

(CR 35). Additionally, Officer Kunz did not have an eye disease or fail to wear 

corrective lenses impairing her judgment. Also, Officer Kunz was responding to 

the dispatch call location on a sparsely traversed residential street on a Sunday 

night at approximately 8:30 p.m., as compared the heavily trafficked intersection at 

rush hour in Green. Likewise, Officer O’Bryant proceeded through the 

intersection in question a few moments prior to Officer Kunz and should have 

alerted vehicles in the vicinity to emergency vehicles in the area. (CR 35-36). 

Finally, and perhaps most importantly, unlike the fire fighter in Green, it is 

undisputed that Officer Kunz was operating her vehicle’s emergency siren at the 

time of the accident. Due to the drastic difference in circumstances between Green
37

and the matter in question, Green is inapposite and distinguishable from the facts 

in this case. 

6. Plaintiff’s Expert’s Opinion Fails to Offer Any Reliable 

Evidence of Bad Faith

Like Plaintiff’s failure to sufficiently support a reckless finding against 

Officer Kunz, Plaintiff equally fails to demonstrate that Officer Kunz acted in bad 

faith. Good faith is measured by how a reasonably prudent officer could have 

assessed both the need to which an officer responds and the risk of the officer’s 

course of action based on the officer’s perception of the facts at the time of the 

event. Chambers, 883 S.W.2d at 656. In Chambers, the Texas Supreme Court 

held an officer does not have to prove that the officer’s actions were unreasonable 

or that all reasonably prudent officers would have proceeded in the same way. Id. 

Instead, the officer must prove only that a reasonably prudent officer might have 

believed he or she should have continued in their course of action. Id. at 656-57.

According to Plaintiff and Kowalski, Officer Kunz acted in bad faith 

because she allegedly should have known that her arrival time at the dispatch call 

location between a “safe speed” and a “reckless speed” would have been 

substantially the same. (CR 67, 70). This argument fails for a number of reasons. 

First and foremost, Kowalski fails to accurately apply the “need” versus “risk” test 

adopted by the Texas Supreme Court in Chambers when opining whether Officer 

Kunz acted in good faith. Id. at 653. When properly applying the “need” versus 
38

“risk” test to Officer Kunz’s actions, it is clear that there was a significant need for 

Officer Kunz to reach the dispatch call location as soon as possible given the 

presence of multiple combatants with weapons in a house with children and the 

high potential for serious injury or loss of life. (CR 35-36). This need outweighed 

the potential risk posed by Officer Kunz traveling through a stop sign in a 

residential neighborhood at night with little or no traffic. 

Second, because of the potential presence of deadly weapons, the difference 

between reaching the dispatch call location as quickly as possible as opposed to a 

few moments later could have been the difference between life or death. As a 

result, there was a compelling reason for Officer Kunz to reach the dispatch call 

location as quickly as possible. 

Third, from his review of the patrol car dash camera video, Chief Kowalski 

speculates that Officer Kunz was traveling at a reckless and high rate of speed 

before the intersection because the “patrol car is seen bouncing into the air as it 

travels over a hump at a reckless speed.” (CR 70). Based upon this opinion, Chief 

Kowalski concludes that Officer Kunz’s arrival time would have been substantially 

the same at a “safe speed” versus a “reckless speed.” (CR 67). Chief Kowalski’s 

opinion is not based upon any evidence beyond his own speculation and fails to 

identify what a safe speed would have been under the circumstances as compared 

to a reckless speed. Moreover, Officer Kunz’s speed at the time of the incident 
39

cannot be independently confirmed because the speedometer is not shown in the 

dash camera video. Compare Sparks, 347 S.W.3d at 843, n.10. Given Plaintiff has 

failed to offer evidence that no reasonably prudent officer in Officer Kunz’s 

position could have thought that the facts justified her conduct, Officer Kunz is 

entitled to official immunity. See Clark, 38 S.W.3d at 581.

C. Public Policy Underlying Official Immunity

Furthermore, there are significant public policy concerns underlying police 

officer’s official immunity in police emergency response cases, as recognized by 

the Texas Supreme Court. “[T]he public would suffer if government officers, who 

must exercise judgment and discretion in their jobs, were subject to civil lawsuits 

that second-guessed their decisions.” Telthorster v. Tennell, 92 S.W.3d 457, 463

(Tex. 2002). Thus, official immunity is designed to protect public officials from 

being forced to defend their decisions that were reasonable when made, but upon 

which hindsight has cast a negative light. Id. Further, police officers’ particular 

need for immunity’s protection is well-recognized: “nowhere else in public service 

is official immunity more appropriate or necessary than in police work. In their 

routine work, police officers must be free to make split-second judgments . . . 

based on their experience and training, without fear of personal liability.” Id. 

(citing Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J., 

concurring)). If police officers were subject to liability for every mistake, the 
40

constant threat of suit could “dampen the ardor of all but the most resolute, or the 

most irresponsible officers.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). 

These public-policy concerns in large part underlie the good faith test articulated 

by the Texas Supreme Court in Chambers. 

Accordingly, the court erred in denying the City’s Traditional Motion for 

Summary Judgment because Officer Kunz’s discretionary actions, weighing the 

needs and risks associated with responding to the domestic disturbance call, were 

performed in good faith within the scope of her authority as a police officer and, 

therefore, Officer Kunz is entitled to official immunity which precludes the City 

from vicarious liability under Plaintiff’s theory of respondeat superior. 

CONCLUSION

The trial court erred in denying the City’s Plea to the Jurisdiction and 

Traditional Motion for Summary Judgment because the Plaintiff failed to raise a 

genuine issue of material fact that Officer Kunz acted recklessly or acted in bad 

faith. The City is immune to suit and the court is without subject matter 

jurisdiction to determine the subject in controversy. 

PRAYER

For these reasons, Appellant Bay City, Texas respectfully prays that this 

Court reverse the trial court’s March 6, 2015 Order Denying the City’s Plea to the 

Jurisdiction and render a take-nothing judgment against Plaintiff/Appellee Wade 
41

McFarland. Appellant prays for any further relief, in law or equity, to which it 

may show itself to be justly entitled. 

Respectfully submitted,

GORDON & REES, LLP

By: /s/ Steven D. Selbe

STEVEN D. SELBE

State Bar No. 18004600

sselbe@gordonrees.com

ANDREW J. PRATKA

State Bar No. 24079159

apratka@gordonrees.com

1900 West Loop South, Suite 1000

Houston, Texas 77027

Telephone: (713) 961-3366

Facsimile: (713) 961-3938

ATTORNEYS FOR BAY CITY, TEXAS

CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3)

This brief complies with the word limitation of TEX. R. APP. P. 9.4(I)(2)(B)

because it contains 9,510 words. 

/s/ Steven D. Selbe

Steven D. Selbe
42

CERTIFICATE OF SERVICE

This is to certify that on this 11th day of May, 2015, a true and correct copy

of the foregoing was served on the counsel and parties identified below in 

accordance with the Texas Rules of Civil Procedure:

David Ramagosa

Farrar & Ball, LLP

1010 Lamar, Suite 1600

Houston, Texas 77002

Attorney for Plaintiff Wade McFarland

 /s/ Steven D. Selbe 

STEVEN D. SELBE
43

NO. 13-15-00122-CV

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

THE CITY OF BAY CITY, TEXAS

Appellant/Defendant

v.

WADE MCFARLAND

Appellee/Plaintiff

On Appeal from the 23rd District Court, Matagorda County, Texas

Trial Court Cause No. 12-H-0516-C;

Honorable Ben Hardin, Presiding

APPELLANT’S APPENDIX

1. City of Laredo v. Varela, 2011 Tex. App. LEXIS 3485

(Tex. App.—San Antonio, 2011, pet. denied). ................................ Tab A

2. City of Arlington v. Barnes, No. 02-07-249-CV, 2008 Tex. App. LEXIS 

2236 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied)..............Tab B

BCTX/1071966/23348255v.2