Reversed and Rendered and Memorandum Opinion filed March 5, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00182-CV

HARRIS COUNTY, Appellant 

V.

JUANA AVILA, INDIVIDUALLY AND AS NEXT FRIEND OF K.A., A 

MINOR, AND K.A., INDIVIDUALLY, Appellees 

On Appeal from the 165th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-60506 

MEMORANDUM OPINION 

In this interlocutory appeal from an order denying a plea to the jurisdiction, 

the question is whether a governmental unit conclusively established that it is 

protected by governmental immunity. For reasons explained more fully below, we 

conclude that it did. We therefore reverse the trial court’s order and render judgment 

dismissing the case for want of jurisdiction. 
2

BACKGROUND 

This personal-injury action arises from damages sustained when a sheriff’s 

deputy collided with Juana Avila and a related individual (collectively “Avila”), 

during the deputy’s high-speed pursuit of a fleeing suspect. 

The pursuit began when the suspect’s vehicle quickly departed a corner store 

at the very moment that the deputy arrived there in his marked patrol car. The deputy 

decided to follow the vehicle, suspecting that the reason for the departure was related 

to the presence of law enforcement. 

The suspect headed towards a tollway, where the suspect crossed two lanes of 

traffic without signaling. The deputy activated his emergency lights in an attempt to 

conduct a traffic stop, but the suspect refused to stop, and accelerated instead to 

speeds exceeding 100 miles per hour. The deputy then activated his siren and 

notified his dispatcher of the high-speed pursuit. 

The suspect eventually exited the tollway and proceeded to a major 

thoroughfare, where the deputy remained in pursuit. Even though the speed limit on 

the thoroughfare was only 45 miles per hour, the deputy traveled as fast as 80 miles 

per hour. Other vehicles on the thoroughfare became aware of the chase and pulled 

over to the right-hand lane to allow for the deputy’s safe travel. Avila, however, 

came to a complete stop in the left-hand lane, where the deputy had been traveling. 

Once he realized that he could not maneuver around Avila, the deputy slammed on 

his brakes. 

The deputy rear-ended Avila at an unknown speed, but a data recorder on his 

patrol car indicated that he had been traveling at 11 miles per hour just 2.5 seconds 

before impact. The deputy called EMS to the scene of the collision, but no one was 

transported to the hospital. 
3

Avila sued Harris County, the deputy’s employer, on a theory of negligence 

under the Texas Tort Claims Act. The County responded with a plea to the 

jurisdiction, arguing that its immunity from suit had not been waived. More 

specifically, the County argued that it could not be vicariously liable for the deputy’s 

negligence because the deputy himself was protected by official immunity. In an 

alternative ground for relief, the County argued that it was exempted under the Act 

because Avila’s claim for damages arose from the deputy’s reaction to an emergency 

situation. 

After Avila filed a response, the trial court denied the plea to the jurisdiction. 

The County then brought this interlocutory appeal. 

STANDARD OF REVIEW 

To prevail on its plea to the jurisdiction, the County had the initial burden of 

negating the existence of jurisdictional facts and of conclusively establishing that 

the trial court lacked subject-matter jurisdiction. See Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If that burden was satisfied, the 

burden then shifted to Avila to present evidence sufficient to raise a genuine issue 

of material fact regarding the jurisdictional issue. Id. at 227–28. This standard 

essentially mirrors that of a traditional motion for summary judgment. Id. at 228. 

Consistent with that standard, we review the trial court’s ruling de novo, and we 

consider all evidence presented in the light most favorable to Avila, the nonmovant. 

Id.

ANALYSIS 

Even though the County asserted two grounds for relief in its plea to the 

jurisdiction, we only address the first ground relating to the deputy’s official 

immunity because that ground is dispositive. See Tex. R. App. P. 47.1. 
4

We begin with a general overview of immunity. 

I. Immunity 

Under the common law doctrine of sovereign immunity, the state is immune 

from suit, which means that it cannot be sued without its consent. See City of 

Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Governmental units in the 

state enjoy the same type of immunity, although their immunity is known as 

“governmental immunity.” See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 

371, 374 (Tex. 2006). 

The County is a governmental unit, which means that it cannot be sued absent 

a waiver of its governmental immunity. See Harris County v. Annab, 547 S.W.3d 

609, 613 (Tex. 2018). One such waiver can be found under the Texas Tort Claims 

Act, which provides that a governmental unit is liable for the tort of an employee, if 

the tort arises out of the operation of a motor vehicle and “the employee would be 

personally liable to the claimant according to Texas law.” See Tex. Civ. Prac. & 

Rem. Code § 101.021(1)(B). 

A governmental employee cannot be personally liable, however, if he is 

protected under the common law doctrine of official immunity. See DeWitt v. Harris 

County, 904 S.W.2d 650, 653 (Tex. 1995). That doctrine is born out of “the necessity 

of public officials to act in the public interest with confidence and without the 

hesitation that could arise from having their judgment continually questioned by 

extended litigation.” See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 

424 (Tex. 2004). 

An employee’s official immunity therefore becomes relevant to the liability 

of his employer: a governmental unit “is vicariously liable for the acts of its 
5

employees only to the extent its employees are not entitled to official immunity.” 

See K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex. 1994). 

The County argued in its plea to the jurisdiction that the deputy in this case 

was entitled to official immunity. If the County conclusively proved that defense, 

then the deputy’s official immunity would negate an essential jurisdictional fact, 

thereby depriving the trial court of subject-matter jurisdiction. 

To prove the official immunity defense, the County had the burden of 

establishing the following essential elements: (1) the deputy was acting within the 

scope of his employment, (2) the deputy was performing a discretionary duty, and 

(3) the deputy was acting in good faith. See City of Lancaster v. Chambers, 883 

S.W.2d 650, 653 (Tex. 1994). Avila concedes that the County met its burden with 

respect to the first two elements. Therefore, we only address the third element. See 

Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002). 

II. Good Faith 

To establish that an officer acted in good faith in a case involving the pursuit 

of a fleeing suspect, the defendant must establish that “a reasonably prudent officer 

under the same or similar circumstances could have believed that the need to 

immediately apprehend the suspect outweighed a clear risk of harm to the public in 

continuing (rather than terminating) the pursuit.” See Wadewitz v. Montgomery, 951 

S.W.2d 464, 466 (Tex. 1997). 

The evidence in support of good faith must adequately address both the need 

and the risk aspects of this test. Id. at 467. “Need” refers to the urgency of the 

circumstances requiring police intervention, and is determined by factors such as 

(1) the seriousness of the crime or accident to which the officer responds; 

(2) whether the officer’s immediate presence is necessary to prevent injury or loss 
6

of life or to apprehend a suspect; and (3) what alternative courses of action, if any, 

are available to achieve a comparable result. Id. “Risk” refers to the countervailing 

public safety concerns, such as (1) the nature and severity of harm that 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; (2) the 

likelihood that any harm would occur; and (3) whether any risk of harm would be 

clear to a reasonably prudent officer. Id.

Under these factors, the defendant claiming good faith does not have to prove 

that an officer would have acted unreasonably by stopping the pursuit, or that all 

reasonably prudent officers would have continued the pursuit. See Chambers, 883 

S.W.2d at 657. Rather, the defendant need only prove that a reasonably prudent 

officer might have believed, after weighing the needs and risks, that the pursuit 

should have been continued. Id. at 656–57 & n.7 (analogizing this standard to an 

abuse of discretion standard of review). If the defendant conclusively establishes that 

point, then the burden shifts to the plaintiff to show that no reasonable person in the 

officer’s position could have thought that the facts were such that they justified the 

officer’s actions. Id. at 657. 

III. The County’s Plea 

The County supported its claim of good faith with affidavits from the deputy 

and from a chief of police. 

A. The Deputy’s Affidavit 

The deputy testified that he has been a peace officer for more than seven years. 

During the length of his career, he has been involved in more than 200 pursuits, none 

of which ever resulted in a collision until the pursuit involved in this case. 
7

On the day of the collision, the deputy testified that he had been assigned to 

the Community Action Team, which is tasked with patrolling and conducting 

surveillance in high-crime areas. The corner store where the pursuit began was 

located in one such area. 

The deputy testified that he saw the suspect’s vehicle parked along a guard 

rail, in an unmarked parking spot just outside the corner store. When the vehicle 

quickly departed, the deputy suspected that the departure was related to his presence, 

given the area’s high reputation for crime. 

The deputy testified that he activated his emergency lights on the tollway once 

he saw the suspect cross two lanes of traffic without signaling. When the suspect 

sped off at more than 100 miles per hour, the deputy activated his siren and notified 

his dispatcher, who informed him that the pursuit was a “priority one call.” The 

dispatcher also said that a supervisor was en route as a backup, but that the deputy 

was “the primary unit in the vehicle pursuit.” 

The deputy continued his pursuit, opining that “the suspect’s hazardous 

driving created a danger to the public that required [the deputy’s] intervention and 

which clearly outweighed the risks of a vehicle pursuit.” In explaining the risks of 

his pursuit, the deputy observed that traffic was light on the tollway. The time was 

approximately 7:00 p.m., the lanes were well-lit and dry, and the weather was clear. 

The deputy testified that he remained vigilant of the traffic and weather 

conditions as the pursuit progressed. The deputy said that he reduced his speed when 

the tollway became congested. He traveled in an unoccupied lane when proceeding 

through a toll booth area. And he waited for other motorists to yield before changing 

lanes himself. 
8

When the suspect exited the tollway and headed towards the major 

thoroughfare, the deputy followed course. The deputy testified that he was “very 

familiar” with the thoroughfare because he traveled down it often. 

The speed limit on the thoroughfare was 45 miles per hour, but the deputy 

traveled at speeds between 15 miles per hour and 80 miles per hour. The deputy 

testified that he was aware that speeding increases the chances of causing an 

accident, in part because speeding reduces the time available for braking to avoid 

another vehicle, but the deputy believed that he could safely speed under the 

circumstances. The deputy explained that he was continuously monitoring the 

weather conditions, which were the same as on the tollway. The deputy also said 

that he was continuously monitoring the traffic conditions, noting that congestion 

was moderate to reduced, depending on the location. 

The deputy remarked that his decision to speed was also informed by his belief 

that other vehicles were aware of his approach. The deputy noted that visibility was 

good, that his emergency lights and siren were engaged, and that at least seven other 

vehicles had pulled over to the right-hand lane to allow for his safe travel. 

The deputy testified that he collided with Avila because she “suddenly applied 

her brakes and brought her vehicle to a stop in the left lane of traffic,” which is where 

he had been driving. “When she failed to move to the right and made her sudden 

stop,” the deputy explained that he “had no choice but to continue straight as there 

was no median and due to the vehicles on [his] right and oncoming traffic to the 

left.” 

At the time of the collision, the deputy had been in pursuit of the fleeing 

suspect for approximately two minutes. 
9

The deputy testified that he was aware that he could have abandoned his 

pursuit or reduced his speed earlier, but he believed that apprehending his suspect 

was necessary in this case. The deputy explained that a person who is fleeing in an 

automobile is “a serious matter.” The deputy speculated that his suspect may have 

committed a serious offense before the pursuit. The deputy was also concerned that 

the suspect’s hazardous driving could cause an accident with another vehicle. The 

deputy accordingly believed that it was important to contain the suspect and prevent 

harm to others. 

Based on the foregoing facts, the deputy opined that his pursuit was justified 

and that a reasonably prudent officer in the same or similar circumstances could have 

believed that the need to apprehend the fleeing suspect was outweighed by the risks 

to the public. This evidence was uncontroverted. 

B. The Chief’s Affidavit 

The other affidavit in support of the County’s position was from a retired chief 

of police, who had over thirty-three years of experience in law enforcement. During 

his time on the force, the chief reviewed more than 700 accidents involving police 

officers to determine if disciplinary measures were warranted. After reviewing the 

record in this case, which included a dash cam video of the deputy’s pursuit, the 

chief concluded that the deputy’s actions were justified. 

The chief first testified that the deputy had probable cause to stop the suspect 

after the deputy observed a moving violation. The chief then testified that the deputy 

had a duty to pursue the suspect when the vehicle sped away, rather than stopped. 

The chief explained that the need for the deputy’s pursuit was rooted in the suspect’s 

hazardous driving, which presented a danger to others. 
10

The chief also opined that the deputy had acted with due regard for innocent 

bystanders. The chief noted that the deputy did not replicate the suspect’s hazardous 

driving. For example, the suspect cut off other motorists, whereas the deputy yielded, 

especially when approaching critical junctures. The chief also noted that the deputy 

notified his dispatcher in an effort to garner more manpower, that he activated his 

emergency lights and siren, and that he continuously monitored the traffic and 

weather conditions. The chief believed that there was no change in circumstances 

over the course of the pursuit that would have required the deputy to abandon his 

chase. 

Like the deputy, the chief also noted that a reduced speed would have been an 

alternative course of action, but the chief believed that the suspect needed to be 

stopped as soon as possible, and that speeding was not unsafe under the particular 

circumstances of the deputy’s pursuit. 

The chief opined that a reasonably prudent officer under the same or similar 

circumstances could have believed that the need to take the deputy’s course of action 

outweighed the risks of harm to the public. This opinion was uncontroverted. 

C. Application of Law to Facts 

Opinion testimony on good faith must address what a reasonable officer 

“could have believed” under the circumstances—not what a reasonable officer 

“would have done”—and the testimony must be substantiated with facts showing 

that the officer involved in the case assessed both the need to apprehend the suspect 

and the risk of harm to the public. See Tex. Dep’t of Pub. Safety v. Bonilla, 481 

S.W.3d 640, 644 (Tex. 2015) (per curiam) (explaining that evidence of negligence 

will not controvert competent evidence of good faith). The testimony here meets that 

standard. 
11

The County produced evidence showing that the deputy had a need to pursue 

his suspect, based on a series of escalating events. There was evidence that the 

suspect was in a high-crime area and acting suspiciously. The suspect later crossed 

two lanes of traffic without signaling, which had the effect of cutting off other 

motorists. The suspect then refused to stop when the deputy activated his emergency 

lights, accelerating instead to speeds exceeding 100 miles per hour. The deputy 

testified that a suspect fleeing under these circumstances is “a serious matter” 

because the suspect may cause an accident with another vehicle. 

The County further showed that the deputy’s immediate presence was 

necessary to apprehend the suspect and prevent injury to others because the deputy 

was the only official in direct pursuit of the suspect. Even though a supervisor was 

en route, the deputy remained “the primary unit in the vehicle pursuit.” 

The County also showed that the deputy had considered alternative courses of 

action, such as abandoning his pursuit or reducing his speed. The deputy testified 

that a reduced speed would have reduced the chances of a collision, but it would 

have also impeded the deputy’s effort to contain the suspect, whose hazardous 

driving already presented an immediate danger to others. 

As for the risks, the County showed that the deputy was aware that speeding 

increased his chances of causing a collision, but that the deputy believed that 

speeding was not unsafe under the circumstances. The deputy was “very familiar” 

with the major thoroughfare where the collision occurred. The weather was clear, 

the roads were well-lit, and traffic congestion was moderate to light. Also, the deputy 

had activated his emergency lights and siren, and other vehicles had pulled over to 

allow for the deputy’s safe travel. 

Based on this evidence, we conclude that the County met its burden of 

showing that a reasonably prudent officer, under the same or similar circumstances, 
12

could have believed that the need to apprehend the suspect outweighed the risks of 

harm to the public. See City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 

2007) (per curiam) (the evidence established good faith as a matter of law where 

there was expert testimony that the officer had evaluated both the needs and risks). 

IV. Avila’s Response 

Having concluded that the County satisfied its initial burden of showing that 

the deputy acted in good faith, we must now determine whether Avila raised a 

genuine issue of material fact in her response. To controvert the County’s evidence 

of good faith, Avila was required to show more than just that a reasonably prudent 

officer could have decided to stop the pursuit. See Chambers, 883 S.W.2d at 657. 

Her burden was much more demanding: she had to show that no reasonable officer 

in the deputy’s position could have thought that the facts justified the deputy’s 

actions. Id.

Avila only attached two exhibits to her response. The first exhibit was an 

unredacted copy of the crash report, which had also been attached to the County’s 

plea to the jurisdiction (except that the County’s copy was in redacted form). The 

second exhibit was a copy of Avila’s original petition. Neither one of these exhibits 

contains any opinion testimony that controverts the County’s evidence of good faith. 

In the absence of any controverting evidence of her own, Avila suggests on 

appeal that the County’s evidence was legally insufficient to establish good faith. 

Avila begins by pointing out that the deputy speculated in his affidavit as to the 

reason why his suspect left the parking lot of the corner store. Because the deputy 

did not actually know the reason why the suspect departed, Avila suggests that there 

was no need for the deputy’s pursuit. This argument fails because the deputy 

personally observed other violations, from the suspect’s illegal lane change to the 
13

suspect’s evading detention, which did justify a pursuit. Indeed, the chief testified 

that, under those facts, the deputy had a duty to pursue his suspect. 

Avila acknowledges these other facts, but she argues that committing a traffic 

violation in the presence of an officer is not serious or urgent enough to warrant a 

high-speed pursuit. This argument is also meritless. When the deputy witnessed the 

illegal lane change, he attempted to initiate a routine traffic stop, but the suspect 

evaded detention, which is a felony when committed in a vehicle. See Tex. Penal 

Code § 38.04(b). More importantly, the evidence showed that the suspect had 

accelerated to speeds exceeding 100 miles per hour, which presented a clear danger 

to the public that was serious and urgent enough to justify a pursuit. See Univ. of 

Houston v. Clark, 38 S.W.3d 578, 586 (Tex. 2000) (the evidence established good 

faith as a matter of law where the officer pursued a suspect who was fleeing at an 

estimated 80 to 90 miles per hour). 

Avila also suggests that there was no need for a pursuit once the deputy was 

told by his dispatcher that backup was on the way. Avila cites to no authority for this 

proposition, which would be contrary to binding precedent, as the evidence showed 

that the deputy was the only officer in visible pursuit of the suspect. See Wadewitz, 

951 S.W.2d at 467 (considering whether the officer’s presence is necessary to 

apprehend the suspect). And as the chief plainly testified, there was no change in 

circumstances that would have required the deputy to abandon the chase. 

Avila argues next that the deputy could not have had a need for his pursuit 

because he had no information regarding the identity of his suspect. Once again, this 

argument fails. See Clark, 38 S.W.3d at 585 (the evidence established good faith as 

a matter of law despite the fact that “the suspect had not been identified before he 

fled”). The deputy did not need to obtain the identity of his suspect to know that the 

suspect already posed a danger to others, given the suspect’s hazardous driving. 
14

Avila finally argues that the trial court’s ruling should be upheld because the 

circumstances of the deputy’s pursuit are similar to those in Loftin v. Morales, 187 

S.W.3d 533 (Tex. App.—Tyler 2005, no pet.), which held that an officer’s good faith 

had not been established as a matter of law. But Loftin is distinguishable on the facts. 

The officer there made statements in his deposition that were contrary to his own 

position, id. at 541, whereas the deputy here was never contradicted or inconsistent. 

Also, the court of appeals in Loftin concluded that the officer had failed to prove 

good faith because there was no evidence that the officer had considered any 

alternatives to pursuit, or that he had reassessed the need for his pursuit as the pursuit 

progressed over twenty-seven minutes and through different neighborhoods. Id. at 

542. Here, by contrast, there was evidence on both subjects. The deputy testified that 

he had considered his alternatives, and that he had continuously monitored the 

weather and traffic conditions as his much shorter pursuit changed course from the 

tollway to the thoroughfare. Accordingly, Loftin does not control the outcome of this 

case. 

CONCLUSION 

We conclude that the County satisfied its burden of showing that the deputy 

was entitled to official immunity, and that Avila failed to present any controverting 

proof. Because the deputy’s official immunity negates an essential jurisdictional 

fact, we further conclude that the trial court erred by denying the County’s plea to 

the jurisdiction. We therefore reverse the trial court’s order and render judgment 

dismissing Avila’s suit for want of jurisdiction. 

 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Jewell, and Hassan.