Appeal from the 80th District Court Harris County, Texas
Trial Court Cause No. 2014-32961
consists of Justices Boyce, Jamison, and Brown.
William J. Boyce Justice.
an interlocutory appeal from the trial court's order
denying appellant Rey Garza's motion to dismiss filed
pursuant to Texas Civil Practice and Remedies Code section
101.106(f). The principal issue presented is whether Garza, a
police officer for a city in Grimes County, was acting within
the scope of his employment when he fatally shot a suspect in
Harris County while attempting to arrest him. Because
Garza's actions outside of his geographic jurisdiction
did not constitute the performance of a duty lawfully
assigned to him by his employer, we affirm the trial
times relevant to the underlying events, Garza was employed
as a peace officer by the City of Navasota Police Department
in Grimes County. Garza entered into an agreement with an
apartment complex to serve as a "courtesy officer"
in exchange for free rent. The apartment complex is located
in Harris County.
of his agreement with the apartment complex, Garza signed the
apartment complex's "Courtesy Officers' Policy
and Procedures." The Courtesy Officers' Policy and
Procedures state that "[i]f a law is violated, Courtesy
Patrol Officers are NOT required, nor are they authorized, to
pursue and apprehend the person responsible." It further
How are Courtesy Patrol Officers DIFFERENT from police
officers? Courtesy Patrol Officers DO NOT have:
• The sa\me job duties as police officers
• The same powers as police officers, according to the
Courtesy Officers' Policy and Procedures provide that a
courtesy patrol officer should "NOT charge in" if
he observes an offense, and that courtesy patrol officers
should call local law enforcement regarding any offenses. The
Courtesy Officers' Policy and Procedures also include an
acknowledgement stating, "I understand that[, ] while
providing the services herein, I am acting at the
company's authority in the capacity of a Patrol/Courtesy
Officer and not as an active/off[-]duty Police Officer in the
State of Texas." Garza signed the Courtesy Officers'
Policy and Procedures and agreed to abide by these
restrictions in exchange for his rent concession.
was off-duty as a peace officer on the afternoon of November
13, 2013. Around mid-afternoon, Garza ran an errand at a bank
near the apartment complex. Upon returning to the apartment
complex, Garza encountered an individual he did not
recognize. The individual, Jonathen Santellana, was leaving
Building 19; according to Garza, "there had been a lot
of drug activity" at Building 19. Garza observed that
Santellana was "holding something in his hands and was
looking down at whatever it was, " but Garza could not
identify the object.
that Santellana had just purchased drugs, Garza went up to
his apartment to retrieve his personal firearm. Coming back
outside, Garza saw Santellana sitting in a parked car with a
female in the passenger seat. Garza approached the car.
inside the car, Garza observed Santellana putting marijuana
into a prescription bottle. Garza, who was wearing a t-shirt,
gym shorts, and sandals, displayed his police ID and badge
and requested that Santellana step out of the car.
allegedly ignored the request and attempted to start the car.
Garza opened Santellana's car door and again stated,
"Police, step out." Santellana continued ignoring
Garza and trying to start the car. Garza reached into the car
and attempted to remove the key from the ignition but was
unsuccessful. Santellana started the car, put it in reverse,
and began to back out.
found himself trapped between Santellana's car on one
side, his own vehicle (parked immediately next to
Santellana's) on the other, and the open driver's
door in front of him. When Santellana began backing up, the
open driver's door scraped along Garza's vehicle and
forced Garza to backpedal with Santellana's car.
Allegedly fearing he would be run over, Garza drew his
personal firearm and fired into Santellana's car seven
times, killing Santellana.
Santellana's parents - appellees here - sued Garza in his
individual capacity for Santellana's wrongful death.
Garza filed a motion to dismiss under section 101.106(f) of
the Texas Tort Claims Act contending his actions were within
the scope of his employment and that his governmental
employer, the City of Navasota, was the proper defendant.
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.002, 101.106(f) (Vernon 2011). The trial
court signed an order denying Garza's motion to dismiss
on July 19, 2016. In its order denying the motion to dismiss,
the trial court stated:
The court finds that there is a question of fact for the jury
as to whether Defendant, Rey Garza was acting within the
authorized course and scope of a police officer or as an
employee of Defendant, CH Condominiums GP, L.L.C. at the time
of the occurrence at issue.
timely filed this interlocutory appeal. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon
Supp. 2016) (permitting interlocutory appeal from the denial
of a motion for summary judgment based on an assertion of
immunity by an officer or employee of the State or a
political subdivision of the State); Singleton v.
Casteel, 267 S.W.3d 547, 549-50 (Tex. App.-Houston [14th
Dist.] 2008, pet. denied) (motion to dismiss filed pursuant
to section 101.106 may be treated as a ...