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Garza v. Harrison

Court of Appeals of Texas, Fourteenth District

July 25, 2017

REY GARZA, Appellant
v.
ROXANA REGALADO HARRISON AND JOSEPH SANTELLANA, INDIVIDUALLY AND AS RESPRESENTATIVES OF THE ESTATE OF JONATHEN ANTHONY SANTELLANA, DECEASED, Appellees

         On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2014-32961

          Panel consists of Justices Boyce, Jamison, and Brown.

          OPINION

          William J. Boyce Justice.

         This is 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 court's order.

         Background

         At all 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.

         As part 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 states:

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 law[.]

         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.

         Garza 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.

         Suspecting 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.

         Glancing 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.

         Santellana 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.

         Garza 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.

         Garza 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 ...


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