Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 9, 2019
On
Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-201, 782
Before
Kreger, Horton and Johnson, JJ.
MEMORANDUM OPINION
HOLLIS
HORTON JUSTICE
In this
accelerated appeal, Jefferson County asks the Court to
reverse two interlocutory orders-one denying the County's
plea to the jurisdiction, and one denying its request for
declaratory judgment. As to the orders, we must first address
the County's complaint the trial court erred by denying
the County's plea.[1] We conclude the trial court was required
to deny the County's plea to the jurisdiction, so the
trial court's ruling as to that order is affirmed. We
further conclude we lack jurisdiction to review the trial
court's order denying the County's request for
declaratory judgment and dismiss that part of the
County's appeal.
Background
In
December 2017, Dudley Dent and Phillip Swan, Jr. were
involved in a motor vehicle collision near the intersection
of Fannett Road and 11th Street in Beaumont, Texas. When the
wreck occurred, Swan, an employee of the County Sheriff's
Office, was driving a county-owned SUV. The police report on
the collision states Swan failed to yield the right of way to
Dent when Swan turned from 11th Street onto Fannett Road.
Less
than a year later, Dent sued the County to recover damages
for the personal injuries he alleges he suffered in the
wreck. Dent alleged the County was responsible for Swan's
negligent operation of the SUV because Swan was driving the
SUV in the course and scope of his employment for the County
when the collision occurred. When the County answered the
suit, it filed a general denial and asserted that, as a
governmental entity, it was immune from Dent's claims.
About a
week after filing its answer, the County filed a plea to the
jurisdiction, a plea governmental entities use to challenge
the trial court's right to hear suits filed against them
without regard to whether the plaintiff's claims have
merit.[2] In its plea, the County alleged the trial
court lacked jurisdiction over Dent's claims because Swan
was not in the course and scope of his employment when he hit
Dent's car. Swan's affidavit, which the County
attached to its plea, states that Swan was on his way home
from work when the wreck occurred.[3] Swan's affidavit also
states that while he was driving home, he was not responding
to any calls and had not observed any criminal activity.
Dent
amended his petition twice before the trial court considered
the County's plea.[4] None of his petitions, however, assert a
claim for property damages. When Dent responded to the
County's plea, he alleged Swan told him shortly after the
collision that he did not see Dent's car because he had
been "distracted as a result of responding to a call
from work[.]" According to Dent, the statement Swan made
to him at the scene is evidence raising a fact issue on his
course and scope of employment claim. Dent's affidavit,
which he attached to his response, includes the following
statement:
After the collision, myself and Officer Swan pulled over.
Officer Swan came up to me and apologized for the collision.
He told me he never saw my vehicle. He also told me he was
distracted because he was responding to a call from work.
Officer Swan then proceeded to call his supervisor. After he
called his supervisor, Officer Swan stated he was worried
because he had recently been in another at-fault collision
while working for Jefferson County Sheriff's Office. He
stated he was afraid that he may lose his job.
Dent also attached a copy of the deposition, which the County
obtained during discovery, to his response.
In
November 2018, the County asked the trial court to declare
that Dent could not sue for property damages because he did
not own the car he was driving that was damaged in the
wreck.[5] Before the hearing on the County's
plea, the County filed written objections to the exhibits
that Dent was relying on to oppose the County's plea. The
County asked the trial court to exclude Dent's affidavit
and his deposition, arguing that Dent's affidavit, which
he filed before he was deposed, does not state the hour the
collision occurred. According to the County, Dent's
statements about the issue of whether Swan was still working
when the collision occurred were irrelevant, speculative,
conclusory, made without personal knowledge, and hearsay. The
County suggested that Dent's statements about whether he
talked to Swan after the wreck were internally inconsistent,
claiming the inconsistencies caused Dent's statements
about what he claimed Swan said after the wreck to have no
probative value. And, the County argued it provided the trial
court with more probative evidence than Dent on the question
of whether Swan was in the scope of his employment when the
wreck occurred.
In
November 2018, the trial court considered the County's
plea and request for declaratory judgment. The trial court
overruled all but one of the County's objections to
Dent's evidence. Given the trial court's rulings on
the County's objections, the evidence the trial court
considered included Dent's statement about Swan stating
"he was distracted because he was responding to a call
from work." In December 2018, the trial court signed
separate orders denying both the County's plea to the
jurisdiction and its request for declaratory judgment.
In
January 2019, the County appealed the trial court's
rulings.[6] In its brief, the County raised three
issues, claiming the trial court erred (1) when it denied the
County's plea, (2) when it overruled the objections the
County raised to Dent's affidavit and deposition, and (3)
when it denied the County's request for declaratory
judgment.
Tort
Claims Act
In
general, the doctrine of governmental immunity protects
governmental units, including counties, from
lawsuits.[7] While the Legislature can waive that
immunity, the language in a statute waiving a governmental
unit's immunity must be stated in "clear and
unambiguous language."[8] Generally, the Tort Claims Act
provides the waivers relevant to tort claims, and Dent relied
on that statute in response to the County's
plea.[9] Yet the Tort Claims Act provides a limited
waiver, waiving governmental immunity only for property
damage and personal injuries when caused "by the
wrongful act or omission or the negligence of an employee
acting within his scope of employment[, ] if . . . the
property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle[, ]" and
"the employee would be liable to the [plaintiff]
according to Texas law[.]"[10] Under the Tort Claims
Act, "[e]mployee" is defined as "a
person…who is in the paid service of a governmental
unit by competent authority[, ]" and "[s]cope of
employment" is defined as "the performance for a
governmental unit of the duties of an employee's office
or employment and includes being in or about the performance
of a task lawfully assigned to an employee by competent
authority."[11]
The
crux of the parties' dispute is whether the evidence the
trial court considered raises an issue of material fact on
whether Swan was acting in the course and scope of his duties
as a deputy sheriff when the wreck occurred. Under Texas law,
"every peace officer [has a duty] to preserve the peace
within the officer's jurisdiction."[12] Peace
officers, including deputy sheriffs, retain their status as
peace officers "twenty-four hours a
day[.]"[13] Consequently, peace officers are not
relieved of the duty to preserve the peace merely because
they are no longer on duty.[14]Because off-duty officers may
still be engaged in discharging their duty to maintain the
peace, it is not possible to determine whether a particular
officer is acting in the course and scope of his employment
by considering only whether the officer's shift has
ended.[15] Instead, in cases involving police
officers, courts look to whether the officer or officers
involved were discharging their duties as police officers
when the tort occurred.[16]
Standard
of Review
Generally,
trial courts cannot exercise jurisdiction over a
plaintiff's claims against a governmental unit if the
Legislature has not waived the unit's immunity from
suit.[17] When raised in a plea to the
jurisdiction, the question of whether the trial court has
jurisdiction over the suit is reviewed as a question of
law.[18] In a plea to the jurisdiction,
governmental units "may challenge the pleadings, the
existence of jurisdictional facts, or
both."[19] When, as here, the governmental
unit's plea challenges the existence of jurisdictional
facts, the appellate court's standard of review mirrors
the standard appellate courts use to review a trial
court's ruling on a traditional motion for summary
judgment.[20] Thus, the governmental unit carries the
initial burden to present evidence establishing the trial
court does not have subject matter jurisdiction over the
plaintiff's claims.[21] If that burden is met, the burden
shifts to the plaintiff to present evidence sufficient to
demonstrate that an issue of material fact exists on the
question required to resolve the jurisdictional
issue.[22]
In our
review, we consider all relevant evidence submitted by the
parties in deciding whether the trial court resolved the plea
properly.[23] When reviewing the evidence, we take as
true all the evidence favoring the plaintiff's claims,
and we ...