El Paso County, Texas v. Maynes, Ruben and Frances Maynes, Individually and on Behalf of Their Minor Children Jacob Maynes, Kimberly Maynes, Ruby Maynes, and Ruben Maynes

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) EL PASO COUNTY, TEXAS ) No. 08-02-00100-CV ) Appellant, ) Appeal from ) v. ) County Court at Law No. 5 ) RUBEN MAYNES and FRANCES MAYNES, ) of El Paso County, Texas Individually and on behalf of their minor ) children, JACOB MAYNES, ) (TC# 99-248) KIMBERLY MAYNES, RUBY MAYNES,         ) and RUBEN MAYNES, ) ) Appellees. ) O P I N I O N Ruben Maynes and his wife Frances, individually and on behalf of their four minor children, filed suit against Ronald Nanos, the City of El Paso, and El Paso County, Texas to recover damages as a result of an automobile-pedestrian accident. In this appeal, the County challenges the denial of its plea to the jurisdiction. We reverse and render. FACTUAL SUMMARY Ruben Maynes was severely injured on the night of July 26, 1997, when he was struck by a vehicle as he stood in the middle of the street. After attending the Dallas Cowboys= scrimmage game at the University of Texas at El Paso (UTEP), Ruben went to the Tequila Bar on Dyer Street. Around midnight, his wife Frances arrived to pick him up. The couple left together, began arguing, and drove around instead of returning directly to their home. A few blocks away from the bar, Ruben asked Frances to pull over as he needed to vomit. Afterward, he told Frances that he would walk home and he headed toward Dyer Street, just a short distance away. Frances got out of the van and tried to follow her husband, but she was not able to catch up to him. Ruben turned south on Dyer, the opposite direction of his home. He then crossed the southbound lanes of traffic and walked down the median toward the Lobby Bar. Frances chased after him, lagging about twenty steps behind. She continued to yell at him and tried to convince him to return to the van. At some point, Ruben yelled back, telling Frances to AGo home. I=m leaving you.@ Frances turned toward the car. Ruben continued to argue with his wife and repeatedly stopped as he attempted to cross the street. A witness claimed that Ruben was almost hit by another car as he crossed Dyer Street but it was able to avoid him. As Ruben crossed the center lane, he stopped again for a few seconds to yell at Francis as she walked away. Just after Frances headed for the van, she heard the accident. Ruben was struck by a vehicle driven by Ronald Nanos, an El Paso County Sheriff=s Detective. As a result of the accident, Ruben=s right leg was amputated below the knee. Ronald Nanos was employed by both the County and the City pursuant to an inter-local agreement creating a joint auto theft prevention task force.[1] On the night of the accident, he had worked security for UTEP during the Cowboys= scrimmage. He had not reported to work that day at the task force headquarters, nor was he assigned to work at another site. His supervisor described Saturday as Ahis regularly scheduled day off.@ At the time of the accident, Nanos was not responding to a call. Instead, he was en route from his home to his brother=s house. He was driving an unmarked police car provided by the City which was to be used only for the performance of his duties with the task force. Nanos claimed that intended to discuss with his brother a sting operation to be conducted the next morning. Nanos=s brother was a former member of the task force but he was not involved in the ongoing sting operation. The strategy for the operation had already been planned and Nanos had been thoroughly briefed on procedures by his supervisor. Nanos=s decision to discuss task force business with his brother was in violation of task force policy and protocol. Nanos testified that he believed he was within the course and scope of his employment when he left his house. His supervisor disagreed with that assessment, testifying that Nanos did not have permission to use the vehicle for personal travel and only had authority to drive the vehicle to and from work at the task force headquarters or to the scene of an assignment. STANDARD OF REVIEW Governmental immunity from suit defeats a trial court=s subject matter jurisdiction. See Texas Dept. of Transportation v. Jones, 8 S.W.3d 636, 639 (Tex. 1999); Lamar University v. Doe, 971 S.W.2d 191, 195 (Tex.App.--Beaumont 1998, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction or by motion for summary judgment. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The County raised its challenge via a plea to the jurisdiction. NATURE OF A PLEA TO THE JURISDICTION A plea to the jurisdiction is a dilatory plea designed to defeat a cause of action without regard to whether the underlying claim has merit. Blue, 34 S.W.3d at 554. The purpose of the plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits should never be reached. Id. The plaintiff has the burden to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction. Texas Ass=n of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993). In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638; Missouri Pacific Railroad Company v. Brownsville Navigation District, 453 S.W.2d 812, 813 (Tex. 1970). Immunity from liability and immunity from suit are two distinct principles. Immunity from liability protects the State from judgment even if the Legislature has expressly consented to the suit. Jones, 8 S.W.3d at 638; Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). Like other affirmative defenses to liability, it must be pled or else it is waived. Jones, 8 S.W.3d at 638; see Tex.R.Civ.P. 94. Immunity from liability does not affect a court=s jurisdiction to hear a case. In contrast, immunity from suit bars an action against the State unless the State expressly consents to the suit. Federal Sign, 951 S.W.2d at 405; Missouri Pacific, 453 S.W.2d at 814. In reviewing the trial court=s denial of a plea, we look first to the allegations in the petition. This does not mean that evidence may not be offered on a dilatory plea; indeed the issues raised may be such that they cannot be resolved without an evidentiary hearing. Blue, 34 S.W.3d at 554. Because a court must not act without determining its subject matter jurisdiction, it should hear evidence as necessary to determine the issue before proceeding with the case. Id. In other words, a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. at 555. SOVEREIGN IMMUNITY UNDER THE TEXAS TORT CLAIMS ACT In its sole point on appeal, the County argues that the Maynes= cause of action does not fall within the limited waiver of the Texas Tort Claims Act. Tex.Civ.Prac.&Rem.Code, ' 101.021 (Vernon 2002). The Act does not create a cause of action. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997); Scott v. Britton, 16 S.W.3d 173 (Tex.App.--Houston [1st Dist.] 2000, no pet.). Rather, it merely waives sovereign immunity allowing the State to be sued under particular circumstances. Id. A municipality such as the County is immune from liability for its governmental functions unless that immunity is specifically waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex.App.--El Paso 2000, pet. denied); Gonzales v. City of El Paso, 978 S.W.2d 619, 622 (Tex.App.--El Paso 1998, no pet.). The Act provides that a governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex.Civ.Prac.&Rem.Code Ann. ' 101.021 (Vernon 1997). Further, the Act defines an employee as Aa person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.@ Tex.Civ.Prac.&Rem.Code Ann. ' 101.001(2). SCOPE OF AUTHORITY For the County to be liable, the Mayneses must show that Nanos met the following criteria: (1) he was performing a discretionary duty; (2) he was acting within the scope of his authority; and (3) he was acting in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Police officers, as public servants, are entitled to official immunity when they are acting within the course and scope of their authority, performing discretionary functions, and acting in good faith. Bozeman v. Trevino, 804 S.W.2d 341, 343 (Tex.App.--San Antonio 1991, no writ). An official acts within the scope of his authority if he is discharging the duties generally assigned to him. Chambers, 883 S.W.2d at 658. AThe fact that a specific act that forms the basis of the suit may have been wrongly or negligently performed does not take it outside of the scope of authority.@ Koerselman v. Rhynard, 875 S.W.2d 347, 350 (Tex.App.--Corpus Christi 1994, no writ); Edgar v. Plummer, 845 S.W.2d 452, 453 (Tex.App.--Texarkana 1993, no writ). When a servant turns aside from the performance of the work for which he was hired, even though momentarily, and engages in activities not in furtherance of his master=s business but to accomplish some purpose of his own, the master is not responsible. Texas & P.Ry.Co. v. Hagenloh, 151 Tex. 191, 202, 247 S.W.2d 236, 242 (1952); Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 142, 96 S.W. 1073, 1074 (1906). The Texas Torts Claim Act defines Ascope of employment@ as follows: (5) >Scope of employment= means 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. Tex.Civ.Prac.&Rem.Code Ann. ' 101.001 (5). The theory of respondeat superior or vicarious liability is based upon acts of an employee which fall within the scope of the general authority of the employee so long as the acts are in furtherance of the employer=s business and for the accomplishment of the object for which the employee was hired. Leadon v. Kimbrough Brothers Lumber Company, 484 S.W.2d 567, 569 (Tex. 1972); Langley v. National Lead Co., 666 S.W.2d 343, 345 (Tex.App.--El Paso 1984, no writ). The conduct of an officer in official immunity cases must be measured against a standard of objective reasonableness without regard to the officer=s subjective state of mind. Chambers, 883 S.W.2d at 656; Cobb v. Texas Dep=t of Criminal Justice, 965 S.W.2d 59, 64 (Tex.App.--Houston [1st Dist.] 1998, no writ). At issue here is whether Nanos believed in good faith that he was acting within the scope of his employment as he drove to his brother=s home on the night of the accident. Taking his testimony as true, Nanos had at best a subjective, not an objective belief. Maynes was severely injured when he was struck by the unmarked City police vehicle. Nanos was only authorized to use the vehicle while working on official duties relating to the auto theft prevention task force. But on the night of the accident, Nanos was not on duty nor had he worked for the task force that day. He was not responding to calls and had not observed any criminal activity;[2] he was merely driving from his home to his brother=s house. His supervisor testified that Nanos did not have permission to use the vehicle for any personal travel and was not authorized to speak to anyone outside of the task force about ongoing investigations. Put succinctly, the supervisor stated: At no time, on or before the date of the accident, did I direct Defendant Nanos to speak about his cases to any person other than myself and the officers directly involved in and working for the Task Force. The County has established that Nanos was not acting within the scope of his employment. Consequently, the denial of the plea to the jurisdiction was improper. We sustain the sole point, reverse and render judgment in favor of the El Paso County, Texas. November 7, 2002 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish) [1] Although Nanos worked for the Sheriff=s Department, he reported daily to the El Paso Police Department, where he maintained an office. He was actually paid by the County. [2] The Mayneses argue alternatively that Nanos became an on-duty officer at the time he observed Frances Maynes Atrying to climb a chain-link fence@ which ran down the center of the median. Nanos testified that he was curious as to whether Frances was trying to climb the fence, but that he did Anot immediately@ think Asomething was wrong.@ He explained that if he observed a crime being committed while he was off-duty, he would act upon it but if the activity were Asimply suspicious@, he would call a city dispatcher depending on the situation. Nanos neither acted to prevent a crime nor called a dispatcher to report suspicious behavior. Frances Maynes explained that she became upset when Ruben yelled to say he was going to leave her. She put her hands up to her head and face and leaned momentarily against the fence.