Liberty County, Texas and James Louis Buchanan v. James Seidel, Angela Seidel, Cheri Varnado and Tarah Land--Appeal from 253rd District Court of Liberty County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-01-026 CV
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LIBERTY COUNTY, TEXAS, AND
JAMES LOUIS BUCHANAN, Appellants
V.
JAMES SEIDEL, ANGELA SEIDEL,
CHERI VARNADO, AND TARAH LAND, Appellees

On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. 58261
OPINION

Liberty County, Texas, and James Louis Buchanan assert that the rules of sovereign immunity and official immunity deprive the trial court of subject matter jurisdiction over claims arising out of an auto collision involving a police vehicle and the Seidels' vehicle. The trial court denied appellants' plea to the jurisdiction. We affirm.

 
The Accident

Deputy Buchanan and Deputy Kenneth Dagle went to the scene of an auto accident to provide assistance. Dagle left first, using his sirens and emergency lights. Buchanan followed, initially using neither. There is testimony he turned his lights on before the accident; but Angela Seidel testified that when she saw the vehicle in the mirror, the lights were not on. Buchanan's police car collided with the vehicle driven by James Seidel. In their suit against Buchanan and Liberty County, the Seidels claim that Buchanan was negligent or grossly negligent in, among other things, "failing to comply with applicable laws and ordinances as pertaining to Defendant's response to a call for service" and "[a]cting with conscious indifference or reckless disregard for the safety of others[.]"

Immunity

Appellants claim they are immune from any suit arising out of this accident. Immunity from suit defeats a trial court's subject matter jurisdiction. See Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999).

The Texas Tort Claims Act is a limited waiver of sovereign immunity. See City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). The Tort Claims Act permits a public employer to be sued for negligent driving by an employee only if "the employee would be personally liable to the claimant . . . ." Tex. Civ. Prac. & Rem. Code Ann. 101.021(1)(B) (Vernon 1997). "Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

Appellate Jurisdiction

Before addressing the trial court's jurisdiction, we note that appellees' brief raises two issues labeled as "cross points" which challenge this court's jurisdiction to hear this appeal. The first argues that we have no jurisdiction to hear an interlocutory appeal from James Buchanan under section 51.014(a)(8) of the Civil Practice and Remedies Code, since 51.014(a)(8) grants us such jurisdiction only over orders which grant or deny pleas to the jurisdiction by government units. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2002). Liberty County implicitly concedes this point by stating that Buchanan "is not directly appealing the denial of his own plea to the jurisdiction . . . . However, . . . the issue of his official immunity must to some degree be addressed." While we do not have jurisdiction over Buchanan, Liberty County is correct in asserting that the issue of Buchanan's official immunity is inescapably linked with that of the County's sovereign immunity. As noted above, the Tort Claims Act permits a public employer to be sued for negligent driving by an employee only if "the employee would be personally liable to the claimant . . . ." Tex. Civ. Prac. & Rem. Code Ann. 101.021(1)(B) (Vernon 1997). In a Tort Claims Act case governed by section 101.021(1)(B), the Texas Supreme Court held that "If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant and the government retains its sovereign immunity under subsection 1." DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995); see also University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). We have jurisdiction to consider official immunity as it relates to Liberty County's assertion of sovereign immunity.

Appellees' second point contends that Liberty County's interlocutory appeal is untimely. Appellees contend that there is "no substantive difference" between Liberty County's plea to the jurisdiction and its earlier motion for summary judgment, and that the denial of summary judgment, rather than the denial of appellant's plea to the jurisdiction, triggered the timetable for Liberty County to perfect an appeal under rules of appellate procedure 26.1(b) and 28.1. See Tex. R. App. P. 26.1(b), 28.1. Appellees cite Denton County, Texas v. Huther, 43 S.W.3d 665, 667 (Tex. App.--Fort Worth 2001, no pet.) for this proposition. In that case, the court held that Denton County's interlocutory appeal was untimely because its time to file an interlocutory appeal began running with the order denying its initial plea to the jurisdiction, rather than with the denial of its "motion to reconsider and renewed plea to the jurisdiction." Id.

We follow the plain language of the Texas Civil Practice and Remedies Code and the Texas Rules of Appellate Procedure. Section 51.014(a)(8) of the Civil Practice and Remedies Code allows interlocutory appeal from denial of a plea to the jurisdiction by a governmental unit and does not refer to denial of a governmental unit's motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2002). Tex. R. App. P. 28.1 provides that such appeals will be accelerated. Tex. R. App. P. 26.1(b) states that accelerated appeals must be filed within 20 days after the judgment or order appealed from is signed. The trial court signed its written order denying the plea to the jurisdiction on April 20, 2001. Liberty County and Buchanan filed their notice of appeal on January 16, 2001. "In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal." Tex. R. App. P. 27.1(a). Therefore, the notice of appeal here is deemed to have been filed on April 20, 2001, after the order was signed denying the plea, and was timely.

Analysis

The Texas Transportation Code sets forth various privileged actions an emergency vehicle operator may take. See Tex. Transp. Code Ann. 546.001 (Vernon 1999). The Transportation Code also says that the provisions do not relieve the operator of the "consequences of reckless disregard for the safety of others." Tex. Transp. Code Ann. 546.005 (Vernon 1999). The Texas Tort Claims Act applies to actions taken in response to 9-1-1 calls only if the actions violate a statute or ordinance applicable to the situation. See Tex. Civ. Prac. & Rem. Code Ann. 101.062 (Vernon 1997).

Buchanan was authorized to exceed the speed limit and disregard the regulations governing the direction of movement of vehicles. See Tex. Transp. Code Ann. 546.001(3),(4) (Vernon 1999); see also Martin, 971 S.W.2d at 430. The Texas Transportation Code requires the use of audible or visual signals, unless an exception provided by statute applies. See Tex. Transp. Code Ann. 546.003 (Vernon 1999); see Green v. City of Friendswood, 22 S.W.3d 588, 593 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). Appellees claim that Deputy Buchanan exhibited "reckless disregard" in failing to use either his siren or his lights. (1)

Officer Buchanan was performing a discretionary duty within the scope of his authority. However, the "good faith" requirement for official immunity has not been established. Fact issues exist here as to whether or not Deputy Buchanan was using signals and, if not, whether his failure to use audio or visual signals was a violation of a statute or ordinance in reckless disregard for the safety of others such that no reasonable person in the deputy's position could have thought the circumstances justified the deputy's conduct. See City of Lancaster, 883 S.W.2d at 657 (explaining the "good faith" element of official immunity). The trial court has subject matter jurisdiction to resolve those issues.

Liberty County contends that the affidavit of Charles Jackson McClelland, expert witness for the plaintiffs, is insufficient as a matter of law to controvert Buchanan's claim of official immunity. Appellant claims that McClelland is unqualified to render an expert opinion, and that his affidavit is insufficient. McClelland has served as Chief of Police in Orange, Texas, and has served as an instructor at various law enforcement training academies. He has sufficient expertise to provide the opinion testimony. His affidavit raises a fact issue concerning the "good faith" element of official immunity.

We dismiss Buchanan's appeal. We affirm the trial court's denial of Liberty County's plea to the jurisdiction.

APPEAL DISMISSED AS TO BUCHANAN; THE DENIAL OF LIBERTY COUNTY'S PLEA TO THE JURISDICTION IS AFFIRMED.

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DAVID B. GAULTNEY

Justice

 

Submitted on October 11, 2001

Opinion Delivered May 9, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1. The appellees also allege that Liberty County was negligent in training and supervising Buchanan. We note that in Petta, allegations similar to those presented in this case, were held to be "not cognizable under the Texas Tort Claims Act." Texas Dept. of Public Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001).