This term, the Texas Supreme Court will hear three cases that ask whether police officers involved in automobile crashes while responding to calls for service acted with “reckless disregard” which would negate the immunity from suit they typically enjoy under the Texas Tort Claims Act.
Watchers of the court have said it is noteworthy for the high court to hear three cases dealing with the same narrow emergency exception to the TTCA in one term and spoke to The Lawbook about why the court might be interested in clarifying this area of the law.
Today, the court heard oral arguments in City of Houston v. Sauls, a case involving an officer who was driving 62 mph in a 40-mph zone when he struck and killed a bicyclist while responding to a call for a suicide in progress. On Feb. 22 the court is slated to hear the other two cases — City of Houston v. Rodriguez, where officers pursuing a prostitution suspect in a stolen car crashed into a pickup truck,and City of Austin v. Powell, where officers in pursuit of a shooting suspect crashed into a minivan.
Jason LaFond, senior counsel with Yetter Coleman, noted that because the TTCA is the only route citizens have to sue the state or a governmental entity for a tort claim, it frequently comes up in cases before the court each term.
“But any time there are three cases talking about the same part of a statute, that’s going to raise curiosity,” he said of the emergency exception central to these three cases.
The emergency exception states that the TTCA doesn’t apply to claims arising from:
“The action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.”
It could be that the court has granted review in these three cases to address the nuances in each while providing a thorough explanation of the law, said David Coale, partner at Lynn Pinker Hurst & Schwegmann.
“Certainly the U.S. Supreme Court does this frequently, which is consolidating a number of similar cases so they can meaningfully explain the rule of law,” he said. “There might be some thinking like that going on here — by taking a couple of cases, writing some related opinions, the court can offer a better explanation than it can in one case.”
Generally speaking, the Texas Supreme Court more often grants review in cases to reverse a ruling than it does to affirm, LaFond said in speculating on the possible outcome in these three cases.
“Here you have three court decisions, all with the government defendants on the petitioner’s side, and then in the two Houston cases you had a dissent in each of those court of appeals opinions,” he said. “Just on those two facts alone, it seems like the court might be looking at what is happening in the lower courts on this issue broadly and that it might need to reign courts in.”
Bill Helfand, partner at Lewis Brisbois Bisgaard & Smith, said he believes the court is likely to build on the framework for analyzing the emergency exception that it outlined in its 2022 ruling in City of San Antonio v. Maspero.
In Maspero, San Antonio police officers engaged in a chase that reached nearly 100 mph pursuing a drug trafficking suspect that ended with a crash into the Maspero family car, killing two of their sons and injuring two other children as well as the parents.
The Texas Supreme Court held the emergency exception applied in this case and barred the family from suing the city.
“Maspero does seem to answer the questions presented by all three cases,” Helfand said. “It reinforces a concept to which the Supreme Court has held firm really since the enactment of the Tort Claims Act but the courts of appeals have waivered from time to time. There’s a heavy presumption of governmental immunity.”
Helfand pointed to Fourteenth Court of Appeals Justice Kevin Jewell’s dissent in the Rodriguez case to illustrate the point further.
“This could be a broader effort by the court to once again make a bright line, clear explication of the rule of law from which the Supreme Court has not waivered, which is courts of appeal or trial courts are not supposed to try and find exceptions or waiver,” he said. “Justice Jewell’s dissent really holds true to that … it’s consistent with the Maspero case and the long line of cases holding that there’s immunity unless disproven by the plaintiff.”
In the Sauls case, Houston is represented by Christy L. Martin of the city attorney’s office and Sauls is represented by Margaret Bryant of Ware, Jackson, Lee, O’Neill, Smith & Barrow and Michael Patrick Doyle, Patrick M. Dennis and Jeffrey I. Avery of Doyle.
In the Rodriguez case, Houston is represented by Christy L. Martin of the city attorney’s office and Rodriguez is represented by Robert A. McAllister Jr.
In the Powell case, Austin is represented by Anne L. Morgan and Meghan L. Riley of the city attorney’s office and Powell is represented by solo practitioner Geoffrey N. Courtney, Andrew E. Toscano of Gene Toscano and solo practitioner Clay Walker Morgan.
The cases are City of Houston v. Sauls, case number 22-1074; City of Houston v. Rodriguez, case number 23-0094; and City of Austin v. Powell, case number 220662.