City of Robstown v. Ramirez, 13-99-738-CV

• Citation: 17 S.W.3d 268
• Decision Date: 31 March 2000
• Docket Number: No. 13-99-738-CV,13-99-738-CV
• Parties: (Tex.App.-Corpus Christi 2000) CITY OF ROBSTOWN, NOE GARZA, JULIAN OLIVERA, J.B. TALLEY, AND JORGE LUIS AGUILAR, Appellants, v. PRIMITIVO RAMIREZ, INDIVIDUALLY AND MICHELLE RAMIREZ, BY AND THROUGH HER NEXT FRIEND, PRIMITIVO RAMIREZ, Appellees
• Court: Court of Appeals of Texas

Page 268

17 S.W.3d 268 (Tex.App.-Corpus Christi 2000)

CITY OF ROBSTOWN, NOE GARZA, JULIAN OLIVERA, J.B. TALLEY, AND JORGE LUIS AGUILAR, Appellants, v. PRIMITIVO RAMIREZ, INDIVIDUALLY AND MICHELLE RAMIREZ, BY AND THROUGH HER NEXT FRIEND, PRIMITIVO RAMIREZ, Appellees.

No. 13-99-738-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

March 31, 2000.

Rehearing Overruled May 11, 2000.

On appeal from the 214th District Court of Nueces County, Texas. [Copyrighted Material Omitted]

Before Justices Dorsey, Chavez, and Rodriguez

OPINION

NELDA V. RODRIGUEZ , Justice

This is an accelerated appeal from the denial of a summary judgment based on the affirmative defense of immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5) (Vernon Supp. 1999). We affirm.

Appellees Primitivo Ramirez, individually and on behalf of minor Michelle Ramirez, and Librada Ramirez filed suit against Appellants the City of Robstown (City), several of its officers, and Jorge Luis Aguilar of the Texas Department of Public Safety¹ for various torts, violations of rights under the United States and Texas Constitutions, and claims under the Texas Tort Claims Act arising from the execution of a search warrant. Appellants filed motions for summary judgment on the grounds of, inter alia, official and sovereign immunity. The trial court denied the motions. By two issues, the City and its officers complain the trial court erred in denying their motion for summary judgment based on the grounds of official and sovereign immunity. By three issues, Aguilar contends the trial court erred in denying his motions for summary judgment because he was entitled to qualified and official immunity and because no cause of action exists under the Texas Constitution for a constitutional tort.

The summary judgment evidence reveals Officer J.B. Talley of the Robstown Police Department obtained information from a confidential informant that appellees' son, Arturo Ramirez, was in possession of cocaine and heroin at appellees' residence. Talley contacted Officer Jorge Luis Aguilar of the Texas Department of Public Safety for assistance in the investigation, and Aguilar escorted the informant to the location where the informant had seen Arturo in possession of the contraband. The informant identified a structure at the rear of 1010 Ohio Street.

A search and arrest warrant was subsequently issued to search 1010 Ohio Street, rear, Robstown, Nueces County for cocaine and heroin. Appellees' actual address, however, was 1013-B Indiana Street. Several Robstown police officers and Aguilar executed the warrant by entering the back door of appellees's residence, which faced Ohio Street, with their guns drawn. In executing the warrant, the officers pushed aside Librada Ramirez, an elderly woman, while she was standing on the porch, and forced their way into the house. An officer found Primitivo Ramirez, who was married to Librada and was also elderly, in his bedroom and pointed a gun at him, grabbed his arms, and handcuffed him. Primitivo was on his bed, and when he attempted to get up, the officer held him down on the bed. Primitivo was then taken to the kitchen, and the handcuffs were removed. According to Primitivo, the handcuffs were on him for eight to ten minutes.

Two officers also entered the bedroom of Michelle Ramirez, who was fourteen years old. One of the officers pointed his gun at her, and told her not to move. The officer holstered his gun after Michelle sat on her bed. The officer then told her to close the curtains because people were looking inside, and she did so. One or both of the officers searched Michelle's room for approximately ten minutes. The officers never touched her. In total, the officers searched appellees' home for approximately twenty to thirty minutes and left the home in a disheveled state. Arturo was not at the premises and no cocaine or heroin was found. Appellees claim they suffered fright, nervousness, and humiliation as a result of the search.

Appellees originally filed suit in the United States District Court for the Southern District of Texas, which granted partial summary judgment in favor of appellants as to all federal claims and some state claims. The court dismissed appellees' remaining state claims without prejudice. The United States Court of Appeals for the Fifth Circuit affirmed the summary judgment. Appellants bring this interlocutory appeal from the denial of motions for summary judgment from the 214th Judicial District Court of Nueces County, Texas.

The City and its officers, in their first issue, and Aguilar, in his second issue, contend the trial court erred in denying their motions for summary judgment because the officers were entitled to official immunity. To prevail in a motion for summary judgment, the movant has the burden to show there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See City of El Campo v. Rubio, 980 S.W.2d 943, 948 (Tex. App.--Corpus Christi 1998, no pet.). This burden may be satisfied by conclusively establishing all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); City of Pharr v. Ruiz, 944 S.W.2d 709, 712, (Tex. App.--Corpus Christi 1997, no writ). Official immunity is an affirmative defense. See Rubio, 980 S.W.2d at 948. Consequently, the burden was on appellants to establish the elements of their affirmative defense. See id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984)). In determining whether there is a genuine issue of material fact precluding summary judgment, we indulge every reasonable inference in favor of the non-movant and view evidence favorable to the non-movant as true. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Employees of the government are entitled to official immunity from suit for the performance of discretionary duties, that are within the scope of their authority, and performed in good faith. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Ruiz, 944 S.W.2d at 712. We conclude, and the parties do not contest, that the officers performed discretionary duties in obtaining and executing the warrant. See City of Coppel v. Waltman, 997 S.W.2d 633, 637 (Tex. App.--Dallas 1998, pet. denied) (officer's search of arrestee is discretionary act); City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App.--Houston [1st Dist.] 1995, no writ) (police officers exercise discretion in conducting investigation before seeking warrant); Closs v. Goose Creek School Dist., 874 S.W.2d 859, 876 (Tex. App.--Texarakana 1994, no writ) (investigation of criminal activity and execution of search warrant are generally discretionary acts calling for personal deliberation and judgment).

Officials act within the scope of their authority when they discharge duties generally assigned them. See Chambers, 883 S.W.2d at 658; City of Hidalgo v. Prado, 996 S.W.2d 364, 368 (Tex. App.--Corpus Christi 1999, no pet.). Even if the action is wrongful or negligent, the official still acts within the scope of his authority. See Prado, 996 S.W.2d at 368. We conclude that the peace officers acted within the scope of their authority by obtaining and executing a search and arrest warrant. Thus, the remaining issue is whether the officers acted in good faith.

In evaluating good faith, we apply an objective legal reasonableness test, disregarding the officer's subjective state of mind. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); City of Lancaster, 883 S.W.2d at 656. An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to take action outweighed a clear risk of harm to the public in taking the action. See Wadewitz, 951 S.W.2d at 466-67; City of Lancaster, 883 S.W.2d at 656-57.

When the summary judgment movant satisfies the legal reasonableness test, the non-movant must controvert that proof by showing that "no reasonable person in the [officer's] position could have thought the facts were such that they justified [the officer's] acts." City of Lancaster, 883 S.W.2d at 657; see Geick v. Zigler, 978 S.W.2d 261, 265 (Tex. App.--Houston [14th Dist.] 1998, no writ). Thus, there is "an elevated standard of proof for the non-movant seeking to defeat a claim of official immunity in response to a motion for summary judgment." City of Lancaster, 883 S.W.2d at 656.

According to appellees, the officers acted unreasonably in obtaining and executing the warrant. Specifically, appellees maintain Talley failed to investigate the accuracy of the information provided by the informant and failed to verify the informant's credibility. Additionally, appellees assert the search was unreasonable because the warrant contained an address that was different from their address. Finally, appellees contend the officers used excessive force in execution of the warrant.

Appellants urge that appellees are precluded from asserting the warrant was invalid, under the doctrines of collateral estoppel and res judicata, because a federal district court and appellate court previously found the warrant valid. As appellants note, the United States Court of Appeals for the Fifth Circuit affirmed the district court's granting of summary judgment, and found the warrant was properly issued. See Ramirez v. City of Robstown, et al., No. 95-40037, slip op. 68 F.3d 467 (5th Cir. 1995) (unpublished). The court also found that, although the warrant misstated appellees' address, it described their residence with sufficient particularity. Finally, the court concluded that no jury could have determined the officers exercised anything more than a de minimus use of force.

We lack jurisdiction to consider the defenses of res judicata or collateral estoppel independent of appellants' assertions of immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5) (Vernon Supp. 1999); ...