Garza v. Harrison

• Decision Date: 24 May 2019
• Docket Number: No. 17-0724,17-0724
• Citation: 574 S.W.3d 389
• Parties: Rey GARZA, Petitioner, v. Roxana Regalado HARRISON and Joseph Santellana, Individually and as Representative of the Estate of Jonathen Anthony Santellana, Deceased, Respondents
• Court: Texas Supreme Court

574 S.W.3d 389

Rey GARZA, Petitioner,

v.Roxana Regalado HARRISON and Joseph Santellana, Individually and as Representative of the Estate of Jonathen Anthony Santellana, Deceased, Respondents

No. 17-0724

Supreme Court of Texas.

Argued January 10, 2019

OPINION DELIVERED: May 24, 2019

William S. Helfand, Norman R. Giles, Lewis Brisbois Bisgaard & Smith LLP, Houston TX, for Petitioner.

Thad D. Spalding, Dana Brooke Levy, Durham, Pittard & Spalding, L.L.P., Dallas TX, Geoffrey A. Borschow, Guerra & Farah PLLC, El Paso TX, George K. Farah, The Law Offices of Guerra & Farah, PLLC, Peter Michael Kelly, First Court of Appeals, Houston TX, for Respondents.

Justice Guzman delivered the opinion of the Court.

The election-of-remedies provision in section 101.106(f) of the Texas Tort Claims Act requires courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an "official capacity" but allows the governmental unit to be substituted for the employee.¹ By adopting section 101.106(f), the Legislature has effectively mandated that only a governmental unit can be sued for a governmental employee's work-related tortious conduct.² In this case, an off-duty law enforcement officer fatally shot a suspect during the course of an attempted arrest outside his primary jurisdiction. The decedent's parents sued the officer in his individual capacity for wrongful death, but the officer asserts the action is actually an official-capacity suit that must be dismissed under the Act.

As defined in section 101.106(f), a governmental employee is sued in an official capacity when the suit (1) is "based on conduct within the general scope of that employee's employment" and (2) "could have been brought under [the Act] against the governmental unit."³ Here, the trial court denied the officer's dismissal motion, citing a fact issue as to whether the officer was acting as a peace officer or as a security guard for his landlord at the time of the shooting. The court of appeals affirmed, but applied a textually unsupportable distinction in holding that, as a matter of law, the officer could not have been doing his job as a peace officer because a peace officer operating extraterritorially would merely be authorized—not obligated—to make an arrest under the extant circumstances.⁴

We reverse the court of appeals' judgment and render judgment dismissing the suit against the officer. The scope-of-employment inquiry under section 101.106(f) focuses on whether the employee was doing his job, not the quality of the job performance.⁵ Even if work is performed wrongly or negligently, the inquiry is satisfied if, when viewed objectively, "a connection [exists] between the employee's job duties and the alleged tortious conduct."⁶ A connection exists between the defendant law enforcement officer's job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence—authority he possessed solely through his governmental employment.

I. Background

The City of Navasota Police Department hired and commissioned Rey Garza as a licensed peace officer. Though employed in Grimes County, Garza resided at an apartment complex in neighboring Harris County. In exchange for rent concessions, and with the police department's permission, Garza agreed to work for the apartment complex on a part-time basis as a "Courtesy Patrol Officer."⁷ In that capacity, Garza's "primary responsibility" was to deter criminal activity by being "highly visible." He was also responsible for circulating notices to the residents; inspecting the property for broken lights and other safety concerns; patrolling the property for parking violations, trespassers, vandalism, and other security issues; and documenting his observations in written reports to the apartment-complex manager.

As stated in the apartment complex's policies and procedures, courtesy officers are not classified as police officers by the complex; are not required or authorized to pursue and apprehend criminals; and if a crime occurs, should "[r]eport to the police or the Courtesy Patrol Officer's supervisor." Courtesy officers may question people on the property but apartment-issued guidelines prohibit them from making arrests, searching suspects, and carrying or using deadly weapons. The policy further warns that courtesy officers do not have "[t]he same job duties as police officers" or "[t]he same powers as police officers, according to the law." The policy includes an acknowledgement—which Garza may or may not have signed—affirming the understanding that "while providing [courtesy patrol] services" for the apartment complex, courtesy officers are "acting at the company's authority in the capacity of a Patrol/Courtesy Officer and not as an active/off duty Police Officer in the State of Texas."⁸

The tragic encounter giving rise to this wrongful-death action occurred when Garza, already off duty from his Navasota Police Department job, arrived at the apartment complex after running personal errands one afternoon. Garza parked his car next to a vehicle he did not recognize and saw Jonathen Santellana, an individual he did not recognize, descending the staircase of one of the apartment buildings. Garza, who was dressed casually in plain clothes, crossed paths with Santellana and observed him staring at something in his hand. Garza did not see the object, but he suspected it was drugs because Santellana had been in an area of the complex where Garza had frequently detected the odor of marijuana and had observed unusually heavy foot traffic.

Garza neither engaged nor detained Santellana, but due to his suspicions, he continued on to his apartment to retrieve his firearm and then returned to his own vehicle, where he saw Santellana and a female passenger sitting in the adjacent car. As Garza stood between the passenger side of his vehicle and the driver's side of Santellana's, he witnessed Santellana putting marijuana into a pill bottle. Santellana's possession of marijuana has not been disputed, but Garza's account of what happened next is contested and, in certain respects, controverted by evidence.

According to Garza, once he viewed Santellana engaged in a crime, he displayed his police badge and identification card to Santellana through the driver's side window, identified himself as a police officer, and asked Santellana to step out of the car. Garza says Santellana ignored the officer's commands and instead started the vehicle. Fearing he would be pinned between the vehicles, Garza claims he opened the driver's door and reached in to turn the ignition off, but with the driver's door open, the vehicle started moving in reverse, scraping the side of Garza's vehicle. To avoid getting run over or crushed, Garza reportedly hung onto the door and "back-pedal[ed]" while attempting to grab the car keys. As Garza tells it, he drew his weapon and fired two shots through the side window in an attempt to stop Santellana. Garza expended several additional rounds as Santellana continued backing the car out of the parking spot.

Controverting Garza's account, a third-party witness averred that Garza fired through the windshield from a distance as Santellana attempted to drive away. The witness recounted that after hearing the first two shots, she spotted the shooter on the sidewalk, watched him walk toward the vehicle and stop about two feet in front of it near the passenger side, and then fire three to five shots through the windshield while holding the gun with both hands.

What is not in dispute is that, Santellana, who had been shot twice, managed to drive a short distance before crashing his vehicle into another resident's truck. He later died from his wounds

.⁹

Santellana's parents, Roxana Regalado Harrison and Joseph Santellana (collectively, the plaintiffs), sued Garza and the apartment complex in state court for wrongful death¹⁰ and filed a section 1983 excessive-force complaint against Garza and the City of Navasota in federal court.¹¹ In the state-court lawsuit, the plaintiffs alleged Garza was working as an employee for the apartment complex at the time of the incident, and in the federal-court lawsuit, the plaintiffs alleged Garza acted under color of state law and in accordance with Navasota Police Department policies, customs, and training that were constitutionally defective.¹²

After engaging in discovery in the state-court action, Garza filed a motion to dismiss based on the election-of-remedies provision in section 101.106(f) of the Tort Claims Act, which provides:

If a suit is filed [1] against an employee of a governmental unit [2] based on conduct within the general scope of that employee's employment and [3] if it could have been brought under [the Tort Claims Act] against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.¹³

In response, the plaintiffs did not amend their state-court pleadings to dismiss Garza and name the City of Navasota as a defendant, as section 101.106(f) allows. Instead, they argued section 101.106(f) is inapplicable because Garza was acting in the scope of his employment as a courtesy patrol officer for the apartment complex, not as a peace officer under his commission with the Navasota Police Department.

The trial court denied Garza's motion to dismiss citing a fact issue about whether Garza "was acting within the authorized course and scope of a police officer or as an employee of [the apartment complex] at the time of the occurrence at issue." On interlocutory appeal,¹⁴ the court of appeals affirmed, but for different reasons.¹⁵

The only disputed issue before the appeals court was...