State v. Terrell

• Decision Date: 19 September 1979
• Docket Number: No. B-8167,B-8167
• Citation: 588 S.W.2d 784
• Parties: The STATE of Texas, Petitioner, v. James M. TERRELL et al., Respondents.
• Court: Texas Supreme Court

Page 784

588 S.W.2d 784

The STATE of Texas, Petitioner, v. James M. TERRELL et al., Respondents.

No. B-8167.

Supreme Court of Texas.

Sept. 19, 1979.

Rehearing Denied Nov. 21, 1979.

Mark White, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for petitioner.

Whitten, Sprain, Price, Wagner & Edwards, Marvin S. Sprain, Billy John Edwards and David R. Cobb, Abilene, Webb, Stokes & Sparks, Tom Webb, San Angelo, for respondents.

GREENHILL, Chief Justice.

The question presented in this Texas Tort Claims Act case is whether the State of Texas is subject to liability for personal injuries resulting from a highway patrol officer's negligent operation of a motor vehicle.

James M. Terrell and Security National Insurance Company, ¹ our respondents, brought suit against highway patrolman James E. White and against the State of Texas, our petitioner, for damages for personal injuries allegedly resulting from a collision of Mr. Terrell's and Officer White's automobiles. The District Court rendered summary judgment for the State and severed Mr. Terrell's suit against Officer White from the suit against the State. The Court of Civil Appeals reversed the summary judgment and remanded the case against the State for trial. 574 S.W.2d 616. We affirm the judgment of the Court of Civil Appeals.

The summary judgment proof shows that the collision in question occurred on December 18, 1975, at about 6:00 p. m., on Highway 67 in Runnels County. Officer White had parked his patrol car on the shoulder of the westbound lane of the highway and was operating radar equipment for the detection of speeding eastbound traffic. Upon detecting a speeding eastbound vehicle, Officer White started his vehicle and moved his car into the westbound lane of the road. As he pulled his vehicle onto the highway, his vehicle collided with Mr. Terrell's westbound automobile. It is undisputed that Officer White had not turned on either the red light or the siren of his patrol car before the collision occurred.

The State contends that, by virtue of the doctrine of sovereign immunity, it is not subject to suit or to liability for any damages caused by the negligence of Officer White in operating his vehicle. Under this doctrine, the State is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949).

The Texas Tort Claims Act, article 6252-19, ² provides for a limited waiver of this immunity. The waiver involved in this case is found in the following provision of the Act:

Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment . . . under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state . . . .

Section 14 of the Act, however, provides numerous exceptions to the waiver of immunity found in the above-quoted provision. Two of the exceptions to liability relevant to our consideration of this case are:

(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.

(9) Any claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.

The State contends that section 9 exempts the State from liability in this case. The State's argument is that this provision applies to all claims that arise out of actions taken by policemen in providing police protection. ³ The effect of the State's broad construction of this statutory exception would be to relieve governmental units from liability for the negligent acts of police and firemen if those acts occur while the government employees are acting in the course and scope of their employment. Since a governmental unit is liable only if its employees or officers are acting within the scope of their employment, ⁴ this construction of the statute would exempt virtually all activities of police and firemen from the Texas Tort Claims Act. We do not believe the Legislature intended to create such a broad exclusion.

The fundamental rule controlling the construction of a statute is to ascertain, if possible, the intention of the Legislature as expressed in the language of that statute. Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (Tex.1974). In ascertaining this intent, courts must examine the entire statute or act and not merely an isolated portion thereof. Id. Further, if the intent of the Legislature is ascertained, courts must enforce that intent even though the intent is not altogether consistent with the strict letter of the statute. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947). Admittedly, the ascertaining of the legislative intent underlying the Texas Tort Claims Act has not proved to be an easy task for Texas courts. ⁵

Section 14(9), the exclusionary provision on which the State relies, speaks first to the exclusion of claims "connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion . . . ." This provision is similar to those found in the Tort Claims Acts of several states. ⁶ The purpose of this provision appears to be twofold: 1) to exclude liability for any injuries occurring as a result of police or military efforts to control riots and the like, and 2) to exclude liability for injuries resulting from a government's decision on How to control the riot or whether to control it at all. Thus, this exclusion for civil disturbances is quite broad in that it covers all acts by government officers and employees as well as all policy-making decisions.

The Legislature's apparent concern in enacting this provision was, in part, the enormous liability that would fall on local governments as a result of allowing recovery for damages caused by rioting and attempts to control it. ⁷ Another apparent concern, however, was to prevent judicial review of governmental decisions on how to control these disturbances. Were judges and juries allowed to pass on the wisdom of a city's decision not to control a riot or prevent subsequent looting, the ultimate authority for making such decisions would no longer lie with the officials who, traditionally, are politically responsible for making such decisions. The Legislature has apparently chosen to let that ultimate authority remain with those government officials.

The second portion of the exclusionary provision in question is the part on which the State relies for immunity. This portion provides that governmental immunity is retained for "(a)ny claim based on an injury or death connected with any act or omission . . . arising out of the failure to provide, or the method of providing, police or fire protection." The clause exempting governments from liability for injuries arising out of the failure to provide police or fire protection is clearly designed to avoid judicial review of the policy decisions that governments must make in deciding how much, if any, police or fire protection to provide for a community. Thus, this clause has a purpose similar to the second purpose underlying the provision excluding injuries arising out of riots and other civil disturbances. For the reasons given below, we think that it was solely this second purpose that the Legislature considered in enacting the second portion of this exclusion.

This exclusion of policy decisions from judicial review is similar to another exclusion in the Texas Tort Claims Act: article 5262-19, section 14(7). ⁸ Section 14(7) excludes liability for all claims based on a government's failure to perform an act when the law leaves performance of the act to the Discretion of the government. Section 14(7) appears to be broad enough to encompass the exclusion for failure to provide police or fire protection. As we understand the two provisions, the purpose of both is the same: to avoid a judicial review that would question the wisdom of a government's exercise of its discretion in making policy decisions. The interests to be served by these provisions are several E. g., effective, unfettered performance of officials in making policy decisions and the maintenance of the separation of powers between the executive, legislative, and judicial branches of government. ⁹

The State, however, relies on another clause in this exclusionary provision concerning police and fire protection. This clause is that exempting liability for injury or death arising out of "the Method of providing" police or fire protection (emphasis added). The State would construe this clause to be a general exclusion for any act or omission that occurs while an officer is providing police or fire protection to the public. We think that the Legislature did not intend to create such a broad exclusion.

The term "method" is defined as "a procedure or process for attaining an object" and as an "orderly arrangement, development or classification." Webster's Third New International Dictionary 1422-23 (1966). The term is synonymous with the words "mode," "plan," "design," or "system." Id. Thus, the "method" of performing an act refers to the Decision or Plan as to how the act is to be performed. Similarly, the "method of providing police or fire protection"...