EX PARTE GEORGE ALVIN JONES (Other)

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-70,221-02

Case Date: 12/09/2009

Plaintiff: LAWRENCE BENNY BROWN JR.

Defendant: THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

Preview:Brooks County Deputy Sheriff Beto Gonzalez v. Jose Armando Saenz, et al.--Appeal from 79th Judicial District Court of Brooks County
MEMORANDUM OPINION No. 04-05-00525-CV Brooks County Deputy Sheriff Beto GONZALEZ, Appellant v. Jose Armando SAENZ, Individually, as Personal Representative of the Estate of Graciela Saenz, and as Next Friend of Raymond Saenz and Rick Joe Saenz, minors, Mary Bedelia Mu oz, Marisa Saenz, Mike Esquivel, and Lucas and Mona P. Hinojosa, Individually and as Personal Representatives of the Estate of Jose Roberto Hinojosa, Appellees From the 79th Judicial District Court, Brooks County, Texas Trial Court No. 96-08-07449-CV Honorable Richard C. Terrell, Judge Presiding

Opinion by: Karen Angelini , Justice Sitting: Alma L. L pez, Chief Justice Karen Angelini , Justice Phylis J. Speedlin , Justice Delivered and Filed: March 15, 2006 AFFIRMED This accelerated, interlocutory appeal arises from the trial court's denial of Brooks County Deputy Sheriff Beto Gonzalez's motion for summary judgment based on official immunity. On appeal, Gonzalez argues that the trial court erred in denying his motion for summary judgment based on the "public duty doctrine" and section 101.106 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order. Factual and Procedural Background The underlying lawsuit is a wrongful death action arising from an automobile accident in which a truck driven by an intoxicated driver, Jose Zuniga, collided head-on with Jose Armando Saenz's automobile, killing two adults and seriously injuring three minor children. The appellees sued Deputy Gonzalez for failing to stop Zuniga immediately before the collision.

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On June 19, 1995, Deputy Sheriff Gonzalez and Reserve Deputy Martinez were patrolling an area when they drove up behind a vehicle driven by Zuniga. According to appellees, although Zuniga was driving in a manner indicating that he was intoxicated, Deputy Gonzalez refused to stop and detain Zuniga and ordered Deputy Martinez not to stop Zuniga and to continue patrolling. Some twenty minutes later, Zuniga was involved in a major car accident with Jose Armando Saenz's vehicle. According to Deputy Martinez, Deputy Gonzalez instructed him not to say anything about their encounter with Zuniga. Appellees sued numerous parties, including Brooks County and Deputy Gonzalez. Because appellees pled a 42 U.S.C. 1983 claim and a substantive due process claim under the United States Constitution, the case was removed to federal district court. Brooks County and Deputy Gonzalez then filed a motion for summary judgment based on qualified immunity. With respect to the appellees' federal claims, the federal district court granted summary judgment for Brooks County and Deputy Gonzalez based on qualified immunity, holding that Deputy Gonzalez had no constitutional duty to protect the passengers' lives from Zuniga's conduct. Saenz v. Heldenfels Bros., 183 F.3d 389 (5th Cir. 1999). The federal district court then severed and remanded the appellees' remaining state law claims of negligence and gross negligence. Id. Appellees appealed the federal district court's summary judgment, and on appeal, the Fifth Circuit affirmed. Id. at 393. In state district court, appellees non-suited Brooks County. Deputy Gonzalez then moved for summary judgment based on official immunity, arguing that he had acted in good faith in failing to stop Zuniga for further investigation. Saenz v. Gonzalez, 94 S.W.3d 659, 660 (Tex. App.--San Antonio 2002, pet. denied). The trial court granted summary judgment, and appellees appealed. On appeal, this court noted that because there were conflicting affidavits, the evidence failed to conclusively establish that Gonzalez had acted in good faith, and as such, the trial court erred in granting summary judgment. Id. at 664. This court, therefore, reversed the trial court's judgment and remanded the case. Deputy Gonzalez then filed another motion for summary judgment, arguing that he owed no duty to the passengers injured in the accident and that appellees' claims are barred by section 101.106 of the Texas Civil Practice and Remedies Code. The trial court denied the motion. Deputy Gonzalez now appeals. Standard of Review Generally, a party may appeal only from a final judgment. N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Thus, because an order denying a motion for summary judgment is not a final judgment, it is generally not appealable. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). However, a party may file an interlocutory appeal from an order denying a motion for summary judgment that is "based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(5) (Vernon 1997). To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In reviewing a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644. In addition, we must assume all evidence favorable to the nonmovant is true. Id. When a defendant moves for summary judgment based on an affirmative defense, he has the burden to conclusively establish each element of the defense as a matter of law. Velsicol Chem. Corp. v. Winegrad, 956 S.W.2d 529, 530 (Tex. 1997). Discussion A. Section 101.106 of the Texas Practice and Remedies Code Deputy Gonzalez argues that the trial court erred in denying his motion for summary judgment based on official immunity because appellees' claims are barred pursuant to section 101.106 of the Texas Civil Practice and Remedies Code. Because section 101.106 does not apply here, we disagree. The purpose of section 101.106 of the Texas Civil Practice and Remedies Code is to prevent actions against
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governmental employees that would be, in essence, second attempts at recovery for the same claim. Lowe v. Teator, 1 S.W.3d 819, 822 (Tex. App.--Dallas 1999, pet. denied). Section 101.106 provides: A judgment in an action or settlement of a claim under this chapter, bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim. Tex. Civ. Prac. & Rem. Code Ann. 101.109 (Vernon 1985) (2003 amendment not applicable in the instant case) (emphasis added); see also Zaragoza v. City of Grand Prairie, 998 S.W.2d 395, 398 (Tex. App.--Texarkana 1999, no pet.) ("The express language of section 101.106 bars any action against a government employee where there is a Tort Claims Act judgment or settlement concerning the same subject matter."). Here, the federal court granted summary judgment in favor of Deputy Gonzalez and Brooks County by determining that they were not liable under section 42 U.S.C. 1983. The federal court, however, did not rule that Deputy Gonzalez or Brooks County were not liable under the Texas Torts Claims Act. Section 101.106 of the Texas Tort Claims Act applies only to judgments "under this chapter." See Whitesell v. Newsome, 138 S.W.3d 393, 396 (Tex. App.--Houston [14th Dist.] 2004, pet. denied) (holding that section 101.106 did not apply because federal district court's summary judgment ruling that an independent school district was not liable under section 1983 for alleged sexual misconduct by its employee was not, pursuant to section 101.106, a judgment "under this chapter," i.e. the Texas Tort Claims Act). Therefore, because the federal court did not rule that there was no liability under the Texas Tort Claims Act, section 101.106 does not apply here. B. Duty In his second issue, Gonzalez argues that he is entitled to official immunity pursuant to the "Public Duty Doctrine" because, as a matter of law, he owed no legal duty to the passengers in the vehicle involved in the accident. We, however, decline to address the merits of this issue because it is one that cannot be brought in an interlocutory appeal. As discussed, pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, Gonzalez can file an interlocutory appeal from an order denying summary judgment based on immunity. However, we do not have jurisdiction to address issues other than immunity. See Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex. App.-Houston [1st Dist.] 1993, no writ) ("We interpret section 51.014(5) to mean that the assertion of immunity is the only ground for summary judgment whose denial we can review under that section."). Here, although Gonzalez discusses the "Public Duty Doctrine" in the context of official immunity, he cites no authority for such a proposition. Indeed, cases discussing whether police officers owe a duty to the public at large do so in the context of the general elements of negligence.See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); see also Vaquera v. Salas, 810 S.W.2d 456, 461 (Tex. App.--San Antonio 1991, writ denied). In other words, the issue is not whether Gonzalez is immune from suit because of the "Public Duty Doctrine"; instead, the issue is whether appellees' claims of negligence fail because, as a matter of law, they cannot prove an element of the claim: duty. As such, whether Gonzalez owed a duty to appellees is not an issue based on immunity and must, therefore, be reviewed after a final judgment is entered; it cannot be reviewed in this accelerated appeal. See Tex. State Tech. Coll. v. Cressman, 172 S.W.3d 61, 65 (Tex. App.--Waco 2005, pet. filed) (holding that the scope of interlocutory appeal from denial of motion for summary judgment based on official immunity was limited to immunity question and, thus, the appellate court did not address whether the plaintiffs' allegations stated a claim for illegal eavesdropping). Conclusion Because appellees' claims are not barred by section 101.106 of the Texas Civil Practice and Remedies Code, we affirm the trial court's order. Karen Angelini , Justice

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