Rebeca García vs. la Ciudad de Austin

4/22/2022 4:50 PM
Velva L. Price
D-1-GN-22-001902
District Clerk
Travis County
No.
D-1-GN-22-001902
Ruben Tamez
REBECA GARCIA,
§
IN THE DISTRICT COURT
PLAINTIFF,
§
345TH, DISTRICT COURT
§
V.
§
JUDICIAL DISTRICT
§
§
THE CITY OF AUSTIN
§
TRAVIS COUNTY, TEXAS
DEFENDANT.
§
PLAINTIFF'S ORIGINAL PETITION
To the Honorable Court:
NOW COMES Rebeca Garcia, Plaintiff, complaining of the City of Austin, Defendant,
and for cause of action shows this Court the following:
I.
Introduction
This is a lawsuit about City of Austin police officer Christopher Taylor, who shot and killed
Mike Ramos, an unarmed Black man, in front of his girlfriend, Plaintiff Rebeca Garcia, on April
24, 2020.
On April 24, 2020, Mike and Rebeca were sitting in a vehicle in the parking lot of an
apartment complex. Austin police officers surrounded the vehicle and held the occupants at gun
point. The officers yelled commands and one officer fired a so-called "less-lethal" round, hitting
Mike. Mike got into the vehicle and began to slowly drive away from the police. That is when
Officer Taylor shot and killed Mike Ramos while his girlfriend, Rebeca Garcia, was forced to
stand by and watch.
II. Parties
1.
Rebeca Garcia is a citizen of Texas, and a resident of Austin, Texas at the time of
the complained-of incident.
1
2.
Defendant City of Austin is a Texas municipal corporation in the Western District
of Texas which funds and operates the Austin Police Department ("APD").
III.
Jurisdiction
3.
The subject matter in controversy is within the jurisdictional limits of this Court.
a. The City of Austin is subject to jurisdiction because it is a Texas municipality and
because this case is about its employee's conduct that occurred here in Austin, Texas.
IV.
Venue
4.
Travis County is the correct venue for this lawsuit because the events described
above and below occurred in Travis County.
V.
Service
5.
Defendant may be served, by and through its attorney of record pursuant to Texas
Rules of Civil Procedure.
VI.
Discovery Level
6. Pursuant to Texas Rules of Civil Procedure 47, discovery is intended to be conducted under
Level 2 because it involves a claim for damages of monetary relief over $1,000,000.
VII.
Facts
A. Officer Taylor shot and killed Mike Ramos in front of Rebeca Garcia
8. On April 24, 2020, Austin Police responded to a 911 report about a man with a gun and a
woman using drugs in a gold and black Prius in the front parking area of a South Austin
apartment complex. The man was Mike Ramos and he did not, in fact, have a gun:
Operator: Austin 911, do you need police, fire, or EMS?
Caller: Police.
Operator: Okay. To what address or location?
Caller: 2601 South Pleasant Valley.
Operator: I'm sorry you said 2601 South Pleasant Valley?
Caller: Yeah.
2
Operator: Okay, hold on just one moment, please. Okay. At the Rosemont at Oak
Valley Apartments?
Caller: Yeah. I'm in the Rosemont Apartments, it's a - it's a - it's a gold and black
Prius outside. (unintelligible).
Operator: I'm sorry. The phone is real muffled. I couldn't hear what you were
saying.
Caller: I can barely hear you.
Operator: Okay. I need you to start over. [ couldn't understand anything you were
saying. What's going on?
Caller: They're in the car smokin' crack and cookin' meth.
Operator: Okay. What color and type of vehicle is it?
Caller: Uh, it's a gold Prius. It's a gold Prius with a Hispanic man and Hispanic
woman. They got toilet paper in the front - toilet paper in the front dash window.
And I seen him with a gun, he had a gun, too.
Operator: You said a gold and black Prius?
Caller: Yes. And he has a gun. He has a gun to this lady.
Operator: You see him holding one to her?
Caller: Yes, I seen him holding a gun, maam.
Operator: Is he doing that right now?
Caller: Yes.
Operator: Just one moment. Is he pointing it at her?
Caller: He's he's holding it up.
Operator: He's holding it up? Or is he pointing it at her?
Caller: He - he was pointing it at her. But he got - he got - maam, I don't know
what's goin' on but I need yall to come quick.
Operator: Okay. But I need to know the difference. Is he pointing it at her or just
holding in, it up?
Caller: He's holding it. He's holding it.
Operator: Okay. Is he - is he - but you said Hispanic male. Could you see what
color clothing he has on?
Caller: Uh, it's like a white shirt. (Unintelligible) it's a gold and black Prius. He has
Operator: Okay. Are they- okay.
Caller: I'm (unintelligible).
Operator: I need you to - (redacted), I understand. I already have officers en route.
I'm trying to get this information to them. Where at in the parking lot? Is he by a
particular building number? Or - okay. I can't understand anything you're saying.
You're pulling the phone away or something.
Caller: The first - the first left - it's gonna be the first left.
I
As it turned out, the caller truly did not know what was going on. The police found a man and a woman in a gold
and black Prius, but the man was not. in fact wearing a white shirt (Mike's shirt was red) and he was not, in fact, in
possession of a gun. Upon information and belief, the caller deliberately swatted Mike. "Swatting" is defined in the
Cambridge Dictionary as: the action of making a false report of a serious emergency so that a SWAT team (a group
of officers trained to deal with dangerous situations) will go to a person's home, by someone who wants to frighten,
upset, or cause problems for that person. Swatting, DICTIONARY.COM,
https://dictionary.cambridge.org/dictionary/english/swatting.
3
Operator: When you enter the apartments?
Caller: Yes. It's gonna be the first left. It's gonna be the first left (unintelligible).
Operator: Okay. I do - like I said, I have officers already en route right now. 2
9. Austin Police Chief Brian Manley summarized what happened next in his report about the
shooting to the Texas Attorney General:
Before arriving at the scene, officers stopped briefly to discuss their response to the
area and create a plan before attempting to approach the subjects in the vehicle.
After formulating a course of action, officers approached the area in marked
patrol units. Officers strategically parked their patrol vehicles, effectively
blocking the exit and mitigating the risk of flight. 3 Officers observed the
Toyota
Prius backed into a parking spot in the apartment complex parking lot near the one-
way entrance/exit. Officers immediately commanded both subjects to show their
hands as police communications identified the nature of the call as "gun urgent."
Officers continued to give verbal commands as both the male and female exited the
vehicle. Officers commanded the male subject to lift his shirt and turn around in a
circle. The male subject initially complied with commands but eventually became
non-compliant and verbally confrontational. The male subject began asking why
officers had guns pointed at him and asked officers to put their weapons away.
The male subject walked back toward the driver's door of the Toyota Prius and
remained non-compliant and verbally confrontational. The male refused verbal
commands from officers to step forward and away from the driver's door. Due to
the nature of the call and the 911 caller's information, officers had reason to believe
the Toyota Prius could contain a gun. Due to the male subject's noncompliance and
ability to possibly access a gun inside the vehicle or on his person, officers decided
to deploy a less-lethal munition to gain compliance. The less-lethal munition struck
the front of the male subject on the left side of his body but did not prove to be
effective as the male subject quickly entered the driver's door of the Toyota Prius.
The male subject closed the driver door and started the vehicle. Officers
commanded the driver to turn off the vehicle but he did not comply. Approximately
nine seconds later, the male subject drove forward out of the parking spot.
[emphasis added].
10. While Chief Manley's report to the Attorney General essentially reflects the sequence of
events, it fails to capture the chaotic, conflicting shouts by the officers and Mike's
2 Officer-Involved Shooting April 24, 2020, AUSTINTEXAS.GOV. https://www.austintexas.gov/apd-critical-
incidents/officer-involved-shooting-april-24-2020
3 This binding evidentiary admission by the City belies Officer Taylor's irrational fear that Mike would use the Prius
as a deadly weapon. Officer Taylor claims that he killed Mike because he feared that "the male subject intended to
use the Toyota Prius as a deadly weapon." Brian Manley reported to the Texas Attorney General that the strategic
decision about where to place the police vehicles was effective.
4
incredulity over why police were threatening to shoot him. Compare Manley's statement
to the Texas Attorney General that, "the male subject began asking why officers had guns
pointed at him and asked officers to put their weapons away," to the audio recordings:
Officer: Keep going! Keep going! Keep going! Stop! Stop! Walk toward me!
Mike: Man, what the fuck?! Why (unintelligble)?
Officer: Come toward us!
Officer: Michael Ramos, you are gonna get impacted if you don't listen! Walk
toward me!
Mike: Man, yall scaring the fuck out of me, dog.
Officer (not to Mike): Impact him.
Officer: Michael Ramos! Michael Ramos!
Mike: Don't shoot, yall!
Officer: Michael Ramos!
Mike: Don't shoot!
Officer: Hey listen to me, man. Hey, relax! Relax, Michael! I need you to turn
around for me. Michael! Michael, listen to me, man! Michael, listen to me,
man. Just listen. I want you to turn around for me, man. Turn around for me,
Michael! I'll explain it in a second.
Officer: Don't go back!
Mike: What is going on?!
Officer: I cant explain it right now, Michael, but you need to turn around.
Officer: Leave your hands up!
Officer: Do not go toward that door!
Mike: Man, what the fuck, man?!
Officer: Michael Ramos, come toward me!
Officer: Impact him.
Mike: Man what the, MAN WHAT THE FUCK did I fucking do, man?! The fuck
are yall trippin' on, dog?!
Officer: Hey, hey, Michael, get on your knees! Get on your knees!
Mike: Man, why the fuck you fuckin' shoot, man?!
Officer: Michael, get on your knees! Do it now!
Mike: Man, what the fuck yall trippin on dog?!
Officer: Come out of the vehicle!
Officer: Michael, do it now!
Mike: Why all yall got guns, dog?! Man, what the fuck, man?!
Officer (screaming): IMPACT HIM!
Mike: What the fuck?!
Officer (not to Mike): Hit him with the impact whenever you get an angle.
Mike: I ain't GOT no fucking gun, dog! What the fuck?! (Unintelligible).
5
Officer (not to Mike): Hit him whenever you feel justified. He's not following
commands and he has a weapon.1
Mike: Put the fucking gun down, dog! Man, what the fuck, dog?
Officer (not to Mike): Impact him.
Officer Pieper: Walk towards us! I'm going to impact you!
Officer: Keep your hands up, Passenger!
Mike: Impact me?! For what?!
Officer Pieper: Walk towards us! Comply with us!
Mike: Fuck! Put the fucking guns down, dog!
Officer Pieper: Comply with us!
Officer (not to Mike): Whenever you get a shot, go for the hit.
Mike: Man, what the fuck, dog?!
Officer Pieper: IMPACTING!
Gunshot.
II. As Chief Manley reported to the Attorney General, Mike got back in his car after Officer
Pieper shot him with the "less lethal" shotgun shell. Mike never threatened the officers or
bystanders. He simply got back in his car. Nine seconds later, as Mike slowly drove forward
and away from police and bystanders toward the dumpsters at the dead-end of the parking
area, Officer Taylor shot Mike in the head and killed him. Rebeca Garcia jumped out of
the car just before Mike drove away. There was no gun on Mike, in the car, or in the
vicinity. Officers never saw a gun or anything they mistook for a gun.
12. Pursuant to Texas Civil Practice and Remedies Code Section Sec. 101.101(c), formal
notice of this claim was not required as the "governmental unit [had] actual notice that.
the claimant has received some injury." Specifically, The City of Austin has known about
the incident giving rise to this claim and Rebeca's involvement in the incident since the
day it occurred-April 24, 2020. This is evidenced by then-Chief Brian Manley's briefings
to the public of incident's details on April 24, 2020, April 27, 2020, and May II, 2020. 5
4 This order from a senior officer to a trainee officer is confounding given that videos show that Mike-who had
complied with police commands to lift his shirt and turn in a circle-did not. in fact, have a weapon. There was no
weapon or anything that could be mistaken for a weapon throughout this incident.
5 Officer-Involved Shooting April 24, 2020, AUSTINTEXAS.GOV, https://www.austintexas.gov/apd-critical-
incidents/officer-involved-shooting-april-24-2020
6
B. Mike Ramos was Rebeca's best friend and boyfriend.
13. Rebeca and Mike met in October of 2019. From the day they met they spent every day
together. They compared their life stories and found that they had nearly ran into each other
on several occasions. They considered this kismet. Rebeca said it seemed like they were
always in each other's lives, even though they kept missing each other. Their love story
came to a sudden and violent end on April 24, 2020.
14. When officers drew their firearms at Mike, they also drew them at Rebeca. Officer Taylor
fired the rounds into the vehicle that Rebeca had just exited. In their handling of the
situation, Austin police officers and Officer Taylor recklessly and outrageously endangered
the lived of two Austin citizens of color, simply sitting in a parking lot. It was reasonably
foreseeable to Austin police officers and Officer Taylor that the woman a few feet distant
from Mike was his loved one.
15. As a result of the officers' actions, Rebeca has suffered severe emotional distress that
continues to impact her everyday life.
VIII.
Claims
A. Officer Taylor negligently inflicted emotional distress upon Rebeca
16. Rebecca Garcia incorporates sections ] through VII above into her negligent infliction of
emotional distress claim.
17. Rebeca Garcia was a bystander to the murder of Mike Ramos. Despite receiving no
physical injury, Rebeca was a foreseeable plaintiff in the shooting that resulted in Mike's
death.
18. Rebeca was in the same vehicle as Mike during the incident until seconds before the fatal
shot. She was located in the scene of the incident the entire time. Rebeca's sensory and
7
contemporaneous observation of the incident resulted in sever shock, direct emotional
impact, and extreme emotional distress.
19. Rebeca was Mike's girlfriend and best friend. They were inseparable since the day they
met. Their relationship was more than simply that of a close friend; they were as close as
family.
20. It was reasonably foreseeable to Officer Taylor that the woman in the passenger seat of the
vehicle was Mike's loved one who would suffer extreme emotional distress upon
witnessing Mike's murder and thus would be a plaintiff in the incident that caused Mike's
death. Rebeca's mental anguish was foreseeable to Officer Taylor. As such, Officer Taylor
owed Rebeca a duty of care that he breached by killing Mike, resulting in Rebeca's injuries.
B. Damages
21. Rebeca incorporates sections 1 through VIII.B above into this section on damages.
22. Officer Taylor's negligent infliction of emotional distress was the proximate cause of
various injuries that Rebecca suffered as a result.
23. Rebeca seeks recovery for all of her damages including past and future pain, past and future
mental anguish, punitive damages, miscellaneous other economic damages including out-
of-pocket expenses, pre-and post-judgment interest, attorney's fees, expenses, and costs.
24. Defendant City of Austin is liable for the damages negligently caused by Officer Taylor
pursuant to the Texas Tort Claims Act. See Tex. Civ. Pr. & Rem. Code 101.0215(a)(1).
IX.
Request for jury trial
7.
Plaintiff requests a jury trial.
X.
Prayer
8.
For all these reasons, Rebeca Garcia requests that the City of Austin be summoned
to appear and answer Rebeca's allegations. After a jury trial regarding her claims, Rebeca prays
8
for general relief, and seeks to recover the damages listed above in an amount to be determined by
the jury and any other relief to which she is entitled.
Respectfully submitted,
2.
Scott M. Hendler
shendler@hendlerlaw.com
SBN: 09445500
Laura A. Goettsche
!goettsche@hendlerlaw.com
SBN: 24091798
HENDLER FLORES LAW, PLLC
901 S. MoPac Expy, Bldg. 1, STE 300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that Plaintiff's Original Complaint was filed on April 22, 2022 via the Court's
efile system and will be served in compliance with the Texas Rules of Civil Procedure.
Scott M. Hendler
9
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Alexis Lopez on behalf of Scott Hendler
Bar No. 9445500
alopez@hendlerlaw.com
Envelope ID: 63837740
Status as of 4/25/2022 9:58 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Alexis Lopez
alopez@hendlerlaw.com
4/22/2022 4:50:36 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
4/22/2022 4:50:36 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
4/22/2022 4:50:36 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
4/22/2022 4:50:36 PM
SENT
5/23/2022 9:21 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Norma Ybarra
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant.
§
345TH JUDICIAL DISTRICT
DEFENDANT'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant, City of Austin, represented by and through the undersigned
Assistant City Attorney, and hereby files this Original Answer and Affirmative Defenses in
response to Plaintiff's Original Petition.
I.
GENERAL DENIAL
1.
The City generally denies the material allegations of Plaintiff's pleadings, demands
proof thereof as required by the Texas Rules of Civil Procedure, and reserves the right to plead
further and in greater particularity.
II.
AFFIRMATIVE AND OTHER DEFENSES
The City asserts the following affirmative and other defenses:
2.
The City is a home-rule municipality and political subdivision of the State of Texas.
To the extent that it was acting in the performance of its governmental functions during the
occurrence made the basis of this lawsuit, the City has governmental immunity from suit and from
liability, and the City affirmatively pleads and asserts the affirmative defense of sovereign
immunity.
3.
The City reserves their right to assert additional affirmative defenses as they
become apparent.
PRAYER FOR RELIEF
The City prays that Plaintiff take nothing by this suit and that it recover all court costs and
other and further relief, both at law and in equity, to which it may show itself justly entitled.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
State Bar No. 24087054
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
Page 2 of 3
This is to certify that I have served a copy of the foregoing on all parties, or their attorneys of
record, in compliance with the Texas Rules of Civil Procedure, this 23rd day of May, 2022.
Via e-Service and/or facsimile:
SCOTT M. HENDLER
SBN. 09445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
SBN. 24091798
Igoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. MoPac Expy
Bldg 1, Ste 300
Austin, Texas 78746
Telephone: (512) 439-3200
Facsimile: (512) 439-3201
ATTORNEYS FOR PLANTIFFS
/s/ H. Gray Laird III
H. GRAY LAIRD III
Page 3 of 3
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 64740256
Status as of 6/1/2022 1:43 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Alexis Lopez
alopez@hendlerlaw.com
5/23/2022 9:21:39 AM
SENT
Scott Hendler
shendler@hendlerlaw.com
5/23/2022 9:21:39 AM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
5/23/2022 9:21:39 AM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
5/23/2022 9:21:39 AM
SENT
Gray Laird
gray.laird@austintexas.gov
5/23/2022 9:21:39 AM
SENT
Sara Rice
sara.rice@austintexas.gov
5/23/2022 9:21:39 AM
SENT
Kelly Resech
kelly.resech@austintexas.gov
5/23/2022 9:21:39 AM
SENT
11/17/2022 11:05 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Jose Garcia
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant
§
345TH JUDICIAL DISTRICT
DEFENDANT'S PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, City of Austin, represented by and through the undersigned counsel, files this
Plea to the Jurisdiction as follows:
I. RELEVANT PLEADINGS AND FACTS
This lawsuit arises out of an officer-involved shooting which occurred on April 24, 2020
in Austin, Texas. Plaintiff Rebeca Garcia alleges that her boyfriend, Mike Ramos, was shot and
killed by Austin Police Officer Christopher Taylor after Taylor and other police officers
responded to a 911 call about a man with a gun and a woman using drugs in a vehicle while the
vehicle was parked in the parking lot of an apartment complex. (Plaintiff's Original Petition, 911
8, 11) Plaintiff alleges that she jumped out of the car just before Taylor shot Ramos, and that she
witnessed the shooting of Ramos. (Plaintiff's Original Petition 99 11; 17; 20)
Plaintiff brought this lawsuit against the City of Austin, alleging that the City is liable for
the actions of its employee, Officer Taylor, under the Texas Tort Claims Act. Tex. Civ. Pr. &
Rem. Code § 101.0215(a)(1). (Plaintiff's Original Petition I 24) Plaintiff couches this lawsuit as
a claim against the City for Officer Taylor's "negligent infliction of emotional distress" on the
Plaintiff. (Plaintiff's Original Petition I 22)
II.
ARGUMENT AND AUTHORITIES
A. Plaintiff must allege and prove a waiver of the City's governmental immunity.
Governmental immunity shields Texas cities from suit for common law and statutory
claims arising out of their governmental functions, unless there is a clear legislative waiver.
Wasson Interests, Ltd. V. City of Jacksonville ("Wasson I"), 489 S.W.3d 427, 429-30 (Tex. 2016).
Government immunity from suit deprives the trial court of subject matter jurisdiction and, thus, is
properly asserted in a plea to the jurisdiction. Texas Dep't of Parks and Wildlife V. Miranda, 133
S. 217, 225-226 (Tex. 2004).
The State's consent to jurisdiction may be alleged either by reference to a statute or by
pleading express legislative permission. General Services Comm'n V. Little-Tex Insulation Co.,
Inc., 39 S.W.3d 591, 594 (Tex. 2001). Texas does not recognize the doctrine of waiver of
governmental immunity by conduct. Sharyland Water Supply Corp. V. City of Alton, 354 S.W.3d
407, 414 (Tex. 2011); see also Hughes V. Tom Green County, 553 S.W.3d 1, 7 (Tex. App.-Austin
2017, pet. granted) ("the Supreme Court and this Court have repeatedly declined to apply a waiver-
by-conduct theory"). Rather, legislative consent to sue must be made in "clear and unambiguous
language." University of Tex. Med. Branch V. York, 871 S.W.2d 175, 177 (Tex. 1994). Absent this
consent, the trial court lacks a jurisdictional basis to hear the claim. Texas Dept. of Transportation
V. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999).
When subject matter jurisdiction is contested, "[t]he trial court must determine at its earliest
opportunity whether it has the constitutional or statutory authority to decide the case before
allowing the litigation to proceed." Id. at 226. Whether the trial court has subject matter jurisdiction
is a question of law. Id.
A plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court's
Page 2 of 8
jurisdiction to hear a case. Texas Ass'n of Bus. V. Texas Air Control Bd., 852 S.W.2d 440, 443
(Tex. 1993). If the pleadings affirmatively negate the existence of jurisdiction, the plea to the
jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda, 113
S.W.3d at 226-27.
Here, Plaintiff does not allege that a specific waiver of the City's governmental immunity
applies. The Original Petition makes no mention of any waiver of the City's governmental
immunity and, as a result, her claim fails as a matter of law.
B. The Texas Tort Claims Act's limited waivers of immunity do not apply.
The Texas Tort Claims Act provides in pertinent part:
"A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act
or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury or death arises from the operation or use of a
motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death SO caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law."
Tex. Civ. Prac. & Rem. Code Ann. $101.021.
As stated above, Plaintiff does not identify a specific waiver of immunity and thus her
claim should be dismissed on that ground alone. Even if one assumes that Plaintiff intends to
proceed under the limited waiver found in Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) for
personal injury and death caused by the use of tangible personal property, Plaintiff's claim is futile
Page 3 of 8
since the Texas Tort Claims Act clearly establishes that the state has not waived immunity for
intentional torts. The Texas Tort Claims Act does not waive a governmental unit's immunity for
a claim arising from assault, battery or any other intentional tort. Tex. Civ. Prac. & Rem. Code
101.057(2).
Here, the gravamen of Plaintiff's Complaint is that Officer Taylor wrongfully shot
Ramos, while Plaintiff was in the near vicinity of Ramos, which is clearly an intentional tort, and
thus Plaintiff's claim against the City is barred by governmental immunity. See Harris Cty., Tex.
V. Cabazos, 177 S.W.3d 105, 111 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (immunity not
waived for claim arising out of deliberate shooting by deputy sheriff). Although Plaintiff
couches her claim as a negligence claim, the facts as alleged in Plaintiff's Complaint all describe
intentional torts. Plaintiff alleges that Officer Taylor and other APD officers drew their firearms
at Ramos and the Plaintiff, and Taylor ultimately shot his firearm at Ramos, which is an
intentional tort.
As the Court of Appeals in Harris County, Tex. V. Cabazos explained: "[i]f a plaintiff
pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence,
the claim generally is for an intentional tort and is barred by the TTCA." Harris County, 177
S.W.3d at 111; citing Texas Department of Public Safety V. Petta, 44 S.W.3d 575, 580 (Tex.
2001); City of Laredo V. Nuno, 94 S.W.3d 786, 789 (Tex. App.-San Antonio 2002, no pet.);
Tarrant County Hosp. Dist. V. Henry, 52 S.W.3d 434, 450 (Tex.App.-Fort Worth 2001, no
pet.); Medrano V. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.).
A plaintiff cannot circumvent the intentional tort exception by couching her claims in terms of
negligence. See Huong V. City of Port Arthur, 961 F.Supp.1003, 1008-09 (E.D.Tex.1997)
(plaintiffs cannot circumvent intentional tort exception to waiver of liability by simply
Page 4 of 8
pleading negligence when shooting event upon which they base their claims is actually
intentional tort). This is exactly what the Plaintiff in this case is attempting to do. As a result,
the City is immune from Plaintiff's state law personal injury claim and this claim should be
dismissed.
C.
Plaintiff failed to provide timely notice of her claim against the City.
The Texas Tort Claims Act states:
"(a) A governmental unit is entitled to receive notice of a claim against it under this
chapter not later than six months after the day that the incident giving rise to the claim
occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice within a charter period
permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b)
do not apply if the governmental unit has actual notice that death has occurred, that the
claimant has received some injury, or that the claimant's property has been damaged."
Tex. Civ. Prac. & Rem. Code Ann. § 101.101.
Actual notice, under subsection (c), is subjective notice. Knowledge that an incident
occurred is insufficient. Rather, the governmental unit is entitled to enough information to
identify that its alleged fault produced or contributed to the claimant's injuries. City of San
Antonio V. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018). "Actual notice means the governmental
unit is subjectively aware that it may be responsible for death, injury, or property damage in the
Page 5 of 8
manner ultimately alleged by the claimant." Worsdale V. City of Killeen, 578 S.W.3d 57, 77
(Tex. 2019).
Plaintiff alleges the City had actual notice under § 101.101(c) of her claim for negligent
infliction of emotional distress since the date of the incident because Austin Police Department
then Police Chief Brian Manley conducted three public briefings shortly thereafter. (Plaintiff's
Original Petition 12). She further alleges she was a foreseeable plaintiff and it was reasonably
foreseeable "that the woman in the passenger seat of the vehicle was Mike's loved one who
would suffer extreme emotional distress upon witnessing Mike's murder and thus would be a
plaintiff
" (Plaintiff's Original Petition 17, 20).
Plaintiff does not raise sufficient facts to demonstrate the City had actual notice of her
alleged emotional distress injury. While the City has knowledge of the incident giving rise to her
claim, it did not have actual notice that the incident would bring about a claim for an emotional
injury as plaintiff alleges. "Consistent with the plain meaning of the statutory language, the Tort
Claims Act's notice provision requires knowledge that rises to the level of notice, which has the
effect-if not the purpose-of 'enable[ing] governmental units to gather information necessary
to guard against unfounded claims, settle claims, and prepare for trial." Worsdale V. City of
Killeen, 578 S.W.3d 57, 73 (Tex. 2019) citing Cathey V. Booth, 900 S.W.2d 339, 341 (Tex.
1995).
Additionally, Plaintiff failed to provide notice of her claim under § 101.101(a) within six
months of her alleged injury. And, under § 101.101(b), the City of Austin requires notice of
claims within 45 days of the alleged injury1. The City of Austin did not have actual notice of
1
Austin's City Charter Article XII Section 3 Notice of Claims: " the person injured, if living, or his or her
representatives, if dead, or the owner of the property damaged or destroyed, shall give the city council or city
manager notice in writing of such death, injury, damage or destruction, duly verified by affidavit, within 45 days
after same has been sustained..."
Page 6 of 8
Plaintiff's injury, nor did Plaintiff bring her claim within 45 days of her injury. Having met none
of the required elements for notice under § 101.101, Plaintiff's claim should be dismissed for
lack of jurisdiction.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
State Bar No. 24087054
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
Page 7 of 8
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their attorneys of
record, in compliance with the Texas Rules of Civil Procedure, this 17th day of November, 2022.
Via e-Service and/or facsimile:
SCOTT M. HENDLER
SBN. 09445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
SBN. 24091798
Igoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. MoPac Expy
Bldg 1, Ste 300
Austin, Texas 78746
Telephone: (512) 439-3200
Facsimile: (512) 439-3201
ATTORNEYS FOR PLANTIFFS
/s/ H. Gray Laird III
H. GRAY LAIRD III
Page 8 of 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 70266908
Status as of 11/21/2022 6:43 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
11/17/2022 11:05:04AM
SENT
Alexis Lopez
alopez@hendlerlaw.com
11/17/2022 11:05:04 AM
SENT
Scott Hendler
shendler@hendlerlaw.com
11/17/2022 11:05:04 AM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
11/17/2022 11:05:04 AM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
11/17/2022 11:05:04 AM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
11/17/2022 11:05:04 AM
SENT
Sara Rice
sara.rice@austintexas.gov
11/17/2022 11:05:04 AM
SENT
Kelly Resech
kelly.resech@austintexas.gov
11/17/2022 11:05:04 AM
SENT
12/5/2022 2:29 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Jose Garcia
REBECA GARCIA,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
THE CITY OF AUSTIN,
§
Defendant
§
§
345TH JUDICIAL DISTRICT
NOTICE OF HEARING
Please take notice that the hearing on Defendant City of Austin's Plea to the Jurisdiction is
set for Thursday, January 26, 2023, at 9:00 a.m. on the Central Docket in the Travis County
Civil District Courts. The hearing is set for one hour.
Pursuant to the existing Emergency Orders resulting from the COVID-19 pandemic, this
hearing will take place remotely, using Zoom videoconferencing, which is free to download at
https://zoom.us, and is available as an app for smart phones and tablets. Since several cases may
be scheduled at the same time, your case may be called later in the day, and you must be available
when your case is called.
Prior to the hearing, the assigned court will email all counsel and self-represented parties
for whom it has current email addresses the court's instructions and procedures, with information
on how to access the hearing on Zoom.
If your current email address is not on file, you do not receive the instructions and
procedures from the court at least two days prior to the hearing, or you do not have access to the
internet over a smart phone, tablet, or computer, please contact the Court Administrator's office at
512-854-2484 for information on how to participate in the hearing.
Rebeca Garcia V. City of Austin, D-1-GN-22-001902
Page 1 of 3
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
State Bar No. 24087054
Asst. City Attorney
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
Asst City Attorney
sara.rice@austintexas.gov
City of Austin -Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CERTIFICATION UNDER LOCAL RULE 2.2
Counsel has conferred with all parties about the date and time of the setting.
/s/ H. Gray Laird III
H. GRAY LAIRD III
Rebeca Garcia V. City of Austin, D-1-GN-22-001902
Page 2 of 3
CERTIFICATE OF SERVICE
This is to certify that I have served a copy on all parties, or their attorneys of record, in
compliance with the Texas Rules of Civil Procedure, on December 5, 2022
Via e-Service/e-filing:
SCOTT M. HENDLER
SBN. 09445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
SBN.24091798
Igoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. MoPac Expy
Bldg 1, Ste 300
Austin, Texas 78746
Telephone: (512) 439-3200
Facsimile: (512) 439-3201
ATTORNEY FOR PLAINTIFF
/s/ H. Gray Laird III
H. GRAY LAIRD III
Rebeca Garcia V. City of Austin, D-1-GN-22-001902
Page 3 of 3
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 70704555
Status as of 12/5/2022 2:32 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
12/5/2022 2:29:14 PM
SENT
Alexis Lopez
alopez@hendlerlaw.com
12/5/2022 2:29:14 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
12/5/2022 2:29:14 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
12/5/2022 2:29:14 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
12/5/2022 2:29:14 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
12/5/2022 2:29:14 PM
SENT
Sara Rice
sara.rice@austintexas.gov
12/5/2022 2:29:14 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
12/5/2022 2:29:14 PM
SENT
CAUSE NO. D-1-GN-22-001902
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
V.
§
345th JUDICIAL DISTRICT
§
THE CITY OF AUSTIN
§
Defendant.
§
TRAVIS COUNTY, TEXAS
PROPOSED ORDER
BEFORE THE COURT is Plaintiff's Motion to Withdraw Donald Puckett as Counsel of
Record. The Court having read and considered the Motion finds that the Motion should be and is
hereby GRANTED.
IT IS ORDERED that Donald Puckett be withdrawn as counsel of record for Plaintiff.
IT IS FURTHER ORDERED that the Clerk of Court remove Mr. Puckett's name from
the list of persons authorized to receive electronic notices in this case.
SIGNED AND ENTERED this
day of
20
.
PRESIDING JUDGE
1/19/2023 12:56 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Victoria Benavides
REBECA GARCIA
§
IN THE DISTRICT COURT OF
§
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant.
§
345th JUDICIAL DISTRICT
PLAINTIFF'S RESPONSE IN OPPOSITION
TO DEFENDANT'S PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW REBECA GARCIA, Plaintiff herein, and files this Response in Opposition
to Defendant's Plea to the Jurisdiction and respectfully states as follows:
I.
SUMMARY OF THE ARGUMENT
Defendant mischaracterizes Plaintiff's lawsuit. Instead of accepting Plaintiff's pleadings
as true, Defendant misconstrues Plaintiff's claim to assert a claim that is not in Plaintiff's pleadings
to avoid damages under Texas Civil Practice and Remedies Code Section 101.0215(a)(1) (Liability
of Municipality for Police and Fire Protection and Control). Defendant's mischaracterization
requires Plaintiff to prove "intent." Proving intent is not an element of Plaintiff's claim of
negligent infliction of emotional distress.
Plaintiff, a bystander who contemporaneously observed the deadly shooting of her
boyfriend and best friend-Mike Ramos, an unarmed Black man-sued Defendant for negligent
infliction of emotional distress. Officer Christopher Taylor, an employee of Defendant,
negligently caused Plaintiff's emotional distress by inflicting deadly injury on Mike Ramos in her
Plaintiff's Response in Opposition to Defendant's Plea to the Jurisdiction
presence on April 24, 2020. Officer Taylor foresaw the injury he would cause to Plaintiff.
Defendant is liable to Plaintiff for Officer Taylor's negligent conduct under the bystander theory
of recovery Texas courts have recognized.
Plaintiff plead a claim for negligent infliction of emotional distress as a bystander. See
Plaintiff's Original Petition, Section VII, §§ 16-20. Significantly, "intent" is not an element that
Plaintiff must prove. In fact, Plaintiff never used the words "wrongfully shot" in her pleadings.
See Defendant's Plea to the Jurisdiction, p. 8, I 1. Finally, Defendant's argument that it did not
have "actual notice" lacks merit. Defendant knew that Plaintiff was present near Mike Ramos and
witnessed the negligent shooting by Officer Christopher Taylor. See Plaintiff's Original Petition,
Section VII, § 12.
Defendant's plea to the jurisdiction should be denied.
II.
STANDARD OF REVIEW
"A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of
action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. V. Blue,
34 S.W.3d 547, 554 (Tex. 2000). "The claims may form the context in which a dilatory plea is
raised, but the plea should be decided without delving into the merits of the case." Id. "The
purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to
establish a reason why the merits of the plaintiffs' claims should never be reached." Id.
In determining jurisdiction, a trial court must "construe the pleadings liberally in the
pleader's favor and look to their intent." Houston Belt & Terminal Ry. V. City of Houston, 487
S.W.3d 154, 160 (Tex. 2016). "Only if the pleadings affirmatively negate jurisdiction should the
plea to the jurisdiction be granted without affording the plaintiffs an opportunity to replead." Id.
(emphasis added); see also Office of Attorney Gen. V. Crawford, 322 S.W.3d 858, 861, n. 8 (Tex.
2
App.-Houston [1st Dist.] 2010, pet. denied) (relying on dictionary definition of "only' to mean,
among other things, no more than; nothing other than;
nothing more besides; solely, merely,
exclusively or [b]y itself, alone, without anything else.") (internal quotations omitted).
"If the challenged jurisdictional fact[s] overlap[] with the merits of the plaintiff's claim[],
the party asserting the plea to the jurisdiction must overcome a traditional-summary-judgment-like
burden and conclusively negate th[e] fact[s]." Bacon V. Texas Hist. Comm'n, 411 S.W.3d 161,
171 (Tex. App.-Austin 2013, no pet.). "Our ultimate inquiry is whether the particular facts
presented, as determined by the foregoing review of the pleadings and any evidence, affirmatively
demonstrate a claim within the trial court's subject-matter jurisdiction." Id.
"If the evidence creates a fact question regarding the jurisdictional issue, then the trial court
cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder."
Texas Dep't of Parks & Wildlife V. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
III.
ARGUMENT AND AUTHORITIES
A.
The Court Has Jurisdiction to Hear a Claim of Negligent Infliction of Emotional
Distress by a Bystander.
Plaintiff pled a negligent infliction of emotional distress claim as a bystander. See
Plaintiff's Original Petition, Section VII, §§ 16-20. Defendant's mischaracterization of Plaintiff's
claim cannot be a basis to defeat subject matter jurisdiction. Adding an element of proof
to
Plaintiff's negligent infliction claim has no basis in law. Defendant cites no authority that allows
it to add an element of proof.
Officer Taylor does not claim that his decision to use deadly force was intentional. In a
motion to dismiss based on qualified immunity filed in federal court in the Western District in
Austin, he told the Court that Mike Ramos's vehicle could travel a short distance "in a split second"
3
and that "he had even less time to make the incalculably difficult decision to utilize deadly force."
See Cause No. 1:20-cv-01256-RP, Dkt, 49, "Defendant Christopher Taylor's Motion to Dismiss
Plaintiff's Second Amended Complaint and Supporting Brief," p. 12, (Filed April 12, 2022)
(Exhibit A). Because of Officer Taylor's representations in federal court, Plaintiff plead a
negligence claim. Negligent infliction of emotional distress of a bystander is a cause of action
recognized in Texas courts. Defendant cannot circumvent Officer Taylor's representations in
federal court regarding his decision to use deadly force in "even less time" than a split second
against Mike Ramos.
B.
Defendant Has Not Presented Any Evidence to Meet Its Burden.
Defendant challenges the jurisdictional facts, but it does not attach any evidence to its plea
as required in a traditional motion for summary judgment. Bacon V. Texas Hist. Comm'n, 411
S.W.3d 161, 171 (Tex. App.-Austin 2013, no pet.). Conclusory allegations are insufficient.
Defendant has the initial burden to provide evidence. Miranda, 133 S.W.3d at 228. Without
evidence, Defendant has not carried its burden.
C.
Defendant Had Actual Notice of Plaintiff's Injury.
Plaintiff was not required to provide written notice under the Texas Tort Claims Act and
the City of Austin's Charter because Defendant had actual notice of the injury to Plaintiff. TEX.
CIV. PRAC. & REM. CODE. § 101.101(c) (notice requirements do not apply if the "governmental
unit
has actual notice
that the claimant received some injury."). Defendant had actual notice
as noted in Chief Manley's report to the Texas Attorney General. See Plaintiff's Original Petition,
Section VII, § 12. Thus, Defendant's argument lacks merit.
4
D.
Defendants Improperly Challenge the Merits of Plaintiff's Claims.
The merits of Plaintiff's claim have no bearing in determining a trial court's jurisdiction.
Because Defendant mischaracterizes Plaintiff's claim and improperly challenges the merits of the
negligent infliction of emotional distress claim in its dilatory plea, it should be denied. See Bland
Indep. Sch. Dist., 34 S.W.3d at 554 (Tex. 2000) ("The claims may form the context in which a
dilatory plea is raised, but the plea should be decided without delving into the merits of the case.").
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that this Court
deny Defendant's Plea to the Jurisdiction and grant Plaintiff any such other and further relief, at
law or in equity, to which Plaintiff may show himself to be justly entitled.
Dated: January 19, 2023
Respectfully submitted,
/s/ Ramiro Canales
Ramiro Canales - Texas Bar No. 24012377
rcanales@hendlerlaw.com
Scott M. Hendler - Texas Bar No. 9445500
shendler@hendlerlaw.com
Laura A. Goettsche - Texas Bar No. 24091798
lgoettsche@hendlerlaw.com
HENDLER FLORES LAW, PLLC
901 S. Mopac Expy., Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
ATTORNEYS FOR PLAINTIFFS
5
CERTIFICATE OF SERVICE
I certify that the foregoing was served on all counsel of record via the Texas e-filing
system on January 19, 2023.
/s/ Ramiro Canales
Ramiro Canales
6
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRENDA RAMOS, ON BEHALF OF
§
HERSELF AND THE ESTATE OF
§
MIKE RAMOS
§
Plaintiff,
§
§
CIVIL ACTION NO. 1:20-cv-01256-RP
V.
§
§
THE CITY OF AUSTIN and
§
CHRISTOPHER TAYLOR,
§
Defendants.
§
DEFENDANT CHRISTOPHER TAYLOR'S MOTION TO DISMISS PLAINTIFF'S
SECOND AMENDED COMPLAINT AND SUPPORTING BRIEF
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES Defendant, Christopher Taylor (hereinafter "Officer Taylor"), the
individual defendant in the above-entitled and numbered cause, and moves that this Court dismiss
Plaintiff's Second Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim upon which relief can be granted, and in support would respectfully show
the Court as follows:
EXHIBIT A
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 1
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 2 of 19
I.
SUMMARY OF THE ARGUMENT
1.
The incident videos incorporated into Plaintiff's Second Amended Complaint reflect that
Officer Christopher Taylor's conduct did not constitute a violation of the Fourth Amendment as a
matter of law-and no amount of blatant textual contradictions of those videos can change that
reality. The Fifth Circuit mandates the use of its two-prong Hathaway test for analyzing cases
where pedestrian officers shoot into moving vehicles potentially being used as weapons. The
Hathaway test thus must-as a matter of law-be applied to this case's facts to determine if no
reasonable police officer could have believed that Ramos posed a possible threat to the officers
standing near his car.
2.
The test's prongs deal with (1) time, and (2) perceived proximity, respectively. Applied
here, Officer Taylor had (1) a split second-the amount of time it takes for a car to travel
approximately one-to-two car lengths-to decide whether to use deadly force to stop a car that (2)
his fellow police officers were actively scrambling away from to escape the car's path, thus
putting in any officer's mind observing such scene a perceived close proximity to the suddenly-
moving vehicle. Pursuant to such test, reasonable officers witnessing those circumstances could
have considered Ramos's car a potentially deadly threat to the officers scrambling away from it,
and that using deadly force to stop that deadly threat would not be unreasonable.
3.
Even if this Court disagrees regarding the reasonableness of his actions, Officer
Christopher Taylor would still be entitled to Qualified Immunity. The Supreme Court strictly
enforces the requirement to identify an analogous case and explain the analogy for the purposes
of satisfying the "clearly established law" prong of Qualified Immunity. Irwin is a controlling
Fifth Circuit case on largely similar facts: after commands to stop were refused, police officers
fired at the driver of a car moving toward the general direction of nearby police officers. Just as
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 2
EXHIBIT A
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 3 of 19
the District Court had done previously, the Fifth Circuit researched all pre-existing controlling
case law, found no factually similar analogous cases, and consequently affirmed the granting of
Qualified Immunity as a result.
4.
Just as in Irwin-which was decided after the incident that forms the basis of this lawsuit-
Officer Taylor likewise lacked any pre-existing "clearly established" legal precedents in April of
2020 that would have provided him the requisite legal notice. Dismissal is appropriate as a result.
II.
ARGUMENTS & AUTHORITIES
A. Standard for Dismissal under Rule 12(b)(6).
5.
A motion to dismiss pursuant to Rule 12(b)(6) challenges a plaintiff's complaint on the
basis that it fails to state a claim upon which relief may be granted. 1 "To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face." "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. 3 "The plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has acted unlawfully." ",4 "To withstand
a Rule 12(b)(6) motion, [a] complaint must allege 'more than labels and conclusions," and "a
formulaic recitation of the elements of a cause of action will not do."
6.
For the purposes of Rule 12(b)(6), a complaint does not "suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement." A "complaint 'does not need detailed
1 See FED. R. CIV. P. 12(b)(6).
2 Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. V. Twombly, 550 U.S. 544,
570 (2007)).
3 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
4 Id. (quoting Twombly at 556).
5
Norris V. Hearst Tr., 500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
6 Iqbal, 556 U.S. at 678.
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 3
EXHIBIT A
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 4 of 19
factual allegations,' but must provide the plaintiff's grounds for entitlement to relief - including
factual allegations that when assumed to be true 'raise a right to relief above the speculative
level." "Conversely, when the allegations in a complaint, however true, could not raise a claim
of entitlement to relief, this basic deficiency should be exposed at the point of minimum
expenditure of time and money by the parties and the court."8 A court need not "strain to find
inferences favorable to the plaintiffs."
B. Standard for Qualified Immunity.
7.
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action barred by
Qualified Immunity. 10 It is Plaintiff's burden to plead and prove specific facts overcoming
Qualified Immunity for each applicable claim. 11 Courts use a two-prong analysis to
determine
whether an officer is entitled to Qualified Immunity. 12 A plaintiff must show (1) the official
violated a constitutional right; and (2) the constitutional right was "clearly established" at the time
of the defendant's alleged misconduct. 13 If Plaintiff fails to satisfy either prong here, Officer
Taylor is immune from suit as a matter of law. 14
7 Cuvillier V. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
8
Id. (quotation and alteration omitted).
9 Southland Sec. Corp. V. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004) (quoting
Westfall V. Miller, 77 F.3d 868, 870 (5th Cir. 1996)).
10 See Bustillos V. El Paso Cnty. Hosp. Dist., 226 F. Supp. 3d 778, 793 (W.D. Tex. 2016)
(Martinez, J.) (dismissing a plaintiff's claim based on qualified immunity).
11 See Collier V. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009); see also Elliot V. Perez, 751
F.2d 1472, 1479 (5th Cir. 1985).
12
Cole V. Carson, No. 14-10228, 2019 WL 3928715, at *5 (5th Cir. Aug. 20, 2019), as revised
(Aug. 21, 2019).
13 Reed V. Taylor, 923 F.3d 411, 414 (5th Cir. 2019).
14
Zarnow V. City of Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007).
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 4
EXHIBIT A
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 5 of 19
8.
A right is clearly established when "the contours of the right [are] sufficiently clear [such]
that a reasonable official would understand that what he is doing violated that right. "15 Because
Qualified Immunity shields "all but the plainly incompetent or those who knowingly violate the
law, the Fifth Circuit considers Qualified Immunity the norm, and admonishes courts to deny
a defendant immunity only in rare circumstances. Officer Taylor raises the defense of Qualified
Immunity here in response to all of Plaintiff's claims alleged against him. 17 It is thus Plaintiff's
burden to plead and prove that Officer Taylor is not entitled to such protections. Plaintiff's Second
Amended Complaint and the incident videos it incorporates fail to meet that burden.
C. Videos of the subject incident have been incorporated by reference for this Court's
consideration-and take precedence over the Complaint itself.
9.
Pursuant to controlling Fifth Circuit and Supreme Court precedents, "court[s] may take
into account documents incorporated into the complaint by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint whose authenticity is unquestioned" when analyzing
a 12(b)(6) motion to dismiss. 18 In addition to documents, videos may also be incorporated by
reference, including but not limited to body cam and dash cam videos as part of motions to dismiss
15 Werneck V. Garcia, 591 F.2d 386, 392 (5th Cir. 2009) (citations omitted); see also Freeman V.
Gore, 483 F.3d 404, 411 (5th Cir. 2007) (the court applies an objective standard "based on the
viewpoint of a reasonable official in light of the information available to the defendant and the
law that was clearly established at the time of defendant's actions."); see also Kinney V. Weaver,
367 F.3d 337, 349-50 (5th Cir. 2004), quoting Anderson V. Creighton, 483 U.S. 635, 640
(1987)).
16 Romero V. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Malley V. Briggs, 475
U.S. 335, 341 (1986)) (internal quotation marks omitted) (emphasis added).
17
See generally Pl.'s Second Am. Compl., Dkt. # 45.
18 Meyers V. Textron, Inc., 540 F. App'x 408, 409 (5th Cir. 2013) (per curiam) (citing Tellabs,
Inc. V. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (also citing § 1357 Motion to
Dismiss Practice Under Rule 12(b)(6)); see also FED. R. CIV. P. 10(c) (acknowledging
incorporation by reference in federal pleadings).
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$1983 claims. 19 As this Court has reiterated itself, "[i]n deciding a motion to dismiss, a court may
consider video evidence attached as an exhibit to the complaint; when doing so, 'the court is not
required to favor plaintiff's allegations over the video evidence."
10.
Plaintiff's Second Amended Complaint references "Austin police dashcam and body-worn
camera videos" of the subject incident, and provides hyperlinks for the Court to retrieve and view
all such videos.²1 One of the hyperlinks directs to a City of Austin website that contains the cited
videos in a manner obviously intended for public consumption, making the videos inherently
"matters of public record" that this Court may consider for the purposes of this motion even if
Plaintiff had not incorporated them explicitly-which she did. ²2 If an allegation in a complaint is
contradicted by the contents of an exhibit incorporated by reference into the complaint, then
"indeed the exhibit and not the allegation controls."23 "[T]he Court is not required to accept any
[plaintiffs'] characterization of [incorporated or attached exhibits] because the exhibit controls
over contradictory assertions."24 As the Fifth Circuit has held, "[a]lthough courts must construe
evidence in light most favorable to the nonmoving party, we will not adopt a plaintiff's
characterization of the facts where unaltered video evidence contradicts that account."2 25
Accordingly, this Court can and should consider the subject incident videos to be both relevant
19 Scott V. White, No. 1:16-CV-1287-RP, 2018 WL 2014093, * 1 (W.D. Tex. April 30, 2018).
20 Id. at * 1 (emphasis added) (citing Hartman V. Walker, 685 F. App'x 366, 368 (5th Cir. 2017)).
21 Pl.'s Second Am. Compl., pg. 17, fn. 9, Dkt. # 45.
22 Id.
23 See U.S. ex rel. Riley V. St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004)
(emphasis added) (citing Simmons V. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir.),
cert. denied, 311 U.S. 685 (1940).
24 Roberto Garza V. Allstate Vehicle and Prop. Ins. Co., No. 7:22-CV-00067, 2022 WL 1046156,
at *3 (S.D. Tex. Apr. 6, 2022).
25 Thompson V. Mercer, 762 F.3d 433, 435 (5th Cir. 2014) (citing Scott V. Harris, 550 U.S. 372,
381 (2007).
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and controlling when determining whether or not Plaintiff's Second Amended Complaint contains
a claim against Officer Taylor for which relief may be granted.
D. An application of this case's facts to the mandatory two-prong Hathaway test
precludes the existence of a Fourth Amendment violation, and thus Plaintiff has no
claim against Officer Taylor for which relief may be granted.
11.
The video footage incorporated by reference reveals no actionable Fourth Amendment
violation as a matter of law pursuant to Hathaway and its progeny. To state an excessive force
claim, a plaintiff must show "(1) an injury, (2) which resulted directly and only from a use of force
that was clearly excessive, and (3) the excessiveness was clearly unreasonable." 26 District
Courts-including this one-across the Fifth Circuit have recognized that the two-prong
Hathaway test is binding in "cases that involve [pedestrian officers] shooting at vehicles" for the
purposes of the reasonableness inquiry.27
12.
The Fifth Circuit has reliably upheld and applied this two-prong legal test since its
inception in Hathaway.28 In Hathaway, the Fifth Circuit "surveyed the relevant case law and
identified two 'central' factors in the reasonableness inquiry in these kinds of cases: (1) the limited
26
Ontiveros V. City of Rosenberg, 565 F.3d 379, 382 (5th Cir. 2009) (emphasis added).
27 Dudley V. Bexar Cnty., No. 5:12-CV-357-DAE, 2014 WL 6979542, at *5 (W.D. Tex. Dec. 9,
2014) (noting "[i]n cases that involve shooting at vehicles, there are two "central" factors in the
reasonableness inquiry: (1) the limited time [the] officer[] ha[s] to respond to the threat from the
vehicle; and (2) the closeness of the officers to the projected path of the vehicle.") (internal
quotes removed); see also Irwin, 2021 WL 75452, at *5 (noting "[f]or cases involving deadly
force by a pedestrian-officer against an individual fleeing by vehicle, the Fifth Circuit has
identified two more specific considerations: (1) the limited time an officer has to respond to the
threat from the vehicle; and (2) the closeness of [an] officer to the projected path of the vehicle.")
(internal quotes removed); see also Malbrough V. City of Rayne, 2019 WL 1120064, at *11
(W.D. La. Mar. 11, 2019), aff'd sub nom. Malbrough V. Stelly, 814 F. App'x 798 (5th Cir. 2020).
28 See Hathaway V. Bazany, 507 F.3d 312, 321 (5th Cir. 2007) (adopting the temporal and
proximity test) (adopting in part Waterman V. Batton, 393 F.3d 471 (4th Cir. 2005)); see also e.g.
Sanchez V. Edwards, 433 F. App'x 272, 275 (5th Cir. 2011).
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time an officer has to respond to the threat from the vehicle; and (2) the closeness of the officer to
the projected path of the vehicle."29
13.
The two-prong test was recently applied by the Fifth Circuit in Malbrough. 30 The Fifth
Circuit reiterated that there are "two factors in determining that the officer's use of deadly force
was reasonable [in cases involving shooting at vehicles]: (1) the limited time the officer had to
respond, and (2) the officer's proximity to the path of the vehicle. "31 Even more recently, the Fifth
Circuit decided Irwin-discussed in more detail infra-along those same two Hathaway factors
as required for any Fifth Circuit case where police officers fire into a moving vehicle. 32
i. The proximity prong of the Hathaway test bears out that a reasonable officer from
Officer Taylor's vantage point would have considered his fellow officers to be in
the possible path of Ramos's vehicle.
14.
It is easier to conceptualize the Hathaway test here by considering the two factors inversely.
The second proximity prong considers how close the endangered officers or bystanders were
positioned relative to the possible path of the vehicle. The word "possible" must be emphasized,
because the Fifth Circuit mandates that, for the purposes of the Hathaway test, the "[potentially
endangered person's] location matters, but it's not relevant whether, in hindsight, he was ever in
real danger. We must ask whether it would have appeared to a reasonable officer on the scene
that [the Defendant-Officer,] other officers, or bystanders were in danger." The incorporated
video footage in this case clearly reflects that "it would have appeared to a reasonable officer".
from the perspective of Officer Taylor-the "other officers
were in danger."
29 Sanchez, 433 F. App'x at 275.
30 Malbrough V. Stelly, 814 F. App'x 798, 803-04 (5th Cir. 2020).
31 Id. at 804.
32
Irwin V. Santiago, No. 21-10020, 2021 WL 4932988, at *2 (5th Cir. Oct. 21, 2021).
33
Malbrough, 814 F. App'x at 804 - 05 (emphasis added).
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15.
The dash camera footage of APD Officer Valerie Taveres is particularly instructive
regarding what a reasonable officer would have perceived from Officer Taylor's vantage point. 34
Taveres' dash cam footage depicts a rear view of four nearby pedestrian police officers standing
to the left of Officer Taylor when he utilized deadly force in their defense. These four officers
would have been in-or at least in close proximity to-the direct path of Ramos's vehicle if he
had continued driving straight forward rather than turning. It is the proximity of those four officers
who must be legally considered for evaluating the Hathaway proximity prong.
16.
After standing relatively motionless for several minutes, the four police officers at 7:02
begin scrambling backwards away from Ramos's vehicle as soon as it begins to move. 35 Their
body language and instinctual reactions seen on video make it undeniable that they believe they
might possibly be in the path of Ramos's vehicle-and thus in danger of being run over by it. More
importantly here, it is undeniable that another officer witnessing such instinctual reactions would
perceive that the threat to those officers was real.
17.
The officers are discussed from left to right herein. As soon as Ramos's car takes off, the
first officer jumps inside the leftmost police vehicle through the front driver side door to get out
of the way of Ramos's car. The second officer quickly scrambles backwards to get behind the same
leftmost police vehicle, ostensibly using it as a protective barrier to put the vehicle between him
and Ramos's car. The third and fourth officers likewise scramble backwards to get out of the way
of Ramos's car, one of whom shelters behind a different police vehicle for protection from
Ramos's oncoming vehicle. 36 A reasonable police officer who perceives his fellow officers
34 See Exhibit No. 2, Supplemental Video No. 2, "Dash Camera of Officer Benjamin Hart",
03:46 - 7:23. Available at http://austintexas.gov/apd-critical-incidents/officer-involved-shooting
april-24-2020.
35
See Exhibit No. 2, "Dash Camera of Officer Benjamin Hart", 07:02 - 7:08.
36 Id.
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reacting to a suspect's vehicle lurching forward by jumping into-and sheltering behind-nearby
vehicles would very plausibly believe those officers were in the path of the vehicle. People do not
frantically scramble to get out of the way of cars headed away from them.
18.
The Court also has for its consideration a top-down helicopter view of the scene soon after
the shooting. As the view rotates, the short, 9-second helicopter video immediately depicts the
four police vehicles that arrived and were positioned specifically to block the only motor vehicle
exit out of the apartment parking lot. 38 A reasonable officer would operate under the belief that-
because the only motor vehicle exit was blocked by police vehicles and the officers standing next
to them-Ramos's options were necessarily limited to submitting to arrest, resisting, fleeing on
foot, or driving through and over the nearby police officers with his car to escape. The helicopter
video also depicts a minivan parked directly in front of the strategically positioned police
vehicles-perhaps one-to-two car lengths in front of them-which is clearly the same minivan
parked directly to the right of Ramos's Prius when he put his car in gear and drove forward. 39 The
cell phone video Plaintiff incorporated by reference likewise shows that Ramos's car was pointed
directly at-or at the very least in the general vicinity of-nearby police officers when it initially
moved forward and Officer Taylor made his split second decision.4 Ramos's vehicle can be seen
where it eventually came to a stop after Ramos was incapacitated.4 41 In conjunction, the videos
37 See Exhibit No. 1, Supplemental Video No. 1, "APD Helicopter Footage", 00:01 - 00:09.
Available at thttp://austintexas.gov/apd-critical-incidents/officer-involved-shooting-april-24-
2020.
38
Id.; see also See Pl.'s First Am. Compl, pg. 4-5, Dkt. # 5 ("Officers strategically parked their
patrol vehicles, effectively blocking the exit and mitigating the risk of flight.").
39 Compare Exhibit No. 1, "APD Helicopter Footage", 00:01 - 00:09 with Exhibit No. 3,
"Critical Incident Video Briefing Video", 10:48 - 11:05 (depicting minivan next to Ramos's
Prius, providing reference of proximity of path of vehicle).
40 Pl.'s Second Am. Compl., pg. 17, fn. 8, Dkt. # 45, 00:40 - 00:45 (video available at
https://www.youtube.com/watch?v=7dQMDiUpLHU),
41 Exhibit No. 1, "APD Helicopter Footage", 00:05 - 00:09.
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show that Ramos's car was very close in proximity to where the pedestrian officers were
scrambling behind the police vehicles to get out of the way, and that Plaintiff's burden of proving
that no reasonable officer would perceive the scrambling officers to be potentially in the path of
the vehicle will be insurmountable.
19.
Plaintiff will no doubt attempt to argue that Ramos's car's right turn meant that the subject
pedestrian officers positioned in front of his car were-when viewed from the comfort and
hindsight of an office chair42_not in real danger. Pursuant to the controlling legal test, actual but-
for danger is not relevant to the analysis, just as it would make no difference if a court later
determined that a suspect's gun was actually loaded with blanks. The only thing that legally matters
is whether a reasonable officer would perceive danger in the circumstances faced. As the Fifth
Circuit put it when applying the Hathaway test last year, Plaintiff would "[need] to show that [the
other officers] were far enough away from [Ramos's Prius] and its path, as it moved forward, that
no reasonable officer could have thought anyone was in danger." Such a finding would be
arguably impossible here in light of the collective video evidence. Plaintiff's claim must
consequently fail pursuant to an application of the binding Hathaway test.
ii.
Officer Taylor had only a split second to make the decision to use deadly force to
potentially save the lives of the nearby police officers scrambling out of the car's
path-satisfying the temporal prong of the Hathaway test.
20.
The temporal prong of the Hathaway test likewise obviates the existence of any actionable
Fourth Amendment claim here, because the video footage reflects the split-second nature of the
42 See Stroik V. Ponseti, 35 F.3d 155, 158-59 (5th Cir. 1994) ("[w]hat constitutes reasonable
action may seem quite different to someone facing a possible assailant than to someone
analyzing the question at leisure.").
43 Malbrough, 814 F. App'x at 805. (emphasis added).
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potential danger of Ramos's vehicle. The dash cam footage of Officer Cantu-Harkless, 44 as well
as the helicopter video discussed supra, shows just how close Ramos's vehicle was to the police
officers who scrambled to get out of the car's path. Based on the footage, Ramos's vehicle was
perhaps one-maybe two-car lengths away from the front of Officer Cantu-Harkless' police
vehicle, and thus one-to-two car lengths away from the officers standing beside it.45 No evidence
is needed to understand how long it would take a modern motor vehicle to travel that short of a
distance. 46 Because Ramos's vehicle could bridge that gap in a split second, Officer Taylor had
even less time to make the incalculably difficult decision of whether to utilize deadly force to
protect the nearby officers scrambling backwards away from the suddenly-moving car. Ramos's
vehicle started moving at 11:01, and Officer Taylor's gunshot can be heard at 11:02. 47 The
temporal prong, measured in the time the officer has to decide whether to use deadly force, applied
here reflects the quintessential "split-second decision" that federal law gives police officers
breathing room to decide under the protections of Qualified Immunity. Plaintiff's incorporated
video evidence thus nullifies any claim for which relief may be granted against Officer Taylor
pursuant to the binding Hathaway test under both the proximity and temporal prongs.
E. No law existed that was so clearly established that-"in the blink of an eye"-every
reasonable officer would have known it immediately.
44 See Exhibit No. 3, "Critical Incident Video Briefing Video", 07:38 - 11:14. Available at
http://austintexas.gov/apd-critical-incidents/officer-involved-shooting-april-24-2020
45 See e.g. Exhibit No. 3, "Critical Incident Briefing Video", 11:01.
46
See e.g. id. at 11:01 - 11:02 (depicting Ramos's vehicle easily travelling the distance of one
car length in less than one second).
47 Id.
48 See Graham V. Connor, 490 U.S. 386, 387 (1989) ("The 'reasonableness' of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, and its calculus
must embody an allowance for the fact that police officers are often forced to make split-
second decisions about the amount of force necessary in a particular situation.") (emphasis
added).
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21.
To overcome Qualified Immunity, Plaintiff here must show that Officer Taylor's actions
were unreasonable in light of clearly established law. 49 As noted by the Fifth Circuit in 2019,
"excessive-force claims often turn on 'split-second decisions' to use lethal force. That means the
law must be so clearly established that-in the blink of an eye, in the middle of a high-speed
chase-every reasonable officer would know it immediately.
22.
Courts "cannot deny Qualified Immunity without identifying a case in which an officer
acting under similar circumstances was held to have violated the Fourth Amendment, and without
explaining why the case clearly proscribed the conduct of that individual officer."51 As the Fifth
Circuit reiterated in a 2020 decision, "[t]he Supreme Court strictly enforces the requirement to
identify an analogous case and explain the analogy." 52 No such clearly established case
precedent existed in April of 2020 that would have sprung into every reasonable officers' mind in
the split second between when Officer Taylor's fellow officers began scrambling to escape the
path of the vehicle at 11:01, and when he fired his weapon at 11:02 in the hopes of preventing
them from being injured or killed.
23.
The absence of the requisite clearly established law applicable to this case is reflected in
Irwin, a January 2021 decision from the Northern District of Texas' Honorable Jane J. Boyle. 53
Irwin is factually proximate to this case. The Irwin Defendant-Officers saw the plaintiff drive into
a fence, and exited their own vehicle with their firearms drawn to approach the car on foot. "When
49 Wyatt V. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013) (citing Michalik V. Hermann, 422 F.3d
252, 258 (5th Cir. 2005)).
50
Morrow V. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (emphasis added) (citing Pasco ex rel.
Pasco V. Knoblauch, 566 F.3d 572, 582 (5th Cir. 2009)).
51
Joseph on behalf of Est. of Joseph V. Bartlett, 981 F.3d 319, 345 (5th Cir. 2020); see also Irwin
V. Santiago, No. 3:19-CV-2926-B, 2021 WL 75452, at *7 (N.D. Tex. Jan. 8, 2021).
52 Joseph, 981 F.3d at 346.
53 See generally Irwin V. Santiago, 2021 WL 75452, at *2.
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Irwin's vehicle continued rolling forward despite the Defendant-Officers' commands, they
collectively fired seven shots at the driver's side of Irwin's vehicle." The Court noted that there
was a genuine material dispute about whether or not the police officer-alleged to be in danger-
was standing directly in the path of the vehicle, or whether the officer was instead only standing
"to the side of the front" of the vehicle, and thus not directly in the vehicle's path. 55
24.
The Irwin court granted the Defendant-Officers the protections of Qualified Immunity,
because the court found no significantly similar controlling legal precedents that would "provide
notice that it is unlawful to shoot at a vehicle that is rolling forward, failing to heed officers'
commands to stop, as an officer stands 'to the side of the front' of the vehicle."56 Whether or not
the police officers in this case were in hindsight standing directly in the path of Ramos's vehicle,
or merely instead "to the side of the front" of it, is thus irrelevant.
25.
The Irwin court first considered the plaintiff's offering of Lytle, a Fifth Circuit decision
holding that a jury could find a constitutional violation in Plaintiff's offered summary judgment
narrative-the Lytle officer opened fire on a fleeing vehicle, with no bystanders anywhere near the
path of the vehicle, and where the officer did not start shooting until the suspect's car "had made
it three or four houses down the block."57 In contrast, a reasonable officer in the place of Officer
Taylor would absolutely perceive that his fellow officers were in the path of Ramos's vehicle based
on their instinctual physical reactions to escape from the car seen on video. Moreover, Ramos's
vehicle had also certainly not travelled three to four houses away before Officer Taylor discharged
his weapon.
54 Irwin V. Santiago, 2021 WL 75452, at *2.
55 Id. at * 5, 7.
56 Id. at *7 (emphasis added).
57 Id. at *6 (citing Lytle V. Bexar Cty., Tex., 560 F.3d 404, 418 (5th Cir. 2009) (holding the cited
facts as true because it was required to do SO for the purposes of summary judgment).
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26.
The Irwin court next considered the plaintiff's offering of Garner, for the general overall
notion of when deadly force is reasonable. The court rejected outright the practice of relying on
Garner alone, rather than a factually analogous decision:
[A]s reiterated in Mullenix, the Supreme Court has rejected the "use of Garner's
'general' test for excessive force" as clearly established law. Rather, courts must
determine "whether it was clearly established that the Fourth Amendment
prohibited the officer's conduct in the situation [he] confronted[.]"58
The Irwin court also struck out on its own to find an analogous prior precedent, but ultimately
determined that no such controlling precedent existed. The Irwin court's review of the controlling
cases it did find only "further bolster[ed] the Court's conclusion that the Defendant-Officers did
not have 'fair warning' that their conduct violated the Fourth Amendment."59
27.
Finally, the Irwin court took note of a handful of out-of-circuit cases, but found them to be
legally insufficient to put a police officer working within the confines of the Fifth Circuit's
jurisdiction on notice of the right at issue. "[T]he Fifth Circuit sets a high bar for out-of-circuit
authority to clearly establish the law-there must be a 'robust' consensus among the other circuits.
And the analogous cases from other circuits do not meet this bar."60 In the time period between
the 2018 conduct-analyzed in Irwin-and the early 2020 events of this case, no "robust'
consensus" has suddenly developed that would have provided sufficient legal notice to Officer
Taylor that shooting at a driver who is driving toward officers scrambling to get out of the way
58
Irwin V. Santiago, 2021 WL 75452, at *7 (citing Brosseau V. Haugen, 543 U.S. 194, 199
(2004)).
59 Id. at *7 (citing e.g. Sanchez, 433 F. App'x at 273-75 (5th Cir. 2011) (per curium) (concluding
the defendant-officers acted reasonably when they shot at the plaintiff's car as it accelerated in
the direction of one of the officers, who was "positioned near the front of the car"); see also
e.g. Est. of Shaw V. Sierra, 366 F. App'x 522, 524 (5th Cir. 2010) (holding no constitutional
violation occurred where the defendant-officers fired after the vehicle "accelerated toward [an
officer] who was approaching the vehicle on foot" and standing "directly in front of [the]
vehicle").
60 Irwin V. Santiago, 2021 WL 75452, at *7 (citing Morrow V. Meachum, 917 F.3d 870, 879-80
(5th Cir. 2019)).
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would be unconstitutional-and especially not to the extent that every officer would know it "in
the blink of an eye." Officer Taylor is consequently entitled to the protections of Qualified
Immunity as a matter of law.
F. The Fifth Circuit's recent decision to affirm Irwin due to a complete lack of any
analogous prior case law should leave no doubt-Plaintiff's claim fails to overcome
Qualified Immunity must be dismissed.
28.
In October of 2021, the Fifth Circuit affirmed the above-referenced Irwin decision, which
should leave no doubt that Plaintiff's eventual dismissal is inescapable based on the video
evidence. 61 The granting of Qualified Immunity in Irwin despite the finding of a factual dispute
about whether any officer was in the vehicle's direct path-and thus in hindsight whether the
officers were even in true danger-is incredibly instructive. Both courts assumed as true the Irwin
plaintiff's contention that "[n]either officer 'was positioned directly in front or in the pathway of
Irwin's vehicle." The District Court and Fifth Circuit also both held that a jury could accordingly
find a "material dispute about the objective reasonableness of the Officers' conduct," or in other
words a jury could look at the Irwin videos and conclude that the force was unreasonable or
excessive-and thus potentially unconstitutional.6 Plaintiff will no doubt argue the same in her
Response. Even if this Court is persuaded by such an argument, the end result must necessarily be
the same as it was in Irwin due to the lack of any directly analogous clearly established law at the
time of the subject incident:
Turning to the Qualified Immunity inquiry, we conclude that the district court did
not err in deciding that there is no clearly established law demonstrating that the
officers' conduct constituted an excessive use of force. The particular facts that are
material here-Irwin's failure to heed officers' commands to stop, Officer
Santiago's position, and the brief period of time it took for the Officers to perceive
and react to the direction of Irwin's vehicle-are not sufficiently analogous to the
61
Irwin V. Santiago, No. 21-10020, 2021 WL 4932988, at *2 (5th Cir. Oct. 21, 2021).
62 Id. at * 1.
63 Id. at *3.
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facts of our cases finding excessive force such that officers Santiago and Roberts
would have been "on notice" that their conduct was unconstitutional we think
that it was not a matter of clearly established law that Officers Santiago and
Roberts were unreasonable in firing on Irwin's vehicle. We therefore AFFIRM the
district court's grant of summary judgment for the defendants on the basis of
Qualified Immunity. 64
The same is true here. The facts of Irwin and this case are remarkably similar in terms of vehicle
proximity-i.e. that the officers were standing at the very least to the side of the vehicles-and the
short time available to respond to the threat. 65 The subject incident also predated the
2021
Irwin
decision, which is crucially important because the Irwin decision is the first Fifth Circuit decision
that would henceforth put future officers on notice of the potential unconstitutional nature of such
actions.
29.
As the Fifth Circuit concluded, the dispositive hinge in Irwin was that the "the projected
path of Irwin's vehicle was in the officer's direction, at least generally, whereas [in the prior case
law] the vehicle was moving away from the officer."66 No reasonable person could watch the
incorporated videos and determine that Ramos's car was moving in the diametrically opposite
direction of the pedestrian officers, or that Ramos's car was not facing the officer's direction, "at
least generally." Any contention to the contrary is blatantly contradicted by the incorporated video
evidence.6
30.
Accordingly, no clearly established law existed on April 24, 2020 that an officer could not
use deadly force against the driver of a vehicle moving in the general direction of other officers.
64 Irwin V. Santiago, 2021 WL 4932988, at *3 (emphasis added).
65 Id. at fn. 1, providing links to two videos of the incident at issue in Irwin.
66 Id.
67 See e.g. Pl.'s Second Am. Compl., pg. 175, Dkt. # 45 (Plaintiff's new pleadings make an
obvious but ill-fated end-around attempt to avoid Irwin, including by having the temerity to
represent that "[n]either Taylor nor any other officer was in front of the Prius or to its side when
Taylor fired his fatal shots" despite video evidence directly to the contrary.).
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 17
EXHIBIT A
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 18 of 19
Officer Taylor's split-second decision that day to defend the nearby pedestrian officers should
consequently be afforded the protections of Qualified Immunity promised to all first responders
forced to make such decisions.
IV. PRAYER
WHEREFORE PREMISES CONSIDERED, Defendant Christopher Taylor respectfully
requests that the Court dismiss each of Plaintiff's claims against him, and for all other and further
relief to which he may be justly entitled in either law or equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
CHRISTOPHER TAYLOR
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 18
EXHIBIT A
Case 1:20-cv-01256-RP Document 49 Filed 04/12/22 Page 19 of 19
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of April, 2022, a copy of Defendant's Motion was
electronically filed on the CM/ECF system, which will automatically serve a Notice of Electronic
Filing on the following attorneys of record:
Scott Hendler
shendler@hendlerlaw.com
Laura Goettsche
lgoettsche@hendlerlaw.com
HENDLER & FLORES LAW, PLLC
901 S. Mopac Expressway
Building 1, Suite 300
Austin, Texas 78746
Rebecca Webber
rebecca@rebweblaw.com
WEBBER LAW
4228 Threadgill St.
Austin, Texas 78723
Thad Spalding
tspalding@dpslawgroup.com
Shelby White
shwhite@dpslawgroup.com
DURHAM, PITTARD & SPALDING, LLP
P.O. Box 224626
Dallas, Texas 75222
H. Gray Laird
Gray.laird@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Blair J. Leake
Blair J. Leake
Defendant Taylor's Motion to Dismiss Plaintiff's Second Amended Complaint
Page 19
EXHIBIT A
Case 1:20-cv-01256-RP Document 49-1 Filed 04/12/22 Page 1 of 1
Exhibit 1
Video: helifootage 4-24-20.mp4
To be produced to the Court on a USB Flash Drive
and to Counsel via Dropbox Link
EXHIBIT A
Case 1:20-cv-01256-RP Document 49-2 Filed 04/12/22 Page 1 of 1
Exhibit 2
Video: DashCam 4-24-20 (Hart).mp4
To be produced to the Court on a USB Flash Drive
and to Counsel via Dropbox Link
EXHIBIT A
Case 1:20-cv-01256-RP Document 49-3 Filed 04/12/22 Page 1 of 1
Exhibit 3
Video: Critical Incident Briefing 4-24-20.mp4
To be produced to the Court on a USB Flash Drive
and to Counsel via Dropbox Link
EXHIBIT A
CAUSE NO. D-1-GN-22-001902
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
V.
§
345th JUDICIAL DISTRICT
§
THE CITY OF AUSTIN
§
Defendant.
§
TRAVIS COUNTY, TEXAS
PROPOSED ORDER
BEFORE THE COURT is Defendant's Plea to the Jurisdiction and Plaintiff's Response in
Opposition to Defendant's Plea to the Jurisdiction. The Court having read and considered the
Motion and Response, the Court finds that the Motion should be and is hereby DENIED.
IT IS SO ORDERED.
SIGNED AND ENTERED this
day of
2023.
PRESIDING JUDGE
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Alexis Lopez on behalf of Scott Hendler
Bar No. 9445500
alopez@hendlerlaw.com
Envelope ID: 71943977
Status as of 1/23/2023 11:57 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
1/19/2023 12:56:25 PM
SENT
Alexis Lopez
alopez@hendlerlaw.com
1/19/2023 12:56:25 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
1/19/2023 12:56:25 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
1/19/2023 12:56:25 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
1/19/2023 12:56:25 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
1/19/2023 12:56:25 PM
SENT
Sara Rice
sara.rice@austintexas.gov
1/19/2023 12:56:25 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
1/19/2023 12:56:25 PM
SENT
1/24/2023 4:36 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Victoria Benavides
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant
§
345TH JUDICIAL DISTRICT
DEFENDANT'S REPLY IN SUPPORT OF PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, City of Austin, represented by and through the undersigned counsel, files this
Reply in Support of its Plea to the Jurisdiction as follows:
A.
Plaintiff pleaded jurisdictional facts which amount to an intentional tort.
In her response, Plaintiff contends that Defendant mischaracterizes Plaintiff's lawsuit as
alleging an intentional tort, and she claims that the facts set forth in her Petition only assert that
Officer Taylor acted negligently. Plaintiff's response is without merit.
A review of the facts alleged in Plaintiff's Petition reveals that Plaintiff clearly pleaded
an intentional tort. Plaintiff's Petition alleges that Defendant's employees, Officer Taylor and
other officers, "drew their firearms at Mike [Ramos][and] they also drew them at Rebeca."
(Plaintiff's Original Petition, 14) Plaintiff further alleges that "Taylor shot Mike in the head
and killed him" while the Plaintiff was just "a few feet distant from Mike." (Plaintiff's Original
Petition, II 11; 14) Plaintiff also pleaded that the Plaintiff witnessed "Mike's murder."
(Plaintiff's Original Petition, I 20)¹ These are not facts "mischaracterized" by the Defendant.
1 "Murder" under Texas law requires an intentional or knowing mental state. Texas Penal Code $19.02.
These are the facts alleged by the Plaintiff in her own Petition. These facts, if taken as true,
clearly allege and constitute intentional torts.
Plaintiff fails to address in any manner the cases cited by Defendant in the Plea to the
Jurisdiction and is easy to understand why Plaintiff ignores them. The long line of cases clearly
supports dismissal of this claim. All of the cases emphasize that the focus of the Court's analysis
should be on the acts of the alleged tortfeasor and whether those acts amount to an intentional
tort, no matter how Plaintiff frames the cause of action in the Petition.
For example, the Court in Harris Cty., Tex. V. Cabazos, 177 S.W.3d 105, 111 (Tex.
App.-Houston [1st Dist.] 2005, no pet.) rejected the plaintiff's argument that he only alleged
that a sheriff was negligent in discharging his firearm and thus did not assert an intentional tort.
The Court in Harris County held that despite the plaintiff's efforts to phrase his claims in terms
of negligence, the facts as alleged in the petition focused on the sheriff's intentional shooting of
the firearm. Id. at 112. As a result, plaintiff's claims were barred by the Texas Tort Claims Act's
intentional tort exclusion to waiver of immunity. Id. at 113. See Huong V. City of Port Arthur,
961 F.Supp.1003. 1008-09 (E.D.Tex.1997) (plaintiffs cannot circumvent intentional tort
exception to waiver of immunity by simply pleading negligence when shooting event upon
which they base their claims is actually intentional tort).
The Plaintiff in this case is attempting to do exactly what the courts in Harris County,
Huong and the other cases cited in the Plea to the Jurisdiction specifically rejected. Plaintiff
attempts to bypass the intentional tort exclusion by labeling her claim as a negligence claim even
though she pleads facts which constitute an intentional tort. Allegations that officers drew
firearms at Ramos and the Plaintiff, shot Ramos in the head and killed him, and allegations that
Page 2 of 6
refer to "Mike's murder" do not assert a negligence claim. These factual allegations allege an
intentional tort and, as a result, Plaintiff's claim is barred by the Texas Tort Claims Act.
Plaintiff also attempts to navigate around the intentional tort exception by citing to a
portion of Officer Taylor's motion to dismiss in a federal court case in which Taylor asserted that
he was entitled to qualified immunity for Ramos's excessive force claim since he had less than a
split second to "make the incalculably difficult decision to utilize deadly force." (Plaintiff's Ex.
A) Yet, this argument by Taylor in another pleading does not contain any factual allegation as to
his mental state at the time of his actions. It simply describes the limited time in which he had to
decide how to act under the circumstances. Plaintiff's effort to sidestep her own factual
allegations in her Petition are simply not supported by the relevant caselaw cited above or
Taylor's argument in federal court.
Although Plaintiff couches her claim as a negligence claim, the facts as alleged in
Plaintiff's Petition all describe intentional torts. A plaintiff cannot circumvent the intentional tort
exception by couching her claims in terms of negligence. See Huong V. City of Port Arthur, 961
F.Supp.1003, 1008-09 (E.D.Tex.1997). Defendant is not relying on any other facts other than
those asserted by the Plaintiff in her Petition. Plaintiff has the burden to allege jurisdictional facts
to support subject matter jurisdiction. Plaintiff's alleged facts regarding the conduct of Taylor all
constitute intentional torts for which the City is immune under the Texas Torts Claim Act.
Accordingly, Plaintiff's claim should be dismissed.
B.
Plaintiff failed to provide timely notice of her claim against the City.
The Texas Tort Claims Act requires that a governmental unit receive notice of a claim
that describes, among other things, the damage or injury claimed within six months after the day
of the incident. Further, the City of Austin's charter requires "notice in writing of such death,
Page 3 of 6
injury, damage or destruction, duly verified by affidavit, within 45 days after same has been
sustained " Austin's City Charter Article XII Section 3, Notice of Claims. Plaintiff met neither
requirement of notice, and thus her claim should be dismissed.
Plaintiff asserts in her response that the City had notice of the Plaintiff's claim since
Chief Manley's report to the Texas Attorney General identifies the Plaintiff as being at the scene
of the shooting. Yet, Manley's report, as cited by Plaintiff, contains no indication that Plaintiff
was injured or incurred any damages, and Plaintiff herself provided no notice to the City of her
claim or alleged injuries until she filed this lawsuit.
Plaintiff does not raise sufficient facts to demonstrate the City had actual notice of her
alleged emotional distress injury. While the City had knowledge of the incident giving rise to
her claim, it did not have actual notice that the incident would bring about a claim for an
emotional injury as plaintiff alleges. "Consistent with the plain meaning of the statutory
language, the Tort Claims Act's notice provision requires knowledge that rises to the level of
notice, which has the effect-if not the purpose-of 'enable[ing] governmental units to gather
information necessary to guard against unfounded claims, settle claims, and prepare for trial." ,,
Worsdale V. City of Killeen, 578 S.W.3d 57, 73 (Tex. 2019) citing Cathey V. Booth, 900 S.W.2d
339, 341 (Tex. 1995).
Plaintiff failed to provide notice of her claim under § 101.101(a) within six months of her
alleged injury. And, under § 101.101(b), the City of Austin requires notice of claims within 45
days of the alleged injury. The City of Austin did not have actual notice of Plaintiff's injury, nor
did Plaintiff bring her claim within 45 days of her injury.
Plaintiff instead improperly relies on § 101.101(c), the text of which states that the notice
requirements in "Subsections (a) and (b) do not apply if the governmental unit has actual notice
Page 4 of 6
that death has occurred, that the claimant received some injury, or that the claimant's property
has been damaged." Tex. Civ. Prac. & Rem. Code § 101.101(c). "The actual notice provision
requires that a governmental unit has subjective awareness that its fault, as ultimately alleged by
the claimant, produced or contributed to the claimed injuries." City of San Antonio V. Tenorio,
543 S.W.3d 772, 776 (Tex. 2018) (emphasis added). Additionally, actual notice requires
"subjective knowledge of (1) a death, injury, or property damage; (2) the governmental unit's
fault that produced or contributed to the death, injury, or property damage; and (3) the parties
involved." Id, citing Cathey, 900 S.W. 3d at 341. Plaintiff relies on Chief Manley's letter to the
Attorney General that describes the interactions taking place between officers and Mr. Ramos.
The only mention of Ms. Garcia is in reference to "both subjects" and the "female exited the
vehicle." (Plaintiff's Original Petition, I 9). There is no reference to Plaintiff's alleged emotional
injury. The letter only discusses Mr. Ramos, who is not a party in this case. While the City may
have had actual notice of Mr. Ramos' death, Plaintiff provided no evidence that the City had
actual notice of her injury.
Having met none of the required elements for notice under § 101.101 or the City of
Austin's Charter, Plaintiff's claim should be dismissed for lack of jurisdiction.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
State Bar No. 24087054
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin
P.O. Box 1546
Page 5 of 6
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their attorneys of
record, in compliance with the Texas Rules of Civil Procedure, this 24th day of January, 2023.
Via e-Service and/or facsimile:
RAMIRO CANALES
SBN. 24012377
rcanales@hendlerlaw.com
SCOTT M. HENDLER
SBN. 09445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
SBN.24091798
lgoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. MoPac Expy
Bldg 1, Ste 300
Austin, Texas 78746
Telephone: (512) 439-3200
Facsimile: (512) 439-3201
ATTORNEYS FOR PLAINTIFF
/s/ H. Gray Laird III
H. GRAY LAIRD III
Page 6 of 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 72104995
Status as of 1/25/2023 9:08 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
1/24/2023 4:36:57 PM
SENT
Alexis Lopez
alopez@hendlerlaw.com
1/24/2023 4:36:57 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
1/24/2023 4:36:57 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
1/24/2023 4:36:57 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
1/24/2023 4:36:57 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
1/24/2023 4:36:57 PM
SENT
Sara Rice
sara.rice@austintexas.gov
1/24/2023 4:36:57 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
1/24/2023 4:36:57 PM
SENT
1/30/2023 12:24 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Stephanie Garza
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant
§
345TH JUDICIAL DISTRICT
DEFENDANT'S SUPPLEMENTAL REPLY IN SUPPORT OF
PLEA TO THE JURISDICTION
TO THE HONORABLE CATHERINE A. MAUZY:
Defendant, City of Austin, represented by and through the undersigned counsel, files this
Supplemental Reply in Support of its Plea to the Jurisdiction as follows:
A.
Plaintiff pleaded jurisdictional facts which amount to an intentional tort.
At the January 26, 2023 hearing on Defendant's Plea to the Jurisdiction, Plaintiff
discussed two cases which were not included in Plaintiff's Response to the Plea to the
Jurisdiction: City of Austin V. Davis, 693 S.W.2d 31 (Tex. App.-Austin 1985) and Hermann
Hosp. V. Martinez, 990 S.W.2d 476 (Tex. App.-Houston (1999). Neither of these cases is
analogous to this case since the underlying actions of the tortfeasors in those cases did not
involve intentional torts. Instead, the tortfeasors' actions as pleaded and as demonstrated by the
evidence only involved pure negligence.
In City of Austin V. Davis, 693 S.W.2d 31 (Tex. App.-Austin 1985), a father brought a
negligence claim against a city hospital alleging that he was entitled to recover for his own
mental distress which he suffered as a bystander when he helped find his son's body after his son
fell down an airshaft at the hospital. The father alleged that hospital staff negligently failed to
properly medicate and restrain his son during his son's hospitalization which led to his son
leaving his room and falling down the airshaft. Id. at 33.
City of Austin V. Davis did not involve any intentional actions of the tortfeasors, and the
Court did not address the Texas Tort Claims Act's intentional tort exception to the waiver of
immunity. The only liability issue addressed by the Court was whether the father was close
enough in proximity to his son's body when it was discovered to support a claim for bystander
recovery. Id. at 33-34.
Similarly, Hermann Hosp. V. Martinez, 990 S.W.2d 476 (Tex. App.-Houston (1999) did
not involve any intentional actions of the tortfeasor. In Hermann, a family's vehicle was struck
by another vehicle driven a city employee. Id. at 478. The mother and sister of a child who was
seriously injured in the accident brought bystander claims against the city. Id. The city stipulated
that its employee's negligence in operating the city vehicle was the proximate cause of the
family's injuries, and the Court permitted a bystander claim under the Texas Tort Claims Act. Id.
at 479-80. Hermann did not involve any intentional actions of the tortfeasor, and the Court did
not address the Texas Tort Claims Act's intentional tort exception to the waiver of immunity.
Unlike the Davis and Hermann cases, the instant case clearly involves alleged intentional
actions of the tortfeasor, and the jurisdictional facts pleaded by the Plaintiff constitute intentional
torts. Plaintiff's alleged facts regarding the conduct of Taylor all constitute intentional torts for
which the City is immune under the Texas Torts Claim Act. Accordingly, Plaintiff's claim
should be dismissed.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
Page 2 of 3
H. GRAY LAIRD III
State Bar No. 24087054
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their
attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 30th day of
January, 2023.
Via e-Service and/or facsimile:
RAMIRO CANALES
SBN. 24012377
rcanales@hendlerlaw.com
SCOTT M. HENDLER
SBN. 09445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
SBN.24091798
Igoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. MoPac Expy
Bldg 1, Ste 300
Austin, Texas 78746
Telephone: (512) 439-3200
Facsimile: (512) 439-3201
ATTORNEYS FOR PLANTIFFS
/s/ H. Gray Laird III
H. GRAY LAIRD III
Page 3 of 3
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 72265714
Status as of 2/3/2023 11:18 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
1/30/2023 12:24:04 PM
SENT
Alexis Lopez
alopez@hendlerlaw.com
1/30/2023 12:24:04 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
1/30/2023 12:24:04 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
1/30/2023 12:24:04 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
1/30/2023 12:24:04 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
1/30/2023 12:24:04 PM
SENT
Sara Rice
sara.rice@austintexas.gov
1/30/2023 12:24:04 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
1/30/2023 12:24:04 PM
SENT
CAUSE NO. D-1-GN-22-001902
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
345TH JUDICIAL DISTRICT
THE CITY OF AUSTIN,
§
Defendant.
§
TRAVIS COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' PLEA TO THE JURISDICTION
On January 26, 2023, the Court heard the City of Austin's ("Defendant") Plea to the
Jurisdiction. The matter was taken under advisement by the Court.
Attorney Ramiro Canales appeared for Plaintiff, Rebeca Garcia, and announced ready.
Attorneys H. Gray Laird and Sara Rice appeared for Defendant and announced ready.
After considering the Motion, Response, Reply, supplemental briefing, and argument of
counsel, the Court finds that Defendant's Plea to the Jurisdiction should be GRANTED and it is
SO ORDERED.
Signed this 21st day of February, 2023.
Canada
HON. CATHERINE A. MAUZY
Filed on 2/21/2023 3:52:23 PM Travis County District Clerk, Velva L. Price
3/10/2023 1:59 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-22-001902
D-1-GN-22-001902
Selina Hamilton
REBECA GARCIA
§
IN THE DISTRICT COURT OF
§
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN
§
§
Defendant.
§
345th JUDICIAL DISTRICT
NOTICE OF ACCELERATED APPEAL
Pursuant to Texas Rules of Appellate Procedure 25.1(a), 26.1(b), 28.1(a), and Texas Civil
Practice and Remedies Code § 51.014(a)(8), Plaintiff Rebeca Garcia appeals to the Third Court
of Appeals in Austin, Texas from the interlocutory order filed in this action on February 21, 2023
granting Defendant's Plea to the Jurisdiction hereto attached as Attachment A.
Dated: March 10, 2023
Respectfully submitted,
HENDLER FLORES LAW, PLLC
Scott M. Hendler - Texas Bar No. 9445500
shendler@hendlerlaw.com
Laura A. Goettsche - Texas Bar No. 24091798
lgoettsche@hendlerlaw.com
Ramiro Canales - Texas Bar No. 24012377
rcanales@hendlerlaw.com
HENDLER FLORES LAW, PLLC
901 S. Mopac Expy., Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that the foregoing was filed on March 10, 2023 via the Court's e-file system and
will be served in compliance with the Texas Rules of Civil Procedure.
Scott M. Hendler
2
CAUSE NO. D-1-GN-22-001902
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
345TH JUDICIAL DISTRICT
THE CITY OF AUSTIN,
§
Defendant.
§
TRAVIS COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' PLEA TO THE JURISDICTION
On January 26, 2023, the Court heard the City of Austin's ("Defendant") Plea to the
Jurisdiction. The matter was taken under advisement by the Court.
Attorney Ramiro Canales appeared for Plaintiff, Rebeca Garcia, and announced ready.
Attorneys H. Gray Laird and Sara Rice appeared for Defendant and announced ready.
After considering the Motion, Response, Reply, supplemental briefing, and argument of
counsel, the Court finds that Defendant's Plea to the Jurisdiction should be GRANTED and it is
SO ORDERED.
Signed this 21st day of February, 2023.
HON. CATHERINE A. MAUZY
ATTACHMENT A
Filed on 2/21/2023 3:52:23 PM Travis County District Clerk, Velva L. Price
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Alexis Lopez on behalf of Scott Hendler
Bar No. 9445500
alopez@hendlerlaw.com
Envelope ID: 73557321
Filing Code Description: Notice of Appeal
Filing Description: NOTICE OF ACCELERATED APPEAL
Status as of 3/13/2023 9:01 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
3/10/2023 1:59:30 PM
SENT
Alexis Lopez
alopez@hendlerlaw.com
3/10/2023 1:59:30 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
3/10/2023 1:59:30 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
3/10/2023 1:59:30 PM
SENT
Sandra Torres
sxtorres@hendlerlaw.com
3/10/2023 1:59:30 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
3/10/2023 1:59:30 PM
SENT
Sara Rice
sara.rice@austintexas.gov
3/10/2023 1:59:30 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
3/10/2023 1:59:30 PM
SENT
Associated Case Party: REBECA GARCIA
Name
BarNumber
Email
TimestampSubmitted
Status
Ramiro Canales
rcanales@hendlerlaw.com
3/10/2023 1:59:30 PM
SENT
ACCEPTED
14-23-00241-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/12/2023 3:17 PM
DEBORAH M. YOUNG
CLERK OF THE COURT
No. 14-23-00241-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
In the Court of Appeals
6/12/2023 3:17:13 PM
For the Fourteenth District of Texas
DEBORAH M. YOUNG
Clerk of The Court
REBECA GARCIA
APPELLANT,
V.
THE CITY OF AUSTIN
APPELLEE.
On Appeal from the 345th District Court of Travis County, Texas
Cause No. D-1-GN-22-001902, Honorable Catherine Mauzy, Judge Presiding
APPELLANT REBECA GARCIA'S BRIEF
SCOTT M. HENDLER
LAURA A. GOETTSCHE
State Bar No. 9445500
State Bar No. 24091798
shendler@hendlerlaw.com
lgoettsche@hendlerlaw.com
LEIGH ANNE JOSEPH
RAMIRO CANALES
State Bar No. 24060051
State Bar No. 24012377
ljoseph@hendlerlaw.com
rcanales@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy. Bldg. 1, Suite #300
Austin, Texas 78746
T: (512) 439-3200 F: (512) 439-3201
COUNSEL FOR APPELLANT REBECA GARCIA
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant:
Rebeca Garcia
Appellant's Trial and Appellate Counsel:
SCOTT M. HENDLER
Lead Attorney
State Bar No. 9445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
State Bar No. 24091798
lgoettsche@hendlerlaw.com
LEIGH ANNE JOSEPH
State Bar No. 24060051
ljoseph@hendlerlaw.com
RAMIRO CANALES
State Bar No. 24012377
rcanales@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy.
Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
Appellees:
The City of Austin
Appellee's Trial and Appellate Counsel:
HENRY GRAY LAIRD III
Lead Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
i
SARA RICE
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78757-1546
Telephone: (512) 974-1342
Facsimile: (512) 974-1311
ii
TABLE OF CONTENTS
Identity of Parties and Counsel
i
Table of Contents
iii
Index of Authorities
V
Record References
vi
Statement of the Case
vii
Statement Regarding Oral Argument
viii
Standard of Review
ix
Issues Presented
xi
I.
Whether the trial court erred in granting Appellee's plea
to the jurisdiction.
II.
Whether the City of Austin met the traditional-summary-
judgment-like burden to establish governmental immunity.
Introduction
xii
Statement of Facts
1
Summary of the Argument
3
Argument
4
I.
The Trial Court Has Jurisdiction to Hear a Claim of Negligent
Infliction of Emotional Distress
4
II.
Appellee Did Not Present Any Evidence to Meet Its
Burden
5
III.
Appellee Had Actual Notice of Appellant's Injury
5
iii
IV.
Appellee Improperly Challenged the Merits of Appellant's
Claim
5
Conclusion and Prayer
6
Certificate of Compliance
7
Certificate of Service
7
APPENDIX
TAB A
Trial Court's Order
iv
INDEX OF AUTHORITIES
Cases
Bacon V. Texas Hist. Comm 'n,
411 S.W.3d 161, 171 (Tex. App. - Austin 2013, no pet.)
x,5
Bland Indep. Sch. Dist. V. Blue,
34 S.W.3d 547, 554 (Tex. 2000)
ix,5
Houston Belt & Terminal Ry. V. City of Houston,
487 S.W.3d 154, 160 (Tex. 2016)
ix
Office of Attorney Gen. V. Crawford,
322 S.W.3d 858, 861, n. 8 (Tex.App. - Houston - [1st Dist.]
2010, pet. denied)
ix
Texas Dep't of Parks & Wildlife V. Miranda,
133 S.W.3d 217, 228 (Tex. 2004)
ix,x,5
Statutes
TEX. CIV. PRAC. & REM. CODE
§ 101.101 (c)
5
Rules
TEX. R. APP. P. 9.4(i)(1)
7
V
RECORD REFERENCES
Appellant Rebeca Garcia will be cited as "Appellant."
Appellee the City of Austin will be cited as "Appellee."
The appellate record consists of one volume of the Clerk's Record and one
volume of the Reporter's Record. Appellant will cite the record as follows:
Clerk's Record
(Volume) CR [page no.]
Reporter's Record
(Volume) RR [page no.]
Appendix
Appendix - TAB [letter]
vi
STATEMENT OF THE CASE
Nature of the Case
Appellant filed an original petition making
and Parties:
a claim of negligent infliction of emotional
distress under the bystander theory of recovery. (1
CR 4-13). Appellee filed an answer, affirmative
defenses, and a plea to the jurisdiction. (1 CR 17-
28). Appellant filed a response to the plea to the
Jurisdiction. (1 CR 35-63). Appellee filed a reply
and a supplemental reply. (1 CR 64-72).
Trial Court:
Honorable Catherine Mauzy, 345th Judicial
District Court, Travis County, Texas.
Trial Court's
A hearing on Appellee's plea to the jurisdiction
Disposition:
was held on January 26, 2023. (1 CR 29-30, 1 RR
1-12). The trial court granted Appellee's plea to
the jurisdiction. (1 CR 78-78) (Appendix-TAB A).
vii
STATEMENT REGARDING ORAL ARGUMENT
Because this appeal involves an analysis of case law regarding governmental
immunity, Appellant does not believe that oral argument is necessary.
viii
STANDARD OF REVIEW
"Appellate courts reviewing a challenge to a trial court's subject matter
jurisdiction review the trial court's ruling de novo." Texas Dep' of Parks &
Wildlife V. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). "A plea to the jurisdiction
is a dilatory plea, the purpose of which is to defeat a cause of action without regard
to whether the claims asserted have merit." Bland Indep. Sch. Dist. V. Blue, 34
S.W.3d 547, 554 (Tex. 2000). "The claims may form the context in which a
dilatory plea is raised, but the plea should be decided without delving into the
merits of the case." Id. "The purpose of a dilatory plea is not to force the plaintiffs
to preview their case on the merits but to establish a reason why the merits of the
plaintiffs' claims should never be reached." Id.
In determining jurisdiction, a trial court must "construe the pleadings
liberally in the pleader's favor and look to their intent." Houston Belt & Terminal
Ry. V. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). "Only if the pleadings
affirmatively negate jurisdiction should the plea to the jurisdiction be granted
without affording the plaintiffs an opportunity to replead." Id. (emphasis added);
see also Office of Attorney Gen. V. Crawford, 322 S.W.3d 858, 861, n. 8 (Tex.App.
- Houston [1st Dist.]2010, pet. denied) (relying on dictionary definition of "only'
to mean, among other things, 'no more than; nothing other than nothing more
besides; solely, merely, exclusively or 'By itself, alone, without anything else.").
ix
"If the challenged jurisdictional fact[s] overlap[] with the merits of the
plaintiff's claim[], the party asserting the plea to the jurisdiction must overcome a
traditional-summary-judgment-like burden and conclusively negate th[e] fact[s]."
Bacon V. Texas Hist. Comm'n, 411 S.W.3d 161, 171 (Tex. App. - Austin 2013, no
pet.). "Our ultimate inquiry is whether the particular facts presented, as
determined by the foregoing review of the pleadings and any evidence,
affirmatively demonstrate a claim within the trial court's subject-matter
jurisdiction." Id. "If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
the fact issue will be resolved by the fact finder." Miranda, 133 S.W.3d at 227-
228.
X
ISSUES PRESENTED
I.
Whether the trial court erred in granting Appellee's plea to the
jurisdiction.
II.
Whether the City of Austin met the traditional-summary-judgment
like burden to establish governmental immunity.
xi
TO THE HONORABLE FOURTEENTHCOURT OF APPEALS:
Appellant appeals the trial court's order, which, without any analysis or
citation to legal authority, erroneously granted Appellee's plea to the jurisdiction.
The trial court's order is bad precedent that affects the rights of claimants who
plead a claim of negligent infliction of emotional distress.
A trial court must liberally construe pleadings and accept them as true. A
court cannot determine its jurisdiction based on a claim that was not pled.
Allowing adversaries to mischaracterize a cause of action sets a bad precedent and
creates confusion for claimants in future proceedings. Furthermore, fact questions
regarding jurisdiction must be decided by the fact finder. A trial court cannot
usurp the role of jury in determining its jurisdiction.
The trial court's order granting Appellee's plea to the jurisdiction must be
reversed.
xii
STATEMENT OF FACTS
On April 24, 2020, City of Austin Police officer Chris Taylor, shot and
killed Mike Ramos, an unarmed Black man, in front of his girlfriend, Appellant
Rebeca Garcia. (1 CR 4).
On April 12, 2022, City of Austin Police Officer Chris Taylor, filed
"Defendant Christopher Taylor's Motion to Dismiss Plaintiff's Second Amended
Complaint and Supporting Brief" in Cause No. 1:20-cv-01256-RP in the U.S.
District Court in the Western District of Texas, Austin Division. (1 CR 41-63).
On April 22, 2022, Appellant filed her Original Petition in Travis County,
Texas. (1 CR 4-13). As a bystander who witnessed the traumatic killing of Mike
Ramos, Appellant filed a claim of negligent infliction of emotional distress against
the City of Austin. (1 CR 10-11).
On May 23, 2022, Appellee filed an Original Answer and Affirmative
Defenses. (1 CR 17-20).
On November 17, 2022, Appellee filed a Plea to the Jurisdiction. (1 CR 21-
28).
On January 19, 2023, Appellant filed a Response in Opposition to
Appellee's Plea to the Jurisdiction. (1 CR 35-63).
On January 24, 2023, Appellee filed a Reply in Support of Plea to the
Jurisdiction. (1 CR 64-69).
1
On January 26, 2023, a hearing was held on Appellee's Plea to the
Jurisdiction. (1 CR 29-30, 1 RR 1-12).
On January 30, 2023, Appellee filed a Supplemental Reply. (1 CR 70-72).
On February 21, 2023, the trial court granted Appellee's Plea to the
Jurisdiction. (1 CR 78). The trial court order does not state the reason(s) for
granting the Plea to the Jurisdiction.
On March 10, 2023, Appellant filed a Notice of Accelerated Appeal. (1 CR
82-84).
2
SUMMARY OF THE ARGUMENT
A trial court must accept Plaintiff's pleadings as true and cannot create a
cause of action that was not pled. In this case, the trial court did the opposite of
what Texas Supreme Court precedents require. Without explanation, the trial court
granted Appellee's plea to the jurisdiction. (1 CR 78). Contrary to what Plaintiff
pled, Appellee argued that the trial court should grant its plea because Plaintiff's
bystander claim of "negligent infliction of emotional distress" was actually an
"intentional tort[]". (1 CR 24). As Plaintiff's Original Petition indicates, that is
not the case. (1 CR 10-11). On this point, the trial court erred.
Additionally, the trial court erred by not requiring Appellee to meet the
traditional-summary-judgment-like burden to negate jurisdictional facts that
overlapped with Plaintiff's claim of negligent infliction of emotional distress. In
fact, Appellee did not submit any evidence. Without evidence, the trial court had
no basis to grant Appellee's plea to the jurisdiction. Plaintiff submitted evidence
from a federal proceeding that created a fact question regarding the court's
jurisdiction. (1 CR 35-63). Only a fact finder can answer the fact question and
determine whether the court has jurisdiction.
3
ARGUMENT
I.
The Trial Court Has Jurisdiction to Hear a Claim of Negligent
Infliction of Emotional Distress.
Appellant, a bystander, pled a negligent infliction of emotional distress
claim. (1 CR 10-11). In its Plea to the Jurisdiction, Appellee mischaracterized
Appellant's negligence claim as an intentional claim to defeat subject matter
jurisdiction. Adding an element of proof to Appellant's negligent infliction of
emotional distress claim has no basis in law, and Appellee did not cite any Texas
Supreme Court precedent that requires it.
Officer Taylor does not claim that his decision to use deadly force was
intentional. In a motion to dismiss based on qualified immunity filed in federal
court in the Western District in Austin, he told the Court that Mike Ramos's
vehicle could travel a short distance "in a split second" and that "he had even less
time to make the incalculably difficult decision to utilize deadly force." (1 CR 52).
Because of Officer Taylor's representations in federal court, Appellant plead a
negligence claim. Negligent infliction of emotional distress of a bystander is a
cause of action recognized in Texas courts. Appellee cannot circumvent Officer
Taylor's representations in federal court regarding his decision to use deadly force
in "even less time" than a split second against Mike Ramos. (1 CR 52).
4
II.
Appellee Did Not Present Any Evidence to Meet Its Burden.
Appellee challenges the jurisdictional facts, but it does not attach any
evidence to its plea as required in a traditional motion for summary judgment.
Bacon, 411 S.W.3d at 171. Conclusory allegations are insufficient. Appellee has
the initial burden to provide evidence. Miranda, 133 S.W.3d at 228. Without
evidence, Appellee did not carry its burden.
III. Appellee Had Actual Notice of Appellant's Injury.
Appellant was not required to provide written notice under the Texas Tort
Claims Act and the City of Austin's Charter because Appellee had actual notice of
the injury to Appellant. TEX. CIV. PRAC. & REM. CODE. § 101.101(c) (notice
requirements do not apply if the "governmental unit
has actual notice
that
the claimant received some injury."). Appellee had actual notice as noted in Chief
Manley's report to the Texas Attorney General. (1 CR 9).
IV.
Appellee Improperly Challenged the Merits of Appellant's Claim.
The merits of Appellant's claim have no bearing in determining a trial
court's jurisdiction. Because Appellee mischaracterized Appellant's claim and
improperly challenged the merits of the negligent infliction of emotional distress
claim in its dilatory plea, it should have been denied. See Bland Indep. Sch. Dist.,
34 S.W.3d at 554 ("The claims may form the context in which a dilatory plea is
raised, but the plea should be decided without delving into the merits of the case.").
5
CONCLUSION AND PRAYER
WHEREFORE, Appellant respectfully prays that the Fourteenth Court of
Appeals reverse the trial court's order grating Appellee's plea to the jurisdiction.
She further prays for such other and further relief at law and equity to which
Appellant may be entitled.
Dated:
June 12, 2023
Respectfully submitted,
Hendler Flores Law, PLLC
/s/ Ramiro Canales
SCOTT M. HENDLER
State Bar No. 9445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
State Bar No. 24091798
lgoettsche@hendlerlaw.com
LEIGH ANNE JOSEPH
State Bar No. 24060051
ljoseph@hendlerlaw.com
RAMIRO CANALES
State Bar No. 24012377
rcanales@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy.
Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
COUNSEL FOR APPELLANT
REBECA GARCIA
6
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant Rebecca's Brief contains 2,323 words,
excluding the specific sections identified in TEX. R. APP. P. 9.4(i)(1). This is a
computer-generated document created in Microsoft Word, using 14-point typeface
for all text, except for footnotes that are in 12-point typeface. In making this
certificate of compliance, I am relying on the word count provided by the software
used to prepare this document.
/s/ Ramiro Canales
RAMIRO CANALES
CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the foregoing Appellant
Rebeca Garcia' brief was e-served on H. Gray Laird, Appellee's counsel, via the
Texas e-filing system on June 12, 2023 at the following e-mail address:
H. Gray Laird
gray.laird@austintexas.gov
/s/ Ramiro Canales
RAMIRO CANALES
7
No. 14-23-00241-CV
In the Court of Appeals
For the Fourteenth District of Texas
REBECA GARCIA
APPELLANT,
V.
THE CITY OF AUSTIN
APPELLEE.
APPENDIX
TAB A
Trial Court's Order
TAB A
Trial Court's Order
CAUSE NO. D-1-GN-22-001902
REBECA GARCIA
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
345TH JUDICIAL DISTRICT
THE CITY OF AUSTIN,
§
Defendant.
§
TRAVIS COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' PLEA TO THE JURISDICTION
On January 26, 2023, the Court heard the City of Austin's ("Defendant") Plea to the
Jurisdiction. The matter was taken under advisement by the Court.
Attorney Ramiro Canales appeared for Plaintiff, Rebeca Garcia, and announced ready.
Attorneys H. Gray Laird and Sara Rice appeared for Defendant and announced ready.
After considering the Motion, Response, Reply, supplemental briefing, and argument of
counsel, the Court finds that Defendant's Plea to the Jurisdiction should be GRANTED and it is
SO ORDERED.
Signed this 21st day of February, 2023.
Canada
HON. CATHERINE A. MAUZY
Filed on 2/21/2023 3:52:23 PM Travis County District Clerk, Velva L. Price
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Leigh Joseph on behalf of Scott Hendler
Bar No. 9445500
ljoseph@hendlerlaw.com
Envelope ID: 76526880
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Appellant Rebeca Garcia's Brief Not Requesting Oral
Argument
Status as of 6/12/2023 3:20 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Alexis Lopez
alopez@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Rachel Cotten
rcotten@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Ramiro Canales
rcanales@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Leigh joseph
ljoseph@hendlerlaw.com
6/12/2023 3:17:13 PM
SENT
Associated Case Party: The City of Austin
Name
BarNumber
Email
TimestampSubmitted
Status
Henry Laird
24087054
gray.laird@austintexas.gov
6/12/2023 3:17:13 PM
SENT
Sara Rice
24110273
sara.rice@austintexas.gov
6/12/2023 3:17:13 PM
SENT
ACCEPTED
14-23-00241-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/12/2023 2:03 PM
DEBORAH M. YOUNG
CLERK OF THE COURT
No. 14-23-00241-CV
IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS
REBECA GARCIA
Appellant
V.
THE CITY OF AUSTIN,
Appellee
On Appeal from the 345th District Court of Travis County, Texas
Cause No. D-1-GN-22-001902, Honorable Catherine Mauzy, Judge Presiding
BRIEF OF APPELLEE
Anne L. Morgan, City Attorney
Meghan L. Riley, Chief, Litigation
H Gray Laird III, Assistant City Attorney
State Bar No. 24087054
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-1342
Facsimile: (512) 974-1311
gray.laird@austintexas.gov
COUNSEL FOR APPELLEE
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS
i
INDEX OF AUTHORITIES
ii
RECORD REFERENCES
1
STATEMENT OF THE CASE
1
ISSUE PRESENTED
2
STATEMENT OF FACTS
2
SUMMARY OF THE ARGUMENT
3
ARGUMENT
4
I.
The trial court did not err in granting the City's Plea to the Jurisdiction.4
A.
Appellant must allege and prove a waiver of the City's
governmental immunity
4
B. The Texas Tort Claims Act's limited waivers of immunity
do not
apply
6
C.
Appellant pleaded jurisdictional facts which amount to an intentional
tort, and thus her claim is barred by governmental immunity
7
II.
The City Concedes Actual Notice Under Tex. Civ. Prac. & Rem. Code
Sec. 101.101
11
CONCLUSION
11
CERTIFICATE OF COMPLIANCE
12
CERTIFICATE OF SERVICE
12
i
INDEX OF AUTHORITIES
Cases
Cathey V. Booth, 900 S.W.2d 339, 341 (Tex. 1995)
11
City of Laredo V. Nuno, 94 S.W.3d 786, 789 (Tex. App.-San Antonio 2002.);
8
General Services Comm'n V. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001). 4
Harris County, Tex. V. Cabazos, 177 S.W.3d 105, 111 (Tex. App.-Houston [1st Dist.] 2005)
8
Hughes V. Tom Green County, 553 S.W.3d 1, 7 (Tex. App.-Austin 2017)
4
Huong V. City of Port Arthur, 961 F.Supp.1003, 1008-09 (E.D.Tex.1997)
8, 10
Medrano V. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999)
8
Sharyland Water Supply Corp. V. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)
4
Tarrant County Hosp. Dist. V. Henry, 52 S.W.3d 434, 450 (Tex.App.-Fort Worth 2001);
8
Texas Ass'n of Bus. V. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
5
Texas Dept of Parks and Wildlife V. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004).
4,5
Texas Dept of Public Safety V. Petta, 44 S.W.3d 575, 580 (Tex. 2001);
8
Texas Dept. of Transportation V. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999)
5
University of Tex. Med. Branch V. York, 871 S.W.2d 175, 177 (Tex. 1994)
5
Wasson Interests, Ltd. V. City of Jacksonville ("Wasson I"), 489 S.W.3d 427, 429-30 (Tex.
2016).
4
Statutes
Tex. Civ. Prac. & Rem. Code 101.057(2)
3, 7
Tex. Civ. Prac. & Rem. Code Ann. $101.021.
6
Texas Tort Claims Act Sec. 101.101 (a) and (b).
2, 11
Tex. Civ. Pr. & Rem. Code § 101.0215(a)(1)
2
ii
Rules
Rule 9.4 of the Texas Rules of Appellate Procedure
12
iii
RECORD REFERENCES
Clerk's Record. Citations to the Clerk's Record will be to "CR" with the page
number following, e.g., "CR 1."
Reporter's Record. Citations to the Reporter's Record will be to "RR" with the
page number following, e.g., "RR 2."
STATEMENT OF THE CASE
Nature of the Case:
Plaintiff-Appellant Rebeca Garcia filed suit against the
City of Austin asserting a claim for negligent infliction of
emotional distress arising out of an officer-involved
shooting on April 24, 2020.
Trial Court:
Cause No. D-1-GN-22-001902, Rebeca Garcia, Plaintiff,
V. City of Austin, Defendant, in the 345th District Court
of Travis County, Texas
Trial Court's
The trial court granted the City of Austin's Plea to the
Disposition:
Jurisdiction. (1 CR 78)
1
ISSUE PRESENTED
I.
Whether the trial court erred in granting the City's Plea to the Jurisdiction
when the Appellant's facts, as pleaded in her Petition, amount to an intentional
tort for which there is no waiver of immunity under the Texas Tort Claims
Act.
II.
The City Concedes Actual Notice Under Tex. Civ. Prac. & Rem. Code Sec.
101.101.
STATEMENT OF FACTS
This lawsuit arises out of an officer-involved shooting which occurred on
April 24, 2020 in Austin, Texas. Appellant Rebeca Garcia alleges that her
boyfriend, Mike Ramos, was shot and killed by Austin Police Officer Christopher
Taylor after Taylor and other police officers responded to a 911 call about a man
with a gun and a woman using drugs in a vehicle while the vehicle was parked in
the parking lot of an apartment complex. (1 CR 4-11) Appellant alleges that the
City's employees, Officer Taylor and other officers, "drew their firearms at Mike
[Ramos][and] they also drew them at Rebeca." (1 CR 10) Appellant further alleges
that "Taylor shot Mike in the head and killed him" while the Appellant was just "a
few feet distant from Mike." (1 CR 9-10) Appellant also pleaded that she
witnessed "Mike's murder." (1 CR 11)
Appellant brought this lawsuit against the City of Austin, alleging that the
City is liable for the actions of its employee, Officer Taylor, under the Texas Tort
Claims Act. Tex. Civ. Pr. & Rem. Code § 101.0215(a)(1). (I CR 11) Appellant
2
couches this lawsuit as a claim against the City for Officer Taylor's "negligent
infliction of emotional distress" on Appellant. (1 CR 11)
SUMMARY OF THE ARGUMENT
The Texas Tort Claims Act does not waive a governmental unit's immunity
for a claim arising from assault, battery or any other intentional tort. Tex. Civ.
Prac. & Rem. Code 101.057(2). Although Appellant couches her claim as a
negligence claim, the facts as alleged in Appellant's Petition all describe
intentional torts. Appellant alleges that Officer Taylor and other APD officers drew
their firearms at Ramos and the Appellant, and Taylor ultimately shot his firearm
at Ramos, which is an intentional tort.
A plaintiff cannot circumvent the intentional tort exception by couching her
claims in terms of negligence. That is exactly what the Appellant in this case
attempted to do. As a result, the City is immune from Appellant's state law
personal injury claim, and the trial court did not err in granting the City's Plea to
the Jurisdiction.
3
ARGUMENT
I.
The trial court did not err in granting the City's Plea to the
Jurisdiction.
A.
Appellant must allege and prove a waiver of the City's
governmental immunity.
Governmental immunity shields Texas cities from suit for common law and
statutory claims arising out of their governmental functions unless there is a clear
legislative waiver. Wasson Interests, Ltd. V. City of Jacksonville ("Wasson I"), 489
S. W.3d 427, 429-30 (Tex. 2016). Government immunity from suit deprives the trial
court of subject matter jurisdiction and, thus, is properly asserted in a plea to the
jurisdiction. Texas Dep't of Parks and Wildlife V. Miranda, 133 S.W.3d 217, 225-
226 (Tex. 2004).
The State's consent to jurisdiction may be alleged either by reference to a
statute or by pleading express legislative permission. General Services Comm'n V.
Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001). Texas does not
recognize the doctrine of waiver of governmental immunity by conduct. Sharyland
Water Supply Corp. V. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011); see also
Hughes V. Tom Green County, 553 S.W.3d 1, 7 (Tex. App.-Austin 2017, pet.
granted) ("the Supreme Court and this Court have repeatedly declined to apply a
waiver-by-conduct theory"). Rather, legislative consent to sue must be made in
"clear and unambiguous language." University of Tex. Med. Branch V. York, 871
4
S.W.2d 175, 177 (Tex. 1994). Absent this consent, the trial court lacks a
jurisdictional basis to hear the claim. Texas Dept. of Transportation V. Jones, 8
S. .W.3d 636, 638-39 (Tex. 1999).
When subject matter jurisdiction is contested, "[t]he trial court must determine
at its earliest opportunity whether it has the constitutional or statutory authority to
decide the case before allowing the litigation to proceed." Id. at 226. Whether the
trial court has subject matter jurisdiction is a question of law. Id.
A plaintiff bears the burden to allege facts that affirmatively demonstrate the
trial court's jurisdiction to hear a case. Texas Ass'n of Bus. V. Texas Air Control Bd.,
852 S.W.2d 440, 443 (Tex. 1993). If the pleadings affirmatively negate the existence
of jurisdiction, the plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend. Miranda, 113 S.W.3d at 226-27.
Here, Appellant does not allege that a specific waiver of the City's
governmental immunity applies. The Original Petition makes no mention of any
waiver of the City's governmental immunity and Appellant again does not identify
a specific waiver in her brief to this Court. As a result, her claim fails as a matter of
law. (1 CR 4-12)
5
B.
The Texas Tort Claims Act's limited waivers of immunity
do not apply.
The Texas Tort Claims Act provides in pertinent part:
"A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury or death arises from the operation
or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
(2) personal injury and death SO caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private
person, be liable to the claimant according to Texas law."
Tex. Civ. Prac. & Rem. Code Ann. $101.021.
As stated above, Appellant does not identify a specific waiver of immunity,
and thus her claim fails on that ground alone. Even if one assumes that Appellant
intended to proceed under the limited waiver found in Tex. Civ. Prac. & Rem. Code
Ann. 101.021(2) for personal injury and death caused by the use of tangible
personal property, Appellant's claim is futile since the Texas Tort Claims Act clearly
establishes that the state has not waived immunity for intentional torts. The Texas
6
Tort Claims Act does not waive a governmental unit's immunity for a claim arising
from assault, battery or any other intentional tort. Tex. Civ. Prac. & Rem. Code
101.057(2).
C.
Appellant pleaded jurisdictional facts which amount to an
intentional tort, and thus her claim is barred by governmental
immunity.
No matter how Appellant now attempts to couch her factual allegations, the
facts as alleged in her Petition clearly describe an intentional tort. Appellant alleges
in her Petition that her boyfriend, Mike Ramos, was shot and killed by Austin Police
Officer Christopher Taylor after Taylor and other police officers responded to a 911
call about a man with a gun and a woman using drugs in a vehicle while the vehicle
was parked in the parking lot of an apartment complex. (1 CR 4-11) Appellant
alleges that the City's employees, Officer Taylor and other officers, "drew their
firearms at Mike [Ramos][and] they also drew them at Rebeca." (1 CR 10) Appellant
further alleges that "Taylor shot Mike in the head and killed him" while the
Appellant was just "a few feet distant from Mike." (1 CR 9-10) Appellant also
pleaded that she witnessed "Mike's murder." (1 CR 11)1 Appellant alleges that she
jumped out of the car just before Taylor shot Ramos, and that she witnessed the
shooting of Ramos. (1 CR 9)
1 "Murder" under Texas law requires an intentional or knowing mental state. Texas Penal Code $19.02.
7
The above facts are not facts "mischaracterized" by the City as Appellant
argues. These are the facts alleged by the Appellant in her own Petition. These facts,
if taken as true, clearly allege and constitute intentional torts.
Here, the gravamen of Appellant's Petition is that Officer Taylor wrongfully
shot Ramos, while Appellant was in the near vicinity of Ramos, which is clearly an
intentional tort, and thus Appellant's claim against the City is barred by
governmental immunity. See Harris County, Tex. V. Cabazos, 177 S.W.3d 105, 111
(Tex. App.-Houston [1st Dist.] 2005, no pet.) (immunity not waived for claim
arising out of deliberate shooting by deputy sheriff). As the Court of Appeals in
Harris County, Tex. V. Cabazos explained: "[i]f a plaintiff pleads facts which
amount to an intentional tort, no matter if the claim is framed as negligence, the
claim generally is for an intentional tort and is barred by the TTCA." Harris
County, 177 S.W.3d at 111; citing Texas Department of Public Safety V. Petta, 44
S.W.3d 575, 580 (Tex. 2001); City of Laredo V. Nuno, 94 S.W.3d 786, 789 (Tex.
App.-San Antonio 2002, no pet.); Tarrant County Hosp. Dist. V. Henry, 52 S.W.3d
434,450 (Tex.App.-Fort Worth 2001, no pet.) Medrano V. City of Pearsall, 989
S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.). A plaintiff cannot
circumvent the intentional tort exception by couching her claims in terms of
negligence. See Huong V. City of Port Arthur, 961 F.Supp. 1003, 1008-09
(E.D. .Tex.1997) (plaintiffs cannot circumvent intentional tort exception to waiver
8
of liability by simply pleading negligence when the shooting event upon which
they base their claims is actually an intentional tort).
Appellant fails to address in any manner this well-known, long line of cases,
and it is easy to understand why she ignores them. This established authority
clearly supports dismissal of this claim. All of the cases emphasize that the focus
of the Court's analysis should be on the acts of the alleged tortfeasor, and whether
those acts amount to an intentional tort, no matter how a plaintiff frames the cause
of action in the petition.
Appellant in this case is attempting to do exactly what the courts in the
above cases have prohibited. She argues that the City has "mischaracterized" her
negligence claim as an intentional tort claim and has added an element of proof to
her purported negligent infliction of emotional distress claim. Appellant also
contends that the City has improperly challenged the merits of Appellant's claim.
The City has done no such things. Instead, the City has relied solely on the
Appellant's own facts as alleged in her Petition to demonstrate that Appellant's
factual allegations allege an intentional tort. Allegations that officers drew firearms
at Ramos and the Plaintiff, shot Ramos in the head and killed him, and allegations
that refer to "Mike's murder" do not assert a negligence claim. (1 CR 4-11) These
factual allegations allege an intentional tort and, as a result, Plaintiff's claim is
barred by the Texas Tort Claims Act.
9
Appellant also attempts to navigate around the intentional tort exception by
citing to a portion of Officer Taylor's motion to dismiss in a federal court case in
which Taylor asserted that he was entitled to qualified immunity for Ramos's
excessive force claim since he had less than a split second to "make the
incalculably difficult decision to utilize deadly force." (Appellant's Brief at 4) Yet,
this argument by Taylor in another pleading does not contain any factual allegation
as to his mental state at the time of his actions. It simply describes the limited time
in which he had to decide how to act under the circumstances. Appellant's effort to
sidestep her own factual allegations in her Petition are simply not supported by the
relevant caselaw cited above or Taylor's argument in federal court.
Although Appellant couches her claim as a negligence claim, the facts as
alleged in her Petition all describe intentional torts. A plaintiff cannot circumvent
the intentional tort exception by couching her claims in terms of negligence. See
Huong V. City of Port Arthur, 961 F.Supp.1003, 1008-09 (E.D.Tex.1997). The
City is not relying on any other facts other than those asserted by Appellant in her
Petition. Appellant had the burden to allege jurisdictional facts to support subject
matter jurisdiction. Appellant's alleged facts regarding the conduct of Taylor all
constitute intentional torts for which the City is immune under the Texas Torts
Claim Act. Accordingly, the trial court did not err in granting the City's Plea to
the Jurisdiction and dismissing the Appellant's claims against the City.
10
II.
The City Concedes Actual Notice Under Tex. Civ. Prac. & Rem. Code
Sec. 101.101
The City of Austin acknowledges that it received sufficient notice of
Appellant's claim under Texas Tort Claims Act Sec. 101.101 (a) and
(b). Compliance with the notice provisions of the Texas Tort Claims Act is
a
prerequisite to a waiver of governmental immunity. Cathey V. Booth, 900 S.W.2d
339, 341 (Tex. 1995). The City concedes that Appellant met such prerequisite.
CONCLUSION
For the above reasons, Appellee City of Austin respectfully requests that the
Court of Appeals affirm the trial court's grant of the City's Plea to the Jurisdiction.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
State Bar No. 24087054
gray.laird@austintexas.gov
Sara Rice
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
COUNSEL FOR APPELLEE
11
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document contains 2,093 words, in compliance
with Rule 9.4 of the Texas Rules of Appellate Procedure.
/s/ H Gray Laird III
H. Gray Laird III
Counsel for Appellee
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of foregoing instrument has been
served, on this the 12th day of July, 2023, to the following:
Via E-Service:
SCOTT M. HENDLER
Lead Attorney
State Bar No. 9445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
State Bar No. 24091798
Igoettsche@hendlerlaw.com
LEIGH ANNE JOSEPH
State Bar No. 24060051
ljoseph@hendlerlaw.com
RAMIRO CANALES
State Bar No. 24012377
rcanales@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy.
Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
Counsel for Appellant
/s/ H. Gray Laird III
H. GRAY LAIRD III
12
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Priscilla Chavez on behalf of Gray Laird
Bar No. 24087054
priscilla.chavez@austintexas.gov
Envelope ID: 77450485
Filing Code Description: Response
Filing Description: Appellee Response to Appellant Garcia's Brief
Status as of 7/12/2023 2:34 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Alexis Lopez
alopez@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Rachel Cotten
rcotten@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Ramiro Canales
rcanales@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Leigh joseph
ljoseph@hendlerlaw.com
7/12/2023 2:03:54 PM
SENT
Gray Laird
gray.laird@austintexas.gov
7/12/2023 2:03:54 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
7/12/2023 2:03:54 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
7/12/2023 2:03:54 PM
SENT
Associated Case Party: The City of Austin
Name
BarNumber
Email
TimestampSubmitted
Status
Henry Laird
24087054
gray.laird@austintexas.gov
7/12/2023 2:03:54 PM
SENT
Sara Rice
24110273
sara.rice@austintexas.gov
7/12/2023 2:03:54
SENT
ACCEPTED
14-23-00241-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/1/2023 2:07 PM
DEBORAH M. YOUNG
CLERK OF THE COURT
No. 14-23-00241-CV
In the Court of Appeals
For the Fourteenth District of Texas
REBECA GARCIA
APPELLANT,
V.
THE CITY OF AUSTIN
APPELLEE.
On Appeal from the 345th District Court of Travis County, Texas
Cause No. D-1-GN-22-001902, Honorable Catherine Mauzy, Judge Presiding
APPELLANT REBECA GARCIA'S REPLY BRIEF
SCOTT M. HENDLER
LAURA A. GOETTSCHE
State Bar No. 9445500
State Bar No. 24091798
shendler@hendlerlaw.com
lgoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy. Bldg. 1, Suite #300
Austin, Texas 78746
T: (512) 439-3200 F: (512) 439-3201
COUNSEL FOR APPELLANT REBECA GARCIA
ORAL ARGUMENT NOT REQUESTED
TABLE OF AUTHORITIES
Cases
Antu V. Eddy, 914 S.W.2d 166, 174-75 (Tex. App.-San Antonio 1995, no pet.) 8
Bacon V. Texas Hist. Comm'n, 411 S.W.3d 161, 171 (Tex. App.-Austin 2013, no
pet.)
9
Benavides V. Cnty. of Wilson, 955 F.2d 968, 975 (5th Cir. 1992)
5, 9
Boyles V. Kerr, 855 S.W.2d 593, 597 (Tex. 1993)
4
City of Austin V. Davis, 693 S.W.2d 31, 34 (Tex. App. 1985, writ refused n.r.e.)
9
City of Laredo V. Nuno, 94 S.W.3d 786, 788 (Tex. App.-San Antonio 2002, no
pet.)
6
City of Tyler V. Likes, 962 S.W.2d 489, 494 (Tex. 1997)
2, 4, 5
Freeman V. City of Pasadena, 744 S.W.2d 923, 924 (Tex. 1988)
3
Harris Cnty., TX V. Cabazos, 177 S.W.3d 105, 108 (Tex. App.-Houston Dist.
2005, no pet.)
6, 8
Heckman V. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012)
3
Martinez V. Mikel, 960 S.W.2d 158, 159, 161 (Tex. App.-San Antonio 1997, no
pet.)
8
Medrano V. City of Pearsall, 989 S.W.2d 141, 143 (Tex. App.-San Antonio 1999,
no pet.)
6
Reagan V. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990)
9
Tarrant Cnty. Hosp. Dist. V. Henry, 52 S.W.3d 434, 439 (Tex. App.-Fort Worth
2001, no pet.)
6
Texas Dep't of Parks & Wildlife V. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)
9
Thornton V. Home Depot U.S.A., Inc., No. A-04-CA-1039 AWA, 2006 WL
2022920, at *2 (W.D. Tex. July 17, 2006)
4
White V. United States, 471 F. Supp. 3d 780, 786 (W.D. Tex. 2020)
4
Young V. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990)
8
Statutes
Tex. Civ. Prac. & Rem. Code § 101.021
7
Rules
Tex. R. of App. P. 38.6(c)
2
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
Appellant Rebeca Garcia ("Appellant") hereby files her Reply to Appellee's
Brief, which, without analysis or citation to legal authority, erroneously granted
Appellee's plea to the jurisdiction. Rule 38.6(c) of the Texas Rules of Appellate
Procedure provides that reply briefs are due within 20 days of the date Appellee's
Brief was filed. Appellee's Brief was filed on July 12, 2023, and 20 days after that
date is Tuesday, August 1, 2023. Accordingly, this Reply is timely filed.
I.
INTRODUCTION
As described in more detail in Appellant's Brief (hereinafter App'ant Br.),
the trial court's decision to grant Appellee's Plea to the Jurisdiction was in error.
First, the trial court had jurisdiction to hear Ms. Garcia's claim of negligent
infliction of emotional distress. See, e.g., City of Tyler V. Likes, 962 S.W.2d 489,
494 (Tex.1997) (holding that mental anguish damages may be compensable when
they are a foreseeable result of a breach of duty arising out of certain "special
relationships"). Second, the trial court granted the City's plea to the jurisdiction
without providing any supporting legal authority or reasoning. See Order Granting
Defendant's Plea to the Jurisdiction (1 CR 78) (holding, without explanation, that
"Defendant's Plea to the Jurisdiction should be GRANTED[.]" The City's brief
(hereinafter App'ee Br.) does not provide legal authority to justify the trial court's
APPELLANT'S REPLY BRIEF
PAGE 1 OF 11
decision, which was in error. Accordingly, the trial court's decision should be
reversed.
II.
ARGUMENT AND AUTHORITIES
The trial court's order granting Appellee's plea to the jurisdiction was made
in error. Appellant made out a claim below over which the trial court had
jurisdiction, and the trial court should have construed the pleadings liberally in
favor of jurisdiction and accepted the allegations in the pleadings as true. Heckman
V. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). Appellee, as the moving
party, then should have been required to "present conclusive proof that the trial
court lacks subject-matter jurisdiction." Id. (emphasis added). The trial court failed
to recognize that Appellant made out a valid claim under Texas law, which-a
described in the next section, she did-and then further failed to hold Appellee to
its burden of proof.
A.
Texas recognizes a Claim for Negligent Infliction of Emotional
Distress.
The trial court's order is in error because the Texas Supreme Court does
recognize a claim of negligent infliction of emotional distress, in cases involving
injuries of "such a shocking and disturbing nature that mental anguish is a highly
foreseeable result[,]" including "actions by bystanders for a close family member's
serious injury." Likes, 962 S.W.2d at 496 (citing Freeman V. City of Pasadena, 744
S.W.2d 923, 924 (Tex. 1988)); see also White V. United States, 471 F. Supp. 3d
APPELLANT'S REPLY BRIEF
PAGE 2 OF 11
780, 786 (W.D. Tex. 2020) (discussing "bystander" theory of recovery); Boyles V.
Kerr, 855 S.W.2d 593, 597 (Tex. 1993) (same). The Texas Supreme Court also
recognizes the claim in certain situations involving "special relationships." Likes,
962 S.W.2d at 494. These "special relationships" include, but are not limited to,
those involving "intensely emotional" subjects, which may be implicated in this
case.
Here, Officer Taylor shot and killed Mike Ramos in front of his girlfriend,
Appellant Rebeca Garcia. Seeing the shooting death of her boyfriend constitutes, in
Appellant's view, was an injury of "such a shocking and disturbing nature that
mental anguish is a highly foreseeable result." Likes, 962 S.W.2d at 496.
Accordingly, the trial court should have construed Appellant's petition as
presenting a valid claim of negligent infliction of emotional distress through the
"bystander" theory and should have taken into account Texas cases examining that
theory. Texas courts have recognized in bystander cases the "elements are flexible
and should be applied on a case-by-case basis." Thornton V. Home Depot U.S.A.,
Inc., No. A-04-CA-1039 AWA, 2006 WL 2022920, at *2 (W.D. Tex. July 17,
2006).
Next, the trial court should have required Appellee to "present conclusive
proof that the trial court lacks subject-matter jurisdiction." Heckman, 369 S.W.3d
APPELLANT'S REPLY BRIEF
PAGE 3 OF 11
at 150. Only then should the trial court have granted a plea to the jurisdiction. The
trial court's error resulted in it rendering an incorrect judgment.
B.
Officer Taylor's Intentional Shooting of Mike Ramos Does Not
Preclude Appellant's Claim for Negligent Infliction of Emotional
Distress.
Appellee argues that Appellant's invocation of negligent infliction of
emotional distress is erroneous or disingenuous because "[t]he facts as alleged in
Appellant's Petition all describe intentional torts." App'ee Br. at 3. But it is not
Appellee's right to twist Appellant's claims. Though Officer Taylor may have
"shot his firearm at [Mike] Ramos, which is an intentional tort," id. at 3, he was
negligent in his infliction of emotional distress on Rebeca Garcia, who was a
bystander to the intentional tort. Bystander liability is recognized in Texas.
Benavides V. Cnty. of Wilson, 955 F.2d 968, 975 (5th Cir. 1992) (stating that
"Texas courts recognize such a cause of action" where plaintiff shows that "her
emotional distress resulted from a direct emotional impact from the sensory and
contemporaneous observance of the incident, as contrasted with learning of the
accident from others after the occurrence."); Likes, 962 S.W.2d at 496.
Appellee has provided no proof that Officer Taylor intentionally chose to
cause or intended to cause Ms. Garcia emotional distress, and does not even try to
make that argument. Appellee glosses over the negligent infliction of emotional
"bystander" distress suffered by Ms. Garcia by arguing that Officer Taylor
APPELLANT'S REPLY BRIEF
PAGE 4 OF 11
intentionally shot Ramos-the trial court should have disregarded this argument as
incorrect under the law and should have required Appellee to conclusive proof that
the trial court lacked jurisdiction over Appellant's claim.
Appellee claims that Appellant is "circumventing" that the tort committed in
this case was intentional. But the "long line of cases" Appellee cites to "prove" that
Appellant is impermissibly mislabeling her claim, see App'ee Br. at 8, are not on
point. None of the cases cited involve a claim for negligent infliction of emotional
distress, which is what is at issue here. See Harris Cnty., TX V. Cabazos, 177
S.W.3d 105, 108 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (claiming that
"Harris County negligently implemented policies and procedures for the arrest of a
suspect, and that Haynes negligently discharged his pistol to assault appellee and
negligently effectuated appellee's arrest while acting in bad faith"); City of Laredo
V. Nuno, 94 S.W.3d 786, 788 (Tex. App.-San Antonio 2002, no pet.) (asserting
negligence and gross negligence claims against City that did not include emotional
distress); Tarrant Cnty. Hosp. Dist. V. Henry, 52 S.W.3d 434, 439 (Tex. App.
Fort Worth 2001, no pet.) (noting that plaintiff sued a hospital district for "assault
and battery, intentional infliction of emotional distress, negligence, violations of
the Texas Commission on Human Rights Act (TCHRA), breach of contract, and
exemplary damages."); Medrano V. City of Pearsall, 989 S.W.2d 141, 143 (Tex.
App.-San Antonio 1999, no pet.) (alleging that three individuals were assaulted
APPELLANT'S REPLY BRIEF
PAGE 5 OF 11
by police while handcuffed, that City-issued property was used to effectuate the
injuries, and that the City was negligent in hiring and training the officers).
None of these cases involve a City's immunity for its officer negligently
inflicting emotional distress; accordingly, they should be disregarded.
C.
Appellee's Governmental Immunity Is Not Triggered by the
Negligent Action of an Employee.
Appellee argues that Appellant does not "identify a specific waiver" to the
City's governmental immunity for intentional tort. App'ee. Br. at 5. But, again,
Appellant does not need to identify a waiver to the City's immunity from suit, as
the tort Appellant alleged stemmed from negligence. Appellee cites the Texas Tort
Claims Act ("TTCA"), which provides in part: "A governmental unit in the state is
liable for:
(1) Property damage, personal injury, and death
proximately caused by the wrongful act or omission or
the negligence of an employee acting within his scope of
employment if
(B) the employee would be personally
liable to the claimant according to Texas law" and the
claim would make a private person liable to claimant
under Texas law.
App'ee. Br. at 6 (quoting Tex. Civ. Prac. & Rem. Code § 101.021 (emphasis
added)).
The TTCA provides that a governmental unity, in this case the City, may be
liable for personal injury or damage caused by the negligent act of an employee
acting in the scope of employment-that is what Appellant has claimed occurred
in
APPELLANT'S REPLY BRIEF
PAGE 6 OF 11
this case. Such a claim is well-supported in Texas law. See, e.g., Young V. City of
Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990) ("Although a governmental unit is
immune from claims arising out of intentional torts, petitioners' negligent
employment and entrustment claims arise out of the alleged negligence of the city
employees supervising the officer, not out of the officer's intentional tort."); Harris
Cnty., 177 S.W.3d at 109 ("Although a governmental unit is immune from claims
arising out of intentional torts, an injured party may still pursue a separate
negligence claim arising out of the same facts.").
Texas courts have held officers and political subdivisions, such as counties
and cities, liable for negligent infliction of emotional distress and have held that
immunity does not protect them from liability for that claim. See, e.g., Antu V.
Eddy, 914 S.W.2d 166, 174-75 (Tex. App.-San Antonio 1995, no pet.) (holding
that police officer and Bexar county were "not entitled to official immunity"
regarding claim for "negligent infliction of emotional distress."); Martinez V.
Mikel, 960 S.W.2d 158, 159, 161 (Tex. App.-San Antonio 1997, no pet.)
(affirming trial court's denial of summary judgment for officer on official
immunity for claims including negligent infliction of emotional distress). The
officer's infliction of emotional distress was negligent, as it was not intended,
though it was also reasonably foreseeable, and the City is not entitled to immunity
under the TTCA.
APPELLANT'S REPLY BRIEF
PAGE 7 OF 11
III. CONCLUSION
As stated in Appellant's Brief, the trial court's order is bad precedent that
affects the rights of claimants who plead a claim of negligent infliction of
emotional distress, and cuts against good precedent from the United States Court of
Appeals for the Fifth Circuit and Texas courts that uphold the cause of action. See,
e.g., Benavides, 955 F.2d at 975 (stating that "Texas courts recognize such a cause
of action" where plaintiff shows that "her emotional distress resulted from a direct
emotional impact from the sensory and contemporaneous observance of the
incident, as contrasted with learning of the accident from others after the
occurrence.") (quoting Reagan V. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990))
(internal quotation marks and ellipses omitted); see also City of Austin V. Davis,
693 S.W.2d 31, 34 (Tex. App. 1985, writ refused n.r.e.) (upholding "bystander"
cause of action for negligent infliction of emotional distress).
A trial court must liberally construe pleadings and accept them as true. As
stated in Appellant's Brief, Appellee challenges the jurisdictional facts, but does
not attach any evidence to its plea as required in a traditional motion for summary
judgment. Bacon V. Texas Hist. Comm'n, 411 S.W.3d 161, 171 (Tex. App.-Austin
2013, no pet.). Conclusory allegations are insufficient. Appellee has the initial
burden to provide evidence. Texas Dep't of Parks & Wildlife V. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). Without evidence, Appellee did not carry its
APPELLANT'S REPLY BRIEF
PAGE 8 OF 11
burden. Further, any fact questions regarding jurisdiction must be decided by the
fact finder.
For the reasons provided herein, the arguments presented in Appellee's Brief
should be disregarded, and the trial court's order granting Appellee's plea to the
jurisdiction should be reversed.
IV. PRAYER
WHEREFORE, Appellant respectfully prays that the Fourteenth Court of
Appeals reverse the trial court's order granting Appellee's plea to the jurisdiction.
She further prays for such other and further relief at law and equity to which
Appellant may be entitled.
Dated:
August 1, 2023
APPELLANT'S REPLY BRIEF
PAGE 9 OF 11
Respectfully submitted,
Hendler Flores Law, PLLC
/s/ Laura A. Goettsche
SCOTT M. HENDLER
State Bar No. 9445500
shendler@hendlerlaw.com
LAURA A. GOETTSCHE
State Bar No. 24091798
Igoettsche@hendlerlaw.com
Hendler Flores Law, PLLC
901 S. Mopac Expy.
Bldg. 1, Suite #300
Austin, Texas 78746
Telephone: 512-439-3200
Facsimile: 512-439-3201
COUNSEL FOR APPELLANT
REBECA GARCIA
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant Rebeca's Garcia's Reply Brief contains 1,943
words, except for the words included in the sections described in Tex. R. App. Pro.
9.4(i)(1). This is a computer-generated document created in Microsoft Word, using
14-point typeface for all text, except for footnotes that are in 12-point typeface. In
making this certificate of compliance, I am relying on the word count provided by
the software used to prepare this document.
/s/ Laura A. Goettsche
Laura A. Goettsche
APPELLANT'S REPLY BRIEF
PAGE 10 OF 11
CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the foregoing Appellant
Rebeca Garcia' Reply Brief was e-served on H. Gray Laird, Appellee's counsel,
via the Texas e-filing system on August 1, 2023 at the following e-mail address:
H. Gray Laird
gray.laird@austintexas.gov
/s/ Laura A. Goettsche
Laura A. Goettsche
APPELLANT'S REPLY BRIEF
PAGE 11 OF 11
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
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Alexis Lopez on behalf of Laura Goettsche
Bar No. 24091798
alopez@hendlerlaw.com
Envelope ID: 78091337
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Appellant Rebeca Garcia's Reply Brief
Status as of 8/1/2023 2:14 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Alexis Lopez
alopez@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Scott Hendler
shendler@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Priscilla Chavez
priscilla.chavez@austintexas.gov
8/1/2023 2:07:42 PM
SENT
Laura Goettsche
Igoettsche@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Kelly Resech
kelly.resech@austintexas.gov
8/1/2023 2:07:42 PM
SENT
Rachel Cotten
rcotten@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Ramiro Canales
rcanales@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Leigh joseph
ljoseph@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Gray Laird
gray.laird@austintexas.gov
8/1/2023 2:07:42 PM
SENT
Associated Case Party: The City of Austin
Name
BarNumber
Email
TimestampSubmitted
Status
Henry Laird
24087054
gray.laird@austintexas.gov
8/1/2023 2:07:42 PM
SENT
Sara Rice
24110273
sara.rice@austintexas.gov
8/1/2023 2:07:42 PM
SENT
Associated Case Party: Rebeca Garcia
Name
BarNumber
Email
TimestampSubmitted
Status
Sandra Torres
sxtorres@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Grayson McDaniel
gmcdaniel@hendlerlaw.com
8/1/2023 2:07:42 PM
SENT
Affirmed and Memorandum Opinion filed March 28, 2024.
STATE
OF
CHE
In The
Fourteenth Court of Appeals
NO. 14-23-00241-CV
REBECA GARCIA, Appellant
V.
THE CITY OF AUSTIN, Appellee
On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-001902
MEMORANDUM OPINION
An individual was shot and killed by an Austin police officer while the police
officer was exercising his official duties. The individual's girlfriend, appellant
Rebeca Garcia, sued the City of Austin, alleging negligent infliction of emotional
distress. The City responded by filing a plea to the jurisdiction, asserting immunity
from suit. The trial court granted the plea and dismissed Garcia's suit. In two issues
on appeal, Garcia asserts the trial court erred in granting the plea. Reviewing the
jurisdictional allegations, taking them as true, and construing them in favor of
Garcia, we conclude that Garcia's petition does not present a claim for which
immunity is waived and affirm the trial court's order granting the City's plea to the
jurisdiction.
BACKGROUND
According to Garcia's pleadings, Garcia and Mike Ramos were sitting in a car
in the parking lot of an apartment complex. A citizen called 911 and reported that
a
man and woman were sitting in a gold and black Toyota Prius using drugs. The
citizen reported that the man had a gun. City of Austin police officers responded,
saw the Toyota Prius backed into a parking spot, and commanded both people to
show their hands and get out of the car. When Ramos was out of the car officers
instructed him to lift his shirt and turn in a circle. Ramos initially complied but
became non-compliant and verbally confrontational. Ramos walked back toward the
car, refusing verbal commands to step away from the driver's door of the car.
Believing there was a gun in the car, officers shot a "less-lethal munition," which
struck Ramos on the left side, but did not stop him from getting back in the car.
When Ramos began to drive away, an Austin police officer shot and killed him.
Garcia, who was in the car, jumped out of the car as Ramos drove away.
Garcia received no physical injuries but subsequently sued the City for
negligent infliction of emotional distress. Garcia alleged that her "sensory and
contemporaneous observation of the incident resulted in sever[e] shock, direct
emotional impact, and extreme emotional distress."
The City filed a plea to the jurisdiction in which it alleged that Garcia failed
to plead a waiver of the City's governmental immunity. The City asserted that the
gravamen of Garcia's complaint was that the police officer wrongfully shot Ramos
while she was in the vicinity. Because Garcia's claim of negligent infliction of
emotional distress was based on the commission of an intentional tort, the City
2
asserted that Garcia's claim was barred by governmental immunity. 1 Garcia
responded, alleging that her claim sounded in negligence and because she was not
required to prove intent, immunity did not bar her claim. After a non-evidentiary
hearing, the trial court granted the City's plea. This appeal followed.
ANALYSIS2
In two issues Garcia asserts (1) the trial court erred in granting the City's plea
to the jurisdiction; and (2) the City did not meet its burden to establish governmental
immunity.
I.
Standard of review and applicable law
Whether a trial court has subject matter jurisdiction is a question of law we
review de novo. City of Houston V. Williams, 353 S.W.3d 128, 133-34 (Tex. 2011).
When considering a plea to the jurisdiction, our analysis begins with the live
pleadings. Heckman V. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). We first
determine if the pleader has alleged facts that affirmatively demonstrate the court's
jurisdiction to hear the case. Tex. Dep't. of Parks & Wildlife V. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). In doing so, we construe the pleadings liberally in favor of the
plaintiff, and unless challenged with evidence, we accept all allegations as true. Id.
at 226-27. The plea must be granted if the plaintiff's pleadings affirmatively negate
the existence of jurisdiction or if the defendant presents undisputed evidence that
1
The City also asserted that Garcia failed to give notice under section 101.101 of the Tort
Claims Act, but on appeal has conceded actual notice.
2 The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our
court. See Tex. Gov't Code § 73.001. Under the Rules of Appellate Procedure, "the court of
appeals to which the case is transferred must decide the case in accordance with the precedent of
the transferor court under principles of stare decisis if the transferee court's decision otherwise
would have been inconsistent with the precedent of the transferor court." Tex. R. App. P. 41.3. We
are unaware of any conflict between the Third Court of Appeals precedent and that of this court
on any relevant issue.
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negates the existence of the court's jurisdiction. Heckman, 369 S.W.3d at 150.
II.
The trial court did not err in granting the City's plea to the jurisdiction.
In Garcia's first issue she asserts the trial court erred in granting the City's
plea to the jurisdiction. The City asserted the trial court lacked jurisdiction based on
application of the doctrine of governmental immunity. Governmental immunity
from suit defeats a trial court's subject matter jurisdiction and is therefore properly
asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 225-26. Absent a
waiver of governmental immunity, a political subdivision of the state, such as the
City, may not be sued. See Tex. Dep't of Transp. V. Jones, 8 S.W.3d 636, 638 (Tex.
1999).
Tort claims against a governmental entity are governed by the Texas Tort
Claims Act. Tex. Civ. Prac. & Rem. Code § 101.106; see also Miranda, 133 S.W.3d
at 224-25 (holding that the governmental entity was immune from suit for a tort
unless it was expressly waived by the Texas Tort Claims Act). As pertinent to this
case, the Texas Tort Claims Act waives governmental immunity from suits arising
from injuries caused by a condition or use of tangible personal property if the
governmental unit would, were it a private person, be liable to the claimant according
to Texas law. Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep't of Pub. Safety V.
Petta, 44 S.W.3d 575, 580 (Tex. 2001). The Texas Tort Claims Act waives
governmental immunity for certain negligent conduct, but it does not waive
immunity for claims arising out of intentional torts. Tex. Civ. Prac. & Rem. Code
§ 101.057; see also City of Watauga V. Gordon, 434 S.W.3d 586, 594 (Tex. 2014).
Intentional conduct, no matter how it is pleaded, falls under the Texas Tort Claims
Act's governmental immunity waiver exception. Petta, 44 S.W.3d at 580.
The City asserted that while Garcia's pleading alleged a claim for negligent
infliction of emotional distress, the facts alleged in her pleading alleged intentional
4
conduct of the police officer. The specific conduct-shooting Ramos-was clearly
intentional. In the trial court and in Garcia's opening brief on appeal, she asserts that
the police officer did not assert that his decision to use deadly force was intentional.
Garcia relies on a motion to dismiss filed by the officer in federal court in response
to a suit filed in the United States District Court for the Western District of Texas.
The police officer averred in his motion that he had less than a "split second" to
"make the incalculably difficult decision to utilize deadly force." The document to
which Garcia referred was a motion to dismiss filed under Federal Rule of Civil
Procedure 12(b)(6). It does not contain factual allegations about the officer's mental
state at the time he shot Ramos. The speed at which the officer made the decision to
use deadly force is not evidence that the officer's act of shooting was not intentional.
The officer's affidavit in federal court is not evidence that the shooting constituted
negligence.
In Garcia's reply brief she asserts that Texas courts have held police officers
and cities liable for negligent infliction of emotional distress and have held that
immunity does not protect them from liability. The cases Garcia cites are
distinguishable from this case in that in those cases the issue was whether an officer
had official immunity, not whether a city had governmental immunity. See Martinez
V. Mikel, 960 S.W.2d 158, 160 (Tex. App.-San Antonio 1997, no pet.) (reviewing
whether officer acted in good faith in using force); Antu V. Eddy, 914 S.W.2d 166,
170 (Tex. App.-San Antonio 1995, no writ) (same).
Governmental immunity and official immunity are different. Official
immunity protects individual officials; governmental immunity protects
governmental entities. DeWitt V. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995).
Whether the Texas Tort Claims Act waives governmental immunity in a given case
does not affect whether the governmental employee may assert official immunity as
5
a defense. Id.
We conclude the allegations in this case fit squarely within the Texas Tort
Claims Act's exclusion of claims arising out of assault, battery, or any other
intentional tort. See Tex. Civ. Prac. & Rem. Code § 101.057. We therefore overrule
Garcia's first issue.
II.
The City was not required to present evidence of jurisdictional facts.
In Garcia's second issue she asserts the City was required to produce evidence
to challenge the jurisdictional facts. Garcia preserved this issue by asserting her
claim in response to the City's plea to the jurisdiction. When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda, 133
S.W.3d at 226. However, if a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issues raised, as the trial court is required to
do. Id.
In this case, Garcia's pleadings negate jurisdiction because her allegations fit
squarely within the Texas Tort Claims Act's exclusion of claims resulting from
intentional torts. The City did not challenge the existence of jurisdictional facts
because it alleged Garcia's pleadings affirmatively negated jurisdiction. We
therefore overrule Garcia's second issue.
6
CONCLUSION
Having overruled Garcia's issues on appeal we affirm the trial court's final
judgment dismissing the case for lack of subject-matter jurisdiction.
/s/
Jerry Zimmerer
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
7