The City of Mesquite, Texas v. Anthony Wagner

Supreme Court of Texas
══════════
No. 23-0562
══════════

The City of Mesquite, Texas,
Petitioner,

v.

Anthony Wagner,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

PER CURIAM

An officer employed by a governmental unit is entitled to official
immunity from tort liability when he performs discretionary duties
within the scope of his employment in good faith. The primary issue in
this interlocutory appeal is whether the City of Mesquite presented
sufficient evidence to establish that its employee, an on-duty K-9 police
officer, was acting in good faith when his police service dog unexpectedly
bit a suspect fleeing from a burglary scene. We hold that the City did:
it presented adequate, uncontroverted evidence proving its officer’s
entitlement to official immunity and thus its own immunity from suit.
Accordingly, we reverse and render judgment dismissing the case.
BACKGROUND

In the early morning hours of March 29, 2020, officers from the
Garland Police Department were dispatched to a commercial building in
response to a burglary-in-progress call. Garland PD contacted Officer
Jason Crawford from the City of Mesquite Police Department at
approximately 3:30 a.m. and requested his assistance. Officer Crawford
was on K-9 duty as the handler for Kozmo, a police service dog that
carried multiple agency certifications assuring proper obedience and
control in response to commands.
When Officer Crawford arrived at the scene, other officers advised
him of the need to pursue fleeing suspects on foot. In response, Officer
Crawford deployed Kozmo on a thirty-foot, extended-length lead as he
approached the rear of the property. As the three burglary suspects
attempted to flee the scene, Officer Crawford heard another officer
command one of the suspects—later identified as respondent Anthony
Wagner—to “stop and get on the ground.” Wagner slowly complied but
yelled back at the officer, who then attempted to handcuff Wagner on
the ground. Officer Crawford shortened Kozmo’s lead and moved to the
left of this altercation in pursuit of the other suspects; he kept Kozmo to
his left with his body between Kozmo and the altercation. Kozmo
abruptly cut across Officer Crawford’s path toward Wagner, causing
Officer Crawford to trip and fall. Kozmo bit Wagner on the shoulder.
Wagner was treated at the scene and later at a nearby hospital for a
single dog bite.
Wagner sued the City of Mesquite, alleging his injury was caused
by Officer Crawford’s negligent handling of Kozmo and that the City’s

2
governmental immunity had been waived under the Texas Tort Claims
Act (TTCA). The City filed a plea to the jurisdiction contending its
governmental immunity was not waived because (1) Officer Crawford’s
official immunity afforded derivative governmental immunity to the
City; (2) the injury was not caused by the use of tangible personal
property, TEX. CIV. PRAC. & REM. CODE § 101.021(2); (3) the claim arose
from intentional acts rather than negligent acts, id. § 101.057(2); and
(4) the injury occurred while Officer Crawford was responding to an
emergency, id. § 101.055(2). The City accompanied its plea with Officer
Crawford’s sworn affidavit recounting details of the night of the injury.
In response, Wagner argued the City’s immunity was waived under
Section 101.021(2) of the TTCA and that Officer Crawford was not
protected by official immunity because he was not acting in good faith,
attaching an “Unintentional Bite” Memorandum prepared by Officer
Crawford as evidence. The trial court denied the City’s plea, and the
City pursued interlocutory appeal.
The court of appeals affirmed. 1 ___ S.W.3d ___, 2023 WL
3408528, at *1 (Tex. App.—Dallas May 12, 2023). As relevant here, the
court held that Officer Crawford was not entitled to official immunity
because the City failed to satisfy its burden to establish “that a
reasonably prudent officer, under the same or similar circumstances,
could have believed no further safeguards other than those employed by
Officer Crawford were necessary in the handling of Kozmo during the
pursuit.” Id. at *3.

1 One justice dissented from the court’s holding that the City did not

establish the emergency exception, which we do not address in this opinion.

3
We reverse. Because the official immunity issue is dispositive, we
do not reach the City’s additional arguments.

ANALYSIS

A municipality is a political subdivision of the state that is
immune from suit for the tortious conduct of its officers and employees
“unless the municipality’s common law immunity is waived by the
[TTCA].” City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.
1994). The TTCA provides a limited waiver of immunity for suits
against any “governmental unit,” TEX. CIV. PRAC. & REM. CODE
§ 101.021, “including any city,” id. § 101.001(3)(B), for “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,” id. § 101.021(2).
Although the TTCA “withdraws this waiver in various circumstances,”
City of Austin v. Powell, 704 S.W.3d 437, 448-49 (Tex. 2024) (internal
quotation marks omitted), we need not consider such exceptions if the
officer was entitled to official immunity.
Official immunity is an affirmative defense that precludes
enforcement of the TTCA’s immunity waiver. City of Houston v.
Rodriguez, 704 S.W.3d 462, 469 (Tex. 2024). Although it is an individual
defense afforded to the government employee rather than the
governmental unit, we have consistently recognized that “the
governmental employer’s immunity is not waived if its employee is
protected by official immunity.” Id. at 468; see DeWitt v. Harris County,
904 S.W.2d 650, 654 (Tex. 1995). Because it is an affirmative defense,
the governmental unit bears the burden to plead and prove that its

4
employee was protected by official immunity to avoid a waiver.
Rodriguez, 704 S.W.3d at 469.
The City raised its governmental immunity defense based on
Officer Crawford’s official immunity in its plea to the jurisdiction. We
review de novo a plea to the jurisdiction based on governmental
immunity. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex.
2022). When a plea challenges the existence of jurisdictional facts and
both parties submit evidence, resolution depends upon whether the
nonmovant “raise[d] a genuine issue of material fact as to the immunity
waiver’s applicability.” Powell, 704 S.W.3d at 448. “We take as true all
evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor.” Id. (quoting
Maspero, 640 S.W.3d at 528-29). “But we do not disregard necessary
contextual evidence or evidence and inferences unfavorable to the
[nonmovants] if reasonable jurors could not.” Rodriguez, 704 S.W.3d at
470 (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,
771 (Tex. 2018)). “[I]f the evidence fails to raise a question as to the
existence of a jurisdictional fact,” then “the court must grant the plea.”
Powell, 704 S.W.3d at 448.
Official immunity “protects officers when they are performing
(1) discretionary duties, (2) in good faith, and (3) within the scope of
their authority.” Rodriguez, 704 S.W.3d at 468 (internal quotation
marks omitted). In this appeal, only the element of good faith is
disputed. 2 The court of appeals held that the City failed to establish

2 Wagner concedes in his petition that Officer Crawford was acting
within the scope of his authority by searching and detaining suspects, and

5
that Officer Crawford acted in good faith while deploying Kozmo in
pursuit of the suspects because Officer Crawford’s comments in the
attached affidavit were “limited to the length of the leash” and because
“the City presented no evidence establishing a reasonable officer would
have taken the same actions Officer Crawford took as the events
unfolded and failed to address the visual and spatial impediments that
existed.” ___ S.W.3d ___, 2023 WL 3408528, at *4. Because the court of
appeals applied the incorrect standard to determine Officer Crawford’s
good faith, we disagree that the City’s evidence was insufficient to
establish this element.
An officer acts in good faith if a “reasonably prudent officer, under
the same or similar circumstances, could have believed that his conduct
was justified based on the information he possessed when the conduct
occurred.” Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). This
standard is highly deferential as a matter of public policy: in arrest
situations, police officers are regularly “forced to make split-second
judgments . . . in circumstances that are tense, uncertain, and rapidly
evolving.” Id. at 464 (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). An officer’s negligence is insufficient to defeat good faith; the
governmental defendant “must prove only that a reasonably prudent
officer, under similar circumstances, might have reached the same
decision” to act. Id. at 465. If the City meets this burden, Wagner must

Wagner does not contest the City’s evidence that Officer Crawford was
performing a discretionary duty by pursuing the suspects while on duty. E.g.,
Chambers, 883 S.W.2d at 655 (“The decision to pursue a particular suspect will
fundamentally involve the officer’s discretion, because the officer must, in the
first instance, elect whether to take the pursuit.”).

6
satisfy an elevated standard of proof by presenting “evidence that no
reasonable officer in [Crawford]’s position could have believed that the
facts were such that they justified his conduct.” Id. (citing Chambers,
883 S.W.2d at 657).
To prove Officer Crawford’s good faith, the City attached to its
plea his sworn affidavit describing the circumstances on the night of
Wagner’s injury. Officer Crawford, “assisting in the search for and
pursuit of suspects on foot, . . . intentionally deployed Kozmo with an
extended length lead as he and [Kozmo] were trained to do in situations
such as this.” Officer Crawford went on to explain that his use of the
leash was in good faith because “[a] reasonable K-9 officer in [his] place
would have used a similar leash as this is standard practice in those
circumstances.” The court of appeals held this was insufficient to
establish good faith because the affidavit fails to explain what “those
circumstances” were. We disagree. In the immediately preceding
sentence, Officer Crawford articulated “those circumstances” as the
search for and foot pursuit of multiple fleeing criminal suspects. And
the affidavit as a whole provides an account of the conditions of that
search and foot pursuit, which occurred in an area “completely dark”
except for another officer’s flashlight under rapidly developing
circumstances “with multiple suspects fleeing officers on foot.”
The court of appeals further erred by concluding “the City
presented no evidence establishing a reasonable officer would have
taken the same actions Officer Crawford took as the events unfolded and
failed to address the visual and spatial impediments that existed.”
___ S.W.3d ___, 2023 WL 3408528, at *4. This conclusion ignores the

7
substance of the affidavit, which pertinently describes Officer
Crawford’s choice to pursue the other fleeing suspects by shortening
Kozmo’s lead, moving to the left of Wagner and the other officer “since
the route to the right would have required [Officer Crawford] to pass
over rocky, sloping, difficult terrain,” and positioning himself between
Kozmo and Wagner.
Moreover, the court used an incorrect standard to assess good
faith. The good-faith element of official immunity is a standard of
“objective legal reasonableness” that we have repeatedly held “does not
inquire into what a reasonable person would have done,” but rather,
“what a reasonable officer could have believed.” Telthorster, 92 S.W.3d
at 465 (internal quotation marks omitted); see also City of Houston v.
Sauls, 690 S.W.3d 60, 73 (Tex. 2024) (quoting Chambers, 883 S.W.2d at
656-57). 3 Accordingly, the City need only present evidence that “a
reasonably prudent officer, under similar circumstances, might have
reached the same decision” as Officer Crawford. Telthorster, 92 S.W.3d
at 465. Because the affidavit specifies Officer Crawford chose to pass
Wagner on the left as the only apparent alternative would have required
him to traverse unstable terrain in the dark while pursuing at-large
criminal suspects, we conclude the City presented adequate evidence
that a reasonably prudent officer “could have believed [Officer
Crawford’s] conduct was justified based on the information he possessed
when the conduct occurred.” Id.

Because neither party suggests that we apply the particularized
3

need/risk factors from Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.
1997), and the court of appeals did not address their applicability, we likewise
do not address them. See generally Sauls, 690 S.W.3d at 73-74.

8
Because the City met its initial burden to establish each element
of official immunity, Wagner was required to “offer evidence that no
reasonable officer in [Officer Crawford]’s position could have believed
that the facts were such that they justified his conduct.” Id. (emphasis
added). But Wagner likewise advocated an incorrect standard, arguing
that his evidence showed “[n]o reasonable prudent officer, under the
same or similar circumstances”: (1) “would have failed to properly
control the lead on their K9”; (2) “would have believed they had enough
room to safely get by Mr. Wagner in this situation”; and (3) “would have
failed to anticipate and account for the conditions and distance in this
situation.” At best, Wagner presented evidence of negligence by Officer
Crawford, but evidence that he “may have acted negligently, or did not
consider and assess all possible subsidiary alternatives,” is not sufficient
to overcome proof of good faith. Sauls, 690 S.W.3d at 79; Telthorster, 92
S.W.3d at 465. Thus, Wagner did not satisfy the “elevated standard of
proof” required to controvert the City’s evidence of Officer Crawford’s
good faith. Sauls, 690 S.W.3d at 80.

CONCLUSION

We hold that the City presented adequate evidence to establish
that Officer Crawford was protected by official immunity at the time of
Wagner’s injury, which Wagner’s evidence failed to controvert.
Accordingly, Officer Crawford’s official immunity extends to his
governmental employer, the City of Mesquite. Without hearing oral
argument, we grant the petition for review, reverse the judgment of the
court of appeals affirming the denial of the City’s plea to the jurisdiction,

9
and render judgment dismissing Wagner’s claim against the City for
lack of jurisdiction. TEX. R. APP. P. 59.1, 60.2(c).

OPINION DELIVERED: May 2, 2025

10