City of Houston v. Ruben Rodriguez and Frederick Okon

Supreme Court of Texas
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No. 23-0094
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City of Houston,
Petitioner,

v.

Ruben Rodriguez and Frederick Okon,
Respondents

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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JUSTICE BUSBY, joined by Justice Lehrmann and Justice Devine,
concurring.

The Court’s opinion, which I join, should not be construed as
sanctioning the decision to initiate a high-speed chase in these or similar
circumstances. That decision is distinct from “a reassessment of
whether to continue pursuit in response to changing circumstances
during the pursuit.” Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.
2000). The parties here focus solely on whether Officer Corral’s decision
to make a wide turn in pursuit of the unidentified suspect was a
reasonable reassessment; the plaintiffs have not alleged or argued that
initiating pursuit was negligent or improper. The Court’s holding is
therefore limited to concluding that a reasonably prudent officer could
have believed that the need to make such a turn outweighed the risks
in light of the changing circumstances during the pursuit. Ante at 15-
16, 19.
I write separately to make a few additional observations. First,
as the Court discusses, the good-faith element of the official-immunity
defense requires proof that “a reasonably prudent officer, under the
same or similar circumstances, could have believed that the need to
immediately apprehend the suspect outweighed a clear risk of harm to
the public in continuing the pursuit.” City of Lancaster v. Chambers,
883 S.W.2d 650, 656 (Tex. 1994). The standard “is one of objective legal
reasonableness” rather than “subjective good faith.” Id.
Some courts of appeals have concluded from a footnote in City of
Lancaster that an officer’s recklessness is immaterial to a determination
of good faith,1 but that is incorrect. Instead, as we later explained, the
point of our footnote was that “[e]vidence of negligence alone will not
controvert competent evidence of good faith.” Wadewitz v. Montgomery,
951 S.W.2d 464, 467 n.1 (Tex. 1997) (emphasis added). But as the
footnote also recognized, evidence of the officer’s reckless disregard for
the safety of others—such as that required to avoid the emergency

1 See, e.g., City of Houston v. Gomez, 693 S.W.3d 523, 532 (Tex. App.—

Houston [14th Dist.] 2023, pet. filed); Mem’l Vills. Police Dep’t v. Gustafson,
No. 01-10-00973-CV, 2011 WL 3612309, at *6 (Tex. App.—Houston [1st Dist.]
Aug. 18, 2011, no pet.); City of Fort Worth v. Robinson, 300 S.W.3d 892, 899-
900 (Tex. App.—Fort Worth 2009, no pet.); Johnson v. Campbell, 142 S.W.3d
592, 596 (Tex. App.—Texarkana 2004, pet. denied).

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exception to the Tort Claims Act’s waiver of immunity2—may
“inferentially rebut the defense of official immunity.” City of Lancaster,
883 S.W.2d at 656 n.5.
Second, in conducting the need–risk analysis, courts should be
mindful that a decision to initiate pursuit may meet the good-faith
standard for official immunity even though a later reassessment does
not, and vice versa.3 Crucially, the inquiry focuses on the information
the officer possessed at the time of the challenged conduct.4 That focus
protects officers from having their performance second-guessed based
“on the facts as they appear through the clarity of hindsight.”5 But the
focus cuts both ways. Hindsight and changing circumstances during the

2 See TEX. CIV. PRAC. & REM. CODE § 101.055(2). To avoid the exception,
a plaintiff must show that “the operator has committed an act that the operator
knew or should have known posed a high degree of risk of serious injury.” City
of Amarillo v. Martin, 971 S.W.3d 426, 430 (Tex. 1998); see also City of San
Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022).
3 See Univ. of Houston v. Clark, 38 S.W.3d 578, 584 (Tex. 2000)
(providing example of officer entering blind or busy intersection and noting
that “a reassessment of need versus risk” is required even if initial decision to
pursue is justified); Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex. 1992)
(plurality opinion) (noting that “[t]he decision to initiate or continue pursuit
may be negligent”).
4 See, e.g., Telthorster v. Tennell, 92 S.W.3d 457, 466 (Tex. 2002)
(holding officer acted in good faith when his drawn gun inadvertently
discharged and injured suspect and noting that the court of appeals’ “focus on
the fact that [the suspect] turned out to be unarmed and thus presented no risk
of harm” was “unduly informed by hindsight”).
5 Id. at 463; see City of Houston v. Sauls, 690 S.W.3d 60, 69 (Tex. 2024)

(“Official immunity shields government employees from liability in civil
lawsuits that, with the benefit of hindsight, would second-guess their
performance of discretionary duties and force them to defend decisions that
were reasonable when made.”).

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pursuit may not be used to immunize a contested decision to initiate
pursuit in the first instance.
For example, when Officer Corral and his partner arrived at the
parking lot to make an arrest for solicitation of prostitution, they
gathered identifying information: the car’s color, make, model, and
license plate number, and the suspect’s identity as a black male. But
dispatch had not yet informed them that the vehicle had been reported
stolen. From the “lens of the officer’s perceptions” at this juncture,6
alternative courses of action were available to track and later apprehend
the suspect through vehicle records and the identifying information.
Yet Corral stated that he made a “split-second decision” to pursue
the suspect fleeing “out of the parking lot . . . at a high rate of speed.”7

6 Sauls, 690 S.W.3d at 74 (quoting Rowland v. Perry, 41 F.3d 167, 173

(4th Cir. 1994)).
7 Perhaps because plaintiffs never contested the propriety of initiating

pursuit, Corral provided minimal justification for this initial decision:
We traveled to the restaurant parking lot where the suspect was
going to wait for the undercover detective. We observed a
suspect to be a black male, located at the parking lot south of
9500 block of Ponderal Ln in a red Mercedes C30. Officers were
informed by vice undercover officers that the suspect attempted
to pick up a female vice undercover officer for sex for money. My
partner and I were attempting to conduct a traffic stop for
prostitution arrest. As we approached the suspect, he began to
leave the parking lot, which required immediate response on our
part. In a split-second decision, Officer Goodman and I decided
to pursue the suspect, and activated emergency lights and siren.
The suspect did not stop and instead fled out of the parking lot
onto Ponderosa Ln. then heading southbound on the HWY 59
south service road at a high rate of speed. Officer Goodman
relayed the information over the air and informed dispatch of
our vehicle pursuit and gave the license plate for the red
Mercedes.

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The City did not produce its department’s motor-vehicle pursuit policy,
and Corral neither discussed the policy nor averred that his decision was
consistent with it. Nor could the officers justify the decision by relying
on hindsight that the suspect had committed felony motor-vehicle theft,
as they later learned. Instead, they initiated a high-speed chase to
pursue a suspect evading arrest for paying $40 to solicit sexual activity
from another adult—a Class B misdemeanor offense at the time of the
conduct in 2017.8
Had plaintiffs challenged Officer Corral’s decision to initiate a
high-speed chase, it may well be that the City could have offered further
evidence supporting that decision. But on the present record, the “need”
factors—the seriousness of the suspected crime, the necessity of the
officer’s immediate presence to apprehend a suspect, and the availability
of any alternative courses of action to achieve a comparable result9—

8 Since that time, the Legislature has made the offense of solicitation of

prostitution a state jail felony. See Act of May 28, 2021, 87th Leg., R.S.,
ch. 807, § 29, sec. 43.021(a), (b), 2021 Tex. Gen. Laws 1929, 1939 (codified as
amended at TEX. PENAL CODE § 43.02). Officer Corral did not identify any
indication of human trafficking or involvement of minors, which would
significantly elevate the seriousness of the suspected crime. See TEX. PENAL
CODE § 12.03 (describing classification of misdemeanors into three categories
according to the relative seriousness of the offenses).
9 See Sauls, 690 S.W.3d at 73 (quoting Wadewitz v. Montgomery, 951

S.W.2d 464, 467 (Tex. 1997)). As the U.S. Court of Appeals for the Tenth
Circuit has noted:
The public interest being served by the officer’s pursuit or
response may vary with the severity of the suspected crime.
Thus, there may be more justification for a high-speed pursuit
to apprehend a suspected murderer/terrorist/armed bank
robber, or a suspected drunk driver, or to respond to a domestic

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suggest that Corral’s need to initiate pursuit was minimal when weighed
against the inherent risks.
High-speed chases inevitably involve obvious, significant, and
often fatal risks: to the public at large, to other drivers, to innocent
bystanders or passengers, to the fleeing suspect, and to the pursuing
officers.10 “On average, crashes occur in at least 30 percent of vehicle
pursuits, and injuries or fatalities occur in 5 to 17 percent of pursuits.”11
Incurring those risks may be reasonable and justifiable to stop
fleeing suspects who pose a danger to our communities.12 But unless

disturbance call, than, say, to apprehend someone who has
committed a minor traffic violation or non-violent misdemeanor.
Green v. Post, 574 F.3d 1294, 1310 n.15 (10th Cir. 2009).
10 See City of San Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022)

(“[A]ll high-speed car chases involve obvious risk of serious injury to
bystanders.”); Telthorster, 92 S.W.3d at 463 n.1 (identifying concerns about the
risks to the general public and bystanders that high-speed pursuits present).
These risks include not only “that the suspect will injure a third party” but also
“that the officer himself will injure a third party,” as occurred here. Clark, 38
S.W.3d at 583.
11 Police Executive Research Forum, Vehicular Pursuits: A Guide for

Law Enforcement Executives on Managing the Associated Risks (2023); see, e.g.,
Maspero, 640 S.W.3d at 531 (describing an expert report in the record as
concluding that “41% of urban police pursuits will end in an accident” and “33–
34% of police fatalities will be innocent bystanders”); Telthorster, 92 S.W.3d at
464 n.1 (collecting articles and noting that “commentators have expressed
concern about the risks to the general public that high-speed pursuits present,”
including “that high-speed pursuits cause hundreds of deaths each year”);
Travis, 830 S.W.2d at 99 n.4 (citing national data that “one pursuit in five leads
to a traffic fatality (and) in only one percent of the cases was someone in the
car wanted for violent crimes” (quoting Travis v. City of Mesquite, 764 S.W.2d
576, 579 (Tex. App.—Dallas 1989) (Thomas, J., dissenting))).
12 The public good is also promoted when police officers “show that flight

from the law is no way to freedom.” Sacramento v. Lewis, 523 U.S. 833, 853

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there is an accompanying reasonable suspicion of potential harm or
danger, violent behavior, or other criminal activity, the need to
apprehend a suspected nonviolent misdemeanant is unlikely to support
official immunity for initiating an urban high-speed pursuit with all the
risks such a pursuit entails, especially when information is at hand to
later apprehend and identify the suspect. For most nonviolent
misdemeanors, a high-speed pursuit should not become the default
response to apprehend suspects attempting to evade arrest.

J. Brett Busby
Justice

OPINION FILED: December 31, 2024

(1998). On the other hand, the law already disincentivizes a suspected
misdemeanant from fleeing in a vehicle by making such flight a state jail
felony. TEX. PENAL CODE § 38.04(a), (b)(1). And “[t]hose suspected of minor
offenses may flee for innocuous reasons and in non-threatening ways.” Lange
v. California, 594 U.S. 295, 307 (2021) (collecting examples).

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