City of Killeen – Killeen Police Department v. Aamir Terry, Individually, and A/N/F to A.T., Minor Child

Supreme Court of Texas
══════════
No. 22-0186
══════════

City of Killeen–Killeen Police Department,
Petitioner,

v.

Aamir Terry, individually, and a/n/f to A.T., Minor Child,
Respondent

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

PER CURIAM

Respondent Aamir Terry sued the City of Killeen’s police
department after a police cruiser responding to a 9-1-1 call struck his
vehicle. In determining whether the Texas Tort Claims Act waives the
City’s governmental immunity, the court of appeals applied a categorical
rule: “[A] governmental entity is immune from suits to recover damages
resulting from the emergency operation of an emergency vehicle unless
the operator acted recklessly.” ___ S.W.3d ___, 2022 WL 221240, at *3
(Tex. App.—Austin Jan. 26, 2022). The court concluded that Terry had
raised a fact issue as to the officer’s recklessness and therefore affirmed
the trial court’s denial of the City’s plea to the jurisdiction.
After the court of appeals issued its opinion, however, we explained
in City of Austin v. Powell that recklessness is not always the standard.
704 S.W.3d 437, 449 (Tex. 2024); see id. at 455 (explaining why “the
inquiry” will not “always be one into the officer’s recklessness”). Rather,
the Tort Claims Act’s emergency exception “contemplates two distinct
inquiries to be undertaken in a particular order.” Id. at 449 (applying
TEX. CIV. PRAC. & REM. CODE § 101.055(2)). “First, the court must assess
whether any laws or ordinances apply to the emergency action at issue in
the case.” Id. If a law or ordinance applies to the emergency action or to
some aspect of it, then “the jurisdictional inquiry turns on whether the
officer’s action complied with the relevant law or ordinance.” Id. Only if
no law or ordinance applies may the court move to the second inquiry—
“whether there is a fact issue as to that officer’s recklessness in
undertaking the action that led to the injury.” Id.
Here, the court of appeals noted Terry’s allegation that the officer
violated Section 546.001 of the Transportation Code. See id. at 452
(indicating that the laws applicable to emergency action include Section
546.001). Under Powell, resolution of the officer’s “compliance with the
laws and ordinances applicable to emergency action” should have preceded
any recklessness inquiry. See TEX. CIV. PRAC. & REM. CODE § 101.055(2).
Moreover, unlike Powell, this case implicates a second exception
that may take Terry’s claims outside the ambit of the Tort Claims Act’s
immunity waiver. In addition to Section 101.055, the City invoked
Section 101.062. That Section, titled “9-1-1 Emergency Service,” states
that the Tort Claims Act
applies to a claim against a public agency that arises from
an action of an employee of the public agency or a volunteer

2
under direction of the public agency and that involves
providing 9-1-1 service or responding to a 9-1-1 emergency
call only if the action violates a statute or ordinance
applicable to the action.
Id. § 101.062(b). It is undisputed that the officer here was responding to
a 9-1-1 call when his cruiser struck Terry’s vehicle.
Section 101.062’s text differs from that of Section 101.055 in
several ways. While Section 101.055 speaks of “compliance with the laws
and ordinances applicable to emergency action,” id. § 101.055(2), Section
101.062 asks whether an action “violates a statute or ordinance
applicable to the action” and contains no recklessness prong, id.
§ 101.062(b). Although the court of appeals acknowledged that the
dispute implicates Section 101.062, it assumed that the provision had
no meaning distinct from Section 101.055’s and proceeded directly to the
recklessness analysis. 2022 WL 221240, at *3-4. But Sections 101.055
and 101.062 are separate exceptions; each may independently remove
Terry’s claims from the immunity waiver. On remand, therefore, the
court of appeals should specifically consider Section 101.062’s application.
If Terry has not raised a fact issue about whether the officer’s action
“violate[d] a statute or ordinance applicable to the action,” TEX. CIV. PRAC.
& REM. CODE § 101.062(b), then Section 101.062 withdraws the Tort
Claims Act’s immunity waiver, and Terry’s claims must be dismissed.
Accordingly, without hearing oral argument, we grant the petition
for review, vacate the court of appeals’ judgment, and remand to that
court for further proceedings in light of Powell. See TEX. R. APP. P. 59.1,
60.2(f ).

OPINION DELIVERED: April 25, 2025

3