City of Houston v. Samuel Salazar, Individually and as Next Friend of Sammy Salazar Justin Pacheco, Roza Salazar and Daisy Salazar

Reversed and Dismissed and Majority Opinion and Dissenting Opinion filed
January 11, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00061-CV

CITY OF HOUSTON, Appellant
V.

SAMUEL SALAZAR, INDIVIDUALLY AND AS NEXT FRIEND OF
SAMMY SALAZAR; JUSTIN PACHECO, ROZA SALAZAR AND DAISY
SALAZAR, Appellees

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2022-15403

DISSENTING OPINION

The objective good faith element of the official immunity defense requires
proof that a reasonably prudent police officer under the same or similar
circumstances could have believed that his conduct was justified. City of Lancaster
v. Chambers, 883 S.W.2d 650, 656–57 (Tex. 1994). Applying the general test for
good faith to a high-speed pursuit, the officer acts in good faith if “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.” Id. at 656; Tex. Dep’t of Pub. Safety v. Zakir,
665 S.W.3d 884, 895 (Tex. App.—Houston [14th Dist.] 2023, no pet.). The need
element requires an assessment of the importance of immediately apprehending a
suspect, considering the seriousness of the crime or accident to which the officer
responds, whether the officer’s immediate presence is necessary to apprehend a
suspect or to prevent injury or loss of life, and what alternative courses of action, if
any, are available to achieve a comparable result. Univ. of Houston v. Clark, 38
S.W.3d 578, 582 (Tex. 2000); Zakir, 665 S.W.3d at 895.

When the movant’s evidence does not address alternative courses of action,
good faith is not conclusively established, and the burden does not shift to the
nonmovant to produce controverting evidence. Zakir, 665 S.W.3d at 896. Here, the
City of Houston’s evidence did not address alternative actions that Seidel could
have taken instead of using the far-left lane of four lanes to make a right turn and
drive through a red light at a speed of no less than thirty miles an hour. I thus
disagree with the majority that the City conclusively established good faith.

Seidel pursued a presumed victim of domestic violence, “Tammy Wilson,”
from a hotel room to the hotel’s parking lot. At each step of his pursuit, the woman
increased her efforts to evade him: from striking a parked car while exiting the
parking lot, which Seidel states in his affidavit was a class B misdemeanor,1 to
speeding, swerving, and running a red light, which he stated was felony evasion.
As her speed increased, so did Seidel’s, reaching sixty to seventy miles per hour on
1
Seidel offers no facts to support this conclusion, such as damage, if any, to the parked
car. Failure to leave identifying information after striking an unattended vehicle is a class B
misdemeanor if the total damage to the vehicles exceeds $200. Tex. Transp. Code Ann. §
550.024(b)(2). If the damages do not exceed $200, the offense is only a class C misdemeanor,
which Seidel testified does not usually justify police pursuit. See id. § 550.024(b)(1).

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a four-lane feeder road. When she ran a red light at an intersection, using the far-
left lane to turn right, Seidel did the same.2 When he made this turn, he struck the
Salazars’ SUV, which was stopped in the middle of the intersection.

In Zakir, this court addressed the issue of good faith in a police-caused
collision, where there was no evidence addressing alternative actions that the
police officer could have taken. See Zakir, 665 S.W.3d at 896. Like Zakir, the City
offers no evidence of alternative courses of action that were available to the police
officer other than his right turn from the far-left lane against a red light in a high-
speed pursuit.

In his deposition, Seidel agreed that the fleeing woman was reckless when
she used the far-left lane to turn right through a red light and agreed that a car
turning right at an intersection should turn into the right-most lane of the
intersecting road. Seidel states in his affidavit that although vehicles pulled to the
right to yield to his emergency vehicle, instead of using this space, he chose to turn
from the far-left lane. When asked why he was unable to turn into the intersecting
road’s right lane (rather than the middle lane of the intersection where the Salazars’
SUV was stopped), Seidel responded “I don’t recall, sir.” Seidel describes the
feeder road as “wide and straight with excellent visibility,” but in his deposition
states he saw the Salazars’ SUV in the intersection “possibly a second before the
crash.” He also could not recall whether he entered the intersection before or after
he saw the Salazars’ SUV. Seidel’s affidavit does not address whether he
considered alternatives to his speed at the time of the collision. The evidence
further shows he could not recall how long it took him to slow from sixty-to-
seventy miles per hour to thirty miles per hour, look left and right, and enter the
2
Seidel omits from his affidavit that he used the far-left lane to make his right turn,
although his deposition testimony reveals it. Seidel was found at fault for the accident in both a
written reprimand from his employer and in the accident report.

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intersection. The evidence reflects alternative courses of action existed. There is
just no evidence Seidel considered them, and he could not expound on the actions
he did take.

At best, the City cites Seidel’s belief that because the fleeing woman had
been in a hotel room and had out-of-state license plates, he believed police would
be unable to later arrest her for criminal violations if he stopped pursuit. Seidel’s
belief addresses the factor of “the importance of immediately apprehending a
suspect” in the need element of good faith, Clark, 38 S.W.3d at 582, not the factor
of alternative courses of action. Moreover, he offers no explanation why the police
could not use her license plate number to identify her; use registration information
from the hotel; or simply use her husband’s identifying information to locate her—
even though Seidel’s affidavit states that the husband was handcuffed and in police
custody.3

It was the City’s burden to establish the required elements of official
immunity. See Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642–43 (Tex.
2015); Zakir, 665 S.W.3d at 894. “Requiring officers to assess alternatives insures
that public safety is not ‘thrown to the winds in the heat of the chase.’” Clark, 38
S.W.3d at 584 (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.
1992)). Because the City’s evidence did not address alternative actions that Seidel
could have taken, I would conclude that the City did not prove objective good faith
and is thus not entitled to summary judgment based on official immunity.

3
Seidel also justified his continued pursuit because he believed police would be unable to
arrest her husband for assault without the fleeing woman’s witness statement. The City has
provided no authority whatsoever that police may engage in a high-speed pursuit of a recalcitrant
witness to secure a statement.

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For these reasons, I respectfully dissent.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant.
(Zimmerer, J., majority).

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