author: JOHNSON, J., MEYERS, J.,

text:
    Mark Wilson GLAZNER, Appellant v. The STATE of Texas.
    No. PD-0998-04.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 19, 2005.

      R. Scott Shearer, Houston, for Appellant.
    Peyton Z. Peebles III, Asst. Dist. Atty., Houston for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which KELLER, P. J., PRICE, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

While on routine patrol, Harris County Sheriffs Deputy Lee Martin noticed that appellant was operating a motor vehicle on a public road with expired registration, in violation of Tex. Tkansp.Code § 502.002(a)(1). Failure to properly register a motor vehicle is a misdemeanor offense punishable by fine. Tex. Teansp. Code § 502.401(c). When appellant stopped at a convenience store, Deputy Martin also stopped. When appellant returned to his truck, Deputy Martin approached appellant, advised him that his registration was expired, and asked him for his driver’s license and proof of insurance. Appellant produced a valid license but, in violation of Tex. Teansp. Code § 601.071, he did not have liability insurance. Failure to maintain the minimum amount of liability insurance is a misdemeanor offense punishable by fine, confinement in county jail, or both. Tex. Transp. Code § 601.008.

During their conversation, Deputy Martin noticed a clip on appellant’s pocket that he suspected was connected to a knife and so he conducted a pat-down search of appellant for safety purposes. The clip was, in fact, connected to a pocket knife, but no other weapons were discovered. After taking possession of appellant’s pocket knife, which was of legal length, Deputy Martin opened the door of appellant’s truck and put the knife on the front seat. He testified that it was his habit to do so to keep all weapons away from a detainee during a stop and to ensure that any property that was temporarily seized during an encounter was returned to the detainee when the detention ended. He further testified that opening the door was not an effort to detect criminal activity.

When Deputy Martin opened the door, he smelled a strong odor of marijuana. Deputy Martin then asked appellant whether there was any more marijuana in the truck, and appellant admitted that there were “roaches in the ashtray.” Deputy Martin then searched the passenger compartment of appellant’s truck, saw the roaches in the ashtray, and discovered additional marijuana in the console and on the floor. Following standard department procedure, he then handcuffed appellant and placed him in the back seat of the patrol car before collecting the evidence.

Appellant plead guilty to misdemeanor possession of marijuana pursuant to a plea agreement, but appealed the trial court’s denial of his motion to suppress evidence. Applying the rationale outlined in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App.2000), the court of appeals held that Deputy Martin acted reasonably based on the facts known to him at the time he conducted the warrantless search and affirmed the judgment and sentence. Glazner v. State, No. 01-03-00396-CR, 2004 WL 1172081 (Tex.App.-Houston [1st Dist.], delivered May 27, 2004, unpublished). Appellant petitioned this Court for discretionary review. We granted review on two grounds. We affirm.

LEGALITY OF SEARCH OF APPELLANT’S PERSON

Appellant contends in his first ground for review that Deputy Martin lacked the level of suspicion necessary to justify a protective search of appellant’s truck in light of Long. Appellant does not directly challenge the action of Deputy Martin in removing the pocket knife, but his brief characterizes the search which produced the knife as illegal and argues that opening the truck door to deposit the knife constituted an illegal search that violated appellant’s expectation of privacy in the truck’s interior. Although appellant characterizes the search of his truck as “protective” and invokes Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the record shows that this was not a Terry stop or search. Unlike the police officer in Terry, Deputy Martin had probable cause to arrest appellant for violations of the transportation code before he conducted the search of appellant’s person, and the search of the truck followed an admission by appellant that there was contraband in it. While Terry does not apply directly, it is instructive in considering the merits of appellant’s complaints. Although appellant challenges only the search of his truck, we address the search of his person because it led to the challenged search.

In Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court held that an officer has the authority, even in the absence of suspicion, to ask general questions of a subject. Although the line of questioning must be reasonably related to the purpose of the contact, a police officer is permitted to broaden the line of questioning beyond the scope of the original subject matter if he or she notices additional suspicious factors. United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

A pat-down search is permitted if the police officer can “point to specific and articulable facts, which, taken with rational inferences from those facts, reasonably warrant the intrusion.” O’Hara v. State, 27 S.W.3d 548, 550-51 (Tex.Crim.App.2000)(quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). Moreover, there is no requirement that a police officer feel personally threatened or be “absolutely certain” that the suspect is armed in order to conduct a pat-down search. Id. at 551. See also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)(subject stopped for traffic violations and ordered out of car; police frisked driver after seeing a large bulge under driver’s jacket). “The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his or her safety or that of others was in danger.” Terry at 27, 88 S.Ct. 1868.

Deputy Martin indicated that he did not immediately perceive appellant to be a threat, but that he believed, based on observation and experience, that appellant had a knife. The pat-down search in this case was justified because Deputy Martin reasonably concluded that appellant might be armed.

LEGALITY OF SEARCH OF APPELLANT’S VEHICLE

Appellant places significant weight on the sequence of events during this encounter and whether Deputy Martin patted appellant down before opening the track door. However, it is not relevant whether the search of the track occurred before or after appellant’s arrest, as long as probable cause existed before the search. “Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.” Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). See also State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999).

The record indicates that Deputy Martin had probable cause to arrest appellant for traffic violations before searching either the appellant or his truck. He testified that his intent in opening the truck door was not to engage in a prohibited fishing expedition to uncover additional criminal activity, but only to place the knife in the front seat away from appellant. When Deputy Martin opened the door of appellant’s truck and smelled marijuana, he acquired reasonable suspicion to continue detaining appellant because he, at that point, reasonably believed that appellant was or had been engaged in criminal activity. Davis, 947 S.W.2d 240, 244 (Tex.Crim.App.1997)(citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)). Deputy Martin’s actions were consistent with an investigatory encounter and were justified by reasonable and artic-ulable suspicion. Appellant’s admission that there was a prohibited substance in the truck created a separate justification for a search of it.

We find that the initial entry by Deputy Martin into appellant’s truck was not a search and that the subsequent search of appellant’s truck was supported by probable cause and was proper. We overrule appellant’s first ground for review.

STANDARD OF REVIEW

Appellant contends in his second ground for review that the court of appeals applied an incorrect standard when it reviewed appellant’s claim that the marijuana was seized during an illegal search that violated the protections of the Fourth Amendment to the United States Constitution.

The Fourth Amendment is not designed to prevent all contact between citizens and police officers or all searches; it is meant to “prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” That is, it is designed to protect citizens, not from all governmental intrusion, but from unreasonable governmental intrusion. Terry at 9, 88 S.Ct. 1868 (emphasis added). Under Terry, a search is reasonable if (1) the police officer’s action was justified at its inception and (2) was reasonably related to the circumstances that justified the interference in the first place. Terry at 19-20, 88 S.Ct. 1868.

The court of appeals stated that “an officer may conduct a limited search for weapons of a suspect’s outer clothing, even in the absence of probable cause, where an officer reasonably believes that a suspect is armed and dangerous.” Glazner, 2004 WL 1172081 at *2. This standard comports with Terry and Thornton. The court of appeals then evaluated Deputy Martin’s actions using this objective standard and concluded that he was justified in disarming appellant for safety reasons and that the subsequent truck search “was not beyond the scope of the investigative stop.” Id. at *2.

The court of appeals used the correct standard and applied it properly. We overrule appellant’s second ground for review.

We affirm the judgment of the court of appeals.

WOMACK, J., concurred.

MEYERS, J., dissented.

MEYERS, J.,

filed a dissenting opinion.

I would have sustained the Appellant’s second ground for review. Therefore, I respectfully dissent.

      . (1) "Whether an officer’s discovery of a legal pocket knife during a patdown search justifies a protective search of the suspect’s vehicle pursuant to Michigan v. Long in the absence of any other specific or articulable facts;” (2) "Whether the Court of Appeals failed to apply the appropriate standard to review appellant’s Fourth Amendment suppression issue.”

      . Deputy Martin admitted upon further questioning that, while he did not feel threatened by appellant at the outset of the encounter, he was uncertain of appellant's intentions because "I just met the guy.”

      . Appellant also refers this Court to a video surveillance tape from the convenience store in support of the alleged constitutional violations. Appellant introduced this tape at the suppression hearing as evidence that Deputy Martin initiated the patdown search only after opening the truck door. The state raised no objection. This Court viewed the surveillance video and was unable to discern anything due to the poor quality of the tape.

      . United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).


source: Caselaw Access Project

author: DON BURGESS, Justice. DAVID B. GAULTNEY, Justice,

license: Public Domain

text:
    BMG DIRECT MARKETING, INC., Appellant, v. Patrick PEAKE, et al, Appellee.
    No. 09-02-509 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 2, 2003.
    Decided May 1, 2003.

      Lynne Liberato, Aleñe Ross Levy, Patricia L. Casey, Haynes and Boone, LLP, Houston, Steven M. Hayes, Gregory A. Clarick, Parcher, Hayes & Snyder, P.C., New York, NY, for appellant.
    Bruce B. Kemp, Christopher A. Kesler, Kemp & Kesler, LLP, Timothy W. Ferguson, Houston, Ferguson Firm, Beaumont, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   MEMORANDUM OPINION

DON BURGESS, Justice.

Patrick Peake filed suit on behalf of himself and a putative statewide class of BMG Direct music club members who paid late fees to BMG Direct Marketing, Inc. Peake moved to certify a class. BMG opposed the motion. Following a hearing, the trial court granted class certification. BMG brings this interlocutory appeal.

BMG claims Peake has not satisfied the requirements of Rule 42 and Bernal. See Tex.R. Crv. P. 42; and Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Tex.2000). In its first issue, BMG contends individual issues will predominate over common issues because the voluntary payment rule requires an individualized inquiry into the voluntariness of each class member’s payment of late fees, precluding class certification. Under this issue, BMG also claims the trial court failed to conduct a rigorous analysis of the predominance requirement by refusing to meaningfully address BMG’s affirmative defense of voluntary payment. We find otherwise. Not only does the hearing on BMG’s motion contain extensive argument regarding the defense, but in its order, the trial court found:

The voluntary payment doctrine is an equitable defense and need not be applied where the rationale for its existence does not exist. It appears this is such a case and that it is unlikely the voluntary payment doctrine would apply in this lawsuit. Even if the voluntary payment doctrine is to be contested in this case, it appears from the evidence presented by Plaintiff that the issue is not individual and may be determined as another common issue on a class wide basis.

It is clear the trial court considered the defense and found it did not bar class certification because it will either apply to bar recovery by all class members, or none. Based upon Peake’s pleadings, and our decision in TCI Cablevision of Dallas, Inc. v. Owens, 8 S.W.3d 837 (Tex.App.Beaumont 2000, pet. dism’d by agr.), we agree.

In TCI Cablevision, the voluntary payment doctrine was raised to bar recovery of late fees charged by cable television companies. We noted:

Texas courts, of course, recognize the voluntary payment rule expressed in Tyler v. Tyler, 142 S.W.2d 740 (Tex.App.Houston [14th Dist.] 1987, writ denied): “[M]oney voluntarily paid with full knowledge of all the facts and without fraud, deception, duress or coercion cannot be received back although it was paid upon a void or illegal demand or upon a claim which had no foundation in fact and was paid without consideration.” Id. at 743 (emphasis added). The question, however, is whether the voluntary payment doctrine applies here to preclude class certification.

Id. at 844. In TCI Cablevision, Owens contended the voluntary payment doctrine did not apply “because he did not have full knowledge of all the facts.” Id. Owens maintained the material facts related to his claim were “whether the late fees were reasonably related to the costs of late payment and constituted a reasonable advance estimate of those costs.” Id. Here, Peake argues he did not pay with “full knowledge of all the facts” because BMG never disclosed to him, or any other class member, whether the fee represented a reasonable estimation of the actual damages. It is Peake’s assertion that BMG’s failure to disclose precludes applying the voluntary payment doctrine because no class member paid with the requisite “full knowledge.”

BMG contends we “side-stepped” TCI’s argument that the voluntary payment rule barred the action and class certification. We disagree. We noted a split of authority existed among other jurisdictions in applying the doctrine to late fees for cable services. Id. at 845. We concluded that “[cjonsidering the split of authority and [plaintiffs] statement that he did not have full knowledge of the material facts, it is far from clear that the voluntary payment doctrine applies here.” Id. Accordingly, we were not convinced the trial court abused its discretion in certifying the class. Id.

BMG is correct that we did not determine whether the voluntary payment rule barred the action. Such a determination is inappropriate upon review of an order certifying a class action. See Peltier Enterprises, Inc. v. Hilton, 51 S.W.3d 616, 621-22 (Tex.App.-Tyler 2000, pet. denied). If BMG believes the class has no cause of action, there are measures it can take to resolve that issue. See Compaq Computer Corp. v. LaPray 79 S.W.3d 779, 787 (Tex.App.-Beaumont 2002, pet. filed) (citing Tex.R. Civ. P. 91, 166a.). “Decertification of the class, however, is not the appropriate procedural tool.” Id. (quoting Employers Cas. Co. v. Tex. Ass’n of Sch. Bds. Workers’ Comp. Self-Ins. Fund, 886 S.W.2d 470, 477 (TexApp.-Austin 1994, writ dism’d w.o.j.)).

BMG’s defense is simple: the voluntary payment doctrine applies because Peake, and all other class members, had full knowledge of the material facts, and there has been no allegation of fraud, duress or coercion. Peake’s contest to application of the doctrine is equally simple: he, and all other class members, did not have full knowledge of the material facts. However the substantive issue is decided, the class lives or dies in toto. See Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 34-35 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.).

BMG’s position that an individualized inquiry is necessary to determine whether each class member paid voluntarily is incorrect because Peake’s counter to the defense is want of “full knowledge” based on BMG’s failure to disclose all the material facts in the agreement — a failure that would be common to the entire class. Therefore, the trial court did not abuse its discretion in finding common issues predominate. See Tex.R. Civ. P. 42(b)(4). Issue one is overruled.

BMG’s second issue argues Peake did not satisfy the typicality or adequacy prerequisites for class certification. See Tex.R. Civ. P. 42(a)(3), (4). As set forth above, the claims or defenses of Peake are typical of the claims or defenses of the class. BMG contends Peake’s “voluntary” payment of his late fees disqualifies him from serving as an adequate class representative. Peake contends he did not “voluntarily” pay, vis a vis the voluntary payment doctrine, because he did not have full knowledge of material facts. Whether or not Peake’s payments were “voluntary” is a substantive issue not properly before this court in this appeal.

BMG further claims Peake’s testimony disqualifies him because it does not support the allegations in his petition. In its order the trial court found “[m]any of the factual details that [BMG] points to [Peake] being in error on do not appear to have any relevance to the ultimate resolution of the contested issues in this lawsuit. Further, the factual details are clearly readily available to both [Peake] and [BMG] not only for [Peake] but for the entirety of the proposed class from [BMG’s] records.” Although BMG summarily contends the trial court abused its discretion in finding Peake an adequate representative, no contest is made to the specific findings in the court’s order. Having reviewed BMG’s complaints regarding Peake’s testimony, we are unable to say the trial court erred in its conclusions. Issue two is overruled.

The judgment of the trial court is AFFIRMED.

DAVID B. GAULTNEY, Justice,

dissenting.

I do not believe it is possible without individual trials to determine whether each payment by each class member was voluntary. But that is what this class certification requires. If the plaintiff class, as certified, loses at trial because the payment is found to be voluntary, judgment will then be entered that the payments by all class members were voluntary. However, whether an individual’s payment was voluntary depends — by definition — on individual choice and individual circumstances. See Salvaggio v. Houston Indep. Sch. Dist., 709 S.W.2d 306, 307-08 (Tex.App.Houston [14th Dist.] 1986, writ dism’d w.o.j.) (voluntary payment rule precluded class certification of group of taxpayers because of need for case-by-case factual analysis). Class certification is improper here because individual issues predominate. See Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 434 (Tex.2000). I respectfully dissent.

      . We note that BMG did not plead this affirmative defense until after the hearing on class certification, but it was raised prior to the hearing and the issue was argued.

        . We recognize TCI Cablevision was decided before Bernal, supra, but Bernal did not address employing the voluntary payment doctrine to decertify a class; thus it does not control our decision in this matter.


author: JANE BLAND, Justice. EVELYN V. KEYES, Justice,

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Jerry B. MOORE, Appellee.
    No. 01-02-01147-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2004.

      Elvis G. Schulze, Kevin M. Givens, Ross Rayburn, Austin, TX, for Appellant.
    John Paul, Bryan, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

The Texas Department of Public Safety (“the DPS”) appeals an order from the county court, affirming an administrative law judge’s decision denying the DPS’s petition to suspend appellee Jerry Moore’s driver’s license, based upon Moore’s necessity defense. We hold that the facts found by the administrative law judge do not establish a necessity defense as a matter of law, and therefore reverse and remand.

Facts

On December 30, 2001, Moore telephoned his wife, Mary Moore, and asked that she drive to his sister’s mobile home to give him a ride home. Mary Moore testified that upon her arrival, she saw her husband, his sister, his sister’s boyfriend, and another couple fighting in the street. Mary Moore observed guns flashing and the combatants using scissors as weapons. She testified that someone fired shots, and then Moore stepped into his pickup truck and drove away. Mary Moore remained at the scene and dialed 911.

Shortly thereafter, Officer Caldwell, with the City of Bryan Police Department, arrived and began to investigate. Caldwell interviewed Mary Moore. During the interview, Caldwell noticed a blue pickup truck driving through the mobile home park at a high rate of speed. Mary Moore informed Caldwell that her husband owned the truck and identified him as he drove toward the police officers. Moore stopped and stepped out of the truck. Officer Caldwell approached him and detected “a strong odor of an alcoholic beverage.” Caldwell further observed that Moore spoke “in a slurred speech,” had difficulty removing his driver’s license from his wallet, dropped several papers from his wallet, and had difficulty picking them up from the ground. Officer Caldwell assessed Moore with various field sobriety tests. Based upon his poor performance, Officer Caldwell arrested Moore for driving while intoxicated (“DWI”). Moore refused to give a breath sample, but after receiving his Miranda warnings, he admitted that he had consumed one pint of brandy. He denied driving the truck.

The DPS moved to suspend Moore’s driver’s license pursuant to the Texas Transportation Code. An administrative law judge held a hearing on the petition and found as follows:

On 12/31/01 a reasonable suspicion to stop Defendant existed, in that Defendant was victim of assault and made contact with arresting officer who saw Defendant driving F150 through mo-bil[e] home park at 2201 Leonard Road in Bryan, Texas, just prior to making contact.
On that same date, probable cause to arrest Defendant existed, in that probable cause existed to believe that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1: Arresting officer observed Defendant to have strong odor of alcoholic beverage, slurred speech, difficulty picking up papers he had dropped, and to sway, hop, and put foot down doing one leg stand.
Although DPS proved the elements of its case, Defendant’s affirmative defense of necessity (Tx Penal Code § 9.22) was proved. Defendant had called his wife to come get him. As she arrived, she saw Defendant being threatened by man with a gun, who fired the gun. Defendant drove away but returned when police arrived and it was safe for him to do so.
Based on the foregoing, the Judge concludes that the Department proved the issues set out in Tex. Teansp. Code Ann. § 524.035 or 724.042 but that Defendant’s affirmative defense of necessity applies.

(Emphasis added). Based upon these findings and conclusions, the administrative law judge denied the DPS’s petition. The DPS sought judicial review of that determination pursuant to section 524.041(d) of the Texas Transportation Code in the county court. See Tex. Transp. Code Ann. § 524.041(d) (Vernon 1999). At that trial, the DPS contended that Moore could not rely on the defense of necessity because police arrested him after the threat from which he fled no longer existed, and Moore had continued to drive under the influence. Finding “that a reasonable basis exists in the record for the application of the necessity defense by the administrative law judge,” the county court affirmed the administrative determination.

Standard of Review

We review administrative license suspension decisions under a substantial evidence standard. Míreles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). The Texas Government Code defines such a review as follows:

[A] court may not substitute its judgment for that of the state agency on the weight of the evidence on questions committed to agency discretion, but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code Ann. § 2001.174 (Vernon 2000). We consider in this appeal whether the administrative findings are affected by an error of law.

The Necessity Defense

The DPS contends that no necessity justification existed at the time of Moore’s arrest because his drive back to the scene was not in avoidance of any imminent harm — as the administrative judge found, he “returned when police arrived and it was safe for him to do so.” Moore responds that substantial evidence supports the administrative determination because he reasonably believed that his conduct was immediately necessary to avoid imminent harm.

Necessity may justify criminal conduct if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. § 9.22 (Vernon 2003).

Here, we do not address the question of whether a necessity defense applies to Moore’s conduct when he initially drove his vehicle away from the confrontation. See Gibbons v. State, 874 S.W.2d 164, 165 (Tex App.-Houston [14th Dist.] 1994, no pet.) (noting that “we do not rule” on the issue of whether the necessity defense might be a valid justification earlier in the course of events). In order to raise the defense of necessity under these facts, however, Moore reasonably must have believed that in order to avoid imminent harm, he had to drive his motor vehicle back across the mobile home park to the scene of the assault. The facts found by the administrative law judge refute such a conclusion. At the time of the arrest, Moore continued to drive and “returned, when police arrived and it was safe for him to do so.” (Emphasis added.)

As a matter of law, when criminal conduct is no longer necessary to avoid imminent harm, the necessity defense evaporates. See Bush v. State, 624 S.W.2d 377, 378 (Tex.App.-Dallas 1981, no writ); Gibbons, 874 S.W.2d at 165. In Bush, the defendant admitted to drinking scotch and water. She then argued with her husband, who assaulted her. Bush, 624 S.W.2d at 378. She fled in her vehicle to a nearby bar in an attempt to find a fellow employee. Unable to locate that person, she drove toward a residence. Police arrested and charged her with DWI before she arrived. Id. In affirming the trial court’s denial of a necessity instruction, the court of appeals held that “the evidence shows no facts by which [Bush] could reasonably believe that her conduct (driving a motor vehicle on a highway), was immediately necessary to avoid imminent harm to herself.” Id. at 379. As the defendant did in Bush, Moore continued to drive his truck after it was immediately necessary to avoid imminent harm. Police arrested him for driving back to the scene while intoxicated after the threat of imminent harm had passed, and after, as the administrative law judge expressly found, it was safe for him to do so.

Similarly, in Gibbons, the defendant received a call from his wife in which she threatened that if he did not drive to a motel to pick her up, she would commit suicide. Gibbons, 874 S.W.2d at 165. Gibbons arrived at the motel, picked up his wife and her “young lover,” intending to drive the couple home. Id. Police stopped Gibbons and arrested him for suspicion of DWI while en route from the motel. Id. In rejecting the necessity defense as a matter of law, the court of appeals concluded that “once appellant reentered his vehicle ... any possible justification for his conduct evaporated. There was no imminent harm appellant sought to prevent.” See id.

We agree with the reasoning in Bush and Gibbons. Because the administrative law judge determined that, at the time of his arrest, Moore drove his truck not to avoid imminent harm, but instead to return to the scene when “it was safe for him to do so,” we hold that, as a matter of law, the defense of necessity does not apply in this case.

The dissent would distinguish Bush and Gibbons on the theory that in those cases, sufficient “time and distance and intervening acts” occurred so as to support the conclusion that a necessity defense did not exist. But the standard set forth in the statute is “imminent harm.” The finding that the scene was “safe” necessarily negates any imminent harm. To extend the necessity defense any further risks another harm — that of an intoxicated driver driving at a high rate of speed through a mobile home park — merely so he can return to the scene, and not to avoid danger. Under the Government Code, we must reverse when a substantial right has been prejudiced because the administrative decision is affected by an error of law. Tex. Gov’t Code Ann. § 2001.174 (Vernon 2000). Here, the administrative law judge erred in applying the law to the facts as she found them. We therefore sustain the DPS’s second point of error, and need not address its remaining point of error.

Conclusion

The necessity defense lasts only as long as the actor reasonably believes criminal conduct is necessary to avoid imminent harm. Once it became safe for Moore to return to the scene, and he chose to do so by driving, he engaged in criminal conduct not as a matter of necessity, but only as a matter of convenience. We reverse and remand this case to the county court for proceedings consistent with this opinion.

Justice KEYES, dissenting.

EVELYN V. KEYES, Justice,

dissenting.

I respectfully dissent. Section 2001.174 of the Government Code, which defines the standard of review, provides that the court of appeals may not “substitute its own judgment for that of the state agency on the weight of the evidence on questions committed to agency discretion.” Tex. Gov’t Code Ann. § 2001.174 (Vernon 2000). The statute further provides that the court of appeals may affirm in whole or in part, but “shall reverse” when “substantial rights of the appellant have been prejudiced” for any of a number of listed reasons, including an error of law. Id. § 2001.174.

The majority rejects Moore’s necessity defense on the ground that the facts do not support it without having any witnesses before it, any description of how long it had been since Moore first got into his car until he was arrested (except that he stopped in front of the police responding to the 911 call and was immediately arrested), any information as to how recently the police had secured the dangerous situation, or any evidence as to how far Moore had traveled (except that he was still in the mobile home park).

I believe the majority has reweighed the evidence, focused solely on the administrative law judge’s finding that Moore “drove away but returned when police arrived and it was safe for him to do so,” interpreted that factual finding to require a legal conclusion that the necessity defense had evaporated, so that all other facts are irrelevant, and now reverses and renders judgment contrary to the conclusion of both fact finders — the administrative law judge and the trial court — as to the weight and preponderance of the evidence. Moreover, the majority reverses without any showing that any “substantial rights of the appellant have been prejudiced” by the ruling below.

The majority’s opinion is in contrast to the two cases on which it relies] Bush v. State, 624 S.W.2d 377, 378 (Tex.App.-Dallas 1981, no pet.), and Gibbons v. State, 874 S.W.2d 164, 165 (Tex App.-Houston [14th Dist.] 1994, no pet.). In both cases, the facts show the lapse of a great deal of time and distance and intervening acts between the threatening situation giving rise to the defense and the defendant’s arrest for DWI. The facts of this case show the opposite.

In my view, the majority’s conclusion is so far-reaching as to nullify the protection afforded by the statute. I therefore respectfully dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Texas Legislature enacted the statutory defense of necessity in 1974. Before legislative enactment, the Texas Court of Criminal Appeals expressly had rejected a common law necessity defense in driving while intoxicated cases. Compare Sansom v. State, 390 S.W.2d 279 (Tex.Crim.App.1965) with Tex. Pen.Code Ann. § 9.22 (Vernon 2003). See also Bush v. State, 624 S.W.2d 377, 379 (Tex App-Dallas 1981, no pet.). For purposes of this appeal, we assume — without deciding — that a defense of necessity can apply in a civil suspension of license proceeding, as the DPS did not contest its applicability in the county court or on appeal. See Tex. Transp. Code Ann. § 524.035 (Vernon Supp.2004) (setting forth issues to be proven at hearing by preponderance of the evidence in order to obtain suspension, and prohibiting suspension if (1) person is an adult and analysis of their alcohol concentration is below that set forth in Penal Code Section 49.01 at time of arrest, or (2) person is a minor and administrative law judge finds minor had no detectable amount of alcohol in their system at time of arrest).

      . The administrative law judge concluded that "the Department proved the issues set out in Tex. Transp. Code Ann. § 524.035 or 724.042 but that Defendant’s affirmative defense of necessity applies.” The DPS's substantial rights are prejudiced by the administrative law judge’s error of law, because but for the administrative law judge's error in applying the law to the facts as she found them, the DPS was entitled to judgment, and to suspend the license it issued to Moore. See Texas Dep’t of Pub. Safety v. Kimbrough, 106 S.W.3d 747, 751 (Tex.App.-Fort Worth 2003, no pet.) (Holding that the DPS’s substantial rights were prejudiced because administrative law judge erroneously excluded two exhibits at license suspension hearing, thereby denying the DPS the opportunity to meet its evi-dentiary burden).

      . The majority notes that the DPS’s substantial rights were prejudiced by the administrative law judge's “error in applying the law to the facts as she found them” because "the DPS was entitled to judgment, and to suspend the license it issued to Moore.” The denial of the appellant’s right to win through an error of law is not a violation of a substantial right. Cf. Texas Dep’t of Pub. Safety v. Kimbrough, 106 S.W.3d 747, 751 (Tex.App.-Fort Worth 2003, no pet.) (DPS’s substantial right to meet its evidentiary burden at license suspension hearing denied by administrative law judge’s erroneous exclusion of virtually all of DPS’s admissible evidence regarding reasonable suspicion to stop and probable cause to arrest motorist).


author: EVELYN V. KEYES, Justice.

text:
    Claudia Navarro PINEDA, Individually; Susana Oregon Navarro, Administratrix of the Estate of Pedro Oregon Navarro, Deceased; Ana Isabel Lores, as Next Friend of Ashley Oregon-Lores, Minor Daughter of Pedro Oregon Navarro, Deceased; Blanca Lidia Viera, as Next Friend of Belinda Marili Viera, Minor Daughter of Pedro Oregon Navarro, Deceased, Appellants, v. CITY OF HOUSTON, Appellee.
    No. 01-03-00125-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 8, 2004.
    Rehearing Overruled Oct. 12, 2004.

      Alice Oliver-Parrott, Maria Teresa Ar-guindegui, Burrow & Parrott, L.L.P., Houston, for Appellants.
    Claudia Navarro Pineda, Houston, pro se.
    Robert Cambrice, Assistant City Attorney, Houston, for Appehee.
    Panel consists of Chief Justice RADACK and Justices KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Claudia Navarro Pineda, individually; Susana Oregon Navarro, administratrix of the estate of Pedro Oregon Navarro; Ana Isabel Lores, as next friend of Ashley Oregon-Lores, minor daughter of Pedro Oregon Navarro; and Blanca Lidia Viera, as next friend of Behnda Marili Viera, minor daughter of Pedro Oregon Navarro, appellants, appeal from the trial court’s granting of a plea to the jurisdiction in favor of the City of Houston (City), appellee, based upon governmental sovereign immunity. We affirm.

Background

On July 11, 1998, Houston Police Officers P.A. Herrada and J.R. Willis made a traffic stop of a vehicle occupied by Nicholas States, John States, and Ryan Baxter. Baxter was arrested for providing alcohol to minors and public intoxication. He also admitted to drinking alcohol and purchasing and smoking crack cocaine earlier that night. At the time, Baxter was on probation. On the way to the police station, Baxter offered to provide information about his claimed crack cocaine dealer, Rogelio Navarro, the brother of the decedent, Pedro Oregon Navarro, in exchange for his release. Herrada and Willis contacted other members of their unit, the Houston Police Department’s (HPD) Southwest Gang Task Force.

Baxter subsequently provided information to the officers. Although the officers knew they were violating HPD policy by using a probationer as an informant without the permission of the probation authority and the supervising court, the officers and their supervisor agreed on a plan of action in which Baxter was to arrange a meeting to buy cocaine from Rogelio at a local restaurant. When Rogelio failed to appear at the restaurant, Baxter traveled with the police to Rogelio’s residence at 6711 Atwell, apartment 16. The officers then devised a plan so that they could enter the home; Baxter was to knock on the door, and when the door opened, Baxter was to fall down in the doorway to prevent the door from closing as the officers rushed in. The officers’ plan did not include obtaining consent to search the apartment.

When no one answered the door at Rogelio’s residence, the group dispersed. While Herrada and Willis were transporting Baxter to jail, Rogelio contacted Baxter on his cell phone. Baxter set up another cocaine buy.

Officers Herrada and Willis, together with Officers Barrera, Tillery, Perkins, and the gang task force supervisor, Sergeant Strouse, reassembled and went with Baxter to Rogelio’s apartment again. While Baxter knocked on the door, the officers waited by a column at the foot of the stairs, and initiated their plan of action. Without consent and without a search warrant, the officers entered Rogelio’s apartment.

There were several people in the apartment, including Rogelio Navarro and Pedro Oregon Navarro. As the officers moved further into the apartment, and into the back room occupied by Pedro Oregon Navarro, Officer Barrera accidentally shot Officer Tillery in the back. This shooting was followed by a fusillade of over 30 rounds of ammunition from the officers, killing Pedro Oregon Navarro. The other occupants of the apartment were arrested. A subsequent search of the apartment failed to find drugs, but did find a handgun close to Pedro’s body. An autopsy performed on Pedro’s body showed that no drugs were in his system.

The HPD’s Internal Affairs Division investigated the incident. The division concluded that Officers Strouse, Tillery, Barrera, Willis, Herrada, and Perkins had violated several of HPD’s General Orders, resulting in their termination by the HPD. A grand jury, however, failed to find a bill of indictment for murder against the officers.

Appellants filed suit in federal court against the City of Houston pursuant to 42 United States Code section 1983; they included supplemental state law claims under the Texas Wrongful Death Act and the Texas Tort Claims Act. The federal district court granted summary judgment to the City on the section 1983 claims and dismissed the state law claims with prejudice. Pineda v. City of Houston, 124 F.Supp.2d 1057, 1089-90 (S.D.Tex.2000). On appeal, the Fifth Circuit affirmed the district court’s rendition of summary judgment, but modified the court’s order dismissing the state claims to provide that the dismissal of the state law claims was without prejudice. See Pineda v. City of Houston, 291 F.3d 325, 335-36 (5th Cir. 2002).

On June 7, 2002, appellants filed suit in state court against the City, alleging their claims under the Texas Tort Claims Act and the Texas Wrongful Death Act. On December 9, 2002, the City filed a plea to the jurisdiction. The trial court conducted a hearing on the plea to the jurisdiction on December 20, 2002, and, on January 8, 2003, the trial court signed an order granting the City’s plea and dismissing the case for want of subject matter jurisdiction. This appeal followed.

Discussion

In their sole issue presented, appellants challenge the trial court’s granting of the City’s plea to the jurisdiction, based on the doctrine of sovereign immunity, and its dismissal of their claims.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Id. at 446; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex.1967).

The existence of subject-matter jurisdiction is a question of law. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Immunity

Under the doctrine of sovereign immunity, a governmental entity cannot be held liable for the actions of its employees unless there is a constitutional or statutory provision waiving such immunity. See City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.1998). Sovereign immunity can be waived only through the use of clear and unambiguous language. County of Cameron, 80 S.W.3d at 554; Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994); City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). The Texas Legislature enacted the Texas Tort Claims Act (TTCA) to waive sovereign immunity in certain limited circumstances. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998). The TTCA provides:

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. A city, such as Houston, as a political subdivision of the State, falls within the parameters of the TTCA. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp 2004).

For a governmental entity such as the City to be held liable for the acts of its employee under the TTCA: (1) the claim must arise under one of the three specific areas of liability listed in section 101.021 (property damage, personal injury, and death); and (2) the claim must not fall within an exception to the waiver of sovereign immunity. See Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719(Tex.App.-Houston [1st Dist.] 1999 pet. denied); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ). The applicable exceptions to the waiver of sovereign immunity are found in section 101.057 of the Texas Civil Practice and Remedies Code, which provides:

This chapter [waiving sovereign immunity] does not apply to a claim:
(1) based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion; or
(2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities.

Tex. Civ. PRAC. & Rem.Code Ann. § 101.057 (Vernon 1997). Thus, a governmental entity does not waive its sovereign immunity to a party’s claim for personal injury or death if that claim arises out of an intentional tort.

Parties’ Contentions

In their petitions, appellants alleged that the court “has jurisdiction over this claim under the Texas Tort Claims Act because the Texas Legislature waived Defendant City of Houston’s sovereign immunity for claims involving personal injury and death caused by the negligent use of tangible personal property, if the defendant would, were it a private citizen, be liable to Plaintiffs according to Texas law.” They claimed that Officers Barrera and Perkins, who were at all times acting within the course and scope of their employment with the City of Houston, and had a duty to exercise ordinary care and use their firearms reasonably and prudently, were negligent in using their service firearms, and that this negligence was a proximate cause of their damages and Pedro’s death.

In its plea to the jurisdiction, the City alleged, first, that appellants failed to circumvent the intentional tort exclusion of the TTCA, section 101.057(2). The City alleged, second, that even if the officers’ acts were not intentional torts, the waiver of immunity under section 101.021(2) of the TTCA for personal injury and death caused by the negligent use of personal property is inapplicable to waive the City’s immunity for the officers’ acts because the officers’ acts were not within the scope of their employment. Finally, the City contended that, even if the officers’ acts were within the scope of their employment, they were discretionary acts for which the officers enjoyed official immunity, and therefore the City could not be derivatively liable. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995).

The first question for this Court, therefore, is whether Pedro’s death was proximately caused by the officers’ intentional torts or by their negligence.

Intentional Tort Exclusion

While the TTCA waives the sovereign immunity of a governmental entity for personal injury and death arising out of the use of tangible personal property, it specifically excludes waiver of immunity for a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021(2), 101.057(2). Here, the City claims that it has immunity because the officers’ actions were intentional and appellants have failed to circumvent the intentional tort exclusion. Appellants, on the other hand, contend that the intentional tort exception does not apply because Pedro’s death was proximately caused by the officers’ negligent performance of their official duties.

Appellants contend that Officer Barrera’s initial negligent discharge of his firearm, accidentally shooting Officer Till-ery in the back, resulted in several false impressions that resulted in the officers’ intentional shooting and killing of Pedro. Citing Delaney v. University of Houston, 835 S.W.2d 56, 60 (Tex.1992), appellants claim that section 101.057(2), the intentional tort exception, cannot be read so broadly as to except from the waiver of immunity any claim for injuries resulting from an intentional tort when negligent and intentional acts both contribute to the occasion of injury.

In Delaney, the Texas Supreme Court held that a negligence action by a rape victim against a state university was not barred by sovereign immunity where the plaintiffs cause of action was based on the university’s alleged failure to provide her a secure residence and to fix a broken lock. The Supreme Court noted that section 101.057(2) of the TTCA precludes the extension of the TTCA’s waiver of immunity to claims “arising out of assault, battery, false imprisonment, or any other intentional tort.” Id. at 59. However, it stated that the phrase “arising out of’ in section 101.057(2) requires a certain nexus for the provision to apply; that nexus is between the claim and an intentional tort, and the intentional tortfeasor must be the governmental employee whose conduct is the subject of complaint. Id. at 59. In that case, the intentional tortfeasor, the rapist, was not the governmental employee whose conduct was the subject of Delaney’s claims against the university.

Here, the gravamen of appellants’ claim is that City of Houston police officers wrongfully killed Pedro Oregon Navarro. Thus, in contrast to Delaney, the tortfeasors are the governmental employees whose conduct is the subject of the complaint, thereby satisfying section 101.057(2)’s requirement of a nexus between appellants’ claims against the City and the intentional tort. If 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. See Tex. Dep’t of Pub. 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 his 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 pleading negligence when shooting event upon which they base their claims is actually intentional tort); Petta, 44 S.W.3d at 580 (plaintiffs claim that officer was negligent in ignoring police procedure did not obviate fact that conduct was intentional; conduct complained of — officers’ hitting car window, aiming gun, blocking car in with police cruiser, and firing at car’s tires — was clearly intentional; despite plaintiffs claim that injuries were proximately caused by officer’s and department’s negligence, plaintiffs allegations fit squarely within section 101.057’s exclusion); Nuno, 94 S.W.3d at 788 (despite plaintiffs efforts to phrase claims in terms of officer’s negligent failure to properly place plaintiff in police vehicle and negligent indifference of other officers and city, focus of plaintiffs claims against city was officer’s intentional tortious acts of using excessive force to arrest plaintiff and to illegally seize car, and was barred); Medrano, 989 S.W.2d at 144 (where focus of claim was on officers’ alleged violent and negligent beating of handcuffed driver, intentional tort exception could not be circumvented merely by alleging negligent hiring, negligent training, and negligent failure to train).

In this case, appellants alleged in their petition that the officers were negligent, failed to exercise sound judgment, and failed to use reasonable care in operating and using their pistols, thus killing Pedro. However, despite appellants’ efforts to phrase them claims in terms of negligence, their focus is on the shooting of Pedro. Appellants do not allege negligent acts of the City, the governmental unit, except though the doctrine of respondeat superi- or. Furthermore, appellants admit that “the actual shooting of [Pedro Oregon] Navarro was not an act of negligence.” They nevertheless contend it was a “foreseeable consequence of a single act of negligence in Officer Barrera’s failure to handle his firearm properly.” Thus, they claim that “the mere fact that the shooting of [Pedro Oregon] Navarro may have been intentional has no bearing on [their] negligence claim.”

Despite Officer Barrera’s alleged negligence in shooting Officer Tillery, the pleadings demonstrate that Barrera and the other officers intended to shoot Pedro because they believed, albeit incorrectly, that he was armed and dangerous. Appellants allege that, after the initial discharge, Barrera fired 16 rounds into Pedro’s bedroom. Barrera also reloaded his gun and resumed firing at Pedro, sometimes at point blank range, as he lay on the floor. Appellants do not allege an accidental shooting, such as the inadvertent discharge of the pistol; nor do the pleadings indicate that the shooting of Pedro was anything but intentional. Thus, as in most cases, the intent to injure can be inferred from the actors’ conduct. Although the officers’ may not have intended their initial actions, such as Officer Barrera’s shooting Officer Tillery, they did intend the ultimate injury — shooting Pedro. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (difference between negligence cause of action and intentional tort is not whether defendant intended the acts, but whether the defendant intended the resulting injury). Because the focus of appellants’ claims is on the officers’ intentional tortious conduct (wrongful use of force, wrongful use of excessive force, assault), the City’s immunity is not waived. See Nuno, 94 S.W.Sd at 789; Medrano, 989 S.W.2d at 141.

After looking to the jurisdictional evidence and allegations, taking them as true, and construing them m favor of the appellants, we conclude that appellants’ petitions do not present a claim for which immunity is waived by the TTCA. Therefore, the trial court did not err in granting the City’s plea to the jurisdiction and dismissing appellants’ claims for lack of jurisdiction. We overrule appellants’ sole issue.

Because we conclude that the City has immunity under the intentional tort provision of the TTCA, section 101.057, we do not discuss appellants’ additional claims.

Conclusion

We affirm the trial court’s order granting the City’s plea to the jurisdiction and dismissing appellants’ claims.

      . Officer Barrera was terminated for violating General Order 200-08 (conduct and authority); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); General Order 600-17 (use of force); and General Order 100-01 (internal directives).
      Officer Herrada was terminated for violating General Order 500-06 (disposition of arrested juveniles); General Order 500-02 (handling and transporting prisoners); General Order 200-08 (conduct and authority); General Order 700-05 (evidence collection and control); General Order 600-16 (informants and other sources of information); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); and General Order 100-01 (internal directives).
      Officer Willis was terminated for violating General Order 600-16 (informants and other sources of information); General Order 200-OS (conduct and authority); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); and General Order 100-01 (internal directives).
      Officer Perkins was terminated for violating General Order 200-08 (conduct and authority); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); and General Order 100-01 (internal directives).
      Officer Tillery was terminated for violating General Order 200-08 (conduct and authority); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); and General Order 100-01 (internal directives).
      Sergeant Strouse was terminated for violating General Order 200-08 (conduct and authority); the United States Constitution (Fourth Amendment); Texas Penal Code section 39.03 (official oppression); and General Order 100-01 (internal directives).

      . Tex Civ. Pjrac. & Rem.Code Ann. § 71.002 (Vernon 1997).

      . Tex Civ. Prac. & Rem.Code Ann. § 101.021(1) (Vernon 1997).

      . Texas law distinguishes between "sovereign,” or "governmental” immunity, which applies to governmental entities, and "official” immunity, which applies to governmental employees acting within the scope of their employment. DeWitt v. 904 S.W.2d at 653. Official immunity is an affirmative defense that protects government employees from personal liability for the performance of discretionary functions in good faith and within their authority. Id. at 652; Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000). When official immunity shields the governmental employee, sovereign or governmental immunity shields the governmental employer. Clark, 38 S.W.3d at 580. Appellants argue that the City had the burden of proving its official immunity defense as a matter of law below and that it failed to do so; thus, if we find that Pedro's death was proximately caused by the officers’ negligent performance of their duties, we cannot conclude as a matter of law that the officers are entitled to official immunity or, a fortiori, that the City had proved its entitlement to governmental immunity for the acts of those employees.

      . Appellants claim that Officer Barrera’s initial negligent discharge created the false impressions that Pedro (1) discharged a weapon, (2) shot Tillery, (3) was firing at the officers; and (4) was an imminent threat to the lives of the officers.

      . The City’s “Investigation Summary” indicates that Officer Barrera’s shooting of Officer Tillery was classified as accidental — -not justified. However, concerning the other shots, the Summary reflects that "the investigation sufficiency proved that Pedro Oregon Navarro was armed,” that the officers feared for their lives, and that the shots fired by Herrada were classified as "intentional — justified.” The investigation also "indicated the manner in which Barrera discharged his weapon did not reflect proper consideration of his immediate surroundings” and, therefore, Barrera violated General Order 600-17 (use of force). The Summary also reflects that Perkins believed that Barrera was in a gun battle with a suspect, so he began firing, despite failing to see a weapon. The Summary indicates that "there is insufficient evidence to either prove or disprove” whether Perkins violated General Order 600-17 (use of force).

      . Intent is established when facts demonstrate that the actor desired to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Restatement (Second) of Torts § 8A (1965).