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Texas Department of Public Safety v. Rodriguez

Hugo Rodriguez and Maria Rodriguez brought suit as a result of collision with a vehicle driven by an officer of the Texas Department of Public Safety. The trial court denied DPS's plea to the jurisdiction. The need/risk analysis of Wadewitz v. Montgomery applies. Under Wadewitz , the good faith determination utilizes a two-part test that balances the seriousness of the situation, as well as the alternatives available to the official, against the risks created by the conduct. DPS did not conclusively establish the officer's good faith under that test. The trial court's denial of the plea is affirmed. Houston's 1st Court of Appeals, No. 01-10-00602-CV, 05-19-2011.

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OPINION

This interlocutory appeal arises from a personal injury lawsuit brought by Hugo Rodriguez and Maria Rodriguez as a result of an automobile collision with a vehicle driven by an officer of the Texas Department of Public Safety. The trial court denied DPS’s plea to the jurisdiction, which was based on the defense of official immunity for its officer, Sergeant Parker. On appeal, DPS contends that Sergeant Parker did not have to satisfy the heightened need/risk assessment elaborated in Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997), for determining whether a public official acts in good faith for purposes of the official immunity defense for police pursuit cases. Under Wadewitz, the good faith determination utilizes a two-part test that balances the seriousness of the situation, as well as the alternatives available to the official, against the risks created by the conduct. Scott v. Britton, 16 S.W.3d 173, 179 (Tex. App.–Houston [1st Dist.] 2000, no pet.). DPS argues that this Court should instead utilize the more general good faith test described in Telthorster v. Tennell, 92 S.W.3d 457, 462 (Tex. 2002). DPS asserts that this general test, which does not require a specific assessment of need/risk of the officer’s decision-making, applies in a lawsuit arising from a vehicular accident resulting from moving surveillance of potential criminal activity.

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