Appeals ruling keeps suit over officer's collision in lower court

David Yates Aug. 29, 2011, 8:30am

Two years ago, Harris County residents Mike and Cathy Hudson filed suit against Jefferson County, claiming a deputy sheriff struck them as he rushed through an intersection without emergency lights.

On Aug. 25 justices seated on the Ninth Court of Appeals of Texas partially affirmed a lower court's ruling denying the county's plea to the jurisdiction.

The lawsuit, filed Oct. 25, 2009, in Jefferson County District Court, claims Deputy Sheriff Daniel Powell struck the Hudsons' vehicle when he entered a protected intersection without sounding his siren or flashing his lights on Feb. 21, 2009.

"He failed to slow down as he entered the intersection," the suit states.

"In fact, he sped up. On information and belief, while the officer was proceeding to assist another officer who was searching a vehicle, there was no emergency circumstance that necessitated the officer to arrive on scene immediately."

Court records that on Jan. 25 the county filed a plea to the jurisdiction, arguing that the court does not have the jurisdiction to hear the claim since Powell was responding in an emergency situation to back-up a fellow officer who had pulled over three individuals, one of when was wanted on outstanding felony charges.

Judge Donald Floyd, 172nd District Court, denied the plea on March 4, forcing the county to file an appeal three weeks later.

On appeal, the county argued that Powell was not acting recklessly and therefore it should be granted governmental immunity, court papers say.

According to the Ninth Court's opinion, authored by Justice David Gaultney, justices found that the incident happened at night on city streets. Powell apparently did not activate his emergency lights or sirens, ran the stop sign and was exceeding the speed limit.

"Whether Powell was reckless is in dispute, but we need not resolve that dispute in this interlocutory appeal," the opinion states. "At this stage there are disputed material fact questions regarding jurisdictional issues. The jurisdictional facts in this case implicate the merits of the claim.

"The trial court has discretion in deciding 'whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case.' We set aside the portion of the order granting the Hudsons' motion for partial summary judgment.

"The trial court's order denying the plea to the jurisdiction is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion."

Jeff Seely of the Seely Law Firm in Houston represents the couple.

Assistant District Attorney Tom Rugg represents the county.

Case No. E185-208
Appeal case No. 09-11-00168-CV

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