Court affirms denial of plea to jurisdiction in injured officer's case against METRO

By Gabriel Neves | Dec 26, 2018

HOUSTON – A lower court did not err in denying a plea to the jurisdiction filed by Metropolitan Transit Authority of Harris County in a case over the shooting injury of a Houston police officer.

Justice Marc Brown, on the bench of the Texas 14th Court of Appeals, issued a 17-page ruling on Dec. 11 affirming the Harris County 11th District Court decision in the lawsuit filed by Terry Smith against the Metropolitan Transit Authority of Harris County (METRO).

"The trial court did not err in denying METRO’s plea to the jurisdiction," Brown wrote. "Accordingly, we affirm the trial court’s interlocutory order."

Smith, an officer with the Houston Police Department, sued METRO in March 2016 over personal injuries caused by the discharge of a firearm that allegedly came from METRO officer Gregory Hudson.

Both Smith and Hudson were issuing traffic tickets to drivers at a Sears store in Houston on June 9, 2015.

As stated in the ruling, "Melanie Richard was the last driver stopped that afternoon," and "while Smith issued a citation to Richard, Hudson waited nearby where the officers had parked their motorcycles."

After returning to where the police motorcycles were parked, Smith, Hudson and Richard heard a pop noise coming from nearby, and the officers asked each other on whether their guns or stun guns went off.

Few minutes later, per the ruling, "Smith became light-headed and had trouble breathing. Hudson called for an ambulance and paramedics discovered that Smith had a gunshot wound to his abdomen," with doctors later removing "a .22 caliber bullet from Smith’s abdomen."

An investigation by the Houston Police Department later found that "the shot came from behind Smith, striking him in the back; the shot was fired from only a few feet away; and, based on witness statements and an inconclusive security video, (the investigator) concluded that Hudson was standing in the area the shot came from and was the only person close enough to Smith to have fired the shot," the opinion states

"In August 2017, METRO filed a plea to the jurisdiction and motion to dismiss asserting that governmental immunity had not been waived. The trial court denied the plea and motion. METRO timely appealed," the opinion states. 

"In a single issue, METRO argues that the trial court erred by denying METRO’s plea to the jurisdiction and motion to dismiss 'because the court did not have subject matter jurisdiction over a ‘negligent use’ claim of a .22 caliber hand gun because the gun was not issued, approved or used by METRO nor owned by the METRO officer who allegedly discharged the weapon,'" the opinion states.

In his ruling, Brown sided with the lower court's decision, stating that "having failed to show that Hudson acted in good faith, METRO failed to establish Hudson, and in turn METRO, was entitled to official immunity," dismissing METRO's arguments in the case.

14th Court of Appeals case number 14-17-00807-CV

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