# City of Mesquite v. Wagner Supreme Court of Texas, No. 23-0562 **City of Mesquite v. Wagner, No. 23-0562 (Tex. May 2, 2025). Holding: The City presented adequate evidence that Crawford acted in good faith and was protected by official immunity, which Wagner's evidence of at most negligence failed to controvert, so Crawford's official immunity extends to the City and the City's immunity from suit is not waived.** Practice areas: governmental immunity, personal injury ## Key issues - A city's immunity from a suit over a police dog bite is not waived where its K-9 officer is protected by official immunity, and the city carried its burden on the good-faith element with the officer's uncontroverted affidavit describing a dark, rapidly developing foot pursuit of multiple fleeing suspects. - The court of appeals applied the wrong good-faith standard: the test is what a reasonably prudent officer could have believed, not what a reasonable person would have done, and evidence of mere negligence does not overcome it. ## Factual History In the early morning of March 29, 2020, Garland police responding to a burglary in progress asked Mesquite K-9 officer Jason Crawford for help, and Crawford, the handler of the police service dog Kozmo, deployed Kozmo on a thirty-foot extended lead as he approached the rear of the property where the suspects were fleeing on foot (Opinion, PDF p. 2). After another officer ordered one suspect, Anthony Wagner, to get on the ground, Crawford shortened Kozmo's lead and moved to the left of the altercation in pursuit of the other suspects, keeping his body between Kozmo and the altercation; Kozmo cut across his path, Crawford tripped and fell, and Kozmo bit Wagner on the shoulder (Opinion, PDF p. 2). Wagner was treated at the scene and at a hospital for a single dog bite (Opinion, PDF p. 2). ## Procedural History Wagner sued the City of Mesquite alleging that Crawford negligently handled Kozmo and that the City's governmental immunity was waived under the Texas Tort Claims Act (TTCA) (Opinion, PDF pp. 2-3). The City filed a plea to the jurisdiction arguing that Crawford's official immunity gave the City derivative immunity, that the injury was not caused by the use of tangible personal property, that the claim arose from intentional acts, and that Crawford was responding to an emergency, and it attached Crawford's sworn affidavit; Wagner responded with an "Unintentional Bite" memorandum Crawford had prepared (Opinion, PDF p. 3). The trial court denied the plea and the Fifth Court of Appeals affirmed, holding that the City had not shown that a reasonably prudent officer could have believed no further safeguards were necessary in handling Kozmo during the pursuit; one justice dissented from the holding on the emergency exception (Opinion, PDF p. 3 & n.1). The City petitioned for review on July 20, 2023, and Wagner responded on September 25, 2023; the Court requested briefs on the merits on October 20, 2023, and the City and Wagner filed them on November 16, 2023, and January 10, 2024 (Docket). On May 2, 2025, the Court granted the petition and decided the case per curiam under Rule of Appellate Procedure 59.1, without oral argument (Opinion, PDF pp. 1, 9-10; Docket). ## Issues Presented The City presents whether the claim is excluded by the intentional-act exception in section 101.057, whether the emergency-response exception in section 101.055 applies, whether Crawford's official immunity removes the claim from the waiver of governmental immunity, and whether the lack of causation or use does so (Brief on the Merits (the City of Mesquite, Texas), PDF p. 7; Petition for Review (The City of Mesquite, Texas), PDF p. 7). Wagner responds that the City's brief raises six issues, that the court of appeals correctly denied the plea, and that Crawford's affidavit does not establish official immunity (Brief on the Merits (Anthony Wagner), PDF pp. 12-13). The Court decided whether the City presented sufficient evidence that its officer acted in good faith, which would establish official immunity and extend it to the City (Opinion, PDF pp. 1, 4). ## Standard(s) of Review A plea to the jurisdiction based on governmental immunity is reviewed de novo; when the plea challenges jurisdictional facts and both sides submit evidence, the question is whether the nonmovant raised a genuine issue of material fact on the waiver, taking the nonmovant's evidence as true, and official immunity is an affirmative defense on which the governmental unit bears the burden (Opinion, PDF pp. 4-5). ## Legal Arguments **Whether the City's immunity is waived.** **Petitioner (the City of Mesquite):** Four independent reasons bar the claim: the intentional-act exclusion, the emergency-response exception, Crawford's official immunity, and the absence of causation or use of property, and the court of appeals' decision, if left standing, would harm the provision of governmental and police services (Petition for Review (The City of Mesquite, Texas), PDF p. 7; Brief on the Merits (the City of Mesquite, Texas), PDF pp. 7, 10). **Respondent (Wagner):** Each of the City's six arguments lacks merit: the claim pleads negligent use of Kozmo and not an intentional act, the emergency exception is not established when the evidence is viewed favorably to him, and the affidavit does not establish official immunity because it assumes that the trial-court evidence established it and wrongly invokes the federal qualified-immunity standard (Brief on the Merits (Anthony Wagner), PDF pp. 12-13). He relied on Crawford's memorandum, in which Crawford wrote that he failed to properly control his lead and that he should have anticipated the conditions and distance (Brief on the Merits (Anthony Wagner), PDF p. 10; Opinion, PDF p. 3). ## Stated Reasons the Court Should Take the Case The City argued that stability and predictability are needed in the law governing the provision of governmental services such as law enforcement, and that it satisfied several of the factors in Rule 56.1(a) for granting review (Petition for Review (The City of Mesquite, Texas), PDF p. 7). Wagner responded that the City devoted nearly half its petition to Rule 56.1 and contended that five of the six factors applied, which he addressed one by one (Response to Petition (Anthony Wagner), PDF p. 6). ## Practice Area Tags governmental-immunity, personal-injury ## Procedural Posture/Vehicle Petition for review from the Fifth Court of Appeals in an interlocutory appeal from the denial of a plea to the jurisdiction; granted and decided per curiam without oral argument under Rule of Appellate Procedure 59.1 on May 2, 2025 (Opinion, PDF pp. 1, 3, 9-10). ## Amicus Involvement None. The docket shows no amicus filings. ## Holding The City presented adequate evidence that Crawford acted in good faith and was protected by official immunity, which Wagner's evidence of at most negligence failed to controvert, so Crawford's official immunity extends to the City and the City's immunity from suit is not waived (Opinion, PDF pp. 8-9). ## Court's Reasoning A city is immune from suit for the torts of its officers unless the TTCA waives immunity, and the governmental employer's immunity is not waived if its employee is protected by official immunity, so the Court did not reach the City's other arguments (Opinion, PDF pp. 3-5). Official immunity protects officers performing discretionary duties in good faith within the scope of their authority, and only good faith was disputed (Opinion, PDF p. 5 & n.2). An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed; this standard is highly deferential, an officer's negligence is insufficient to defeat it, and once the City meets its burden the plaintiff must offer evidence that no reasonable officer in the officer's position could have believed the facts justified his conduct (Opinion, PDF pp. 6-7). The court of appeals erred by faulting Crawford's affidavit for not explaining "those circumstances," because the affidavit describes the search and foot pursuit of multiple fleeing suspects in an area that was completely dark except for another officer's flashlight, and it explains that he passed on the left because the route to the right would have required crossing rocky, sloping terrain and that he positioned himself between Kozmo and Wagner (Opinion, PDF pp. 7-8). The court of appeals also used the wrong test, asking what a reasonable person would have done instead of what a reasonable officer could have believed (Opinion, PDF p. 8). Wagner likewise advocated an incorrect standard, arguing that no reasonably prudent officer would have failed to control the lead or anticipate the conditions; at best he showed negligence, and evidence that an officer may have acted negligently or did not consider all subsidiary alternatives does not overcome proof of good faith (Opinion, PDF p. 9). ## Disposition The Court granted the petition for review, reversed the court of appeals' judgment, and rendered judgment dismissing Wagner's claim against the City for lack of jurisdiction (Opinion, PDF pp. 9-10). ## Vote Breakdown Per curiam opinion (Opinion, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/23-0562. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.