Brown v. Ener

¶1Justice, concurring.

¶2With regard to discretionary duty, Chambers states that our focus should be on whether the officer is performing a discretionary function, not whether the officer has discretion to do an allegedly wrongful act while discharging that function. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994) (holding that officers’ engaging in *72high speed chase was a discretionary act even if it violated the statute prescribing the duty of care for drivers of emergency vehicles). To hold otherwise would mean that police officers could be denied immunity merely for acting negligently. See id.I believe that Chamberstherefore dictates that Ener was performing a discretionary function in engaging in the pursuit in this case even if he did so negligently in violation of department policy.

¶3With regard to good faith, I do not agree with the majority opinion that the elements of good faith must be re-established with regard to each intersection which an officer approaches during a pursuit. Therefore, I do not agree that Ener’s inability to recall the details of what occurred in the seconds leading up to this collision is determinative. However, because the movants’ affidavits in this case are not legally sufficient under the rationale of Clark,1and because that decision is binding on this panel (even though I adhere to my dissent from it), I concur with the result reached by the majority.