If a police officer follows a no-chase policy and doesn't pursue a suspect, can the officer be sued when that suspect later hurts someone?

Plain-English summary

Many police departments adopt "no-chase" policies that tell officers to back off from high-speed pursuit when chasing a suspect would put the public or the officer at more risk than letting the suspect get away for now. Some officers had worried those policies clash with their statutory duty to prevent crime and arrest offenders, and that following the policy might leave them personally on the hook if a suspect they did not chase later hurt someone. Two members of the Texas House asked the AG to sort that out: are no-chase policies lawful, and can an officer who follows one be sued?

On legality, the AG concluded no-chase policies generally do not conflict with the officer's duties under Code of Criminal Procedure article 2.13. That statute requires officers to preserve the peace, prevent or suppress crime, and arrest offenders, but it does not tell officers how to do those things or dictate what policies a department must adopt. Texas courts treat an officer's decision about when and how to arrest a suspect as a discretionary act. The general aim of a no-chase policy is not to abandon the article 2.13 duties but to substitute safer methods of pursuit for dangerous high-speed chases, so a policy adopted for that purpose does not contradict the statute. The AG flagged one limit: a policy that ordered officers to refrain from pursuit for an illegal purpose, such as irrational discrimination, would be unlawful.

On personal liability, the AG identified three layers of protection. First, official immunity shields a government employee performing discretionary functions in good faith within the scope of employment, and the decision whether to pursue a particular suspect is fundamentally discretionary, so an officer exercising discretion under a no-chase policy will likely qualify. Second, even where immunity does not apply, a negligence claim needs a legal duty, and Texas and Fifth Circuit courts have held an officer owes no duty to arrest a suspect to protect a later third-party victim (absent a special relationship). Third, section 101.106(f) of the Texas Tort Claims Act entitles a government employee to dismissal when the suit is based on conduct within the scope of employment and could have been brought under the Act against the governmental unit, conditions the AG noted are met in nearly every negligence suit against a government employee.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Peace officers worried about no-chase policies: At the time of the opinion, the AG read article 2.13 not to forbid no-chase policies, and concluded an officer who followed one was unlikely to face personal liability for harm a fleeing suspect later caused, pointing to official immunity, the absence of a duty to arrest to protect third parties, and Tort Claims Act dismissal.

Law enforcement agencies setting policy: The opinion told agencies a no-chase policy aimed at safer pursuit methods would not contradict article 2.13, while a policy directing officers to refrain from pursuit for an illegal purpose, such as discrimination, would be unlawful.

People injured by a fleeing suspect: The opinion explained that, under the law as it stood, a victim injured by an offender an officer chose not to chase would likely have no recourse in tort against the officer for failing to prevent the injury.

Common questions

Are police no-chase policies legal in Texas?
The AG concluded they generally are. Article 2.13 imposes duties to prevent crime and arrest offenders but does not dictate how officers perform those tasks, so a no-chase policy adopted to encourage safer pursuit methods does not conflict with it. A policy aimed at an illegal purpose would be different.

Can an officer who follows a no-chase policy be personally sued if the suspect hurts someone?
The AG concluded it is unlikely. The officer will likely have official immunity, courts have held there is no duty to arrest a suspect to prevent third-party injury, and the Tort Claims Act entitles the officer to dismissal in most such suits.

What is official immunity here?
The AG explained official immunity protects a government employee performing discretionary functions in good faith within the scope of employment. Because deciding whether to pursue a suspect is fundamentally discretionary, an officer exercising that discretion under a no-chase policy will likely qualify.

Does it matter what the specific policy says?
Yes. The AG noted whether a policy eliminates an officer's discretion turns on its terms, and that the lawfulness of any particular policy depends on its terms, so the opinion could give only general advice.

Background and statutory framework

Code of Criminal Procedure article 2.13 directs peace officers to preserve the peace within their jurisdiction, prevent or suppress crime, and arrest offenders without warrant when authorized (art. 2.13(a), (b)). The AG read article 2.13 not to direct how officers perform those tasks, citing the Civil Practice and Remedies Code section 101.055 immunity for policy decisions about the method of providing police protection, and Texas cases treating the decision when and how to arrest as discretionary (City of Columbus v. Barnstone; Harris Cty. v. DeWitt; City of Dallas v. Half Price Books, Records, Magazines, Inc.). The AG described no-chase policies, citing Williams v. City of Baytown and City of Pharr v. Ruiz, as generally meant to encourage safer pursuit methods rather than to abandon article 2.13, and noted a governmental entity can remove an officer's pursuit discretion by policy (Brown v. Ener). A policy adopted for an illegal purpose would be unlawful (Sherrell v. City of Longview).

On personal liability, the AG analyzed official immunity (Univ. of Houston v. Clark; City of Lancaster v. Chambers), explaining the ministerial-versus-discretionary line and that the choice to pursue a particular suspect is fundamentally discretionary, with whether a policy eliminates that discretion turning on the policy's terms (comparing City of Pharr v. Ruiz with Brown v. Ener). The AG added that a negligence claim requires a duty, and that courts have held an officer owes no duty to arrest a suspect to prevent third-party injury absent a special relationship (Crider v. United States; Munoz ex rel. Martinez v. Cameron Cty.). Finally, the AG applied Texas Tort Claims Act section 101.106(f), under which a government employee sued for conduct within the general scope of employment that could have been brought under the Act is entitled to dismissal (Mission Consol. Indep. Sch. Dist. v. Garcia; Tex. Adjutant Gen.'s Office v. Ngakoue; Laverie v. Wetherbe; Franka v. Velasquez; with section 101.001(5) defining scope of employment). The AG noted that under a federal suit brought under 42 U.S.C. section 1983, local governments answer for acts executing official policy or custom (Monell v. New York City Dep't of Social Services, a U.S. Supreme Court decision).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. art. 2.13; art. 2.13(a), (b)
• Tex. Civ. Prac. & Rem. Code § 101.055; § 101.106; § 101.106(a); § 101.106(f); § 101.001(5)
• 42 U.S.C. § 1983

Cases:

• Williams v. City of Baytown, 467 S.W.3d 566, 571 (Tex. App.-Houston [1st Dist.] 2015, no pet.)
• City of Pharr v. Ruiz, 944 S.W.2d 709, 713 (Tex. App.-Corpus Christi 1997, no writ)
• City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App.-Houston [1st Dist.] 1995, no writ)
• Harris Cty. v. DeWitt, 880 S.W.2d 99, 102 (Tex. App.-Houston [14th Dist.] 1994), aff'd, 904 S.W.2d 650 (Tex. 1995)
• City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 376 (Tex. App.-Dallas 1994, no writ)
• Brown v. Ener, 987 S.W.2d 66, 68-69 (Tex. App.-Houston [14th Dist.] 1998, no pet.)
• Sherrell v. City of Longview, 683 F. Supp. 1108, 1112-13 (E.D. Tex. 1987)
• Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000)
• City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)
• Crider v. United States, 885 F.2d 294, 296, 300 (5th Cir. 1989)
• Munoz ex rel. Martinez v. Cameron Cty., 725 S.W.2d 319, 321-22 (Tex. App.-Corpus Christi 1986, no writ)
• Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)
• Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 352 (Tex. 2013)
• Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017)
• Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011)
• Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0249
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0249.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 22, 2019

The Honorable Joe Moody Opinion No. KP-0249
Speaker Pro Tempore
Texas House of Representatives Re: Whether a local law enforcement agency's
Post Office Box 2910 "no-chase" policy limits a peace officer's duty
Austin, Texas 78768-2910 to prevent and suppress crime and exposes the
peace officer to civil liability for later harm
The Honorable Nicole Collier caused by the offender the peace officer failed
Chair, Committee on Criminal Jurisprudence to chase (RQ-0255-KP)
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Dear Representative Moody and Representative Collier:

    You ask whether a peace officer observing a law enforcement agency's "no-chase policy"

may face civil liability for harm later caused by an offender the officer did not chase and whether
such policies are unlawful. [1] You do not provide us with a specific policy but tell us generally that
no-chase policies require officers to refrain from pursuing suspects in various situations depending
on the specific policy at issue. Request Letter at 1; see, e.g., Williams v. City of Baytown, 467
S.W.3d 566, 571 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (discussing policy, in part, barring
officers from engaging "in pursuit whenever it reasonably appears that apprehension of the
escaping offender by other means is likely"); City of Pharr v. Ruiz, 944 S.W.2d 709, 713 (Tex.
App.-Corpus Christi 1997, no writ) (discussing policy, in part, barring officers from engaging in
"high-speed pursuit whenever it reasonably appears that the potential harm to persons or property
arising from such pursuit outweigh the potential harm threatened by the escaping offender").

    We first address your question regarding the legality of no-chase policies. Request Letter

at 1, 3. Texas Code of Criminal Procedure article 2.13 imposes duties on peace officers "to
preserve the peace" within their jurisdiction and "prevent or suppress crime" and "arrest offenders"
without warrant when authorized. TEX. CODE CRIM. PROC. art. 2.13(a), (b). You tell us that
"[s]ome peace officers have expressed concern that [no-chase] policies conflict with [these]
statutory duties." Request Letter at 1.

    Generally, while article 2.13 imposes duties to maintain the peace and arrest offenders

without warrant, it does not direct how officers are to perform these tasks or mandate what policies
governmental entities must implement to effect these duties. See TEX. CODE CRIM. PROC. art. 2.13;
see also TEX. CIV. PRAC. & REM. CODE § 101.055 (providing immunity for injuries caused by
governmental entity's policy decisions in determining method of providing police protection).
Rather, officers generally have discretion in deciding how and when to seize a suspect for whom
probable cause exists to arrest. See, e.g., City of Columbus v. Barnstone, 921 S.W.2d 268, 272
(Tex. App.-Houston [1st Dist.] 1995, no writ) ("An officer's decision concerning when and how
to arrest a suspect is considered a discretionary act."); Harris Cty. v. DeWitt, 880 S.W.2d 99, 102
(Tex. App.-Houston [14th Dist.] 1994), aff'd, 904 S.W.2d 650 (Tex. 1995) (A police officer
exercises "his judgment in whether to pursue a suspect for whom the officer has probable cause to
arrest."); City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 376 (Tex.
App.-Dallas 1994, no writ) (discussing officer's exercise of discretion in the method and manner
of performing an arrest). The general intent of no-chase policies does not appear to be to abandon
the duties imposed by article 2.13 but rather to encourage alternative methods of pursuit that pose
less danger to both peace officers and the public than high-speed vehicular chases. See, e.g.,
Williams, 467 S.W.3d at 571. Thus, a no-chase policy adopted for such purposes would not
contradict article 2.13. See, e.g., Brown v. Ener, 987 S.W.2d 66, 68-69 (Tex. App.-Houston
[14th Dist.] 1998, no pet.) (concluding local governmental entity could through its policies remove
an officer's discretion to enter vehicular pursuit). [2]

    You also ask whether a peace officer following a no-chase policy could incur personal

liability for harm later caused by a fleeing suspect. Request Letter at 1-3. We think it unlikely
that an officer would incur personal liability under the circumstances you describe for multiple
reasons. You specifically ask about official immunity, and we address it first. Id. at 2. "Official
immunity is an affirmative defense that protects government employees from personal liability."
Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). Under the doctrine, police officers
performing discretionary-as opposed to ministerial-functions in good faith and acting within
the scope of employment are immune from personal liability. City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994). Ministerial acts are those that "require obedience to orders or the
performance of a duty to which the actor has no choice." Id. at 654. Discretionary acts, however,
involve "personal deliberation, decision and judgment." Id. Generally, an officer's decision "to
pursue a particular suspect will fundamentally involve the officer's discretion." Id. at 655.
Whether a governmental entity's no-chase policy eliminates any discretion an officer has in
deciding whether to pursue a suspect will turn on the terms of the policy. Compare Ruiz, 944
S.W.2d at 713-15 (concluding that officer maintained discretion to initiate high-speed chase under
police department's policy requiring, in part, that officer consider numerous factors before
engaging in pursuit), with Brown, 987 S.W.2d at 68-69 (concluding that mandatory policy
prohibiting emergency pursuit while carrying a civilian passenger eliminated officer's discretion
to engage in pursuit). In instances when an officer exercises discretion under a no-chase policy,
the officer will likely qualify for official immunity.

    Even in circumstances where official immunity does not apply, however, an officer will

have other defenses. To have a claim for negligence, a plaintiff must show duty. Courts addressing
the circumstances you describe have held that an officer has no duty to arrest a suspect to prevent
third-party injury. See, e.g., Crider v. United States, 885 F.2d 294, 296, 300 (5th Cir. 1989)
(concluding that park rangers who did not take intoxicated driver into custody owed no legal duty
to motorcyclist who was later injured in crash with driver); Munoz ex rel. Martinez v. Cameron
Cty., 725 S.W.2d 319, 321-22 (Tex. App.-Corpus Christi 1986, no writ) (concluding that sheriff
who failed to timely execute an arrest warrant owed no legal duty to third-party victim later killed
by subject of warrant). [3] Thus, a victim injured by an offender an officer decided not to chase and
arrest would likely have no recourse in tort against the officer for failing to prevent the injury.

    Finally, subsection 101.106(f) of the Texas Tort Claims Act ("Act") entitles a

governmental employee to dismissal of the lawsuit against them if (1) the suit is based on conduct
within the scope of their employment; and (2) the suit could have been brought under the Act
against the governmental unit:

             If a suit is filed against an employee of a governmental unit based
             on conduct within the general scope of that employee's employment
             and if it could have been brought under this chapter against the
             governmental unit, the suit is considered to be against the employee
             in the employee's official capacity only. On the employee's motion,
             the suit against the employee shall be dismissed unless the plaintiff
             files amended pleadings dismissing the employee and naming the
             governmental unit as defendant on or before the 30th day after the
             date the motion is filed.

TEX. CIV. PRAC. & REM. CODE § 101.106(f); see Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008) (stating that Legislature's purpose in enacting subsection 101.106(f)
"was to force a plaintiff to decide at the outset whether an employee acted independently and is
thus solely liable, or acted within the general scope of his or her employment such that the
governmental unit is vicariously liable"). [4]

    Under the first prong, the Act defines "scope of employment" as the "performance for a

governmental unit of the duties of an employee's office or employment and includes being in or
about the performance of a task lawfully assigned to an employee by competent authority." TEX.
CIV. PRAC. & REM. CODE § 101.001(5); see Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017)
(determining whether an employee was acting within the scope of employment under the Act
requires an "objective assessment of whether the employee was doing [his or] her job when [he
or] she committed an alleged tort"). Whether an officer was acting within the scope of employment
will depend on the circumstances. However, the definition plainly provides that acting within the
scope of employment includes performing a task lawfully assigned by a governmental entity, and
in the hypothetical you pose, the officer performs his or her job by refraining from pursuing a
suspect pursuant to a policy implemented by his or her employer. See TEX. CIV. PRAC. & REM.
CODE § 101.001(5). [5] With respect to the second prong, whether the suit could have been brought
against the officer's governmental employer under the Act, a "tort claim against the government
is brought 'under' the Act for purposes of section 101.106, even if the Act does not waive
immunity" from suit. Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011) (emphasis added).
Therefore, for purposes of section 101.106, a plaintiff's suit alleging tort damages for injuries
resulting from a no-chase policy is a suit that could have been brought under the Act against the
governmental entity that adopted the policy. See id. at 376-85. Thus, an officer sued for damages
resulting from following his or her governmental employer's no-chase policy would likely be
dismissed. See id. at 381 ("Properly construed, section 101.106(f)'s two conditions are met in
almost every negligence suit against a government employee: he acted within the general scope of
his employment and suit could have been brought under the Act.").

                                 SUMMARY

                  While Texas Code of Criminal Procedure article 2.13
          imposes a duty on peace officers to prevent and suppress crime,
          policies that encourage officers to seek alternative methods of
          pursuit in an attempt to ensure the safety of the public and law
          enforcement officers generally do not conflict with this duty.

                  An officer observing a governmental employer's no-chase
          policy is unlikely to incur personal liability for harm caused by a
          fleeing offender. In instances when an officer exercises discretion
          under a no-chase policy, the officer will likely qualify for official
          immunity. In circumstances where official immunity does not
          apply, an officer will have other defenses, as courts have generally
          held that an officer has no legal duty to arrest a suspect to prevent
          third-party injury. Further, subsection 101.106(f) of the Texas Tort
          Claims Act entitles a governmental employee to dismissal if a suit
          is based on conduct within the scope of their employment and could
          have been brought under the Act against the governmental unit.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joe Moody, Chair, Comm. on Crim. Jurisprudence, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-3 (Nov. 26, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). Although the request was originally submitted by Representative Moody as Chair of the House Committee on Criminal Jurisprudence, he was thereafter named Speaker Pro Tempore. Representative Collier, as the new Chair of the House Committee on Criminal Jurisprudence, thereafter confirmed her desire for this office to proceed with this request.

[2] As the lawfulness of any governmental entity's no-chase policy will depend on its terms, we can only provide general advice. A policy that requires a police officer-for illegal purposes-to refrain from pursuing an offender would be unlawful. See, e.g., Sherrell v. City of Longview, 683 F. Supp. 1108, 1112-13 (E.D. Tex. 1987) (governmental entity cannot provide police protection in a manner which violates the Constitution, such as discriminating against certain persons on an irrational basis).

[3] An exception to this rule is if a special relationship exists between the victim and the officer or agency. Munoz ex rel. Martinez, 725 S.W.2d at 321-22.

[4] Section 101.106 is "immaterial to whether suit may be maintained against the proper defendant-the government." Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 352 (Tex. 2013). A plaintiff who elects to sue the governmental employer cannot later decide to sue the employee. TEX. CIV. PRAC. & REM. CODE § 101.106(a) (providing that the decision to sue the governmental unit "constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter").

[5] Similarly, under a federal suit brought under 42 U.S.C. § 1983, local governments are responsible for the acts of an employee executing the governmental entity's official policy or custom. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).