Opinion issued June 12, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00440-CV ——————————— CITY OF HOUSTON, Appellant V. JESUS SANCHEZ A/K/A RYAN SANCHEZ, Appellee
On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2024-21604
MEMORANDUM OPINION
The City of Houston appeals the trial court’s denial of its motion to dismiss
under Texas Rule of Civil Procedure 91a, in which it argued that appellee Jesus
Sanchez a/k/a Ryan Sanchez failed to plead facts that would show a waiver of the
City’s governmental immunity. On appeal, the City again argues that, because his pleading is conclusory, Sanchez failed to plead facts that would both establish a
waiver of immunity under the Texas Tort Claims Act (“TTCA”), TEX. CIV. PRAC.
& REM. CODE § 101.001, et seq., and negate application of the 9-1-1 and
emergency exceptions to the TTCA’s waiver of immunity. Sanchez maintains that
his pleading was sufficient to establish waiver.
We affirm.
Background
Sanchez was stopped at a red light when Officer J. Alvarenga of the City of
Houston Police Department struck him from behind in a police car. At the time of
the collision, the police car’s emergency lights were activated, but its siren was
not. Sanchez alleged that Alvarenga was operating the vehicle with his emergency
equipment activated and responding to an emergency call. Sanchez sued the City
for property damage and personal injuries he sustained in the collision. The City
filed a motion to dismiss under Texas Rule of Civil Procedure 91a, arguing that
Sanchez’s claims had no basis in law because Sanchez failed to plead facts both
sufficient to establish a waiver of governmental immunity under the TTCA and to
negate the emergency and 9-1-1 exceptions to the TTCA. In response to the Rule
91a motion, Sanchez amended his petition twice, making his second amended
petition his live pleading.
2 In his second amended petition, Sanchez pleaded that the City’s immunity
was waived under the TTCA because his cause of action arose from the negligence
of an employee who was driving a motor vehicle.1 He also pleaded the following
facts:
• Alvarenga was a City employee and was driving the City’s vehicle in the course and scope of his employment with the City;
• “According to the crash report, [J.] Alvarenga was operating the police vehicle with the emergency equipment activated. . . . It is unknown at this time why [J.] Alvarenga had his emergency lights activated.”
• As Sanchez approached the intersection, “the light was red.”
• Sanchez “came to a complete stop behind another vehicle also waiting for the red light. All other lanes to the left and right of [Sanchez] had vehicles stopped for a red light.”
• Sanchez saw “the police vehicle with its lights activated; however, he did not hear any siren or other emergency sounds from the police vehicle . . . .”
• Alvarenga “was operating the vehicle with emergency equiptment [sic] activated and responding to an emergency call.”
• Alvarenga “failed to pay attention that the vehicles in front of him and around him were at a complete stop for a red light.”
• Alvarenga “failed to control his speed.”
• Alvarenga “failed to br[ake] in a timely manner.”
• Alvarenga “failed to keep an assured and safe distance from Plaintiff’s vehicle.”
• Alvarenga “failed to turn his vehicle in order to avoid the collision.” 1 See TEX. CIV. PRAC. & REM. CODE § 101.021. 3 • Alvarenga “failed to operate his vehicle with due regard for the safety of all persons including [Sanchez] and/or operated his vehicle with reckless disregard for the safety of others including the Plaintiff and violently struck the rear of [Sanchez’s] vehicle, causing [Sanchez] to be pushed into the vehicle in front of him.”
Sanchez pleaded that the emergency and ‘9-1-1 Emergency Service’
exceptions to the TTCA’s waiver of liability did not apply because “Alvarenga was
performing a ministerial function” when driving the police car with emergency
equipment activated and when responding to an emergency call.” Sanchez pleaded
that Alvarenga violated Texas Transportation Code § 546.005 by failing “to
operate the vehicle with appropriate regard for the safety of all persons or the
consequences of reckless disregard for the safety of others.”
The trial court denied the City’s Rule 91a motion, and the City appealed.
Analysis
I. A plaintiff suing a governmental entity must demonstrate a legislative waiver of immunity.
“Political subdivisions of the State are immune from suits for damages
unless their immunity is waived by the Legislature.” City of San Antonio v. Riojas,
640 S.W.3d 534, 536 (Tex. 2022); see Rattray v. City of Brownsville, 662 S.W.3d
860, 865 (Tex. 2023) (stating that only Legislature, as governmental branch
4 constitutionally empowered to manage State’s financial affairs, can waive
sovereign or governmental immunity).2
A. The Texas Tort Claims Act (“TTCA”) waives immunity in limited circumstances.
The TTCA waives immunity for the negligent acts of government
employees in specific, narrow circumstances. City of San Antonio v. Maspero, 640
S.W.3d 523, 528 (Tex. 2022) (citing TEX. CIV. PRAC. & REM. CODE § 101.021).
Under the TTCA, a governmental unit is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. & REM. CODE § 101.021. Here, the parties do not dispute that
Sanchez suffered property damage and personal injury and that he was not at fault.
2 “Immunity from suit recognizes the judiciary’s limited authority over its sovereign creator and thus implicates the courts’ subject-matter jurisdiction to resolve a dispute against the state.” Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019). 5 Thus, we must consider whether Officer Alvarenga would be personally liable to
Sanchez under Texas law.
B. The TTCA’s waiver only applies if the government employee would be personally liable under Texas law; therefore, if the employee has official immunity, there is no waiver.
Section 101.021(1)(B) provides that the waiver for employee negligence
only applies if “the employee would be personally liable to the claimant according
to Texas law.” Id. § 101.021(1)(B). When an employee is protected by official
immunity, a governmental employer’s immunity is not waived under
§ 101.021(1)(B) because official immunity protects government employees from
personal liability. City of Houston v. Rodriguez, 704 S.W.3d 462, 468 (Tex. 2024).
A governmental employee is entitled to official immunity: (1) for the performance
of discretionary duties; (2) within the scope of the employee’s authority;
(3) provided the employee acts in good faith. City of Houston v. Sauls, 690 S.W.3d
60, 70 (Tex. 2024); see City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994) (establishing three-prong test for official immunity). “Unlike governmental
immunity, official immunity is an affirmative defense that must be pleaded and
proved to shield an employee from personal liability; otherwise, the defense is
lost.” Rodriguez, 704 S.W.3d at 469.
6 C. A plaintiff must plead facts sufficient to negate statutory exceptions that withdraw a legislative waiver of immunity.
While the TTCA waives governmental immunity for certain torts, it
withdraws that waiver under certain circumstances, such as the emergency
exception and the ‘9-1-1 Emergency Services’ exception. See Rattray, 662 S.W.3d
at 866; TEX. CIV. PRAC. & REM. CODE § 101.055(2) (emergency exception); id.
§ 101.062 (9-1-1 emergency services exception).
The emergency exception provides that the TTCA does not apply to a claim
arising
from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others[.]
TEX. CIV. PRAC. & REM. CODE § 101.055(2).
The 9-1-1 emergency services exception provides that the TTCA applies to
“a claim against a public agency that arises from an action of an employee of the
public agency . . . and that involves . . . responding to a 9-1-1 emergency call only
if the action violates a statute or ordinance applicable to the action.” Id.
§ 101.062(b) (emphasis added).
7 D. A defendant may assert governmental immunity by challenging the plaintiff’s pleading.
A TTCA plaintiff has the burden to affirmatively demonstrate that the trial
court has jurisdiction by showing that his claim falls within a statutory waiver of
immunity. Rattray, 662 S.W.3d at 865. To make this showing at the pleading stage,
the plaintiff must allege facts that, if true, establish a statutory waiver of immunity
and negate any statutory provisions that create exceptions to and withdraw that
waiver. Id. at 867. Whether a plaintiff has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction is a question of law that we
review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004).
A challenge to the court’s jurisdiction based on governmental immunity may
be asserted through different procedural avenues. “[T]he parties’ burdens will
depend on the nature of the plaintiff’s claim and how the government poses its
jurisdictional challenge.” City of Austin v. Powell, 704 S.W.3d 437, 447 (Tex.
2024). Our evaluation of a jurisdictional challenge raised in a Rule 91a motion is
limited to the pleadings. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex.
2016). The plaintiff’s pleadings must comply with Texas’s notice-pleading rules,
which “require pleadings to not only give notice of the claim and the relief sought
but also of the essential factual allegations.” Kinder Morgan SACROC, LP v.
Scurry Cnty., 622 S.W.3d 835, 849 (Tex. 2021) (quotations omitted); see also TEX.
8 R. CIV. P. 47(a) (providing that pleading that “sets forth a claim for relief . . . shall
contain . . . a short statement of the cause of action sufficient to give fair notice of
the claim involved”).
III. Under Texas Rule of Civil Procedure 91a, if the pleadings insufficiently establish a waiver of immunity, the claims must be dismissed.
Under Rule 91a, a party may move to dismiss a baseless cause of action on
the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. A Rule 91a
motion to dismiss “must identify each cause of action to which it is addressed, and
must state specifically the reasons the cause of action has no basis in law, no basis
in fact, or both.” TEX. R. CIV. P. 91a.2.
The City argued only that Sanchez’s claims lacked basis in law. “A cause of
action has no basis in law if the allegations, taken as true, together with inferences
reasonably drawn from them, do not entitle the claimant to the relief sought.” TEX.
R. CIV. P. 91a.1; see In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266
(Tex. 2021). “We review a trial court’s ruling dismissing a case under Rule 91a de
novo.” San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021).
We construe the pleadings liberally in favor of the plaintiff, look to the
plaintiff’s intent, and accept as true the factual allegations in the pleadings to
determine if the cause of action has a basis in law or fact. Houston Indep. Sch.
Dist. v. Kannady, 702 S.W.3d 790, 793 (Tex. App.—Houston [1st Dist.] 2024, no
pet.). In doing so, we “may not consider evidence but ‘must decide the motion
9 based solely on the pleading of the cause of action, together with any [permitted]
pleading exhibits.’” Farmers Tex. Cnty. Mut. Ins., 621 S.W.3d at 266 (citing TEX.
R. CIV. P. 91a.6).
IV. The City was not entitled to dismissal under Rule 91a based on official immunity.
In its first issue, the City argues that Sanchez did not plead facts to overcome
the official immunity of Officer Alvarenga. The City argues that, although official
immunity is an affirmative defense, Sanchez has the burden to negate official
immunity. This is incorrect.
The burden of pleading an affirmative defense is on the party asserting it.
E.g., Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015) (“If an
affirmative defense or avoidance is not expressly pleaded, the party cannot rely on
the defense as a bar to liability.”); see TEX. R. CIV. P. 94 (requiring that any matter
“constituting an avoidance or affirmative defense” “shall [be] set forth
affirmatively” in responsive pleading). “[A] governmental employer bears the
burden to assert and prove its employee’s official immunity, in a manner analogous
to an affirmative defense, to preclude enforcement of the [TTCA’s] waiver of
governmental immunity on that ground.” Rodriguez, 704 S.W.3d at 469.
While a Rule 91a motion to dismiss may be based on the assertion of an
affirmative defense, the motion may be granted only if the plaintiff’s pleadings
conclusively establish the affirmative defense. See Bethel v. Quilling, 595 S.W.3d
10 651, 656 (Tex. 2020); see also City of Houston v. Polk, No. 14-23-00360-CV, 2025
WL 339175, at *5–6 (Tex. App.—Houston [14th Dist.] Jan. 30, 2025, no pet.)
(mem. op.) (explaining it is the City’s burden to establish all elements of the
official immunity defense). In this case, Sanchez’s pleadings do not establish this
defense.
This does not end our analysis, however, because the City also argued
dismissal was proper because Sanchez failed to negate any plausibly implicated
exceptions to the statutory waiver of immunity.
V. Sanchez’s pleading was not too conclusory to negate the emergency and 9-1-1 exceptions.
In its second issue, the City argues that Sanchez did not plead facts to negate
the emergency and 9-1-1 exceptions to the waiver of immunity. Specifically, the
City argues that Sanchez’s allegations are boilerplate, conclusory statements, as
opposed to statements of fact, and they are not sufficient to negate the applicability
of the emergency and 9-1-1 exceptions. Indeed, the City argues that the facts
Sanchez pleaded support the emergency exception. In particular, Sanchez alleged
that Officer Alvarenga was driving the police car in the course and scope of his
employment, with emergency equipment activated (lights), in response to an
emergency call.
To negate the emergency exception, Sanchez must show that “(1) the officer
did not comply with ‘the laws and ordinances applicable to emergency action’; or
11 (2) in the absence of such laws, the officer acted ‘with conscience indifference or
reckless disregard for the safety of others.’” Powell, 704 S.W.3d at 449.
Sanchez argues that he pleaded facts showing that Officer Alvarenga’s
actions violated Texas Transportation Code § 546.005, a statute applicable to
emergency action including responding to a 9-1-1 call. Sanchez relies, in part, on
this Court’s opinion in City of Houston v. Jorge Hernandez, No. 01-24-00031-CV,
2024 WL 3817374, at *7 (Tex. App.—Houston [1st Dist.] Aug. 15, 2024, pet.
filed) (mem. op.).
In Hernandez, we considered whether a plaintiff’s allegations that the City’s
employee failed to comply with section 546.005 showed a violation of the laws
and ordinances applicable to emergency action sufficient to negate the emergency
exception. Id. at *1. Similar to the case here, Hernandez alleged that he was struck
from behind by a police car that was moving “at a high rate of speed” with its siren
activated. Id. The City of Houston filed a motion to dismiss under Rule 91a
arguing that Hernandez failed to plead facts that would negate application of
official immunity, the TTCA’s emergency exception, or the 9-1-1 exception. Id. at
*2. Hernandez relied on the allegations in his pleading that the officer was not
responding to an emergency call at the time of the collision. Id. He also relied on
his allegations concerning the officer’s conduct, which he asserted constituted
negligence and gross negligence and violated Chapter 546 of the Texas
12 Transportation Code, such as: failing to use audible or visual signals as required by
Transportation Code Section 546.003, failure to maintain a proper lookout, failure
to turn his vehicle to avoid the collision, failure to maintain control of his vehicle
and yield the right of way, and following too closely. Id. at *6–7. We construed
Hernandez’s pleadings liberally, as required, and concluded that Hernandez’s
factual allegations were sufficient to establish that the officer acted with ‘reckless
disregard’ and that his actions were more than a momentary judgment lapse. Id.;
see Maspero, 640 S.W.3d at 531.
Here, Sanchez alleged that he was struck from behind by a City vehicle,
driven by a City employee, with its emergency lights activated. While Sanchez did
not allege that Officer Alvarenga was not responding to an emergency call, he did
make several factual allegations that mirrored those in Hernandez, and which he
asserts demonstrate that Officer Alvarenga violated Chapter 546 of the Texas
Transportation Code:
• Alvarenga “failed to pay attention that the vehicles in front of him and around him were at a complete stop for a red light.”
• Alvarenga “failed to keep an assured and safe distance from Plaintiff’s vehicle.”
• Alvarenga “failed to turn his vehicle in order to avoid the collision.”
13 • Alvarenga “failed to operate his vehicle with due regard for the safety of all persons including [Sanchez] and/or operated his vehicle with reckless disregard for the safety of others including the Plaintiff and violently struck the rear of [Sanchez’s] vehicle, causing [Sanchez] to be pushed into the vehicle in front of him.”
Because of the factual, legal, and procedural similarities between this case and
Hernandez, Sanchez argues that the result should be the same. See Appellee’s Br.
at 16-17.
In addition to our Hernandez opinion, at least two other intermediate courts,
including our sister court, have determined that similar pleading allegations
negated the application of the emergency exception. See Polk, 2025 WL 339175, at
*5–6 (affirming denial of Rule 91a motion filed by the City of Houston based on
official immunity and the emergency exception);3 Kaufman Cnty. v. Leggett, 396
S.W.3d 24, 30 (Tex. App.—Dallas 2012, pet. denied).4
3 In City of Houston v. Polk, No. 14-23-00360-CV, 2025 WL 339175, at *5–6 (Tex. App.—Houston [14th Dist.] Jan. 30, 2025, no pet.), the court held that plaintiff’s pleading sufficiently negated the application of the emergency exception because plaintiff alleged the officer failed to keep a proper lookout, failed to apply brakes and turn his vehicle to avoid a collision, failed to maintain a single lane of traffic, failed to control the speed of his vehicle, failed to pay attention, failed to maintain a reasonable distance, operated his vehicle at a rate of speed greater than that of a person of ordinary prudence under the same or similar circumstances, changed lanes when unsafe, and violated Transportation Code sections 545.401 and 545.351. 4 In Kaufman Cnty. v. Leggett, 396 S.W.3d 24, 30 (Tex. App.—Dallas 2012, pet. denied), the court held that plaintiff had alleged sufficient facts to negate the application of the emergency exception where police officer collided with the plaintiff from behind, and the plaintiff alleged that the officer was “negligent, reckless, and grossly negligent, including [officer’s] failure to comply with traffic 14 Construing the pleadings liberally in favor of Sanchez and accepting his
factual allegations as true, as we must, we determine that Sanchez’s pleadings are
not too conclusory and sufficiently negated the application of the emergency and
9-1-1 exceptions. We therefore conclude that the trial court did not err in denying
the City’s Rule 91 motion to dismiss. See Rattray, 662 S.W.3d at 867–68; Leggett,
396 S.W.3d at 30; Hernandez, 2024 WL 3817374, at *7. But cf. Powell, 704
S.W.3d at 458–61(explaining, in evidentiary, jurisdictional challenge what types of
evidence demonstrate recklessness as opposed to negligence).
Conclusion
We affirm the trial court’s interlocutory order, and we remand to the trial for
further proceedings.
Susanna Dokupil Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
stop policies, control his vehicle, maintain a safe distance between the patrol vehicle and the vehicle in front of him, timely apply his brakes, and turn to avoid the collision” as well as “driving at a greater rate of speed than a person using ordinary care would have driven”. 15