Opinion issued December 18, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00797-CV ——————————— CITY OF HOUSTON AND CARWIN ALEXANDER FLORES, Appellants V. MYRNA DE LA CRUZ, Appellee
On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2024-07745
MEMORANDUM OPINION
This appeal arises from a motor-vehicle accident involving Carwin Alexander
Flores, an employee of the City of Houston, and Myrna De La Cruz. The City and
Flores filed a joint motion to dismiss under Rule of Civil Procedure 91a based solely on limitations. The trial court denied the motion. In a single issue on appeal, the City
and Flores argue that the trial court erred by denying the motion. We affirm.
Background
As alleged in De La Cruz’s petition, the motor-vehicle collision underlying
this case occurred on February 2, 2022. Flores was driving a dump truck in the course
and scope of his employment with the City when he ran a red light and collided with
De La Cruz’s vehicle. The collision allegedly caused De La Cruz personal injury
and vehicle damage.
De La Cruz filed suit against the City and Flores. She asserted a single cause
of action for negligence against Flores, and she alleged that the City was vicariously
liable for Flores’s negligent conduct. Both the district clerk’s file stamp and the
automated certificate of service from the electronic filing system indicate that the
original petition was filed on Monday, February 5, 2024—one business day after the
two-year statute of limitations ran on the personal injury action.1
The City and Flores each filed an answer asserting a general denial and several
affirmative defenses, including limitations.
The City and Flores filed a joint motion to dismiss the action under Rule of
Civil Procedure 91a. The sole ground for dismissal was limitations. The motion
argued that the two-year statute of limitations expired on Friday, February 2, 2024,
1 February 2, 2024, was a Friday, and the following Monday was February 5, 2024. 2 but De La Cruz did not file suit until the following Monday after limitations expired.
The motion further argued that De La Cruz did not serve process on the City and
Flores until months later in July 2024 and that De La Cruz’s petition “has not alleged
sufficient facts showing due diligence was used in attempting to serve” the City and
Flores.
In response, De La Cruz asserted that “Rule 91a is not the appropriate vehicle
for dismissing on limitations” because the City and Flores bear the burden to prove
the defense by extrinsic evidence, which is inadmissible under Rule 91a. She further
asserted that she filed her petition on February 2, 2024, but the district clerk rejected
the filing due to an unidentified issue, so she refiled a corrected petition shortly
thereafter. The submission was accepted, “but, for whatever reason, the clerk file
stamped the petition for February 5, 2024, instead of February 2, 2024.” She
supported these arguments by relying on an affidavit of correction she had
previously filed. She asserted that “the file stamp is not conclusive evidence of when
a document was filed” and that she promptly served the City and Flores.
The trial court signed an order denying the motion. This appeal followed.2
2 The City and Flores filed a timely motion to extend time to file the notice of appeal along with the notice of appeal. See TEX. R. APP. P. 26.1(b), 26.3. The Court grants the motion and considers the notice of appeal timely filed. 3 Appellate Jurisdiction
We have a duty to examine our own jurisdiction.3 M.O. Dental Lab v. Rape,
139 S.W.3d 671, 673 (Tex. 2004) (per curiam). The City and Flores appeal from an
interlocutory order denying their Rule 91a motion to dismiss suit, which argued that
the trial court lacked jurisdiction based on limitations. See TEX. R. CIV. P. 91a.1
(providing for dismissal of cause of action that has no basis in law or fact). We have
jurisdiction to consider immediate appeals of interlocutory orders only if a statute
authorizes the appeal. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.
2007).
Generally, this Court lacks jurisdiction over an appeal from an interlocutory
order denying a Rule 91a motion to dismiss. Houston Indep. Sch. Dist. v. Kannady,
702 S.W.3d 790, 793 (Tex. App.—Houston [1st Dist.] 2024, no pet.). However, an
order denying a Rule 91a motion may be subject to an interlocutory appeal if the
substance of the motion falls within a category of appeals for which Civil Practice
and Remedies Code section 51.014 authorizes an immediate appeal. See id.
(concluding that appellate jurisdiction existed to review interlocutory order denying
Rule 91a motion challenging subject-matter jurisdiction based on governmental
immunity from suit).
3 The Court requested supplemental briefing on the jurisdictional question. The parties filed supplemental briefs agreeing that this Court has appellate jurisdiction. 4 Here, the notice of appeal raised section 51.014(a)(8) as the sole ground for
appellate jurisdiction. That section permits an appeal from an interlocutory order that
“grants or denies a plea to the jurisdiction by a governmental unit as that term is
defined in Section 101.001.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8); see also
id. § 101.001(3)(B) (defining “governmental unit” to include “a political subdivision
of this state, including any city,” but not employee of governmental unit). The statute
of limitations, including the requirement of timely service, is jurisdictional in suits
against governmental entities. Tex. State Univ. v. Tanner, 689 S.W.3d 292, 302 (Tex.
2024).
For purposes of appellate jurisdiction, it is not determinative that the City and
Flores sought dismissal of De La Cruz’s suit in a Rule 91a motion rather than a plea
to the jurisdiction. A jurisdictional challenge, including one based on sovereign or
governmental immunity, “may be raised by a plea to the jurisdiction, as well as by
other procedural vehicles[.]” E.g., Town of Shady Shores v. Swanson, 590 S.W.3d
544, 550 (Tex. 2019) (quoting State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009));
see also Kannady, 702 S.W.3d at 793. Therefore, at least as to the City, we conclude
that we have appellate jurisdiction over the City’s interlocutory appeal.
Our analysis of Flores’s appeal is slightly different because he is an employee
of a governmental unit, not a “governmental unit” under section 51.014(a)(8). See
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8); see also id. § 101.001(3). The plain
5 language of sections 51.014(a)(8) and 101.001(3) does not appear applicable to
Flores’s appeal.4
A suit against a governmental employee in his official capacity “is not a suit
against the official personally, for the real party in interest is the entity.” Koseoglu,
233 S.W.3d at 844 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). “Such
a suit actually seeks to impose liability against the governmental unit rather than on
the individual specifically named and ‘is, in all respects other than name, . . . a suit
against the entity.’” Id. (quoting Graham, 473 U.S. at 166).
The Texas Supreme Court has held that section 51.014(a)(8) authorizes an
interlocutory appeal by a state employee sued in his official capacity. Id. at 841–46
(discussing “sound reasons to treat the state official sued in his official capacity and
his employing governmental entity equally under Section 51.014(a)(8)”). Civil
Practice and Remedies Code section 101.106(f) sets out circumstances when a suit
against a governmental employee is in the employee’s official capacity:
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.
4 Because we ultimately conclude that section 51.014(a)(8) authorizes Flores’s appeal, we do not separately consider whether section 51.014(a)(5) would also authorize his appeal. 6 TEX. CIV. PRAC. & REM. CODE § 101.106(f); see also id. § 101.001(5) (defining
“scope of employment”). The question therefore becomes whether Flores was sued
in his official capacity.
De La Cruz’s petition alleged the following facts about Flores’s conduct at
the time of the collision and immediately before it:
• “Flores was acting within the course and scope of []his employment for [the City]”; • He “was engaged in the furtherance of the business of [the City]”; and • He “was engaged in accomplishing a task for which he was employed.”
Thus, De La Cruz sued Flores for conduct within the general scope of his
employment with the City, which meets the first requirement for an official-capacity
suit under section 101.106(f).
De La Cruz also alleged facts establishing that the suit could have been
brought under Chapter 101 against the governmental unit, which meets the second
requirement under section 101.106(f). She specifically alleged that the City was
vicariously liable for Flores’s allegedly “negligent, careless, and reckless” driving
of a vehicle which caused her personal injury and vehicle damage. See id.
§ 101.021(1) (providing limited waiver of governmental immunity for suits
involving negligent operation or use of motor vehicle).
Based on the allegations in the petition, we conclude that De La Cruz sued
Flores in his official capacity. We therefore hold that section 51.014(a)(8) authorizes
7 the interlocutory appeal of the order denying the City and Flores’s Rule 91a motion
to dismiss raising jurisdictional grounds.
Rule 91a Dismissal
In a single issue with two subparts, the City contends that the trial court erred
by denying its Rule 91a motion to dismiss on the ground of limitations.5 The City
argues that De La Cruz filed suit after limitations ran and, alternatively, that she did
not use diligence in attempting to serve process.
A. Standard of Review
Rule of Civil Procedure 91a authorizes a party to move for dismissal of a cause
of action on the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. “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.” Id. “A cause of action has no basis in fact if no reasonable person could
believe the facts pleaded.” Id.
In ruling on the motion, the trial court “may not consider evidence” but “must
decide the motion based solely on the pleading of the cause of action, together with
any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6; see TEX. R. CIV.
5 Because we have determined that Flores was sued in his official capacity, which is essentially a suit against the City itself, we refer to both the City and Flores as “the City” in this section of the opinion. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quotations omitted). 8 P. 59 (permitting “[n]otes, accounts, bonds, mortgages, records, and all other written
instruments, constituting, in whole or in part, the claim sued on” to be attached to
and made part of pleadings). A defendant may seek dismissal under Rule 91a based
on an affirmative defense. Bethel v. Quilling, Selander, Lownds, Winslett & Moser,
P.C., 595 S.W.3d 651, 653 (Tex. 2020). In ruling on such a motion, a court’s
decision is still limited to considering whether “the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought.” Id. at 656 (quoting TEX. R. CIV. P. 91a.1). If the affirmative
defense is not “conclusively established by the facts in a plaintiff’s petition,” the
defense is “not a proper basis for a motion to dismiss” under Rule 91a because the
rule does not allow consideration of evidence. Id.
We review de novo the trial court’s ruling on a Rule 91a motion because the
availability of a remedy under the facts alleged is a question of law. City of Dallas
v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
B. Analysis
The parties’ sole dispute concerns limitations. A statute of limitations bars a
party from asserting a right after a specified period. LaTouche v. Perry Homes, LLC,
606 S.W.3d 878, 883 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). The
limitations period begins to run when the claim accrues. Id. “Generally, a claim
accrues when the defendant’s wrongful conduct causes the claimant to suffer a legal
9 injury, which gives the claimant the right to seek a judicial remedy.” Regency Field
Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 814 (Tex. 2021).
A party must “bring suit” within the applicable limitations period to vest
jurisdiction in the trial court. Tanner, 689 S.W.3d at 300; see also TEX. CIV. PRAC.
& REM. CODE § 16.003(a) (providing two-year limitations period for personal injury
suits). “Bringing suit” requires both filing an original petition and effecting service
of process. Tanner, 689 S.W.3d at 300. Merely filing suit does not stop the running
of limitations unless the plaintiff exercises due diligence in issuing and serving
citation on the defendant. Id. at 298; Draughon v. Johnson, 631 S.W.3d 81, 93–94
(Tex. 2021) (quotation omitted). If the plaintiff diligently effects service after
limitations expires, the date of service relates back to the date the petition was filed.
Tanner, 689 S.W.3d at 298 (quoting Proulx v. Wells, 235 S.W.3d 213, 215 (Tex.
2007) (per curiam)). Diligence is typically a fact question. Id. at 302.
Limitations is an affirmative defense. Draughon, 631 S.W.3d at 88. As stated
above, limitations is a jurisdictional issue in a suit against a governmental entity.
Tanner, 689 S.W.3d at 302.
Here, the parties first dispute when suit was filed. The parties agree that De
La Cruz’s negligence claim is governed by a two-year statute of limitations. See TEX.
CIV. PRAC. & REM. CODE § 16.003(a). The parties also agree that De La Cruz’s action
accrued on February 2, 2022, when the motor-vehicle collision occurred; the two-
10 year statute of limitations ran on February 2, 2024; and the file stamp on the original
petition indicates that suit was filed on February 5, 2024—one business day after
limitations ran. But the parties’ agreement ends here.
To establish that suit was filed late, the City relies on the file stamp on the
petition. The file stamp is dated February 5, 2024. The City also relies on purported
judicial admissions by De La Cruz in a verified motion to retain and the citation,
both of which state that the petition was filed on February 5, 2024.
De La Cruz responds that the petition does not allege any facts about the filing
date, and the “file stamp is not part of the pleading of the cause of action because the
clerk, not the plaintiff, controls the file stamp.” She further argues that the file stamp
date can be rebutted by evidence, such as the affidavit of correction she previously
filed, which explained that she filed her petition on February 2, 2024—within
limitations—but the filing was rejected, so she refiled a corrected petition which the
district clerk file stamped with a date of February 5, 2024. De La Cruz also argues
that the purported judicial admissions may not be considered in ruling on the Rule
91a motion because they are extrinsic evidence, and in any event, the City did not
preserve error by objecting when she offered contrary evidence in response to the
Rule 91a motion. She contends that because the petition itself does not “establish the
external fact of when the petition was filed, Rule 91a was not an appropriate vehicle
for adjudicating [her] claims[.]” We agree with De La Cruz.
11 Pursuant to a legislative directive, the Texas Supreme Court added Rule 91a
as a new rule of civil procedure in 2013. See TEX. R. CIV. P. 91a; Act of May 25,
2011, 82d Leg., R.S., ch. 203, § 1.01, sec. 22.004, 2011 Tex. Gen. Laws 757, 757
(codified at TEX. GOV’T CODE § 22.004(g)). Neither party has directed the Court to
any authority directly addressing the issue before us: whether a court can consider a
pleading’s file stamp when ruling on a Rule 91a motion based on limitations. The
Court is unaware of any such authority. Nevertheless, we are persuaded by De La
Cruz’s arguments that under the facts in this case, the file stamp is not a proper
consideration under Rule 91a when determining whether the petition was filed
within the limitations period.
The City’s challenge to the filing date asserts only that De La Cruz’s pleadings
have no basis in law. See TEX. R. CIV. P. 91a.1. Under Rule 91a, “[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.” Id.
This quoted definition provides several key phrases relevant to this appeal. First, the
issue is whether a “cause of action” has a basis in law. Id. Second, to determine
whether a cause of action has a basis in law, courts consider “the
allegations . . . together with inferences reasonably drawn from them[.]” Id.
(emphasis added).
12 The City does not argue or offer any authority supporting its contention that a
file stamp is part of the “allegations” in the petition. Rule of Civil Procedure 24
imposes on the trial court clerk a duty to indorse a petition with certain information,
including “the day on which it was filed and the time of filing.” TEX. R. CIV. P. 24.
It is the clerk—not the plaintiff—who affixes the file stamp containing the date on
the petition. Thus, the file stamp is not part of the facts pleaded by the plaintiff. See
Bethel, 595 S.W.3d at 656 (stating that affirmative defense is “not a proper basis for
a motion to dismiss” under Rule 91a if defense is not “conclusively established by
the facts in a plaintiff’s petition”).
In response to the Rule 91a motion, De La Cruz argued that she filed her
original petition on February 2, 2024—the last day of the limitations period—but
the clerk rejected the filing, so she resubmitted it on February 5, 2024. She supported
this argument with an affidavit explaining the circumstances of the filing of her
original petition. The City relied on purported judicial admissions in other
documents to support its position. But “the court may not consider evidence in ruling
on the motion and must decide the motion based solely on the pleading of the cause
of action, together with any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P.
91a.6. None of the evidence relied on by the parties is permitted under Rule 59, and
therefore it is not admissible under Rule 91a.
13 Nevertheless, the parties’ dispute about the original filing date raised a fact
issue about when suit was filed—that is, when De La Cruz first submitted her
original petition to the electronic filing service provider, which is the operative date
for limitations purposes regardless of the file stamp. See Warner v. Glass, 135
S.W.3d 681, 684 (Tex. 2004) (per curiam) (stating that original petition “is deemed
in law filed at the time it is left with the clerk, regardless of whether or not a file
mark is placed on the instrument and regardless of whether the file mark gives some
other date of filing”) (quoting Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678,
680 (Tex. 1979), and collecting cases); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—
Houston [1st Dist.] 2006, orig. proceeding); TEX. R. CIV. P. 21(f)(5) (stating when
documents, including electronically filed documents, are considered timely filed).
De La Cruz did not plead any facts concerning when she filed her petition. See
Bethel, 595 S.W.3d at 656 (stating that if affirmative defense is not conclusively
established by facts in plaintiff’s petition, then defense is not proper basis for motion
to dismiss under Rule 91a). The file stamp indicates that she filed her petition one
business day after limitations ran, and she disputed this date. Therefore, it is
plausible that the file stamp represents a corrected filing rather than the initial filing.
The result might be different if De La Cruz had filed her petition months after
14 limitations ran, but that is not this case.6 Because the parties dispute when De La
Cruz initially filed her petition and because the dispute spans only one business day,
evidence is necessary to resolve the dispute. Therefore, Rule 91a is not a proper
vehicle to resolve the filing dispute. See TEX. R. CIV. P. 91a.6; Bethel, 595 S.W.3d
at 656.
Next, the City contends that De La Cruz did not use diligence in serving
process on either it or Flores. The City argues that “De La Cruz has not alleged facts
showing that she exercised due diligence in attempting to serve Houston or Flores.”
This argument puts the cart before the horse. De La Cruz was not required to serve
process until after she filed the petition, and the City does not explain how the
petition could have alleged facts about future service attempts. See TEX. CIV. PRAC.
& REM. CODE § 10.001(3) (stating that signature on pleading constitutes certificate
that to signatory’s best knowledge, information, and belief, formed after reasonable
6 In its reply brief, the City relies on two cases which it contends have held that evidence is not necessary to determine whether an action is barred by limitations. Those cases are distinguishable because each suit was filed long after limitations expired, the plaintiffs did not dispute the date suit was filed, and the file stamp was not an issue in either case. See Moore v. Dallas Morning News, Inc., No. 05-22- 01286-CV, 2024 WL 3439825, at *2, 5–6 (Tex. App.—Dallas July 17, 2024, no pet.) (mem. op.) (concluding that discovery rule did not apply to defamation claim and holding that claim had no basis in law because claim was filed more than two years after limitations expired); Webb v. Walmart Stores Tex., LLC, No. 09-21- 00011-CV, 2022 WL 2719976, at *1–2 (Tex. App.—Beaumont July 14, 2022, pet. denied) (mem. op.) (“Webb, himself, alleged that Walmart’s alleged tortious conduct occurred in April of 2017, and the record reflects that he did not file suit until September of 2020, substantially more than two years after his purported cause of action arose.”). 15 inquiry, each allegation or other factual contention in pleading has evidentiary
support or is likely to have evidentiary support after reasonable opportunity for
further investigation or discovery). The City does not point to any authority requiring
a petition to allege future service attempts to establish diligence. To the contrary,
diligence is typically a fact question resolved by affidavit or other evidence detailing
a party’s attempts to serve process. See Tanner, 689 S.W.3d at 299, 302. To the
extent that the City relies on other filings in the record on appeal to show that De La
Cruz did not use diligence in effecting service, we reiterate that courts are generally
confined to the pleadings in ruling on a Rule 91a motion and may not consider
evidence. See TEX. R. CIV. P. 91a.6.
We conclude that the City did not establish that De La Cruz’s action has no
basis in law or fact, primarily because the City’s contentions are based on factual
disputes that will require evidence to resolve. Rule 91a therefore is not the proper
procedural vehicle to resolve these disputes. Accordingly, we hold that the trial court
did not err by denying the Rule 91a motion to dismiss.
Conclusion
We affirm the order denying the motion to dismiss under Rule 91a.
David Gunn Justice
Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.