Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
was not in the course and scope of her employment when the accident occurred. The trial court denied Harris County’s plea to the jurisdiction.
In one issue, Harris County argues the trial court erred in denying its plea to the jurisdiction because Harris County “showed with competent evidence” that its deputy was not acting in the course and scope of her employment when the accident occurred.
We affirm.
Background
On the day of the accident, Hudson was driving eastbound on the Katy Freeway service road. Harris County Sherriff’s Office Deputy Investigator Leneka Maxine Winters was also traveling eastbound on the service road. She was driving behind Hudson in a county-owned car. Hudson stopped at a red light and Deputy Winters rear-ended her. Hudson claimed she was injured in the collision and sued Harris County for negligence under the Texas Tort Claims Act, alleging Deputy Winters caused the accident while acting in the course and scope of her employment with Harris County.
Harris County filed a plea to the jurisdiction based on governmental immunity arguing that Deputy Winters—who was on her way home from work when the collision occurred—was not acting in the course and scope of her
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employment when she rear-ended Hudson.1 In her response to the plea, Hudson argued that Deputy Winters was on her way to fuel her county-owned car before heading home and thus she was in the course and scope of her employment when the accident occurred.
The trial court denied the plea to the jurisdiction and this appeal ensued.
Standard of Review
Subject matter jurisdiction is implicit in a court’s power to decide a case.
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). To establish subject matter jurisdiction, the plaintiff must allege facts that demonstrate affirmatively the court’s jurisdiction to hear his claims. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). The determination of whether a court has subject matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A governmental unit may raise the affirmative defense of governmental immunity and challenge the trial court’s jurisdiction “through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). A plea to the jurisdiction “is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction.” Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
1 Deputy Winters testified in her deposition that she was solely responsible for causing the crash.
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2004); TitleMax of Tex., Inc. v. City of Austin, 639 S.W.3d 240, 245 (Tex. App.— Houston [1st Dist.] 2021, no pet.). Our review of a trial court’s ruling on a plea to the jurisdiction is de novo and mirrors the standard of review of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 226; Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). We “take as true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Miranda, 133 S.W.3d at 228.
“[A] court deciding a plea to the jurisdiction . . . may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We may consider evidence necessary to resolve a dispute over jurisdictional facts even if the undisputed evidence “implicates both the subject matter jurisdiction of the court and the merits of the case.” Miranda, 133 S.W.3d at 226. If the defendant meets its burden to establish the trial court lacks jurisdiction, the burden shifts to the plaintiff, who then must show there is a question of material fact as to the jurisdictional issue. Garcia, 372 S.W.3d at 635. If the evidence raises a fact issue concerning jurisdiction, the plea cannot be granted, and the fact finder must resolve the issue. Id. If, on the other hand, the evidence is undisputed or does not raise a fact issue, the plea must be determined as a matter of law. Id.
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Governmental Immunity and The Texas Tort Claims Act Governmental immunity protects political subdivisions of the state from lawsuits and liability for monetary damages unless their immunity is waived. See Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329, 332 (Tex. 2022); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages.”) (citation omitted). A plaintiff who sues a political subdivision of the state must establish that the state consented to suit. KIPP Tex., Inc. v. Doe #1, 649 S.W.3d 850, 853 (Tex. App.—Houston [1st Dist.] 2022, no pet.). In the absence of such a showing, governmental immunity deprives the trial court of subject-matter jurisdiction. Id.
A party who sues a governmental entity must establish jurisdiction by pleading and proving a valid immunity waiver and a claim that falls within the waiver. Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015). Courts of appeals “interpret statutory waivers of immunity narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous.” Garcia, 253 S.W.3d at 655 (citing TEX. GOV’T CODE § 311.034). It is well-settled that “any purported statutory waiver of sovereign immunity should be strictly construed in favor of
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retention of immunity.” PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 303 (Tex. 2019) (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012)).
The Texas Tort Claims Act (“TTCA”) provides a limited waiver of immunity for certain suits against governmental entities. See TEX. CIV. PRAC. & REM. CODE § 101.021; see also Miranda, 133 S.W.3d at 224. It waives immunity from suit for certain torts. City of Houston v. Gomez, 716 S.W.3d 161, 165 (Tex. 2025).2 Relevant to our analysis, the TTCA waives governmental immunity for claims involving the negligent use or operation of a motor-driven vehicle. Section 101.021(1) provides that a governmental unit in the state 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[.]
TEX. CIV. PRAC. & REM. CODE § 101.021(1).
2 The starting point for our analysis is “a presumption against any waiver until the plaintiff establishes otherwise.” Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023).
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Course and Scope of Employment In its sole issue, Harris County argues that it retained its governmental immunity—and thus the trial court erred in denying its plea to the jurisdiction— because Deputy Winters was not acting in the course and scope of her employment when the accident occurred.
Under the doctrine of respondeat superior, an employer such as Harris County may be vicariously liable for its employee’s negligent acts “if the employee’s actions are within the course and scope of h[er] employment.” Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007) (citing Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998)). “[A]n employer is liable for its employee’s tort only when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.” Id. (citing Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002)).
The TTCA 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 and about the performance of a task lawfully assigned to an employee by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5). The employee’s acts must be “of the same general nature as the conduct authorized
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or incidental to the conduct authorized[.]” Goodyear Tire, 236 S.W.3d at 757 (citing Minyard Food Stores, 80 S.W.3d at 577). If the employee “deviates from the performance of h[er] duties for h[er] own purposes, the employer is not responsible for what occurs during that deviation.” Id. (citing Minyard Food Stores, 80 S.W.3d at 577); see Alief Indep. Sch. Dist. v. Velazquez, No. 01-22- 00444-CV, 2023 WL 3555495, at *8 (Tex. App.—Houston [1st Dist.] May 18, 2023, no pet.) (mem. op.).
Under the “coming-and-going rule,” an employee generally is not acting within the course and scope of her employment when traveling to and from work. City of Houston v. Stoffer, No. 01-23-00335-CV, 2024 WL 3417137, at *4 (Tex. App.—Houston [1st Dist.] July 16, 2024, pet. denied) (mem. op.); Orozco v. Cnty. of El Paso, 602 S.W.3d 389, 393 (Tex. 2020) (citing TEX. LABOR CODE § 401.011(12)(A) (excluding “transportation to and from the place of employment” with exceptions)). However, if the vehicle involved in the accident is owned by the employer and the driver is an employee, “a presumption arises that the [employee] was acting within the course and scope of her employment when the accident occurred.” Stoffer, 2024 WL 3417137, at *4; see also Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.) (same) (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357–58 (Tex. 1971)); Lara v. City of Hempstead,
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No. 01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.) (explaining presumption is only procedural tool and once rebutted, it disappears from case). “Mixed motives do not prevent an officer’s act from being within the scope of her employment if her act served a purpose of her employer in addition to any other purpose the act served.” Stoffer, 2024 WL 3417137, at *4.
If the employer proffers evidence rebutting the presumption—such as by producing evidence that the driver was on a personal errand or not in the furtherance of the employer’s business—the burden shifts back to the plaintiff to produce evidence that the driver was acting in the course and scope of her employment at the time of the accident. City of Houston v. Carrizales, No. 01-20- 00699-CV, 2021 WL 3556216, at *4 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.) (citations omitted); City of Houston v. Abdul Wahhab, No. 01-25-00783-CV, 2026 WL 1025764, at *6 (Tex. App.—Houston [1st Dist.] Apr. 16, 2026, no pet. h.) (“Proof that the driver was on a personal errand or otherwise not in furtherance of the employer’s business is sufficient to rebut the presumption.”).
It is undisputed that Deputy Winters was an employee of Harris County and was driving a county-owned vehicle when the accident occurred. There is thus a presumption that Deputy Winters was acting in the course and scope of her
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employment when the accident occurred. See Molina, 2018 WL 3977945, at *4; see also City of Houston v. Barfield, No. 01-25-00467-CV, 2026 WL 1501182, at *3 (Tex. App.—Houston [1st Dist.] May 28, 2026, no pet. h.) (mem. op.). To rebut the presumption, Harris County argued that “at the time of the collision, Deputy Winters had no official duties and was merely commuting home from work.” Indeed, Deputy Winters testified during her deposition that she was on her way home from work when the accident occurred.
Given this evidence, Harris County argues on appeal that it rebutted the “course and scope” presumption and the trial court thus erred in denying its plea to the jurisdiction. See Stoffer, 2024 WL 3417137 at *4 (explaining that if there is evidence the driver was on a personal errand or not in furtherance of her employer’s business “the presumption vanishes”). Harris County relies on our decision in Lara v. City of Hempstead, while Hudson argues that our decision in City of Houston v. Stoffer supports the trial court’s denial of Harris County’s plea. We agree with Hudson that our opinion in Stoffer guides our analysis.
In Lara, the plaintiff sued the City of Hempstead after she was involved in a collision with Hempstead’s assistant police chief. 2016 WL 3964794, at *1. The assistant chief was commuting from his home to work when he failed to yield the right of way to Lara. Id. The assistant chief received a written reprimand and a written warning from law enforcement after the accident. Id. Lara argued in her
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lawsuit that the assistant chief was acting in the course and scope of his employment when the accident occurred. Id. We explained that “[e]ven an officer who is on-duty or on call twenty-four hours a day is not necessarily acting within the scope of his employment; his actions at the time of the incident are critical to the determination.” Id. at *3 (citing City of Balch Springs v. Austin, 315 S.W.3d 219, 225 (Tex. App.–Dallas 2010, no pet.)). We concluded that Hempstead’s evidence established that the assistant chief was off-duty and “was merely commuting to work at the time of the collision.” Id. at *4. We thus affirmed the trial court’s ruling granting Hempstead’s plea to the jurisdiction. Id. at *5.3 We agree with Hudson that the facts of this case are more analogous to those in Stoffer than those in Lara. Stoffer and a firefighter (“Captain Tollett”) were involved in a motor vehicle accident. 2024 WL 3417137, at *1. Stoffer sued the City of Houston for negligence, and the City argued it retained governmental
3 Compare with City of Houston v. Rios, No. 01-23-00794-CV, 2024 WL 3571649, at *9 (Tex. App.—Houston [1st Dist.] July 30, 2024, pet. denied) (mem. op.)
(holding city failed to overcome presumption that its employee driving city-owned truck was in course and scope of employment when driving vehicle to and from worksite was part of employee’s work duties); City of Houston v. Mejia, 606 S.W.3d 901, 906–07 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)
(concluding summary judgment evidence did not support conclusion that officer was merely commuting home when she was driving city-issued vehicle her husband, a superior officer, had asked her to pick up so that he could have it at beginning of his next shift, which benefitted city); Harris Cnty. v. Anderson, No.
01-25-00239-CV, 2025 WL 3236297, at *3–4 (Tex. App.—Houston [1st Dist.]
Nov. 20, 2025, no pet.) (mem. op.) (holding trial court properly denied plea to jurisdiction when sheriff’s officer was on duty at time of the crash and he was commuting home “to end [his] shift” but his shift was not yet over).
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immunity under the TTCA because Captain Tollett was not acting in the course and scope of her employment when the accident occurred. Id. Relying on Captain Tollett’s affidavit, the City argued that at the time of the accident, Captain Tollett was not carrying out any duties or tasks for the City, because her duties had ended and she was in the process of stopping at a convenience store on her way home. Id. at *2. Captain Tollett testified in her summary judgment affidavit that she “was not carrying out any duties or tasks for the City of Houston” but was “merely stopping at the convenience store for [her] own person[al] needs during [her] commut[e] home.” Id. In response, Stoffer proffered evidence—from Captain Tollett’s affidavit and deposition—that Captain Tollett
was going to fill her employer-issued vehicle with fuel using a city-
issued fuel card so that she could continue using the vehicle to travel to different fire districts the next day. Stoffer also pointed to Captain Tollett’s testimony that she typically refueled the city-issued vehicle at one of the HPD locations, but if that option was unavailable, she would use her HFD-issued fuel card to pay for fuel at a gas station.
Id. In her deposition, Captain Tollett also testified that she had completed training for the day and she was returning home. She “knew [she] needed fuel” but the pumps at the station where she was training “were not working” so “[her] thought was [that she] would try to get home and stop at the convenient [sic] store that was on the way to [her] home here at the station.” Id. at *5. We explained that
Captain Tollett’s act of stopping at the convenience store to refuel her city-issued vehicle, which she had been unable to do earlier that day at the fire station because the pumps were not working, benefitted her
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employer because it enabled her to travel and perform the duties of the training project.
Id. at *6. Taking as true all evidence favorable to Stoffer, and indulging every reasonable inference in her favor, we held that the evidence raised a genuine issue of material fact as to whether Captain Tollett was acting within the course and scope of her employment at the time of the accident. Id.
As in Stoffer, Hudson argues that the evidence establishes that Deputy Winters was on her way to put gas in her Harris County vehicle when the accident occurred. She argues that the following excerpts from Deputy Winters’ deposition create, at the least, a fact issue as to whether Deputy Winters was acting within the course and scope of employment when the collision occurred:
Q: And that vehicle was issued to you as a take-home vehicle for the specific purpose of your duties and responsibilities in furtherance of Harris County.
A: Yes.
...
Q: Okay. And you don’t know why you were heading eastbound.
A: Other than missing the exit. And I think I was trying to get to the gas station, as well.
Q: Okay. And the gas station—
A: Sorry.
Q: I didn’t stop on—stamp on your response, did I?
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A: No. I was going to say the Shell gas station is literally right there on Fry and—I can’t remember the little street.
Q: Okay. And is that a gas station that you would normally use to fill your vehicle—
A: Yes.
Q: —fill the county’s vehicle?
A: Yes.
...
Q: Okay. And that -- those gas stations were used by you on the county card to put gas in the county vehicle.
A: Yes.
Q: And putting gas in the vehicle was a duty and responsibility and in furtherance of your job for Harris County.
A: Yes.
Q: Okay. And in furtherance of the goals and work of Harris County.
A: Yes.
Harris County argues that the record—and specifically, Deputy Winters’
deposition testimony—does not establish that she was on her way to get gas when the accident occurred. During her deposition, Deputy Winters testified:
Q: Okay. And you don’t know why you were heading eastbound.
A: Other than missing the exit. And I think I was trying to get to the gas station, as well.
...
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Q: Okay. You aren’t sure whether you were at Lockwood or possibly out doing some investigation or witness or something that required you to be out of the office. Right?
A: Yes.
Q: Okay. But you were heading home.
A: Yes.
Harris County also notes that in response to an interrogatory asking about Deputy Winters’ destination “immediately prior” to the accident, Deputy Winters stated, “I was coming from my place of work to my residence.”
As in Stoffer, there is inconsistent evidence in the record on the issue of course and scope. Although the interrogatory response and deposition excerpts Harris County relied on indicates Deputy Winters was on her way home from work, Hudson also pointed to Deputy Winters’ testimony that “I think I was trying to get to the gas station, as well,” the gas station is a station she “would normally use to fill” her “county vehicle,” and “putting gas in the vehicle [is] a duty and responsibility and in furtherance of [her] job for Harris County.”
Taking as true all evidence favorable to Hudson and indulging every reasonable inference and resolving any doubts in her favor—as we must—we conclude the evidence raised a genuine issue of material fact over whether Deputy Winters was acting in the course and scope of her employment when the accident
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occurred. The trial court thus did not err in denying Harris County’s plea to the jurisdiction.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.