In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-25-00014-CV __________________
OLGA REYES AND DANIELA BONILLA, Appellants
V.
MONTGOMERY COUNTY, Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 24-04-05132-CV __________________________________________________________________
MEMORANDUM OPINION
Appellants Olga Reyes and Daniela Bonilla (collectively “Appellants” or
“Plaintiffs”) sued Montgomery County (“Appellee” or “the County”) after a patrol
car driven by Brent Guidry, who was employed at the time of the accident by the
County as a patrol deputy, hit Appellants’ vehicle. The County filed a plea to the
jurisdiction, and the trial court granted the plea and dismissed the case with
prejudice. Appellants filed a motion for reconsideration and, in the alternative,
motion for new trial, which was overruled by operation of law. Appellants timely
1 filed this appeal. In two issues, Appellants argue the trial court erred in granting the
County’s plea to the jurisdiction and erred in failing to grant Plaintiffs’ motion for
reconsideration and, in the alternative, motion for new trial. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.012; Tex. R. App. P. 26.1(a). We affirm the trial court’s
judgment.
Background
Plaintiffs filed a petition 1 alleging that on August 16, 2022, they were
traveling in a vehicle in Montgomery County when Brent Guidry drove his vehicle
into the rear of their vehicle. Plaintiffs alleged that Guidry “was acting within the
course and scope of his employment with Montgomery County when he was
following too closely and not maintaining a proper lookout or paying attention as an
ordinary, prudent individual would have in the same or similar situation.” According
to the petition, Defendant Guidry’s negligence was the proximate cause of Plaintiffs’
injuries and damages. The petition also asserted that Defendant Montgomery County
was liable for Guidry’s acts and omissions under the doctrines of agency and
respondeat superior. Plaintiffs filed Plaintiffs’ First Amended Notice of Partial Non-
Suit, requesting the trial court non-suit Plaintiffs’ claims against Guidry, and the trial
court signed an Order Granting Nonsuit and dismissed the claims against Guidry
1 We refer to Plaintiffs’ Second Amended Petition, the petition on file at the time the trial court granted the County’s plea to the jurisdiction, as the “petition.” 2 without prejudice. The County filed an Answer denying Plaintiffs’ allegations,
including Plaintiffs’ allegation that Guidry was acting within the course and scope
of his employment at the time of the accident, and the County asserted “the
affirmative defense of sovereign/governmental immunity, including but not limited
to, the application of the Texas Tort Claims Act and limitations of damages.”
The County filed Defendant’s Plea to the Jurisdiction, arguing that
(1) Plaintiffs failed to plead and prove a valid waiver of immunity and claim against
the County, and (2) Plaintiffs’ claims against the County are barred by immunity and
do not fall under the Texas Tort Claims Act (“TTCA”) because Guidry was not
acting within the course and scope of his employment at the time of the accident. In
support of the plea, the County attached as exhibits: the Texas Peace Officer’s Crash
Report from the accident; Guidry’s typewritten “24-HOUR activities summary[]”
summarizing the accident and events just before and after the accident that he
provided to Sergeant Layman and Sergeant Lowery; and Sergeant Cody Lowery’s
affidavit with attached exhibits including a timesheet for Guidry on the day of the
accident, Guidry’s typewritten “24-HOUR activities summary[,]” and certain
Montgomery County Sheriff’s Office (“MCSO”) policies.
Plaintiffs filed Plaintiffs’ Response to Defendant’s Plea to the Jurisdiction,
arguing that the County’s immunity from Plaintiffs’ claims is waived by the TTCA
because, under Texas law, peace officers are never off duty, so the County is liable
3 for Deputy Guidry’s actions while operating his patrol car; that Guidry had testified
during his deposition that he was on duty and acting within his scope of employment
at the time of the accident; and that the County had not met its burden to present
evidence showing that Guidry was off duty at the time of the accident and that the
County’s immunity was waived under the TTCA.
The trial court granted the County’s plea to the jurisdiction. Plaintiffs filed
Plaintiffs’ Motion for Reconsideration Granting of Defendant’s Plea to the
Jurisdiction or, in the Alternative, Motion for New Trial. In the motion, Plaintiffs
argued that, according to Guidry’s deposition transcript, which was not attached to
the response to the plea because Plaintiffs alleged it was unavailable, Guidry testified
that he was on duty at the time of the accident “per [the County’s] policy[]” and that
he was on duty until he pulled into his driveway of his home at the end of his shift.
Plaintiffs argued that Guidry’s testimony, along with Deputy Guidry’s timesheet
which shows no gaps in the time he worked on the day of the wreck, raise a fact
issue about whether Guidry was on duty at the time of the accident. The motion was
overruled by operation of law. Plaintiffs timely appealed.
Standard of Review and Applicable Law
Governmental immunity protects political subdivisions, including counties,
from lawsuits for damages, because unless the governmental unit has consented to
suit, a trial court lacks subject matter jurisdiction to consider a claim against it. See
4 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004);
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex.
Civ. Prac. & Rem. Code Ann. § 101.001(3)(B). Consent to suit is found in a
constitutional or legislative provision, and whether subject matter jurisdiction exists,
based on a waiver of immunity, is a question of law; we therefore review the trial
court’s ruling on a plea to the jurisdiction de novo. State v. Holland, 221 S.W.3d
639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226.
A plea to the jurisdiction may challenge either the sufficiency of the
jurisdictional allegations in the pleadings or the existence of jurisdictional facts.
Miranda, 133 S.W.3d at 226-27. A governmental entity may file a plea to the
jurisdiction to challenge a court’s power to resolve the merits of a plaintiff’s claims.
See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To defeat the
governmental immunity claim, the plaintiff must plead facts that affirmatively
demonstrate that governmental immunity has been waived and the trial court has
subject matter jurisdiction. See Holland, 221 S.W.3d at 642; Dall. Area Rapid
Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether this burden
has been satisfied, we must construe the pleadings liberally in the plaintiff’s favor
and deny the plea if the plaintiff has alleged facts affirmatively demonstrating
jurisdiction to hear the case. Miranda, 133 S.W.3d at 226.
5 If the governmental entity challenges the plaintiff’s jurisdictional allegations,
then the plaintiff must adduce some evidence to support jurisdiction. Id. at 227-28.
In such a case, the trial court then considers the relevant evidence submitted by the
parties. Id. at 227. When a plea to the jurisdiction includes evidence, and the
jurisdictional challenge implicates the merits of the plaintiff’s cause of action, the
trial court will review the relevant evidence to determine whether a fact issue exists.
Id. This standard mirrors the standard appellate courts use to review a trial court’s
ruling on a traditional motion for summary judgment. Id. at 228. When the relevant
evidence is undisputed or fails to raise a fact question on the issue of jurisdiction,
the trial court rules on the plea to the jurisdiction as a matter of law. Id. If, however,
the evidence creates a fact question regarding jurisdiction, then the trial court must
deny the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28. In
reviewing the evidence presented, we indulge every reasonable inference in the
plaintiff’s favor. Id. at 228.
Under the doctrine of governmental immunity, political subdivisions of the
State, including counties, cannot be held liable for actions of their employees unless
the governmental unit’s common-law immunity is waived by the TTCA. See City of
Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); see also Taylor, 106
S.W.3d at 694 n.3. In cases involving torts, the Legislature waived the immunity that
governmental entities otherwise enjoy if the plaintiff’s claim is one that falls within
6 the requirements of the statutory waiver. See Tex. Civ. Prac. & Rem. Code Ann. §§
101.021.-.029. Section 101.021 of the TTCA allows a plaintiff to sue a governmental
unit for damages if the requirements in the TTCA apply to the plaintiff’s claim. See
id. § 101.021. Section 101.021(1) provides that a governmental unit is liable for
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[.]” Id. §
101.021(1). In addition to waiving a governmental unit’s immunity from liability,
section 101.025 also waives immunity from suit. Id. § 101.025(a); Tex. Dep’t of
Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). For purposes of the TTCA,
an “employee” includes “a person . . . who is in the paid service of a governmental
unit by competent authority[,]” and “scope of employment” means “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.” Id. § 101.001(2), (5).
We review both the denial of a motion for reconsideration and the denial of a
motion for new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114
(Tex. 2006) (standard of review for denial of motion for new trial); Bustamante v.
7 Moak Devs., LLC, No. 09-23-00154-CV, 2025 Tex. App. LEXIS 284, at **25-26
(Tex. App.—Beaumont Jan. 23, 2025, no pet.) (mem. op.) (standard of review for
denial of motion for reconsideration). A trial court abuses its discretion when it acts
in an arbitrary and unreasonable manner or when it acts without reference to any
guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d
682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-
42 (Tex. 1985).
Grant of the County’s Plea to the Jurisdiction
In issue one, Appellants argue that the trial court erred in granting the
County’s plea to the jurisdiction because the County’s own evidence demonstrates
a fact issue on whether Deputy Guidry was on duty when the crash occurred, and
Plaintiffs advised the trial court of Deputy Guidry’s deposition testimony that he was
on duty when the crash occurred. Relying on this Court’s opinion in Jefferson
County v. Dent, Appellants contend that because a genuine issue of fact was raised
on Guidry’s on-duty or off-duty status, the trial court erred in granting Appellee’s
plea to the jurisdiction. See No. 09-19-00005-CV, 2019 Tex. App. LEXIS 6388, at
*6 (Tex. App.—Beaumont July 25, 2019, no pet.) (mem. op.).
Here, Plaintiffs’ petition alleged that at the time of the accident Deputy Guidry
was acting within the scope of his employment with the County and that the County
was liable for Guidry’s negligence in causing the accident under the doctrines of
8 agency and respondeat superior. As for the County’s plea to the jurisdiction, the
County bore the burden of producing evidence to show that Deputy Guidry was not
in the scope of his employment when the accident occurred. See Miranda, 133
S.W.3d at 227-28.
In general, whether an officer is acting within the scope of his employment
depends on whether the general act from which an injury arose was in furtherance
of the employer’s business and for the accomplishment of the objective for which
the employee was employed. See Lara v. City of Hempstead, No. 01-15-00987-CV,
2016 Tex. App. LEXIS 7778, at **8-9 (Tex. App.—Houston [1st Dist.] July 21,
2016, pet. denied) (mem. op.); City of Balch Springs v. Austin, 315 S.W.3d 219, 225
(Tex. App.—Dallas 2010, no pet.) (citing Leadon v. Kimbrough Bros. Lumber Co.,
484 S.W.2d 567, 569 (Tex. 1972)). Even an officer who is on duty or on call twenty-
four hours a day is not necessarily always acting within the scope of his employment;
his actions at the time of the incident are critical to the determination. City of Balch
Springs, 315 S.W.3d at 225; Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex.
App.—El Paso 1990, writ denied); see also Garza v. Harrison, 574 S.W.3d 389, 403
(Tex. 2019) (“[W]hether an officer is on or off duty does not determine whether the
officer’s conduct falls within the scope of his employment.”); City of Houston v.
Mejia, 606 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)
9 (“Whether a peace officer was on duty or off is not dispositive as to whether she was
acting within her employment’s scope.”).
In Dent, this Court explained
Under Texas law, “every peace officer [has a duty] to preserve the peace within the officer’s jurisdiction.” Peace officers, including deputy sheriffs, retain their status as peace officers “twenty-four hours a day[.]” Consequently, peace officers are not relieved of the duty to preserve the peace merely because they are no longer on duty. Because off-duty officers may still be engaged in discharging their duty to maintain the peace, it is not possible to determine whether a particular officer is acting in the course and scope of his employment by considering only whether the officer’s shift has ended. Instead, in cases involving police officers, courts look to whether the officer or officers involved were discharging their duties as police officers when the tort occurred.
2019 Tex. App. LEXIS 6388, at **6-7 (citations omitted). The mere fact that Guidry
was driving a patrol vehicle is not dispositive. See Garza, 574 S.W.3d at 405. The
key question is whether, when viewed objectively, there was a connection at the time
the accident occurred between the officer’s job duties and his allegedly tortious act.
City of Houston v. Lal, 605 S.W.3d 645, 649 (Tex. App.—Houston [1st Dist.] 2020,
no pet.) (citing Garza, 574 S.W.3d at 401); see City of Balch Springs, 315 S.W.3d
at 225 (“In short, an employee is not acting within the scope of his duties unless the
activity has some connection with, and is being undertaken in furtherance of, the
employer’s business.”) (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.
1981); Vernon v. City of Dallas, 638 S.W.2d 5, 8-9 (Tex. App.—Dallas 1982, writ
ref’d n.r.e.)); see also Garza, 574 S.W.3d at 400; Martin v. Vill. of Surfside Beach, 10 No. 14-22-00085-CV, 2023 Tex. App. LEXIS 3292, at **5-6 (Tex. App.—Houston
[14th Dist.] May 16, 2023, no pet.) (mem. op.); Lara, 2016 Tex. App. LEXIS 7778,
at *9 (citing City of Houston v. Wormley, 623 S.W.2d 692, 694 (Tex. App.—Houston
1981, writ ref’d n.r.e.); City of Houston v. Love, 612 S.W.2d 211, 213 (Tex. App.—
Houston [14th Dist.] 1980, writ ref’d n.r.e.)); In making this determination, we
“examine what the officer was doing at the time of the incident and why he was
doing [it].” Lara, 2016 Tex. App. LEXIS 7778, at *9.
Under the “coming-and-going rule,” an employee is generally not acting
within the scope of his employment when traveling to and from work. See Painter
v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 139 (Tex. 2018). It is true that “[i]n
automobile collision cases [under the TTCA] a presumption arises that the driver
was acting within the scope of his employment by the defendant when it is proved
that the employer owned the vehicle and employed the driver.” Wormley, 623
S.W.2d at 694 (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354,
357 (Tex. 1971)). “The presumption is only a procedural tool, however, and it
disappears from the case once it has been rebutted by positive evidence to the
contrary.” Id. (citing Robertson Tank Lines, 468 S.W.2d at 357).
It is undisputed that Deputy Guidry was an employee of the County at the time
of the accident, and that he was driving a vehicle owned by the County. Thus, the
evidence raised a presumption that Deputy Guidry was in the course and scope of
11 his employment at the time of the accident. See id. (citing Robertson Tank Lines,
468 S.W.2d at 357). If, however, there is evidence that Deputy Guidry’s actions at
the time of the accident were not in furtherance of the County’s business, the
presumption vanishes. See City of Houston v. Stoffer, No. 01-23-00335-CV, 2024
Tex. App. LEXIS 4957, at *12 (Tex. App.—Houston [1st Dist.] July 16, 2024, pet.
denied) (mem. op.); Valdez v. City of Houston, No. 01-21-00070-CV, 2022 Tex.
App. LEXIS 6679, at *13 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.)
(mem. op.) (citing Mejia-Rosa v. John Moore Servs., No. 01-17-00955-CV, 2019
Tex. App. LEXIS 6405, at *16 (Tex. App.—Houston [1st Dist.] July 25, 2019, no
pet.) (mem. op.)).
The County attached three exhibits in support of its plea to the jurisdiction.
Exhibit 1 is a Texas Peace Officer’s Crash Report from the accident. The accident
report states that the accident happened on August 16, 2022, at 1800 hours. Exhibit
2 is a typed statement by Deputy Guidry stating the following, in relevant part:
To: Sergeant Layman CC: Sergeant Lowery From: Deputy Brent Guidry #14615 24-HOUR activities summary:
On 08/15/2022 I reported for duty at 0600 hours. I completed patrols and answered calls to service until 1800 hours. After being relieved of patrol duty by night shift, I drove to my residence and notified dispatch of being off duty. I had dinner with my family, which consisted of McDonalds food and water for the beverage. I woke up on 08/16/2022 at approximately 0410 hours to get ready for work. I reported for duty at 0600 hours and completed patrols and answered calls for service. 12 After being relieved of patrol duty by night shift, I started driving home towards my residence. I was traveling in my patrol unit Eastbound on the Highway 99 overpass at the stop light to merge onto US Highway 59 South feeder. While attempting to merge I struck the Acura vehicle in front of me, causing rear bumper damage to her vehicle and front- end damage to my patrol unit. I notified dispatch of the fleet accident and advised district 3 Sergeant Layman. I got out of my vehicle to check the status of the driver and passenger of the Acura vehicle. DPS arrived on the scene to complete crash report.
Respectfully,
Deputy Brent Guidry#14615
Exhibit 3 is an Affidavit of Sergeant Cody Lowery with the MCSO, stating the
following, in pertinent part:
. . . I was the supervisor for MCSO Deputy Brent Guidry on August 16 and 17, 2022. Deputy Guidry was a patrol deputy on August 16, 2022. He was granted permission, not required, to drive a MCSO vehicle on his commute between his work and residence before and after being on-duty during scheduled work hours. On or about August 17, 2022, Deputy Guidry submitted his timesheet to me regarding his work hours for August 16, 2022, and I approved them. Attached to my affidavit as Exhibit A and incorporated herein by reference is a true and correct copy of Deputy Guidry’s timesheet for August 16, 2022. Exhibit B, attached and incorporated herein by reference, is a true and correct copy of the 24 hour memo written by Deputy Guidry related to the accident the subject of this suit. This page is an exact duplicate of the original memo written by Deputy Guidry and sent to me. The memo was made at or near the time of each act or event set forth by, or from information transmitted by, persons with knowledge of the matters. The memo was kept in the course of regularly conducted business activity. It is the regular practice of the business activity to make the memo. As stated in Exhibits A and B, Deputy Guidry worked his regularly scheduled hours from 06:00 until 18:00 on August 16, 2022 and was “relieved of patrol duty by night shift” and “started driving home towards [his] residence” immediately prior to the accident. 13 Consistent with his statement and the attached timesheet, Deputy Guidry had completed his job duties and ended his shift at 18:00 on August 16, 2022. Deputy Guidry was off-duty immediately prior to and at the time of the accident the subject of this suit. Deputy Guidry was not conducting MCSO business, or taking action in furtherance of MCSO business, or being paid for any service at the time of the accident. Deputy Guidry was not assigned any official duties or assignments at the time of the accident. According to his statement, Deputy Guidry was simply commuting home after work at the time of the accident. I approved Deputy Guidry’s timesheet reflecting his additional 4.5 hours worked on August 16, 2022 until 22:30 in order to handle the fleet issues following the accident. The 4.5 hours worked by Deputy Guidry at the end of the day on August 16, 2022 were not previously scheduled and were only worked by Deputy Guidry subsequent to, and because of, the accident that occurred with his fleet vehicle while he was off-duty. Exhibit C, attached and incorporated herein by reference, is a true and correct copy of MCSO policies related to sections 1.1.12 and 4.1.4 (the “record”). The record was made at or near the time of each act or event set forth by, or from information transmitted by, persons with knowledge of the matters. The record was kept in the course of regularly conducted business activity. It is the regular practice of the business activity to make the record. Section 4.1.4 relates the MCSO policy that take-home vehicles are not required, but are often authorized. Section 1.1.12 of the MCSO policy states that even if you are driving a MCSO vehicle, patrol deputies are off-duty after being relieved by the next shift or a supervisor.
Exhibit A attached to Lowery’s affidavit, a timesheet for Guidry on August 16, 2022,
notes that Guidry worked 16.5 hours: 12 hours from 06:00 to 18:00, and 4.5 more
hours from 18:00 to 22:30. The timesheet noted that Sergeant Lowery authorized
Guidry’s 6:00 p.m. to 10:30 p.m. shift and for that shift included the notation
“Comment=FLEET[.]” Exhibit B is a typed statement from Guidry, which is
14 identical to Exhibit 2 attached to the County’s plea. Exhibit C contains excerpts of
MCSO’s Manual of Operations which provides in section 1.1.12 that “Deputies shall
remain on-duty until properly relieved by the next shift, or relieved by a supervisor.”
The manual also provides the following in section 4.1.4:
AUTHORIZED USE OF COUNTY VEHICLES AND NON- EMERGENCY OPERATION OF OFFICIAL VEHICLES [] Sworn deputies may be authorized by the Sheriff to take Sheriff’s Office owned vehicles home and use such vehicles in accordance with established protocols and limitations. . . . [] Vehicles are assigned to employees at the discretion of the Sheriff or Sheriff’s designee. No employee has a right to a vehicle by virtue of the employee’s position.
Applying this Court’s analysis in Dent, in determining whether the County
has rebutted the presumption that Deputy Guidry was acting within the scope of his
employment, we need not determine whether Deputy Guidry was on duty or off duty.
See Dent, 2019 Tex. App. LEXIS 6388, at *7. Instead, the relevant inquiry is whether
at the time of the accident Guidry was acting in furtherance of the County’s business
by discharging his duties as a deputy. See id.; see also Garza, 574 S.W.3d at 401.
Deputy Guidry stated in his statement that on August 16, 2022, “[a]fter being
relieved of patrol duty by night shift, [he] started driving home towards [his]
residence[,]” and then the accident occurred. Sergeant Lowery, Guidry’s supervisor,
stated in his affidavit attached to the County’s plea that pursuant to MCSO’s policies,
Deputy Guidry was granted permission but not required to use his patrol car to 15 commute to and from work and that patrol officers are off duty by being relieved by
the next shift or a supervisor, and the MCSO policies attached to Lowery’s affidavit
are consistent with Lowery’s statements. The accident report attached to the
County’s plea stated that the accident occurred at “1800” and Guidry’s timesheet
attached to Sergeant Lowery’s affidavit reflected that his normal shift ended at 18:00
hours. The evidence then shows that because of the accident he worked 4.5 more
hours from 18:00 to 22:30 which was authorized by Sergeant Lowery to deal with
the fleet vehicle. Sergeant Lowery explained in his affidavit that the additional 4.5
hours were worked by Guidry subsequent to, and as a result of, the accident. Sergeant
Lowery also stated that immediately prior to and at the time of the accident Guidry
was not conducting MCSO business or taking action in furtherance of MSCO
business.
This evidence supports the County’s contention that Guidry was not acting in
the scope of his employment, as he was neither engaged in the “performance for a
governmental unit of the duties of an employee’s office or employment” nor “in or
about the performance of a task lawfully assigned to an employee by competent
authority.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5). The evidence the
County presented supported that Deputy Guidry was commuting home after being
relieved from his shift and that immediately before or at the time of the accident
Guidry was not conducting MCSO business. This evidence is sufficient to rebut the
16 presumption that Guidry was acting in the scope of his employment because driving
home had no connection to Deputy Guidry’s job duties at the time of the accident.
See Garza, 574 S.W.3d at 401; Wormley, 623 S.W.2d at 694; see also Valdez, 2022
Tex. App. LEXIS 6679, at *18 (officer not acting in the scope of her employment
where she was off duty, not on call, and returning home after completing her
assignment and act of listening to the police radio while driving home after having
finished work was out of personal interest and did not have a connection with, and
was not undertaken in furtherance of, the City’s business—and rebutted the
presumption that she was acting within the scope of her employment at the time of
the accident); City of Balch Springs, 315 S.W.3d at 227 (officer was not acting within
scope of employment at the time of accident where officer was returning to location
of his private, off-duty employment, had not been contacted by police dispatcher to
respond to call or to engage in his official police officer duties, was not responding
to an emergency, and he was not engaged in law enforcement duty of preserving
peace); cf. Dent, 2019 Tex. App. LEXIS 6388, at *12 (the plaintiff testified that the
officer admitted at the scene that he was responding to a dispatch and call at the time
of the accident); cf. also Mejia, 606 S.W.3d at 906-07 (City failed to meet its burden
to prove the sergeant who struck the plaintiffs’ vehicle was not acting within the
scope of her employment at the time of the accident where the evidence showed that
the sergeant was on her way home from work at the time of the accident and her
17 husband, who was a superior officer employed by the sergeant’s employer, asked
her to pick up his City-issued vehicle from the City garage and drive it to their home
so he would have the vehicle available at the beginning of his shift, which benefitted
the sergeant’s employer); Lal, 605 S.W.3d at 647-49 (City failed to meet its burden
to prove the officer was not acting within the scope of his employment when he
struck the plaintiff’s vehicle; officer was returning home at night in his City-issued
motor vehicle and veered into oncoming traffic and struck plaintiff’s vehicle and the
evidence showed that the officer was “off duty” but “on call” and had looked at his
City-issued cell phone when it rang which caused him to crash into plaintiff’s
vehicle). We conclude the County’s evidence shifted the burden of proof to
Plaintiffs, so Plaintiffs were required to produce evidence showing that an issue of
material fact existed on whether Guidry was in the scope of his employment when
the accident occurred. See Miranda, 133 S.W.3d at 221; see also Martin, 2023 Tex.
App. LEXIS 3292, at *6 (“If the employer proffers evidence rebutting the
presumption, the burden shifts back to the plaintiff to produce other evidence that
the driver was acting in the course and scope of his employment at the time of the
collision.”) (citing Robertson Tank Lines, 468 S.W.2d at 358; Molina v. City of
Pasadena, No. 14-17-00524-CV, 2018 Tex. App. LEXIS 6579, at *10 (Tex. App.—
Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.)).
18 Plaintiffs asserted in their response to the County’s plea to the jurisdiction that
“we [] do not know the exact time of the wreck[]” and that, although the accident
report reflects that the accident occurred at “1800” hours, the author of the police
report did not observe the accident. Plaintiffs argued in their response that Guidry
was deposed, and that the transcript was not yet available but that
[P]laintiff[s’] counsel will relay to [the trial] [c]ourt that Sheriff Deputy Brent Guidry stated that he was on duty and acting within his scope of employment during his deposition when the wreck occurred. Deputy Guidry stated that his actions while on duty are recorded and stored in the Spillman software used by Montgomery County to manage their sheriff deputies. Plaintiff[s’] counsel was unaware of this software information before Deputy Guidry’s deposition. Defendants did not include this information in their Plea to the Jurisdiction, nor has Montgomery County turned this information over to the Plaintiff[s]. Plaintiff[s’] counsel has requested the Spillman data after Deputy Guidry’s deposition.[]
Plaintiffs, relying on Dent, argue that the County is liable for Guidry’s actions while
operating his patrol car because peace officers are never off duty, and Plaintiffs
contend that the plea to the jurisdiction should be denied because “Texas Courts are
clear that Montgomery County’s governmental immunity is waived when an injury
was caused by an employee’s use of a vehicle.[]” According to Plaintiffs, the County
“bears the burden to present evidence needed to show Deputy Guidry was off-duty”
and that the County’s immunity is not waived by the TTCA. Plaintiffs argued that
the County’s assertion that Guidry was off duty at the time of the accident “is simply
preposterous[]” because Guidry’s timesheet reflects that he worked between the
19 hours of 06:00 and 22:30 without any breaks in time so he was “on duty operating
within the course of his employment” at the time of the accident. Plaintiffs argued
that Guidry’s typed summary of what transpired the day of the accident that was
attached to the County’s plea was not signed by Guidry and that Guidry did not state
that he was off duty at the time of the accident. Plaintiffs argued that Guidry stated
in his deposition that he was on duty. Plaintiffs presented no other evidence in their
response other than the documents the County attached to their plea and a
photograph from Guidry’s dashcam recording after the accident occurred, with the
time stamp of 18:01:20. On appeal, Appellants argue that the County’s own evidence
creates a fact issue on whether Guidry was on duty at the time of the accident because
Guidry’s timesheet lacks a gap of the time when the accident occurred and Lowery’s
affidavit states that Guidry was off duty immediately prior and at the time of the
accident, and that plaintiffs’ counsel had advised the trial court of Guidry’s
deposition testimony that he was on duty and believed he was acting within his scope
of employment until he pulled into his driveway at his home and defense counsel
did not object to plaintiffs’ counsel’s statement.
It is undisputed that Guidry was on his way home when the accident occurred.
Here, the issue is a legal issue as to whether Guidry, who was on his way home at
the end of his shift, was acting within the scope of his employment when the accident
occurred. See Quested v. City of Houston, 440 S.W.3d 275, 282 (Tex. App.—
20 Houston [14th Dist.] 2014, no pet.) (citing Univ. of Tex. Health Sci. Ctr. at Hous. v.
McQueen, 431 S.W.3d 750, 756-57 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(noting appellate court reviews trial court’s ruling on a plea to the jurisdiction as a
matter of law when “parties do not dispute the facts presented on the jurisdictional
issue [but] simply dispute the legal significance of that evidence[]”)). Guidry’s
subjective belief or testimony about whether he is “on duty” until he pulls into his
driveway is not the controlling issue because we need not determine whether Deputy
Guidry was on duty or off duty. See Dent, 2019 Tex. App. LEXIS 6388, at *7.
Instead, the relevant inquiry is whether at the time of the accident Guidry was acting
in furtherance of the County’s business by discharging his duties as a deputy. See id.
See also Klumb v. Hou. Mun. Emps. Pension Sys., 405 S.W.3d 204, 227 (Tex.
App.—Houston [1st Dist.] 2013), aff’d, 458 S.W.3d 1 (Tex. 2015) (noting subjective
views are irrelevant to questions of law).
The evidence is uncontroverted that Guidry was driving home at the end of
his shift, and he was not responding to a call from dispatch or discharging any of his
duties at the time of the accident. Lowery’s affidavit in support of the County’s plea
stated that patrol officers are permitted but not required to commute to and from
work in their patrol vehicles, patrol deputies are off duty once relieved by the next
shift or a supervisor, and the County’s policies attached to the affidavit were
consistent with Lowery’s statements. Plaintiffs did not present any evidence that
21 tended to controvert the County’s evidence that Guidry was merely commuting
home at the time of the accident, and Plaintiffs did not present any evidence that
tended to controvert the County’s evidence that immediately prior to or at the time
of the accident that Guidry was not conducting MCSO business or taking action in
furtherance of MCSO business. See City of Balch Springs, 315 S.W.3d at 225 (citing
Biggs, 611 S.W.2d at 627); see also El Paso Water Utils. Sys.-Pub. Serv. Bd. v.
Marivani, No. 08-23-00071-CV, 2023 Tex. App. LEXIS 5488, at **8-14 (Tex.
App.—El Paso July 26, 2023, no pet.) (mem. op.) (even assuming the Water Utilities
employee had not clocked out when he struck a parked vehicle, he was still not in
the scope of his employment because he was heading home and not in or about the
performance of a task lawfully assigned to him, and the fact that the Water Utilities’
policy stated that the use of the Water Utilities’ vehicles to commute is only allowed
if it is advantageous to the Water Utilities does not rebut the presumption that the
employee was merely coming or going to or from work because the employee’s use
of the Water Utilities’ vehicle was not necessary for the functioning of the Water
Utilities’ Department and was permissive and not mandatory; the Water Utilities did
not waive governmental immunity because there was no fact issue as to whether the
employee was in the scope of his employment at the time of the collision); cf. Love,
612 S.W.2d at 213 (evidence demonstrated that officer’s use of patrol car was
mandatory and officer was enforcing speeding laws moments before his accident
22 and was actively fulfilling obligations imposed on officers who operate take-home
vehicles). Even indulging every reasonable inference in Plaintiffs’ favor, we
conclude Plaintiffs failed to raise a fact issue on whether Guidry was in the scope of
his employment at the time of the accident, and therefore the Plaintiffs did not
overcome the presumption of governmental immunity. See Miranda, 133 S.W.3d at
226-28. The trial court did not err in granting the County’s plea to the jurisdiction.
We overrule issue one.
Denial of Appellants’ Motion for Reconsideration and Motion for New Trial
In issue two, Appellants make essentially the same arguments as in issue one
and contend the trial court abused its discretion in denying Plaintiffs’ motion for
reconsideration or, in the alternative, motion for new trial, and that the trial court’s
order granting the plea should be reversed and remanded for a trial on the merits.
Specifically, Appellants argue that in Guidry’s deposition transcript, which was
attached to the motion and not available when Appellants filed their response to the
County’s plea to the jurisdiction, Guidry testified that he remains on duty until he
pulls into his driveway at his home. Appellants assert that “Guidry testified that until
officially off-duty, officers can be directed by their supervisor to drive to another
Sheriff’s Office district to assist with a major crash or other incident that
monopolizes all officers in that district[,]” and so, according to Appellants, Guidry
could have been assigned by his supervisor to assist other officers with a major
23 incident anywhere in Montgomery County up until the time he pulled into his
driveway and announced he was off duty, and therefore, Guidry was discharging his
duties as a police officer when the tort occurred.
We have already noted that Guidry’s subjective belief as to whether he was
“on duty” until he pulled into his driveway is not the issue before us. See infra at p.
21; Dent, 2019 Tex. App. LEXIS 6388, at *7. Guidry’s deposition testimony cited
by Appellants does not create a fact issue as to whether he was acting within the
course and scope of his employment at the time of the accident. The trial court did
not abuse its discretion in denying Plaintiffs’ Motion for Reconsideration Granting
of Defendant’s Plea to the Jurisdiction or, in the Alternative, Motion for New Trial.
See In re R.R., 209 S.W.3d at 114; Bustamante, 2025 Tex. App. LEXIS 284, at **25-
26. We overrule issue two.
We affirm the trial court’s judgment.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on July 21, 2025 Opinion Delivered July 24, 2025
Before Golemon, C.J., Johnson and Wright, JJ.