Opinion issued March 24, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00359-CV ——————————— THE CITY OF HOUSTON, Appellant V. HOLLIS F. HOLMES, Appellee
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2024-54734
MEMORANDUM OPINION
Hollis Holmes sued the City of Houston for negligence following a motor-
vehicle accident. The City filed a motion for summary judgment arguing it is
immune from suit because the City’s employee, a firefighter who was driving the
fire truck that collided with Holmes’ car, was not in the course and scope of employment when the accident occurred. The trial court denied the City’s motion
and this appeal ensued.
We affirm.
Background
On September 11, 2022, at approximately 11 a.m., Houston firefighter
Eugene Schifani drove a Houston Fire Department (“HFD”) ladder truck to an H-
E-B grocery store in Houston, Texas with three other firefighters on board.
Schifani and firefighter Troy Dornak waited in the fire truck with its engine
running while the two other firefighters went inside the grocery store to purchase
groceries for the fire station’s crew to eat during their twenty-four-hour shift.
According to Schifani, the fire truck’s engine remained running during the forty-
five minutes the two firefighters were in the store “just in case we got an
emergency call for a ladder truck while on our grocery run.”
Holmes pled that as she drove eastbound in the grocery store parking lot, the
HFD fire truck collided with her car. She alleged that Schifani was acting in the
course and scope of his employment with the City when the collision occurred and
“carelessly failed to look ahead and make sure it was safe” to pull out from the
truck’s parked position. According to Schifani, Holmes’ car had stopped in the fire
truck’s blind spot and as he attempted to pull out the truck from where he parked in
2 front of the store, “the passenger front tire ring” on the fire truck caught the car’s
“passenger side back plastic bumper cover and pulled it off.”
Holmes sued the City for negligence under the Texas Tort Claims Act1 and
asserted the doctrine of respondeat superior.2 She sought damages for past and
future reasonable medical care and expenses, past and future physical pain and
suffering, and past and future mental anguish.3 The City pled in its answer, among
other things, that governmental immunity barred Holmes’ claims.
Summary Judgment Motion
The City filed a traditional motion for summary judgment based on
governmental immunity. In support of its motion, the City attached the unsworn
declarations of Schifani and Dornak, one of the firefighters who accompanied
Schifani to the grocery store,4 and a business record affidavit proving up ten photos
of the accident scene.
In his unsworn declaration, Schifani stated that
• His shift on September 11, 2022 began at 6 a.m.
1 TEX. CIV. PRAC. & REM. CODE § 101.001, et seq. 2 Holmes also sued Schifani but she later dropped her claims against him. 3 Holmes’ property damage claim was settled and was not part of the underlying litigation. 4 Unsworn declarations that comply with section 132.001 of the Civil Practice and Remedies Code constitute competent summary judgment evidence. Chagoya v. Vilchis, No. 01-22-00864-CV, 2024 WL 3417049, at *4 (Tex. App.—Houston [1st Dist.] July 16, 2024, no pet.) (mem. op.); see also TEX. CIV. PRAC. & REM. CODE § 132.001(c), (d) (enumerating requirements of unsworn declarations).
3 • That morning, each of the twelve crew members of the firehouse paid $25 for groceries to cover the twenty-four-hour shift. The money was to purchase food for lunch, dinner, breakfast, and snacks during the shift.
• At approximately 11 a.m., he drove ladder truck 64 to an H-E-B store to purchase food with the money that had been collected. Three firefighters, including Dornak, accompanied him.
• He parked the truck parallel to the front of the store.
• Two firefighters went into the store to shop and he and Dornak waited in the truck outside the store “with the engine running,” and
• “Because on duty HFD firefighters work twenty-four hours during their shift, we had to be available just in case we got an emergency call for a ladder truck while on our grocery run.” They did not receive an emergency call during the grocery trip.
Schifani also provided the details of the accident, which occurred at approximately
11:46 a.m.5
Dornak, a senior captain at the fire station, stated in his unsworn declaration
that
• He waited with Schifani in the ladder truck while the other two firefighters shopped.
• He confirmed the engine was running while they waited, stating, “Because we work twenty-four hours straight during our shift, we must be prepared at all times to be able to respond to an emergency call for a ladder truck.”
• The groceries were purchased “to be prepared at the station for lunch, dinner and breakfast the next day. We have twelve firefighters at Station
5 Because liability is not contested in the summary judgment motion, we need not go into the details of how the accident occurred.
4 62 for the shift. Each firefighter chips in $25.00, so we [have] $300.00 to buy groceries for three really substantial meals.”
The City argued that Schifani was not acting within the scope of his employment
but was, rather, on a “grocery run” when the accident occurred.
In her summary judgment response, Holmes argued that this is not a simple
“gone to lunch” case. Rather, Schifani drove the fire truck and ladder crew to the
grocery store and stayed with the truck “just in case [they] got an emergency call
for a ladder truck.” She further argued that Schifani was driving the truck that day
because driving the truck “is his job,” and he is “assigned to Station 64 . . . driving
the Ladder truck.”
In addition, she argued that the grocery run “furthered the City’s business”
because it allowed the firefighters “to eat at the station and be available to respond
to emergency calls.” Based on Dornak’s statement, according to Holmes, the
grocery runs “appear[] to be a regular occurrence.” Further, sending the ladder
crew to the store “allowed them to take a truck that ‘tend[s] to receive less
emergency calls than other apparatuses,’ but can still ‘be prepared at all times to be
able to respond to an emergency call.’” She pointed to Schifani’s statement in his
declaration that he waited outside the grocery store with the engine running “just in
case we got an emergency call for a ladder truck while on our grocery run.”
Finally, she argued that Schifani “was not just another guy going to pick up
groceries for himself. Rather, [h]e was driving a City Ladder truck, carrying three
5 other firefighters, to the grocery store, to carry out a task that had been assigned to
them for the benefit of Station 64, in a manner that allowed them to keep doing
their work.” Schifani’s “general duties include driving the Ladder truck and his
specific duties that day included driving the Ladder truck to HEB.” She argued the
City had not conclusively established Schifani was on a personal errand when the
accident occurred.
In its summary judgment reply, the City argued that “[c]o-workers tasked by
other co-workers to buy groceries during the shift and every shift does not make
the errand in the scope of employment;” going to purchase groceries in a HFD
ladder truck does not turn the errand into a “scope of employment endeavor;” the
City does not derive benefit from the grocery run; and the grocery run was not in
furtherance of the City’s business.
The trial court denied the City’s summary judgment motion. 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, a plaintiff must allege facts that demonstrate affirmatively the
court’s jurisdiction to hear her claims. Town of Shady Shores v. Swanson, 590
S.W.3d 544, 550 (Tex. 2019). “Whether a court has subject matter jurisdiction is a
6 question of law.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). Because the existence of subject matter jurisdiction is a question of
law, we review the trial court’s ruling on the City’s motion for summary judgment
de novo. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivs.
Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006).6
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). To
obtain a traditional summary judgment based on lack of jurisdiction, “a movant
must produce evidence showing that no genuine issue of material fact exists and
that it is entitled to judgment as a matter of law.” Town of Shady Shores, 590
S.W.3d at 551 (citing TEX. R. CIV. P. 166a(c)). The nonmovant “may raise a
genuine issue of material fact by producing ‘more than a scintilla of evidence
establishing the existence of the challenged element.’” Id. (quoting Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). In our review, “we view the
evidence in the light most favorable to the nonmovants by indulging every
6 We also review a trial court’s ruling on a summary judgment motion de novo. City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL 3556216, at *3 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.) (citing Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)).
7 reasonable inference and resolving any doubts in their favor.” City of Houston v.
Rodriguez, 704 S.W.3d 462, 470 (Tex. 2024).
Governmental Immunity
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). As political subdivisions of the State,
cities are “immune from suit unless [their] immunity is waived by state law.” City
of Austin v. Powell, 704 S.W.3d 437, 448 (Tex. 2024) (quoting City of San Antonio
v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022)).
The Texas Tort Claims Act (“TTCA”) waives immunity from suit for
negligent acts in certain circumstances.7 City of Houston v. Gomez, 716 S.W.3d
161, 165 (Tex. 2025). Relevant to the issues here, the TTCA waives governmental
immunity for claims involving the negligent use or operation of a motor-driven
7 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).
8 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).
Scope of Employment
In its sole issue, the City argues that it retained its governmental immunity
from Holmes’ TTCA claims because Schifani, the driver of the HFD ladder truck,
was not acting in the scope of employment when the accident occurred.
In its summary judgment motion and again in its appellate brief, the City
cites eleven “acting within the scope of employment” cases involving
governmental entities. We are not persuaded by the number of cases the City cites.
The inquiry into whether an act was committed in the course and scope of
employment is “unavoidably fact-specific.” Tex. Mut. Ins. Co. v. Jerrols, 385
S.W.3d 619, 627 (Tex. App.—Houston [14th Dist.] 2012, pet. dism’d). And none
of the cases cited by the City is factually analogous to the present case.
9 The City relies on City of Houston v. Carrizales, No. 01-20-00699-CV, 2021
WL 3556216 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem.
op.) in support of its argument that Schifani was not in the scope of his
employment when the collision with Holmes occurred. Carrizales stemmed from
an accident involving a City of Houston sewer jet truck and Carrizales’ car. Id. at
*1. When the accident occurred, the truck’s driver (“Griffin”) was driving the truck
back to her place of work after stopping by her home for lunch. Id. at *2. Griffin
“was alone in the truck when the collision occurred. She explained that if she had
been investigating a stoppage or answering a request for service or investigating or
inspecting a sewer complaint, someone else would have been in the truck with her
because ‘[i]t takes two people to perform the job.’” Id. Carrizales sued the City
under the TTCA and the City moved for summary judgment based on
governmental immunity. Id. Carrizales asserted that there was a genuine issue of
material fact as to whether Griffin was acting in the course and scope of her
employment “because Griffin stated in her deposition that she ‘was on the clock’
when the collision occurred but also stated that she was not required to ‘clock out’
during the day, and she explained that ‘even while we are on our break, we are on
the clock.’” Id. The trial court denied the summary judgment motion.
In reversing the trial court, we held that Griffin’s testimony that she was
returning to her workplace “alone after lunch when the accident occurred” rebutted
10 the presumption that she was acting in the course and scope of her employment
when the accident occurred. Id. at *5. And we relied in part on Griffin’s deposition
testimony “that if she had been performing her job duties, such as investigating a
stoppage, answering a request for service, or investigating or inspecting a sewer
complaint, someone else would have been in the truck with her because ‘it takes
two employees to perform the job.’” Id.
Carrizales is inapposite; in fact, it lends support to Holmes’ position.
Whereas Griffin was alone—and thus could not have been actively on duty based
on her testimony—when the accident occurred, Schifani’s entire four-person
ladder crew was in the truck at the grocery store because they remained on duty.
While two of the firefighters were shopping, Schifani and Dornak remained in the
truck with the engine running in case they were needed for an emergency call.
Dornak stated in his declaration that he and Schifani waited in the truck with the
engine running because “we must be prepared at all times to be able to respond to
an emergency call for a ladder truck.” And Schifani stated that the engine was
running during the approximately forty-five minutes of grocery shopping because
as HFD firefighters, “we had to be available just in case we got an emergency call
for a ladder truck while on our grocery run.” We thus are not persuaded by
Carrizales.
11 The City also relies on Cameron International Corp. v. Martinez, 662
S.W.3d 373 (Tex. 2022), a non-governmental entity case. In Cameron, a Cameron
employee (“Mueller”) traveled to another town after work “on his own time to
have dinner and to restock his personal groceries and fuel.” Id. at 377. He had
traveled to the town at the invitation of his supervisor, who asked him to “remain
on voluntary standby for potential work . . . the next day.” Id. at 375. After leaving
the gas station, Mueller was involved in a car accident that resulted in two deaths.
Id. The survivors and decedents’ estates sued Cameron, alleging Mueller was
acting in the scope of employment when the accident occurred. Id. at 376. The trial
court granted Cameron’s summary judgment motion in which it argued Mueller
was not its employee or acting within the scope of employment when the accident
occurred. Id. The court of appeals reversed, holding the summary judgment
evidence “raised fact issues” as to whether Mueller was acting in the scope of his
employment when the collision occurred and provided some evidence in support of
the plaintiffs’ claim “that Mueller’s purchases of food and water during his trip
constituted ‘a necessary service in furtherance of Cameron’s business[.]’” Id. The
Supreme Court reversed the court of appeals, stating:
Nearly every task that supports a worker’s personal needs, including travel to and from work, indirectly benefits the employer. By traveling to the workplace, a worker makes his services available, “and in that sense he furthers the affairs or business of his employer by making the journey.” Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965). Not every journey, however, falls within the course and scope 12 of an employment relationship. Id. To except from the general rule Mueller’s travel to obtain personal groceries and fuel at his choice— and not at Cameron’s direction—would turn nearly any personal grocery errand into a special mission on an employer's behalf, a concept that we rejected in Painter.8 See 561 S.W.3d at 138 (explaining that an employee’s decision to “conduct a personal errand” while otherwise engaged in his employer’s business does not give rise to vicarious liability for travel in connection with that errand). Workers often travel for personal necessities during the workday or leave for a meal before returning to work, but these activities do not arise from the business of the employer. Rather, they are daily tasks in which workers and nonworkers alike engage, carrying the same attendant risks.
Id. at 377 (footnote added). The Supreme Court held “a personal trip for groceries
does not fall within the [] exception to the general rule that an employer is not
vicariously liable for an employee’s negligent acts while the employee travels to
and from work.” Id. at 379.
The fact that the employee in Cameron made a trip to purchase groceries
before the accident occurred does not render Cameron analogous to the present
case. Unlike the employee in Cameron, Schifani was not on a personal trip for
groceries. Viewing the evidence in the light most favorable to Holmes by indulging
every reasonable inference and resolving any doubts in her favor, the evidence
reflects that Schifani was actively on duty while at the grocery store. The engine of
the fire truck was running in case he and his cohorts were called to an emergency
scene. Dornak stated that “[b]ecause we work twenty-four hours straight during
8 Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018).
13 our shift, we must be prepared at all times to be able to respond to an emergency
call for a ladder truck.” And Schifani was not simply buying personal groceries. He
and the other three firefighters were buying groceries to enable the twelve-person
crew to eat while on duty during their twenty-four-hour shift.9 That is, the
groceries were purchased by the entire crew to enable them to work for the entire
shift. Mueller is not persuasive.
Holmes relies on our decision in City of Houston v. Lal, 605 S.W.3d 645
(Tex. App.—Houston [1st Dist.] 2020, no pet), which stemmed from a Houston
police officer’s collision while driving a city-owned police car. Id. at 647. The
officer (“Ryans”) was off duty the day of the accident but remained on call to
respond to human-trafficking cases. Id. Immediately before the accident, Ryans,
who was driving, looked at his city-owned cell phone to see who was calling him.
Id. The distraction caused the accident. Id. The accident victim sued the City of
Houston for negligence, alleging Ryans was acting within the scope of his
employment when the accident occurred. Id. The City filed a plea to the
jurisdiction, arguing Ryans was not acting within the scope of his employment
when the collision occurred. Id. at 647–48. The trial court denied the plea to the
jurisdiction. Id. at 648.
9 Schifani stated in his declaration that the groceries were “all that the Station 64 crews would need during our twenty-four-hour shift. The crews agree and each member provides $25.00 to the kitty so that we can buy groceries to cover our two days/twenty-four-hour shift which includes lunch, dinner, breakfast and snacks.”
14 The City argued that Ryans “was not on duty and his on-call status, standing
alone, did not render his conduct within the scope of his employment.” Id. at 649.
The City argued that “looking at a ringing phone” did not render Ryans’ conduct
within the scope of employment, but this Court disagreed, noting that “Ryans’s
phone was issued by the city, and Ryans was on call. From these undisputed facts,
a factfinder could reasonably infer that Ryans was obligated in his capacity as a
peace officer employed by the city to answer incoming calls on this phone so that
he could be returned to duty if requested by the vice division.” Id. We observed
that even if Ryans was not on duty when the accident occurred, as the City
asserted, that fact was not dispositive. “The question is whether there is a
connection between Ryans’s job duties and his allegedly tortious conduct.” Id. at
650. Affirming the trial court, we held that the City failed to prove conclusively
that Ryans was not acting within the scope of his employment at the time of the
accident, and therefore, the trial court did not err in denying the City's
jurisdictional plea. Id. at 649.
Holmes also relies on our sister court’s holding in City of Houston v. Mejia,
606 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2020, pet. denied), another case
involving a police officer (“Gallagher”) involved in a traffic accident while driving
a city-owned vehicle. In Mejia, the facts establish that Gallagher finished her shift
at 4 p.m. on the day of the accident. Id. at 906. Gallagher’s husband, a Houston
15 Police Department (“HPD”) lieutenant, asked her to pick up his city-issued vehicle
from the city garage and to drive it to their home so he would have his car
available at the start of his next shift. Id. After picking up the police car and on her
regular commute home, Gallagher was involved in an accident with the plaintiffs.
Id. at 904. Gallagher testified that at the time of the accident, she had no official
duties and, other than still being on call, was not being paid for her time. Id. The
City of Houston moved for summary judgment asserting it was entitled to
immunity because Gallagher was not in the course and scope of her employment
when the accident occurred. Id. The trial court denied the City’s summary
judgment motion. Id.
The City argued that Gallagher was not acting in the scope of her job as a
police officer but was, rather, “just another commuter on a Friday evening heading
home to enjoy time off on the weekend.” Id. at 906. The plaintiffs responded that
Gallagher was driving a city-owned vehicle, carrying out instructions issued by an
HPD officer who outranked her, and that HPD “would derive benefit from her
actions.” Id. The appellate court agreed with the plaintiffs, observing that
Gallagher’s affidavit reflected that “her husband (a superior officer employed by
Gallagher’s employer) asked her to pick up his City-issued vehicle from the City
garage so her superior officer would have the vehicle available at the beginning of
16 his shift (a benefit to Gallagher’s employer, HPD).” Id. Therefore, Gallagher was
not a mere commuter on the way home from work. Id.
We find both Lal and Mejia to be instructive.10 Viewing the evidence in the
light most favorable to Holmes, and indulging every reasonable inference and
resolving any doubts in her favor,” the evidence reflects that Schifani was not
acting under the guise of a typical grocery shopper, given that he was required to
remain prepared, with the engine running, in case he was called to an emergency
during the grocery run. The grocery trip was not made to purchase Schifani’s own
personal groceries, or even just for those four firefighters with him at the store, but
for the entire on-duty crew. Given that he was required to remain ready and able to
cover any emergency that arose during the grocery run, there is at least a fact
question as to whether he was acting in the course and scope of his employment
when the fire truck struck Holmes’ car.
The City argues that an employee is generally not in the scope of his
employment while driving to or from work, even if traveling in the company
vehicle and if the employee is “on call” twenty-four hours a day. The primary case
it cites, Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007),
involves an employee who drove a company truck at approximately 3 a.m. to a
10 The City does not address City of Houston v. Lal, 605 S.W.3d 645 (Tex. App.— Houston [1st Dist.] 2020, no pet) or City of Houston v. Mejia, 606 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).
17 convenience store to purchase cigarettes, was supposed to be available via pager
twenty-four hours a day, and caused an accident on his way back home from the
store. Id. at 757. That is not tantamount to the present situation in which the
grocery trip was made during Schifani’s work shift to enable the fire crew to eat
during their twenty-four-hour shift. Being “on call” twenty-four hours a day is not
the same as being on a “twenty-four-hour” shift.
The City also argues “it is a well-established principle that merely because
an employee is on-duty, or on-call twenty-four hours a day, does not mean that the
person is always acting within the scope of his employment.” City of Laredo v.
Saenz, No. 04-05-00188-CV, 2006 WL 286006, at *3 (Tex. App.—San Antonio
Feb. 8, 2006, no pet.) (mem. op.). In Saenz, the city argued that the officer who
was involved in an accident with the plaintiff was off duty when the accident
occurred, and the plaintiff argued that the officer’s “status as a police officer
equates to his being ‘on-duty’ twenty-four hours a day.” Id. Here again, that is not
the present case. It is undisputed that the accident with Holmes happened during a
twenty-four-hour work shift, and that the engine was running in case Schifani was
called to an emergency during the forty-five-minute grocery run. From these
undisputed facts, a factfinder could reasonably infer that Schifani was on duty
when the accident occurred and acting for HFD’s benefit. See Lal, 605 S.W.3d at
649 (holding officer was in scope of employment when expected to answer
18 incoming calls so he could be returned to duty if needed); Mejia, 606 S.W.3d at
906 (holding officer was on duty because police department “would derive benefit
from her actions”). At a minimum, there was a fact issue on this point precluding
summary judgment.
Viewing the evidence in the light most favorable to Holmes, and indulging
every reasonable inference and resolving any doubts in her favor, as we must, we
hold the trial court properly denied the City’s motion for summary judgment. We
overrule the City’s sole issue.
Conclusion
We affirm the trial court’s denial of the City of Houston’s motion for
Veronica Rivas-Molloy Justice
Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.