The City of Austin v. Noel Powell

Supreme Court of Texas

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No. 22-0662

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The City of Austin,

Petitioner,

v.

Noel Powell,

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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Argued September 10, 2024

JUSTICE YOUNG delivered the opinion of the Court.

A fugitive led police officers on a high-speed chase through the

streets of Austin. While in pursuit, an officer lost control of his vehicle

and collided with a minivan stopped at an intersection. The collision

injured Noel Powell, the minivan’s driver. Powell, who was not at fault,

sued the City of Austin to recover damages for his injuries.

We must decide whether his claim may proceed. The legislature has

waived governmental immunity to suit for many torts, but it carved out an

exception when a governmental employee, like the officer who collided with

Powell, is “responding to an emergency call or reacting to an emergency

situation.” Tex. Civ. Prac. & Rem. Code § 101.055(2). This emergency

exception applies so long as the officer’s “action [was] in compliance with

the laws and ordinances applicable to emergency action, or in the

absence of such a law or ordinance, if the action [was] not taken with

conscious indifference or reckless disregard for the safety of others.” Id.

We hold that the officer’s conduct was not in violation of “a law or

ordinance” that governed emergency action and that Powell has raised no

fact question about whether the officer’s conduct was reckless. The Tort

Claims Act, therefore, does not waive the City’s immunity. We reverse

the court of appeals’ judgment and render judgment dismissing the case

for lack of jurisdiction.

I

Officer Brandon Bender was responding to a check-welfare call

when he heard “six or seven” gunshots ring out in the neighborhood. Four

additional shots followed within about fifteen minutes, and they “sounded

even closer than the first shots.” Three minutes after that, Officer

Michael Bullock spotted a Toyota FJ Cruiser coming from the same

direction as the gunshots. Officer Bullock told the vehicle’s driver to

stop. Instead of stopping, the car “took off.” Officer Bender received

authorization to pursue the FJ Cruiser with his lights and siren on.

Officer Bullock also received authorization to participate in the chase

and was assigned to back up other officers.

During the chase, Officer Bender decided to make a right turn

onto Brandt Road to “get in front of the pursuit . . . or to close the distance

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to enter the pursuit.” Officer Bullock was following Officer Bender. As

Officer Bender slowed to make the turn, Officer Bullock hit the brakes.

Unable to slow down in time, Officer Bullock struck the passenger side

of Officer Bender’s car, causing the two cars to be “semi-stuck together.”

Both officers lost control of their vehicles. Officer Bender’s vehicle

slid through the intersection, running over a stop sign and coming to

rest against a fence post. Officer Bullock’s vehicle collided with Powell’s

minivan, which was stopped at the intersection. The impact caused

Powell’s vehicle to spin 180 degrees before coming to rest, while Officer

Bullock’s car came to rest against a tree. The post-crash report opined

that Officer Bullock’s inattention and failure to control his speed

contributed to the accident.

Powell sued the City, seeking recovery for his damages. The City

filed a plea to the jurisdiction based on the Tort Claims Act’s emergency

exception and Officer Bullock’s official immunity. The trial court denied

the City’s plea without explanation. The City appealed, raising only the

emergency exception. The court of appeals affirmed. 684 S.W.3d 455

(Tex. App.—Austin 2022). It held that there was a fact issue about

whether Officer Bullock’s actions were reckless, requiring further

proceedings in the trial court. Id. at 465.

We granted the City’s petition for review.

II

More than twenty years ago, we described the process for resolving

a plea to the jurisdiction asserting immunity from suit as one that

“generally mirrors that of a summary judgment.” Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We reaffirm this

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description but acknowledge that dispositive-pleading practice has

evolved in the interim. The conceptual similarity largely reflects that the

parties’ burdens will depend on the nature of the plaintiff’s claim and how

the government poses its jurisdictional challenge. Just as the Texas rules

now include not only traditional summary judgment but also no-evidence

summary judgment and dismissal under Rule 91a, for example, pleas to

the jurisdiction may involve competing evidence, the denial of any

probative evidence, or the assertion that the law compels a result

regardless of the evidence.

The foundational rule in all cases is that “[a] party suing the

governmental unit bears the burden of affirmatively showing waiver of

immunity.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex.

2022) (citing Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578

S.W.3d 506, 512 (Tex. 2019)). There is “a presumption against any waiver

until the plaintiff establishes otherwise.” Rattray v. City of Brownsville,

662 S.W.3d 860, 866 (Tex. 2023). The plaintiff—the nonmovant—

survives the plea to the jurisdiction only by showing that the statute

“clearly and affirmatively waive[s] immunity” and by also “negating any

provisions that create exceptions to, and thus withdraw, that waiver.” Id.

at 867. Though a plaintiff need not anticipate and defeat every defense

the government could conceivably raise, see, e.g., id. at 867–68, a plea to

the jurisdiction may obviously rely on the plaintiff’s own pleadings in

arguing that they fail to “affirmatively demonstrate the court’s

jurisdiction to hear the case.” Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 635 (Tex. 2012). Where those pleadings indicate, for

example, that the emergency exception applies, the government need not

4

produce additional affirmative evidence to invoke the exception.

Whether the plaintiff bears an evidentiary burden depends on how

the government responds to the purported waiver. In Miranda, we

divided pleas to the jurisdiction into two broad categories. First, the

government may “challenge[] the pleadings.” Miranda, 133 S.W.3d at

226. In such a plea, the government does not dispute the plaintiff’s

factual allegations, and evidence is irrelevant. The question is whether

the alleged facts “affirmatively demonstrate a trial court’s subject matter

jurisdiction.” Id. That is “a question of law reviewed de novo.” Id. If

the plaintiff’s allegations neither establish jurisdiction nor negate it, the

plaintiff is given an opportunity to amend its pleadings, but if the

allegations negate jurisdiction, the plaintiff as a matter of law cannot

establish jurisdiction, so the court must grant the plea. Id. at 226–27.

This type of plea is thus similar—though not identical—to a motion to

dismiss under Rule 91a in that it asserts that the plaintiff’s allegations,

taken as true, do not show a waiver of immunity. See Tex. R. Civ. P.

91a.1. In that event, the plaintiff needs to respond not with evidence but

with legal argument showing the court that, as a matter of law, its

allegations demonstrate an immunity waiver despite the government’s

contrary arguments.

Second, the government’s plea to the jurisdiction may instead

“challenge[] the existence of jurisdictional facts,” requiring the trial court

to “consider relevant evidence submitted by the parties when necessary

to resolve the jurisdictional issues raised.” Miranda, 133 S.W.3d at 227.

The plea to the jurisdiction may, for example, be like a no-evidence motion

for summary judgment by asserting that the plaintiff has produced no

5

evidence of an element required for the immunity waiver to apply. See

Tex. R. Civ. P. 166a(i). In that event, the plaintiff may respond with

additional evidence establishing that element of the waiver. The plea

may mirror a traditional motion for summary judgment by attaching

evidence in an effort to conclusively negate jurisdiction. See id. R. 166a(c).

In such a case, the plaintiff must produce enough evidence to raise a

genuine issue of material fact to survive the plea. Miranda, 133 S.W.3d

at 227–28. Or the plea may be like a hybrid motion for summary

judgment where both parties attach evidence. The “ultimate issue” in

that instance is likewise “whether the nonmovant raised a fact issue to

preclude summary judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d

874, 882 (Tex. 2024).

Thus, when we stated in Mission Consolidated Independent School

District v. Garcia that “[i]nitially, the defendant carries the burden to

meet the summary judgment proof standard for its assertion that the trial

court lacks jurisdiction,” 372 S.W.3d at 635, we were referring to cases in

which the plea to the jurisdiction mirrors a traditional or hybrid motion

for summary judgment. After all, if the government wants to truly negate

the plaintiff’s evidence, then it must present evidence of its own. See id.

at 637 (“While a plaintiff must plead the elements of her statutory cause

of action . . . she will only be required to submit evidence if the defendant

presents evidence negating one of those basic facts.” (emphasis added)).

We did not, of course, contradict the bedrock principle that the plaintiff

bears the burden to establish a waiver of immunity. When there is a

dispute over jurisdictional facts, the plaintiff must raise a genuine issue

of material fact as to the immunity waiver’s applicability. See Miranda,

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133 S.W.3d at 227; see also Tex. Health & Hum. Servs. Comm’n v. Pope,

674 S.W.3d 273, 281 (Tex. 2023). When that happens, “we take as true

all evidence favorable to the nonmovant and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” Maspero,

640 S.W.3d at 528–29. If the evidence raises a fact question as to the

court’s jurisdiction, then the trial court may not grant the plea. Univ. of

Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). But the court

must grant the plea if the evidence fails to raise a question as to the

existence of a jurisdictional fact. Maspero, 640 S.W.3d at 529.

A party’s characterization of its pleadings does not control how the

courts review them. Whatever the government may call its jurisdictional

challenge—a plea to the jurisdiction, a motion to dismiss, or a motion for

summary judgment—we look to its substance. See, e.g., Oscar Renda

Contracting, Inc. v. Bruce, 689 S.W.3d 305, 311 (Tex. 2024) (noting that

“our Court has consistently held that we examine the substance of a

motion or pleading rather than requiring the formality of a title”); Thomas

v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (treating a summary-judgment

motion as a plea to the jurisdiction for purposes of appellate jurisdiction).

Here, the City’s plea to the jurisdiction most closely mirrors a no-

evidence motion for summary judgment. It argues that Powell failed to

establish jurisdictional facts after adequate time for discovery. We

therefore review Powell’s allegations and evidence (considering the City’s

undisputed evidence only for context), and we determine whether Powell

has raised a fact issue regarding the Tort Claims Act’s immunity waiver.

7

III

A

As a political subdivision of the state, the City is “immune from

suit unless [its] immunity is waived by state law.” Maspero, 640 S.W.3d

at 528. The Tort Claims Act waives immunity for certain torts, but it

“withdraws” the waiver in various circumstances. Rattray, 662 S.W.3d at

866. As relevant here, if an injury arises from an officer’s response to an

emergency call or reaction to an emergency situation, the Act withdraws

the waiver of immunity unless (1) the officer did not comply with “the

laws and ordinances applicable to emergency action,” or (2) in the absence

of such laws, the officer acted “with conscious indifference or reckless

disregard for the safety of others.” Tex. Civ. Prac. & Rem. Code

§ 101.055(2); see Maspero, 640 S.W.3d at 529. The court of appeals held

that Officer Bullock was responding to an emergency situation. 684

S.W.3d at 462. The parties do not dispute this holding, and it is one with

which we agree.

This case therefore turns on the applicability of the emergency

exception. The issue reduces to whether Officer Bullock (1) “compli[ed]

with the laws and ordinances applicable to emergency action,” or (2) “in

the absence of such a law or ordinance,” acted “with conscious indifference

or reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem.

Code § 101.055(2). No party before us argues that this latter inquiry is

distinct from showing recklessness, and our cases generally have

proceeded by regarding recklessness as what the latter inquiry requires.

See, e.g., Maspero, 640 S.W.3d at 529; City of Amarillo v. Martin, 971

S.W.2d 426, 430 (Tex. 1998). We therefore again assume for purposes of

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this case that there is no difference between “conscious indifference or

reckless disregard” and “recklessness.”

The court of appeals, in reliance on Maspero, held that both

components of the emergency exception’s jurisdictional inquiry—the

law-or-ordinance prong and the recklessness prong—“ ‘collapse[]’ into

one inquiry concerning [Officer Bullock’s] recklessness.” 684 S.W.3d at

463 n.3 (quoting Maspero, 640 S.W.3d at 529). Maspero did not hold that

the two distinct inquiries are in fact only one. It said that “the distinction

between these inquiries largely collapses in this case.” Maspero, 640

S.W.3d at 529 (emphasis added). Such a result may often occur, as in

Maspero, and will depend on the content of an applicable statute or

ordinance.

The plain language of the emergency exception, however,

contemplates two distinct inquiries to be undertaken in a particular

order. First, the court must assess whether any laws or ordinances apply

to the emergency action at issue in the case. Such a law or ordinance may

apply to some aspect of the emergency action (hypothetically, for example,

by controlling maximum speed) or to the entire action. If there is an

applicable law or ordinance that governs the emergency action or governs

the only parts of that action that allegedly justify the imposition of

liability, the jurisdictional inquiry turns on whether the officer’s action

complied with the relevant law or ordinance. See Martin, 971 S.W.2d at

428 (“Because [a statute] controls Clark’s action as an emergency vehicle

operator in an emergency situation, we look to see if Clark complied with

that [statute].”). The second inquiry is triggered only if no law or

ordinance governs the emergency action at issue or any part of it. The

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jurisdictional inquiry would then become whether there is a fact issue

as to that officer’s recklessness in undertaking the action that led to the

injury; any conduct that complied with an applicable law or ordinance

would not be subject to that analysis.

It was not always this way. The first version of the Tort Claims

Act, enacted in 1969, contained an emergency exception that was nearly

identical in wording to today’s version except that it lacked the

recklessness prong. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292,

§ 14(8), 1969 Tex. Gen. Laws 874, 878 (codified at Tex. Civ. Prac. & Rem.

Code § 101.055(2) by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1,

1985 Tex. Gen. Laws 3242, 3304). Thus, under the old version, the waiver

of immunity did not apply if the officer acted “in compliance with the laws

and ordinances applicable to emergency action.” Id. In Black v. Nueces

County Rural Fire Prevention District No. 2, we read that language to

require a specific “law[] or ordinance[] pertaining to this emergency

situation.” 695 S.W.2d 562, 563 (Tex. 1985) (emphasis added).

In Black, a volunteer firefighter sued the department after he was

struck by an engine reversing from the scene of a fire. Id. Because

neither the plaintiff nor the government defendant pointed to any law or

ordinance applicable to that particular action, we held that the exception

did not apply, and immunity was therefore waived. Id. Importantly,

Black treated the “laws and ordinances” prong of that version of the

emergency exception as a potential shield for the government. That is,

if the officer’s allegedly tortious action was undertaken in compliance

with an applicable law or ordinance, then his employer would enjoy

governmental immunity. With this defensive view in mind, it made sense

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for the set of laws applicable to emergency action to be narrow. If the

general rules of the road were the laws and ordinances applicable to

emergency action, then the government could always show compliance

with some law, and the emergency exception would swallow the Act’s

immunity waiver. Instead, the Court understood the statute to address

only laws or ordinances that target emergency action.

But as Black construed it, the emergency exception generated less

protection for emergency responders than the legislature may have

anticipated. In the legislative session following our decision in Black, the

legislature added the recklessness prong to the emergency exception.

When no specific law or ordinance applied, therefore, the emergency

exception could still cover the government defendant if its actions were

not “taken with conscious indifference or reckless disregard for the safety

of others.” Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.05, 1987 Tex.

Gen. Laws 37, 49 (amending Tex. Civ. Prac. & Rem. Code § 101.055(2)).

Notably, the legislature left the first part of the emergency exception

intact. Accordingly, Black’s holding that laws and ordinances must

specifically address emergency action to qualify as “applicable to

emergency action” remains good law. The legislature supplemented that

provision by adding the recklessness prong, which provides additional

protection for government defendants.

Thus, where a case arises from “emergency calls or [a] react[ion] to

emergency situations,” official “compliance with [] laws and ordinances”

will be relevant only if the law or ordinance expressly “pertain[s] to th[e]

emergency situation.” Black, 695 S.W.2d at 563. Both parties may find

it useful to identify such a provision. If the plaintiff can point to a law or

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ordinance that directly and specifically governs emergency responses and

can show that the government defendant did not comply, then immunity

is waived. On the other hand, if the government defendant can point to

an applicable law or ordinance, and can establish compliance, then at

least that aspect of the claim is off the table. Imagine, for example, a

hypothetical statute providing a safe harbor such that it is always

acceptable to exceed the posted speed limit by twenty miles per hour

during an authorized police pursuit. Under such a regime, speed would

often be unavailable to a plaintiff seeking to negate the emergency

exception, and if elevated speed was the only basis for the claim, then the

plea would be granted without proceeding to the recklessness prong.

Where neither party can point to such a law, however, the first

prong of § 101.055(2) is irrelevant to dislodging governmental immunity.

After all, an officer cannot comply with (or violate) a law that does not

exist. See id. The legislature’s apparent response to Black was to shift

the consequence of the absence of a law or ordinance. Under Black, such

an absence confirmed the waiver of immunity and the case would proceed

in the trial court. But after the 1987 amendment, which created the

emergency exception essentially in its current form, the case must then

proceed through an additional recklessness analysis.

All of this is reflected in the approach we took in Maspero. True,

in that case we framed the question as whether the plaintiff could prove

the “pursuit violated the laws and ordinances applicable to emergency

response,” rather than whether the government could prove compliance.

Maspero, 640 S.W.3d at 529 (emphasis added). But that is really just

another way of expressing the same idea: under the first prong of

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§ 101.055(2), official compliance with a relevant statute may foreclose

liability, while a violation (obviously) will not. Compliance and violation

are two sides of the same coin. Either way, the kind of statute at issue

is what matters. Maspero and Black both rejected the plaintiff’s broad

reading of “laws and ordinances applicable to emergency action.” Id. at

529–31; Black, 695 S.W.2d at 563.

We reaffirm this sound reasoning today. Where a plaintiff seeks

to raise a fact issue as to official compliance with “laws and ordinances

applicable to emergency action,” but points to no law or ordinance that

specifically applies to that action, the first prong of § 101.055(2) has no

role to play. By the same token, generally applicable rules of the road

that do not specifically address or reference emergencies are not

applicable to emergency action for purposes of the emergency exception.

After all, if every rule of the road applied to emergency action unless a

statute expressly says otherwise, officers would routinely violate

§ 101.055(2). For instance, it is likely that an officer in a high-speed chase

will fail to “signal continuously for not less than the last 100 feet” before

turning. Tex. Transp. Code § 545.104(b). And the Court in Black could

not have concluded that “there were no laws or ordinances pertaining to

[the] emergency situation” if nearly every traffic law pertained to the

emergency. Black, 695 S.W.2d at 563. Nor, by common sense, should the

emergency exception’s shield apply automatically whenever a government

employee happens to comply with one of the thousands of traffic

regulations that govern our state’s highways but have nothing particular

to do with the special context of emergency responses. Neither extreme

result is defensible under, much less required by, the text of § 101.055(2).

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It is of course true that, under Transportation Code § 542.002, the

general rules of the road are “applicable to . . . a vehicle owned or

operated by . . . this state[] or a political subdivision of this state.” State

employees are not, as a class, above the traffic laws, and government-

owned vehicles of every variety must coexist with the public on the roads.

To say that the rules of the road apply to the class of public servants and

vehicles owned by the government, however, is not to say that such rules

are automatically “applicable to [the] emergency action[s]” that Texans

rely on public servants to perform. Tex. Civ. Prac. & Rem. Code

§ 101.055(2). Nor does § 542.002’s caveat—that it applies “except as

specifically provided otherwise . . . for an authorized emergency

vehicle”—change the analysis. It confirms it by acknowledging that there

are provisions of the law that do specifically address emergency contexts.

Notably, “authorized emergency vehicle” is broadly defined in § 541.201

to include even vehicles owned by private entities, such as a blood bank

or a private ambulance company. Tex. Transp. Code § 541.201(B), (I).

In short, while statutes that specifically govern emergency action

are relevant where a plaintiff attacks governmental immunity in the

emergency context, generally applicable traffic rules are not.

B

Accordingly, we must first resolve whether Officer Bullock’s

actions were governed by any applicable law or ordinance. If so, the

jurisdictional question is only whether there is a fact issue as to his

compliance with those laws.

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1

Powell first argues that Officer Bullock did not comply with laws

governing emergency responses because he violated § 545.062(a) of the

Transportation Code. That statute requires an operator of a motor

vehicle following another motor vehicle to “maintain an assured clear

distance between the two vehicles so that . . . the operator can safely

stop without colliding with the preceding vehicle or veering into another

vehicle, object, or person on or near the highway.” Id. § 545.062(a).

Officer Bullock admitted that he was following so closely behind Officer

Bender’s car that he “was unable to slow in time” to avoid colliding with

it. We agree that such behavior would likely constitute a violation of

§ 545.062(a)—in other words, non-officers could not drive so closely

without violating the statute, and if the statute applies to police in

emergency situations, then there would at the least be a fact question.

The key legal question, then, is whether § 545.062(a) is a law or

ordinance applicable to emergency action for purposes of § 101.055(2). We

conclude that it is not. Section 545.062(a) does not purport to regulate

emergency personnel; it is a statute of general applicability. Following

Black and the legislature’s reenactment of § 101.055(2)’s first prong, we

expect something more to indicate that a law “pertain[s] to this

emergency situation.” Black, 695 S.W.2d at 563. Chapter 546, by

contrast, fits the bill: it is a specific body of rules and regulations that

govern the operation of emergency vehicles. It lists a few specific actions

that, outside the emergency context, would violate the laws governing

drivers, but that are permissible for officers responding to emergencies.

See Tex. Transp. Code § 546.001. For example, an officer may “proceed

15

past a red or stop signal or stop sign, after slowing as necessary for safe

operation.” Id. § 546.001(2). Chapter 546 then sets a baseline standard

for all emergency responses: emergency responders retain “the duty to

operate the vehicle with appropriate regard for the safety of all persons”

and must bear “the consequences of reckless disregard for the safety of

others.” Id. § 546.005.

Laws that specifically regulate emergency responses further

indicate that generally applicable traffic laws are inapplicable to

emergency responses. Our precedent, the statutory text, and

longstanding principles of statutory interpretation make this plain. The

Transportation Code provides that the generally applicable rules-of-the-

road provisions (such as Chapter 545) apply “to the operator of a vehicle

owned or operated by . . . a political subdivision of this state, except as

specifically provided otherwise by this subtitle for an authorized

emergency vehicle.” Id. § 542.002. Put another way, “where in one

section a general rule is prescribed, which without qualification would

embrace an entire class of subjects, and in another section a different rule

is prescribed for individual subjects of the same class, the latter must be

construed as exceptions to the general rule, and be governed by the

section which is applicable to them alone.” Lufkin v. City of Galveston,

63 Tex. 437, 439 (1885); see also Perez v. Perez, 59 Tex. 322, 324 (1883)

(noting that “when the law makes a general provision, apparently for all

cases, and a special provision for a particular class, the general must

yield to the special clause, so far as the particular class is concerned”).

General rules for safe driving do not constitute specific rules to govern

emergencies.

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Chapter 545, moreover, confirms this reading because it contains

two provisions that expressly apply to emergency-response situations. See

Tex. Transp. Code §§ 545.365(a)(1) (authorizing emergency vehicles to

exceed the speed limit when responding to emergency calls), 545.204(b)

(noting that emergency-vehicle operators are not exempt “from the duty

to drive with due regard for the safety of all persons”). These are

exceptions that prove the rule: unless otherwise specified, Chapter 545’s

provisions do not regulate emergency responses. See Dolan v. Walker, 49

S.W.2d 695, 697 (Tex. 1932) (explaining that “when there are words in a

statute expressive of a particular intent, and other words indicating a

general intent inconsistent therewith, the particular intent must be taken

as an exception to the general rule”).

We thus conclude that § 545.062(a) is a law of general

applicability that is not specifically “applicable to emergency action”

under § 101.055(2) of the Tort Claims Act.

2

Powell next argues that Officer Bullock violated Chapter 546 of the

Transportation Code because his actions did not fall within § 546.001’s

four expressly authorized responses to emergency situations. As noted

above, at least some of § 546.001’s provisions are specifically applicable to

emergency situations: § 546.002(b)(1) specifies that subsections (2), (3),

and (4) of § 546.001 apply when “responding to an emergency call.” Tex.

Transp. Code § 546.002(b)(1). Each of § 546.001’s relevant provisions,

however, is phrased in the affirmative. They do not forbid any official

action but instead permit the enumerated actions under certain

conditions. Powell’s argument thus relies on the expressio unius canon of

17

statutory interpretation: “expressing one item of a commonly associated

group or series excludes another left unmentioned.” United States v.

Vonn, 535 U.S. 55, 65 (2002). Because the legislature expressly identified

four departures from the ordinary rules, the argument goes, it must have

intended to make all the rest of the ordinary rules binding even in

emergency contexts.

We reject this argument. The expressio unius canon does not apply

unless the statutory context makes it “fair to suppose that the legislature

considered the unnamed possibility and meant to say no to it.” Forest

Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 429 (Tex. 2017)

(brackets omitted) (quoting Marx v. Gen. Revenue Corp., 568 U.S. 371,

381 (2013)). Nothing suggests that this condition is satisfied here.

For one thing, as we noted above, Chapter 545 refers several times

to emergency conduct, which would be pointless if the standards for

emergency driving and for ordinary driving were the same except for the

four situations enumerated in § 546.001. Indeed, the express references

to emergency contexts in some Chapter 545 provisions could present a

competing expressio unius argument—one that is consistent with our

decision in Black, which indicated that the laws and ordinances

“applicable to emergency action” are those that specifically say so. 695

S.W.2d at 563.

This larger context is consistent with the very nature of emergency

action, which calls for split-second, fact-specific decisions in unpredictable

situations. The legislature’s attention to emergency contexts without

greater specificity reflects a recognition that it cannot—and, perhaps

more to the point, that the police cannot—predict and plan in advance for

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every possible emergency. Likewise fruitless would be any attempt to

delineate every way an officer might permissibly react in an emergency

situation. The statute as a whole therefore confirms § 546.001’s role as

identifying some particularly important and common examples of

permissible emergency-response actions, which does not convey that

those examples constitute an exclusive list. To the contrary, it is

reasonable to read the enumerated authorizations in § 546.001 as

constituting safe harbors. They remove any doubt that undertaking those

actions is categorically permissible, which makes it especially hard to pin

liability on an officer who undertakes them. What is more, where an

officer does undertake one of the enumerated actions, the legislature has

provided standards with which a court can judge the officer’s “compliance”

with § 546.001. For example, an officer who accepts the authority to

“proceed past a red or stop signal” also accepts the responsibility to “slow[]

as necessary for safe operation.” Tex. Transp. Code § 546.001(2).

We reject Powell’s construction for a third reason, as well: it would

require us, by invocation of a canon of construction that does not readily

fit here, to ascribe to the legislature the intent to hamstring officers in

the performance of especially dangerous duties. If Powell’s construction

were correct, officers would be severely limited in their ability to respond

to emergencies—they would have discretion to disregard only four rules

of the road. As we have acknowledged, the legislature has determined

“that the public good will be better served by encouraging public

employees to take immediate action in emergency situations.” City of

San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006).

The facts here illustrate the point. If § 546.001 plays the role that

19

Powell alleges, officers could never closely follow behind another vehicle

during a police chase. But officers often must do so. The Austin Police

Department policy manual, for example, authorizes officers to perform

Precision Immobilization Technique maneuvers. The whole point of a

PIT maneuver is for an officer to closely follow a fleeing vehicle—and then

to make contact with the rear quarter panel of that vehicle, causing it to

spin out. Other officers then surround the suspect’s vehicle, preventing

the car from driving away. The policy manual refers to this (and other

similar measures) as a “tactical vehicle containment procedure.” Other

officers must then physically restrain the suspect, preventing him from

fleeing on foot. For these reasons, it generally takes at least three police

officers to perform a successful PIT maneuver. This is likely one reason

why the APD manual requires at least three police units to be involved in

a car chase before attempting such a maneuver. The maneuver requires

closely following a suspect, who is far less likely than a fellow police officer

to act predictably.

Beyond pursuing a suspect at close range, officers must sometimes

closely follow each other. If the other officers are far behind the action,

risking increased separation and the insertion of the general public

within an action, they cannot successfully surround the suspect’s vehicle

once the lead officer begins the maneuver. Detaining the suspect would

take longer and become riskier. Such a result would expose not just the

officers but other members of our society to a fugitive who has

demonstrated a willingness to do whatever it takes to avoid capture. In

such emergency scenarios, time is of the essence and inches matter. But

under Powell’s theory, officers could never undertake maneuvers like

20

these—or anything else that is forbidden to ordinary motorists and not

exempted by § 546.001. If the statute commanded such a result, we would

have no choice but to follow it. But the text of the statute does not compel

or justify Powell’s reading, and for the reasons we have articulated, it is

easy to see why the statute instead bears the meaning that we have

ascribed to it.

3

We next address the invocation of § 546.005’s refusal to “relieve”

an officer either of “the duty to operate the vehicle with appropriate

regard for the safety of all persons” or of “the consequences of reckless

disregard for the safety of others.” Tex. Transp. Code § 546.005. This

provision largely corresponds to the second prong in the Tort Claims Act’s

emergency exception. See Tex. Civ. Prac. & Rem. Code § 101.055(2)

(providing that the emergency exception does not apply if the officer acted

“with conscious indifference or reckless disregard for the safety of

others”). We thus explained in Maspero that the statutory “structure and

language” often collapse into an inquiry into whether the officer acted

recklessly. 640 S.W.3d at 529. Put another way, whether the emergency

exception’s applicability turns on § 546.005 of the Transportation Code (a

law applicable to emergency responses) rather than some other emergency-

specific law, or § 101.055(2) of the Tort Claims Act (which imposes a

recklessness standard in the absence of laws applicable to emergency

responses), the inquiry will often reduce to whether the officer acted

recklessly.

As we have explained, however, that does not mean that the

inquiry will always be one into the officer’s recklessness. Beyond

21

§ 545.062(a) and Chapter 546, the parties do not identify any other

statutes (or ordinances) that expressly regulate emergency action. We

thus confine our analysis in this opinion to the provisions the parties have

raised. Advocates, however, should present to the courts all statutes that

may be “laws and ordinances applicable to emergency action” for purposes

of § 101.055(2), looking in every instance for an express and specific

indication that the statute is so applicable.

4

Finally, Powell argues that Officer Bullock did not comply with

laws and ordinances applicable to emergency action because he violated

Austin Police Department policy by (1) not using his best judgment in

starting the chase, (2) not terminating the chase when the suspect

vehicle’s whereabouts were unknown, and (3) following Officer Bender’s

car too closely.

Solely for argument’s sake, we will assume that these assertions

reflect violations of departmental policy. But even indulging that

assumption, § 101.055(2) expressly conditions its reach on compliance

with “laws and ordinances”—not internal police-department policies. See

Maspero, 640 S.W.3d at 530. We certainly do not contend that violations

of departmental policy are of no consequence—but the consequences,

whether from internal discipline or otherwise, are immaterial to the legal

question before us.

* * *

In short, § 545.062(a) is not a law or ordinance applicable to

emergency action for purposes of the Tort Claims Act. Officer Bullock did

not violate Chapter 546 simply by doing something that was not expressly

22

enumerated in § 546.001. And even assuming a violation of the police

department’s policy manual, such a violation would not inherently violate

any laws or ordinances under § 101.055(2).

C

Because no other law or ordinance governed his emergency actions,

the jurisdictional question instead becomes whether there is a fact issue

as to Officer Bullock’s recklessness. The Transportation Code defines

“reckless driving” as driving “a vehicle in wilful or wanton disregard for

the safety of persons or property.” Tex. Transp. Code § 545.401(a).

Chapter 546 adopts a comparable tone. It requires officers “to operate the

vehicle with appropriate regard for the safety of all persons,” id.

§ 546.005(1), and refuses to excuse officers for “the consequences of

reckless disregard for the safety of others,” id. § 546.005(2). The Tort

Claims Act imposes a similar duty. The emergency exception does not

apply if the officer acts “with conscious indifference or reckless disregard

for the safety of others.” Tex. Civ. Prac. & Rem. Code § 101.055(2).

As we have noted, no party has contended that there is any

distinction between this standard and simple “recklessness,” and we have

previously assumed as much. See supra Part III.A. We accordingly

assume as much again, reserving for a future case, if one ever comes, the

possibility that the statutory standard is more nuanced. For present

purposes, it is enough to apply our precedents concerning recklessness.

To do so in Maspero, we asked whether the officer “knew or should

have known” that her act posed an unacceptable risk of injury, separating

out subjective actual knowledge from imputed knowledge. 640 S.W.3d

at 531. We also highlighted the officer’s use of her lights and siren and

23

communication with a commanding officer as evidence that she “engaged

in some degree of risk assessment” and “intend[ed] to minimize potential

harm.” Id. at 532. Likewise, in City of San Antonio v. Hartman, we said

that conscious indifference or reckless disregard “require[s] proof that a

party knew the relevant facts but did not care about the result.” 201

S.W.3d at 672 n.19 (emphasis added). Our case law thus seems to read

§ 101.055(2) as bifurcated between the officer-specific subjective

awareness (what the officer knew) and the hypothetical objective (what

the officer should have known). It seems unlikely that this distinction

would often or perhaps ever make a difference; only a rare defendant

would testify that he was consciously indifferent to a risk of harm. In

nearly every case, the officer’s state of mind will be inferred from the

circumstances of his actions. The question seems to reduce to asking

whether, under the circumstances, the officer’s action was reckless.

Answering that question may mean asking whether a given officer

“engaged in some degree of risk assessment,” as well as whether his

actions simply “generated [an] ‘extreme risk’ beyond that which is

inherent in high-speed pursuits.” Maspero, 640 S.W.3d at 532 (quoting

Tarrant County v. Bonner, 574 S.W.3d 893, 902 (Tex. 2019)).

Today we also decide City of Houston v. Rodriguez, another

challenge to police action, on official-immunity grounds. ___ S.W.3d ___,

___ (Tex. Dec. 31, 2024) (No. 23-0094). This Court has seemingly never

noted any links between the Tort Claims Act’s recklessness prong and our

“good faith” inquiry in the official-immunity context. The affirmative

defense of official immunity “inures to all governmental employees who

perform discretionary functions in good faith and within their authority.”

24

City of San Antonio v. Riojas, 640 S.W.3d 534, 538 (Tex. 2022) (quoting

DeWitt v. Harris County, 904 S.W.2d 650, 652 (Tex. 1995)). To claim

official immunity, an officer’s actions “must be justified with reference to

what a reasonably prudent officer, possessed of the same information and

under the same or similar circumstances, could have believed.” City of

Houston v. Sauls, 690 S.W.3d 60, 75 (Tex. 2024). This language should

sound familiar: Maspero also treated official “risk assessment” based on

factual circumstances as a key indicator that an officer was not reckless

under the Tort Claims Act. 640 S.W.3d at 532. Because risk assessment

must be “based on the officer’s perception of the facts at the time of the

event,” both inquiries necessarily require careful consideration of those

facts by a reviewing court. Riojas, 640 S.W.3d at 539 (quoting Wadewitz

v. Montgomery, 951 S.W.2d 467 (Tex. 1997)). Put simply, the factual

context of the action will be relevant either way.

At the same time, official immunity and the Act’s emergency

exception remain importantly distinct. Official immunity is a “common

law defense,” the purpose of which “is to insulate the functioning of

government from the harassment of litigation.” Kassen v. Hatley, 887

S.W.2d 4, 8 (Tex. 1994). But the emergency exception is a creature of

statute, an exercise of the legislative prerogative “to determine how and

when to allow tax resources to be shifted away from their intended

purposes toward defending lawsuits and paying judgments.” Hughes v.

Tom Green County, 573 S.W.3d 212, 218 (Tex. 2019) (quotation marks

omitted). Additionally, the scope of official immunity, extending to all

“discretionary functions . . . within [an officer’s] authority,” Riojas, 640

S.W.3d at 538, exceeds that of the emergency exception, which is

25

expressly limited to “responding to an emergency call or reacting to an

emergency situation,” Tex. Civ. Prac. & Rem. Code § 101.055(2).

The official-immunity doctrine and the emergency exception

accordingly have significant substantive and procedural differences.

Both may apply in some cases; neither will apply in others; and in yet

others one but not the other will apply. We have no occasion here to

decide how these differences in purpose and scope may affect how each of

the related inquiries is conducted. Rather, we merely note that deciding

whether an officer’s action implicates official immunity or the emergency

exception will involve reasoned consideration of the action’s context.

Considering the context of Officer Bullock’s actions, it was Powell’s

burden to raise a fact issue as to Officer Bullock’s recklessness as

understood in our precedents. The facts advanced, moreover, must show

“more than a ‘momentary judgment lapse’ and instead ‘[] that the driver

committed an act he knew or should have known posed a high degree of

risk of serious injury.’ ” Maspero, 640 S.W.3d at 531 (quoting Perez v. Webb

County, 511 S.W.3d 233, 236 (Tex. App.—San Antonio 2015, pet. denied)).

The court of appeals listed several considerations that, in its view,

created a fact issue as to Officer Bullock’s recklessness: Officer Bullock’s

failure to control his speed, his inattentiveness, his failure to maintain a

safe following distance, and the seriousness of the accident. 684 S.W.3d

at 464–66. It also ignored context suggesting that Officer Bullock was not

reckless. We address each point in turn and then consider them jointly.

Failure to control speed. Officer Bullock’s failure to control his

speed does not create a fact issue as to recklessness. Officers are expressly

authorized to exceed the speed limit when responding to emergency

26

situations as long as they do not endanger life or property. Tex. Transp.

Code § 546.001(3). In part, this is because “[e]xceeding the speed limit is

part and parcel of a police chase.” Maspero, 640 S.W.3d at 532.

Notably, Powell agrees in his brief that “speed is not the issue in

this case.” And in the very next sentence, he argues that the main issue

is Officer Bullock’s failure to maintain a safe distance from Officer

Bender’s car. In other words, Powell does not meaningfully argue that

Officer Bullock’s failure to control speed was reckless. Instead, he focuses

on Officer Bullock’s failure to comply with § 545.062(a).

In any event, Officer Bullock’s failure to control his speed does not

create a fact issue as to recklessness. The accident report notes that

Officer Bullock’s failure to control his speed was a contributing factor to

the accident. True, going more slowly may have prevented the accident,

but vague descriptions of a high rate of speed “lack specificity” and by

themselves do not “support a finding of reckless disregard.” City of

Houston v. Green, 672 S.W.3d 27, 31 (Tex. 2023). Moreover, even if some

exceedingly high rate of speed could amount to recklessness, evidence of

the actual speeds involved would be necessary to make such a showing.

Yet the record is devoid of any such evidence: neither officer’s speed before

the accident is known. Having failed to put on any evidence of the

cruisers’ speeds, such as expert reconstruction, GPS data, dashcam

footage, bodycam footage, or surveillance footage, Powell cannot rely on

the crash report’s vague statement that speed contributed to the collision

to raise a fact question as to that speed’s recklessness. Id.

We do not hold that excessive speed is categorically a matter of

only negligence that never could be relevant to recklessness. Adverse

27

weather conditions, roadworks, or the presence of pedestrians could make

some speeds reasonable or negligent in one chase but inordinately risky

and reckless in another. As Maspero observed, speeding is ordinarily

“part and parcel of a police chase,” 640 S.W.3d at 532, so deeming speed

in and of itself to raise a fact question about recklessness in such cases

would be exceptional. Absent any evidence as to Officer Bullock’s speed

in the context of this chase, we decline to hold that this is one of the

exceptional cases. At most, in the context of a pursuit, there could be a

question only of negligence—a momentary lapse in judgment within a

chase that inherently would involve high speed. Momentary lapses in

judgment are not grounds for finding recklessness. Id. at 531; see also

4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 911 (Tex. 2016)

(stating that to establish recklessness, it was “not enough to show that

4Front knew or should have known that Reyes would have a momentary

lapse in judgment or otherwise act negligently”). There is simply no

evidence in the record that under any test for recklessness the alleged

“failure to control speed” would qualify. Nothing, for example, raises a

fact question that Officer Bullock consciously disregarded others’ safety

by driving quickly (or even that he was violating the speed limit at all).

Failure to maintain a safe following distance. Powell asserts

that Officer Bullock violated § 545.062(a) of the Transportation Code by

failing to maintain a safe following distance from Officer Bender’s

vehicle. He also asserts that Officer Bullock failed to comply with police-

department policy, which requires officers to space themselves from

other vehicles so that they can safely react to other vehicles’ movements.

Officer Bullock’s alleged failure to comply with either requirement,

28

Powell argues, creates a fact issue as to his recklessness.

The City argues that this point is simply a restatement of the

“failure to control speed” category. We disagree. The two are conceptually

distinct; two cars traveling even at low rates of speed can still be too close,

such that the second car cannot stop in time to avoid rear-ending the first.

Rush-hour traffic jams on urban interstate highways supply ample

evidence. More importantly, the Transportation Code itself distinguishes

between the two concepts by imposing separate requirements for each.

Compare Tex. Transp. Code § 545.351 (forbidding operators from

driving at a speed “greater than is reasonable and prudent under the

circumstances then existing”), with id. § 545.062 (requiring operators to

maintain a safe following distance between other vehicles “considering

the speed of the vehicles, traffic, and the conditions of the highway”).

But this point does not affect the outcome here. Either way, Officer

Bullock’s alleged failure to maintain a safe following distance does not

create a fact issue as to his recklessness. Perhaps most important is the

absence of evidence that would be essential to Powell’s theory—in

particular, some evidence of the actual distance between the two cruisers

preceding the crash, which is not in the record. Rather than showing

Bullock’s supposedly reckless proximity to Bender, Powell relies on the

very fact that Bullock hit Bender to reverse-engineer the conclusion that

he must have been following too closely—and doing so recklessly.

This approach gets the matter backwards by supposing the cause

based on the result, which is insufficient even to establish negligence:

“[N]egligence is never presumed, and [] the mere happening of an accident

is no evidence at all of negligence.” Wells v. Tex. Pac. Coal & Oil Co., 164

29

S.W.2d 660, 662 (Tex. 1942). Far less, then, can the “happening of an

accident” supply any evidence of recklessness. And even assuming that

the conduct was negligent, “[e]vidence of negligence does not establish

recklessness.” 4Front Engineered Sols., 505 S.W.3d at 911. Said

differently, we cannot accept as legally sufficient a rationale that starts

with an accident, reasons that the accident’s occurrence creates evidence

of negligence, and then leaps to the conclusion that evidence of negligence

must also entail evidence of recklessness.

Most significant is the leap from negligence to recklessness.

Logically, failing to maintain a safe distance generally sounds in

negligence. Absent some evidence of the actual proximity, proving that

Officer Bullock was following too closely would at most show negligence—

but standing alone, that is not enough to trigger a fact question about

recklessness. See id.

Spacing between vehicles obviously helps prevent collisions.

Bullock’s testimony that he tried but failed to slow in time to avoid hitting

Bender allows an inference that, in the heat of the chase, he may not have

complied with the general departmental policy that Powell invokes. But

none of that provides any evidence that the officer was reckless—wholly

indifferent to the risks to others (and to himself ). Violating the policy in

a chase would require some showing that the distance between the two

vehicles was far less than even the policy minimum, but no party testified

as to the exact (or even approximate) distance between the two vehicles.

As Powell’s counsel conceded at oral argument, the policy violation alone

obviously cannot raise a fact question as to recklessness.

Holding otherwise would belie our law’s mandate that officers

30

“retain discretion” to balance needs and risks when responding to

emergency situations. Maspero, 640 S.W.3d at 532. As part of this

discretion, officers are expressly permitted to violate provisions of the

Transportation Code when responding to emergency situations. See, e.g.,

Tex. Transp. Code § 546.001. Having authorized deviation from traffic

laws, the law’s command would border on absurdity by then treating any

deviation from mere department policy as evidence of recklessness.

Moreover, as we noted above, perfect compliance with the Transportation

Code and departmental policy may be impossible: the Austin Police

Department’s General Orders themselves, after all, instruct officers on

procedures (like the PIT maneuver) that require officers to follow both the

suspect and one another extremely closely. On Powell’s quasi-strict-

liability approach to the safe-distance requirement, nearly every step of

any such tactic would automatically constitute evidence of reckless

disregard. Instead, the law provides that as long as officers do not act

recklessly in maintaining close proximity during a chase, they are within

the bounds of their discretion and satisfy the duty of care expected of them.

Powell has not directed us to any evidence that Officer Bender “did

not care about the result” that could be caused by his following too closely.

Hartman, 201 S.W.3d at 672 n.19. Nor could he, without making a

prerequisite showing of what the following distance was. We thus

conclude that Officer Bullock’s alleged failure to maintain a safe distance

does not create a fact issue as to his recklessness.

Inattentiveness and the severity of the accident. The accident

report listed Officer Bullock’s inattentiveness as a contributing factor to

the crash. Even if Officer Bullock was inattentive, however, that evidence

31

by itself would amount only to ordinary negligence. Failure to pay

attention is a paradigmatic example of negligence and does not by itself

constitute reckless conduct. As we recently held, “[a]n act or omission that

is merely thoughtless, careless, or not inordinately risky” is nothing more

than ordinary negligence. Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex.

2019) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).

Recklessness requires more: in this case, “conscious indifference or

reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem. Code

§ 101.055(2). As with Officer Bullock’s speeding and proximity to Officer

Bender, Powell again does not offer evidence of Bullock’s inattention

sufficient to create a fact issue as to recklessness. Neither the crash

report, nor Officer Bullock’s testimony, nor any other evidence indicates

how long Bullock was supposedly inattentive or whether the

inattentiveness is merely the conclusory summary of the fact that the

accident happened. The crash report’s bare statement that inattention

contributed to the collision “lacks specificity” and does not establish the

type of inattention “that, by itself, could support a finding of reckless

disregard.” Green, 672 S.W.3d at 31.

The court of appeals also noted the seriousness of the accident and

subsequent injuries when discussing the evidence that Officer Bullock

recklessly caused it. 684 S.W.3d at 466. As we have explained, it is error

to reason from result to cause in finding negligence. Wells, 164 S.W.2d at

662. Perhaps unsurprisingly, we appear never to have clarified that the

same rule applies for the higher showing of recklessness, but that result

is logically inescapable. We agree with the observation made by the Fifth

Court of Appeals that “[m]ere involvement in a collision does not create

32

an inference or conclusion that a driver is incompetent or reckless.”

Monroe v. Grider, 884 S.W.2d 811, 818 (Tex. App.—Dallas 1994, writ

denied). Therefore, neither Officer Bullock’s alleged inattentiveness nor

the fact that a serious accident resulted create a fact issue as to Officer

Bullock’s recklessness.

The combination of these allegations. Powell argues that,

even if the above acts would be merely negligent in isolation, their

combination in one collision raises a fact issue as to recklessness. We

take Powell to assert that a set of simultaneous negligent acts may in

some circumstances be stacked so as to create a question of

recklessness—that is, that being negligent on multiple fronts actually

constitutes recklessness. For purposes of our decision, we will assume

without deciding that such a scenario is possible. Even so, the burden of

establishing the necessary predicates of negligence was on Powell, the

party challenging governmental immunity. See McKenzie, 578 S.W.3d at

512. Absent any showing of Bullock’s speed or his proximity to Bender,

and given that speeding and proximity to others are “part and parcel” of

high-speed chases, it is doubtful that Powell even raised a fact issue as

to negligence on those points. See Maspero, 640 S.W.3d at 532. The only

allegation that sounds in traditional negligence—Bullock’s inattention—

finds similarly slim support in the record, and in any event stands alone.

On this thin evidence, even if we were inclined to craft a novel “negligence

plus negligence” rule of recklessness, it would not suffice to show

recklessness here.

As we did in Maspero, we also consider evidence suggesting that

Officer Bullock was not reckless. See id. (discussing evidence showing

33

that the officer “engaged in some degree of risk assessment” and thus

was not reckless); see also Alamo Heights Indep. Sch. Dist. v. Clark, 544

S.W.3d 755, 771 (Tex. 2018) (explaining that although we take as true

all evidence favorable to the plaintiff, “we cannot disregard evidence

necessary to show context”). Officer Bullock was expressly assigned to

the chase, authorized to pursue it, and stayed in contact with his

supervisors throughout it. He also drove with his lights and siren

activated during the chase. These actions affirmatively demonstrate

Officer Bullock’s “intent to minimize potential harm,” not his intent to

ignore or exacerbate the possible risks posed by a car chase. Maspero,

640 S.W.3d at 532. The court of appeals erred in not considering evidence

that contextualizes the circumstances and suggests that Officer Bullock

was not reckless. See id. (holding that the officer was not reckless

during the chase because, among other things, she stayed in constant

communication with her sergeant).

To be clear, as we noted at the outset, the City was not required to

affirmatively marshal evidence of Officer Bullock’s non-recklessness. It

was, and remains, Powell’s burden to raise a fact issue. So long as the

City did not “challenge the existence of [the] very [] facts” Powell relied

on to do so (by alleging that a different entity’s employee struck Powell,

for instance), it was under no burden to provide evidence, including

evidence of Officer Bullock’s good behavior. Garcia, 372 S.W.3d at 635.

Evidence of risk assessment is still relevant to the recklessness inquiry,

however, as it undermines Powell’s contention that Officer Bullock “did

not care about the result” of his action. Hartman, 201 S.W.3d at 672 n.19.

Officer Bullock’s receipt of permission to begin pursuit, his frequent

34

contact with his superiors, as well as his use of lights and siren are all

useful evidence supporting the conclusion that he did not act recklessly.

The City then argues that the court of appeals erred in ignoring

evidence that Powell did not move out of the way as the officers

approached the intersection. We disagree with the City and conclude

that the court of appeals correctly disregarded this contention. The

Transportation Code provides that when the operator of a vehicle sees

an emergency vehicle approaching, the operator must “stop and remain

standing until the authorized emergency vehicle has passed.” Tex.

Transp. Code § 545.156(3).

Powell complied with this law and, based on this record, is without

fault. He “stopped at the stop sign” behind the intersection and did not

move as the officers approached Brandt Road. To avoid a collision,

particularly in light of fast-moving vehicles, it is often better to stay still

rather than to try to move out of the way, which risks getting in the way.

Two people walking down a hallway might try to move out of each other’s

way, only to collide because each has mirrored the other (like-minded)

person. From an officer’s point of view, it is oftentimes easier to avoid a

stationary object than a moving target. Counting Powell’s inaction

against him, however, would incentivize more moving targets and cause

more crashes. The court of appeals thus correctly decided not to consider

how Powell’s actions (or inaction) may have contributed to the crash.

Powell’s lack of culpability illustrates the consequences of the law

of immunity. The legislature has determined that under circumstances

like those before us—where an officer was at most negligent but not

reckless—the governmental unit must be immune because the law would

35

otherwise unduly deter conduct that is necessary to protect the public

as a whole. On the other hand, innocent individuals like Powell are left

bearing the costs of actions that benefit us all. Any of us might find

ourself in Powell’s shoes; the very nature of emergency responses is that

they are unpredictable. Perhaps the current rules best serve the interests

of the State as a whole. Or perhaps some other system allowing

recovery—even if only to a highly circumscribed degree—for those

without fault who are injured as a result of emergency responses would

be better. Such an inquiry and any resulting decision are proper

undertakings for the legislature, not this Court.

IV

The City of Austin’s immunity to suit is not waived. Its plea to

the jurisdiction should have been granted. We reverse the judgment of

the court of appeals and render judgment dismissing the case for lack of

jurisdiction.

Evan A. Young

Justice

OPINION DELIVERED: December 31, 2024

36