The opinion
Supreme Court of Texas
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No. 23-0858
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City of Houston,
Petitioner,
v.
Maria Christina Gomez,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM
Justice Busby did not participate in the decision.
While responding to an armed robbery in a police cruiser, a City
of Houston police officer collided with another motorist, who sued the
City for the officer’s negligence. Whether the Texas Tort Claims Act’s
emergency exception preserves the City’s immunity from this suit turns
on whether the officer’s actions were “taken with conscious indifference
or reckless disregard for the safety of others.” TEX. CIV. PRAC. & REM.
CODE § 101.055(2). The court of appeals held there was a fact question
as to whether the officer acted recklessly. We disagree. Applying this
Court’s precedents, we conclude the evidence demonstrates, at most, a
momentary lapse of judgment amounting to ordinary negligence, and
there was thus no fact issue as to the officer’s recklessness. Accordingly,
we reverse the court of appeals’ judgment and render judgment
dismissing the motorist’s claim.
I
On the morning of Christmas Eve 2011, Officer Bobby Joe
Simmons of the Houston Police Department was on patrol in his marked
police vehicle when dispatch reported an armed robbery in progress.
Due to heavy rain, this incident was downgraded to a “Priority Two” call,
which leaves to the officer’s discretion whether to activate his emergency
lights, siren, or both. Simmons testified by affidavit that he turned on
his emergency lights, but there was some evidence to the contrary. It is
undisputed that he did not engage his siren. It is also undisputed that
there was “moderate” traffic and the streets were wet.
On his way to the scene, Simmons never exceeded the posted
speed limit of thirty-five miles per hour. He testified that as he
approached the intersection where he collided with another car, he
reached down to raise the volume on his police radio. When he looked
up again, the traffic light ahead of him had turned yellow. Simmons
immediately applied his brakes, but his car slid into the intersection due
to the wet road. Maria Christina Gomez was driving through the
intersection at the time, and the front left of her vehicle collided with
the front right of Simmons’s police car. Gomez testified by affidavit that
her light was green when she entered the intersection. Following an
internal investigation, Simmons received a departmental reprimand for
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being “at fault,” which he did not contest, but he was not cited for
violating any traffic law.
Gomez sued the City for negligence, seeking damages for her
alleged injuries. The City filed a plea to the jurisdiction, arguing that it
retained immunity based on the Texas Tort Claims Act’s “emergency
exception,” found in Section 101.055(2) of the Civil Practice and
Remedies Code.1 That exception provides that the Act does not apply,
and thus immunity is not waived, for claims arising out of a
governmental employee’s actions while responding to an emergency call
if those actions are without “conscious indifference or reckless disregard
for the safety of others.” Id. The trial court granted the City’s plea, and
Gomez appealed.
The court of appeals issued a panel opinion reversing the
judgment, then granted en banc reconsideration and reversed again.
Gomez v. City of Houston (Gomez I), 587 S.W.3d 891, 896, 903 (Tex.
App.—Houston [14th Dist.] 2019, pet. denied) (en banc). With respect
to the emergency exception, a majority of the divided en banc court
concluded that a material issue of fact existed as to whether Simmons
1 The City separately argued that Simmons was entitled to official
immunity, and therefore the City’s immunity was not waived, because
Simmons was performing a discretionary duty in good faith and within the
scope of his authority. See City of Houston v. Rodriguez, 704 S.W.3d 462, 468
(Tex. 2024) (“[T]he governmental employer’s immunity is not waived if its
employee is protected by official immunity.”); TEX. CIV. PRAC. & REM. CODE
§ 101.021(1)(B) (providing that immunity is waived for motor vehicle accidents
only if “the employee would be personally liable to the claimant according to
Texas law”). Given our disposition, we need not consider this alternative
argument.
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acted recklessly. Id. at 903; see id. at 904 (Jewell, J., dissenting)
(concluding there was no evidence of recklessness).
On remand, the City supplemented its plea to the jurisdiction
with a new affidavit supporting its argument that Simmons acted in
good faith and therefore was entitled to official immunity. This time,
the trial court denied the City’s plea, and the City filed an interlocutory
appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). In addition to
asserting that the new affidavit established Simmons’s good faith for
purposes of official immunity, the City again argued that there was no
fact issue on recklessness, pointing to this Court’s opinion in City of San
Antonio v. Maspero, 640 S.W.3d 523 (Tex. 2022), which was decided after
Gomez I. The court of appeals affirmed, concluding that Gomez I was
the law of the case with respect to the emergency exception and that
Maspero “was based on the facts in that case and does not affect this
court’s holding based on the facts in today’s case.” 693 S.W.3d 523, 532
(Tex. App.—Houston [14th Dist.] 2023). The City petitioned for review.
II
We review the denial of a plea to the jurisdiction de novo. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004). If there is no disputed fact issue as to the relevant evidence, the
court must rule on the plea as a matter of law. Id. As with motions for
summary judgment, we credit evidence and draw all reasonable
inferences in favor of the nonmovant. Id.
The City—as a political subdivision of the state—is “immune from
suit unless [its] immunity is waived by state law.” City of Austin v.
Powell, 704 S.W.3d 437, 448 (Tex. 2024) (alteration in original) (quoting
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Maspero, 640 S.W.3d at 528). Accordingly, the “foundational rule”
governing this case is that “[a] party suing the governmental unit bears
the burden of affirmatively showing waiver of immunity.” Id. at 447
(alteration in original) (quoting Maspero, 640 S.W.3d at 528). The
plaintiff—as nonmovant—can survive the defendant’s 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. (alteration in
original) (quoting Rattray v. City of Brownsville, 662 S.W.3d 860, 867
(Tex. 2023)).
The Texas Tort Claims Act waives the City’s immunity for certain
torts. As relevant here, the Act waives immunity when a governmental
employee proximately causes injury or death “aris[ing] from the
operation or use of a motor-driven vehicle or motor-driven equipment.”
TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). But this waiver is not
absolute. The Act withdraws the waiver of immunity when the “injury
arises from an officer’s response to an emergency call or reaction to an
emergency situation.” Powell, 704 S.W.3d at 449. Specifically, the Act
provides that its waiver of immunity
does not apply to a claim arising . . . from the action of an
employee while responding to an emergency call or
reacting to an emergency situation if the action is in
compliance with the laws and ordinances applicable to
emergency action, or in the absence of such a law or
ordinance, if the action is not taken with conscious
indifference or reckless disregard for the safety of
others . . . .
TEX. CIV. PRAC. & REM. CODE § 101.055. As we recently explained, this
emergency exception “withdraws the waiver of immunity unless (1) the
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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.’” Powell, 704 S.W.3d at 449 (quoting TEX. CIV. PRAC. & REM.
CODE § 101.055(2)).
The Transportation Code provides a statutory standard for
recklessness. A motorist commits the offense of “reckless driving” when
he “drives a vehicle in wilful or wanton disregard for the safety of
persons or property.” TEX. TRANSP. CODE § 545.401(a). In Maspero, we
affirmed that recklessness for purposes of the emergency exception
likewise involves a “willful or wanton disregard” for the safety of others.
640 S.W.3d at 531 (quoting TEX. TRANSP. CODE § 545.401(a)). We
observed that this recklessness standard requires “conscious
indifference” or “subjective awareness of an extreme risk.” Id. (quoting
Tarrant County v. Bonner, 574 S.W.3d 893, 902 (Tex. 2019)). We further
concluded that the officer in that case did not demonstrate recklessness
despite speeding during a car chase. Id. at 531-32.
The following term, we revisited Maspero’s recklessness standard
in City of Houston v. Green, 672 S.W.3d 27 (Tex. 2023). The facts of
Green resemble those in this case: an officer responding to a Priority
Two call proceeded through a red light and collided with another vehicle.
Id. at 28-29. The City moved for summary judgment based on the
emergency exception. Id. at 29. The lower courts denied summary
judgment, but this Court reversed, concluding there was no fact issue as
to whether the officer was driving with reckless disregard. Id. at 31.
Echoing Maspero, we held in Green that reckless disregard “involves
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more than a ‘momentary judgment lapse.’” Id. at 30 (quoting Maspero,
640 S.W.3d at 531). Despite fact disputes regarding whether the officer
was speeding or had activated his siren, no evidence supported a
conclusion that the officer acted recklessly. Id. at 31.
More recently, we held in Powell that evidence of mere
inattentiveness does not establish recklessness. 704 S.W.3d at 460. In
that case, an officer lost control of his vehicle during a high-speed chase
and collided with a vehicle stopped at an intersection. Id. at 445. We
concluded that even if the evidence established that the officer was
inattentive, such evidence “would amount only to ordinary negligence.”
Id. at 460. “Failure to pay attention,” we observed, “is a paradigmatic
example of negligence and does not by itself constitute reckless conduct.”
Id.
III
Our analysis under the emergency exception proceeds in two
steps. First, we resolve whether the conduct of Officer Simmons, who
was responding to an emergency call, complied with the laws and
ordinances applicable to emergency action. See id. at 452. Importantly,
no party disputes in this Court that Simmons was responding to an
emergency when the accident occurred. Nor does Gomez contend that
the emergency exception does not apply because Simmons violated an
applicable law. We therefore proceed to Powell’s second inquiry:
whether Simmons acted “with conscious indifference or reckless
disregard for the safety of others.” Id. at 449 (quoting TEX. CIV.
PRAC. & REM. CODE § 101.055(2)).
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Applying our precedents, we hold that Gomez failed to raise a fact
question regarding Simmons’s recklessness. Viewing all evidence in
Gomez’s favor, as we must, we conclude that Simmons’s actions amount
to no more than ordinary negligence. Though evidence that Simmons
reached down to adjust his radio suggests that he might have
momentarily acted without due care, as the dissenting justice in the
court of appeals correctly noted, “establishing a failure to exercise due
care does not establish a reckless disregard for the safety of others.” 693
S.W.3d at 538 (Wilson, J., dissenting) (citing Green, 672 S.W.3d at 31).
At worst, Simmons’s actions can be characterized as a momentary lapse
of judgment or inattentiveness, not willful or wanton disregard for the
safety of his fellow Houston motorists.
It is undisputed that Simmons was not driving above the speed
limit and that he applied his brakes before entering the intersection.
And because Simmons enjoyed discretion about whether to activate his
emergency lights, any dispute over whether he did so cannot
demonstrate recklessness. See Green, 672 S.W.3d at 31 (“[A]ssuming as
we must that [the officer] failed to activate his siren before entering the
intersection, department policy placed that decision within his
discretion.”). Examining the evidence as a whole, we conclude that
Simmons’s actions do not approach the level of conscious indifference
required to establish recklessness. The evidence could, at most, support
a finding that Simmons was negligent, but this is insufficient to waive
immunity. Powell, 704 S.W.3d at 460.
In concluding otherwise, the court of appeals committed two
distinct errors. First, it discarded Maspero by distinguishing it on its
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facts. 693 S.W.3d at 532. Cases involving police vehicular accidents are
highly fact-intensive, to be sure. See Powell, 704 S.W.3d at 454 (stating
that “the very nature of emergency action . . . calls for split-second,
fact-specific decisions in unpredictable situations”). But the factual
differences between this case and Maspero do not obviate the need to
apply its broader principles. We did just that in Green, which issued two
months before the court of appeals’ opinion in this case. And although
the court of appeals did not have the benefit of our decision in Powell,
that decision only underscores that Simmons’s conduct did not meet the
standard that the Legislature has determined is required to come within
the waiver of immunity for operating motor vehicles.
Second, and relatedly, the court of appeals erroneously
determined that it was bound by its decision in Gomez I based on law of
the case. 693 S.W.3d at 532-33. The law-of-the-case doctrine is
discretionary and does not apply when the original decision was clearly
erroneous. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716-17 (Tex.
2003). Our decisions in Maspero and Green, both of which issued after
Gomez I, should have guided the court’s analysis to conclude, contrary
to its earlier holding, that there was no material fact issue as to whether
Officer Simmons acted with reckless disregard. See 693 S.W.3d at
538-39 (Wilson, J., dissenting) (recognizing that Maspero and Green
“conflict[] with” Gomez I’s conclusion on recklessness).
IV
Because there was no disputed fact issue as to Simmons’s
recklessness, the City’s immunity was not waived and its plea to the
jurisdiction should have been granted. Accordingly, without hearing
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oral argument, TEX. R. APP. P. 59.1, we grant the City’s petition for
review, reverse the court of appeals’ judgment, and render judgment
dismissing Gomez’s claim against the City for lack of jurisdiction.
OPINION DELIVERED: June 20, 2025
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