Opinion

Harris County, Texas v. Jasmine Jader Gariet

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Aug 31, 2026
Status
Published
Nature of suit
Personal Injury
Cited by
0 cases

The opinion

Opinion issued August 31, 2026

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-24-00175-CV

———————————

HARRIS COUNTY, Appellant

V.

JASMINE JADE GARIET, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Case No. 2022-79704

DISSENTING OPINION

In this interlocutory appeal, Harris County challenges the trial court’s order

denying its plea to the jurisdiction and motion for summary judgment in Jasmine

Jade Gariet’s negligence suit against the County. Gariet alleged she was injured after

she was involved in an automobile accident with a Harris County Sheriff’s Deputy.

The County filed a combined plea to the jurisdiction and a motion for summary

judgment arguing it was entitled to immunity because the emergency exception to

the Texas Tort Claims Act applies, and the County retained its immunity based on

the deputy’s official immunity. The majority reverses the trial court’s ruling and

renders judgment dismissing Gariet’s suit for lack of jurisdiction holding that she

failed to raise a fact issue regarding the application of the emergency exception.

Because Gariet presented evidence raising an issue of material fact over

whether the deputy violated a law or ordinance applicable to emergency action or

acted with conscious indifference or reckless disregard for the safety of others, and

the County failed to establish it was entitled to official immunity as a matter of law,

I respectfully dissent.

Background

After dark on May 22, 2022, Gariet was traveling south in the far-right lane

of the West Sam Houston Parkway North three-lane service road toward the West

Road intersection. Responding to a priority one emergency call involving a

residential burglary in progress, Harris County Sheriff’s Office Deputy Jeffrey

Saunders began traveling westbound on West Road toward West Sam Houston

Parkway North with his lights and siren activated. When Deputy Saunders entered

the West Road intersection, he struck Gariet’s car. The force of the impact caused

Gariet’s car to rotate counterclockwise and strike a pole.

2

Gariet filed a negligence and gross negligence lawsuit against the County. In

her petition, which she later amended, Gariet alleged Deputy Saunders had caused

the collision by failing to keep a proper lookout, failing to maintain control of his

vehicle, failing to control his speed, failing to yield the right of way, failing to take

prudent evasive action and failing to safely apply his brakes, “causing his vehicle to

violently collide with [Gariet’s] vehicle.” She alleged that Deputy Saunders “actions

were not in compliance with the laws and ordinances applicable to emergency and

Saunders [had] acted with conscious indifference or reckless disregard for the safety

of others.”

The officer who appeared at the scene of the accident prepared a report. The

report indicates that Deputy Saunders—Unit 1—failed to clear the intersection

properly, resulting in the collision with Gariet—Unit 2. The report states:

Unit 1’s driver stated he was heading to a Priority 1 call for

service . . . with the vehicle’s lights and siren activated. . . . Unit

2 had the green light and began traveling south through the

intersection of West Road. Unit 1 had a red light but entered the

[West Road] intersection of the West Sam Houston Parkway

North southbound service road with the vehicle’s lights and siren

activated. Unit 1’s driver failed to clear the intersection properly,

and as he proceeded through the intersection on a red light,

causing Unit 2 to strike Unit 1 . . . Unit 2 rotated

counterclockwise and struck a pole. Unit 1 was equipped with a

dash camera that was activated and recorded the events of this

collision.

The officer did not issue any citations.

3

The Harris County Sheriff’s Office Fleet Crash Review Board (“HCSO”)

conducted an internal administrative review of the accident. Among other things, the

report from the HCSO states:

Deputy Saunders slowed as he entered the intersection but did not stop

completely when attempting to clear the intersection (confirmed by in-

car video and vehicle download). The driver of a vehicle traveling

southbound in the outside lane of the service road did not see the police

car in the intersection. Deputy Saunders’ actions of disregarding the red

light caused a major crash with the other vehicle.

The report concluded that Deputy Saunders violated Section 545.151 of the

Transportation Code, which requires a vehicle operator approaching an intersection

to obey any traffic-control device, and Section 546.005, which cautions that the

operator of an authorized emergency vehicle is not relieved from (1) the duty to

operate “the vehicle with appropriate regard for the safety of all persons”; or (2) “the

consequences of reckless disregard for the safety of others.” TEX. TRANSP. CODE

§ 546.005. The HCSO reprimanded Deputy Saunders based on its review and

conclusions. Deputy Saunders served a one-day suspension and attended a one-day

driver safety course.1

1

The HCSO investigative report also states that Deputy Saunders violated HCSO

Patrol Policy 203, “Vehicle Operations,” which requires a deputy responding to a

dispatched call for service “to operate his or her marked vehicle using emergency

lights and siren” and to “use caution when operating his or her vehicle in a priority

one status.” However, “[t]he violation of an internal policy does not affect the

application” of the emergency exception. Anderson v. City of Dallas, No. 05-24-

01395-CV, 2026 WL 1346925, at *3 (Tex. App.—Dallas May 13, 2026, no pet. h.)

4

The County filed a combined plea to the jurisdiction and motion for summary

judgment (“Motion”) arguing it was entitled to governmental immunity. The County

argued that the emergency exception to the Texas Tort Claims Act’s (“TTCA”)

limited waiver of immunity applied and further that it had retained its immunity

based on Deputy Saunders’ official immunity because Deputy Saunders was

engaged in a discretionary act when the collision occurred and he acted in good faith,

doing what a reasonably prudent patrol deputy under the same or similar

circumstances would have done.2 The County attached the crash report and the dash

cam video to its Motion.

In her response, Gariet argued that Deputy Saunders had operated his patrol

car negligently and violated Section 546.005 of the Transportation Code by acting

with “conscious indifference and/or reckless disregard” for the safety of the public

when he proceeded through the red light without first clearing the intersection for

oncoming traffic. She argued that in his deposition, Deputy Saunders had admitted

that no reasonable officer would have acted in the same manner as him. She attached

to her response Deputy Saunders’ deposition, which included the following

testimony:

(mem. op.) (citing City of San Antonio v. Maspero, 640 S.W.3d 523, 530 (Tex.

2022)).

2

The summary judgment motion was based entirely on “sovereign and official

immunity” and did not address the merits of Gariet’s claims.

5

Q: Will you take my word for it that you don’t get even close to

stopping [at the intersection]?

A: Yes, sir.

Q: Okay. Will you take my word for it that [] you didn’t even slow

down much when you came to that intersection?

A: I—I don’t recall the speed at which the collision happened, sir.

...

Q. Okay. You could have done more to enter this intersection safely,

correct?

A: Yes, sir.

Q: Okay. You didn’t follow Harris County policy’s procedures as

you engaged in this intersection and tried to go through it, did

you?

A: No, sir.

Q: Meaning, you have to make sure that it’s clear before you go, you

can’t just go without regard for the other people, correct?

A: Correct.

Q: Your actions on that day were reckless, correct?

A: My actions caused the accident.

Q: And they were—it was reckless actions that caused it, correct?

A: Yes, sir.

...

Q: Okay. Now, I want to show you a video here [the dash cam video]

in just a second, but – and that’s precisely what your supervisor

6

and the review board cited you for and suspended you for,

correct?

A: Yes, sir. Not clearing the intersection.

Q: That’s because no reasonable officer, in your situation, would

have proceeded through that intersection in the manner that you

did with those circumstances, right?

A. Yes, sir.

...

Q: We go to this next one [the West Road intersection]. You never

slowed down until you realized [Gariet] was coming into the

intersection, right?

A: Yes, sir.

Q: That’s not how it’s supposed to be done, is it?

A: No.

In addition to Deputy Saunders’ deposition, Gariet also attached to her

response the crash report, the HCSO report reflecting its investigation of the

accident, and the dash cam video.

In its reply, the County argued that Gariet had not established the violation of

applicable laws because Gariet’s allegations “ignore[d] section 546.001 of the

Transportation Code,” which permits an officer to proceed through a red light in

emergency situations and that “is exactly the reason Deputy Saunders did so in this

case.” The County argued there was thus no evidence establishing a violation of a

law or ordinance or that Deputy Saunders had been reckless. The County argued

7

Gariet’s reliance on the HCSO’s internal findings was improper because the “police

department’s internal policies are not laws or ordinances.” With respect to official

immunity, the County argued that Section 546.001 permits officers to proceed

through a red light, and thus the fact Deputy Saunders proceeded through a red light

did not establish bad faith.

The trial court denied the County’s Motion. This interlocutory appeal ensued.3

Plea to the Jurisdiction

In its first issue, the County argues the trial court erred in denying its plea to

the jurisdiction because Gariet did not produce any evidence that Deputy Saunders

violated a law applicable to emergency action or acted with reckless disregard for

the safety of others and property.

Standard of Review

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

3

See TEX. CIV. PRAC. & REM. CODE § 51.014(8) (allowing interlocutory appeal of

order denying governmental unit’s plea to jurisdiction). Section 51.014(8) has been

extended to allow an interlocutory appeal of the denial of a motion for summary

judgment based on jurisdictional grounds. See PHI, Inc. v. Tex. Juv. Just. Dep’t, 593

S.W.3d 296, 301 n.1 (Tex. 2019) (holding appellate court had jurisdiction over

appeal from denial of combined plea to jurisdiction and motion for summary

judgment, regardless of how pleading was styled, because substance of pleading

raised sovereign immunity, which implicates subject-matter jurisdiction); Harris

Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (“If the trial court denies the

governmental entity’s claim of no jurisdiction, whether it has been asserted by a

plea to the jurisdiction, a motion for summary judgment, or otherwise, the

Legislature has provided that an interlocutory appeal may be brought.”).

8

2004). We review a trial court’s ruling on a plea to the jurisdiction de novo. City of

San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022); Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff suing the

governmental unit bears the burden of affirmatively establishing waiver of

immunity. City of Austin v. Powell, 704 S.W.3d 437, 447 (Tex. 2024). The plaintiff

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.’” City of Houston v. Gomez, 716

S.W.3d 161, 165 (Tex. 2025) (quoting Powell, 704 S.W.3d at 447). In determining

whether the plaintiff satisfies his burden, we consider the facts alleged by the

plaintiff and the evidence before the trial court. Maspero, 640 S.W.3d at 528.

When a plea challenges jurisdictional facts, our review “generally mirrors that

of a summary judgment.” Powell, 704 S.W.3d at 446 (citing Miranda, 133 S.W.3d

at 228). “[W]e take as true all evidence favorable to the nonmovant and indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.

(quoting Maspero, 640 S.W.3d at 528–29).

Governmental Immunity

The County, “[a]s a political subdivision of the state . . . is ‘immune from suit

unless [its] immunity is waived by state law.’” Powell, 704 S.W.3d at 448 (quoting

9

Maspero, 640 S.W.3d at 528). 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).

While the TTCA waives the City’s immunity for certain torts, that waiver is

not absolute. Gomez, 716 S.W.3d at 165. The TTCA provides exceptions to the

waiver of immunity in Section 101.021. Powell, 704 S.W.3d at 449. Thus, in

addition to satisfying the statutory provisions of the TTCA “that clearly and

affirmatively waive immunity,” a TTCA plaintiff must “expressly negate” any

statutory exceptions that are “plausibly implicate[d]” by the plaintiff’s allegations.

Rattray v. City of Brownsville, 662 S.W.3d 860, 867–68 (Tex. 2023); see also City

of Houston v. Hernandez, No. 01-24-00031-CV, 2024 WL 3817374, at *5 (Tex.

App.—Houston [1st Dist.] Aug. 15, 2024, pet. denied) (mem. op.) (“To establish the

trial court’s jurisdiction, a TTCA plaintiff must (1) satisfy the statutory provisions,

such as section 101.021(1), ‘that clearly waive immunity’ and (2) ‘expressly negate’

any statutory exceptions ‘plausibly implicated’ by the plaintiff's allegations.”)

10

(citing Rattray, 662 S.W.3d at 867–68). “When [an] exception applies, the [TTCA]

is unavailable as a waiver of immunity even if the facts otherwise fall within a waiver

found in Section 101.021.” City of Houston v. Davis, No. 01-13-00600-CV, 2014

WL 1678907, at *4 (Tex. App.—Houston [1st Dist.] Apr. 24, 2014, pet. denied)

(mem. op.); see also Rattray, 662 S.W.3d at 867 (“The [TTCA] may waive immunity

in one breath and in the next take back part of the waiver.”).

Section 101.055(2) of the TTCA sets forth the emergency exception. It

provides that the TTCA waiver of immunity does not apply to a claim that arises

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(2). The emergency exception thus

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.”

Gomez, 716 S.W.3d at 165 (emphasis in original) (quoting Powell, 704 S.W.3d at

449) (quoting TEX. CIV. PRAC. & REM. CODE § 101.055(2)).

The emergency exception “contemplates two distinct inquiries to be

undertaken in a particular order.” Powell, 704 S.W.3d at 449. A court must first

determine whether any laws or ordinances apply to the emergency action at issue.

Id. If a law or ordinance applies wholly or partly to the emergency action, then “the

11

jurisdictional inquiry turns on whether the officer’s action complied with the

relevant law or ordinance.” Id. The court considers only laws applicable to

emergency action. Id. at 451 (“[G]enerally 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.”).4

If no law or ordinance applies to any part of the emergency action, the court

must consider whether the officer acted with conscious indifference or reckless

disregard for the safety of others. Id. at 449. But a determination of the officer’s

“compliance with the laws and ordinances applicable to emergency action” must

precede any recklessness inquiry. City of Killeen-Killeen Police Dep’t v. Terry, 712

S.W.3d 101, 102 (Tex. 2025) (citing TEX. CIV. PRAC. & REM. CODE § 101.055(2)).

“Only if no law or ordinance applies may the court move to the second inquiry—

‘whether there is a fact issue as to th[e] officer’s recklessness in undertaking the

action that led to the injury.’” Id. (citing Powell, 704 S.W.3d at 449).

Compliance with Relevant Law or Ordinance

In her amended petition, Gariet alleged that Deputy Saunders’ “actions were

not in compliance with the laws and ordinances applicable to emergency and

4

“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.” City of Austin v. Powell, 704 S.W.3d 437, 449 (Tex. 2024).

12

Saunders [had] acted with conscious indifference or reckless disregard for the safety

of others.”

As she does on appeal, Gariet argued in the trial court that Deputy Saunders

was in violation of the laws and ordinances applicable to emergency action. She

argued that Deputy Saunders operated his patrol car negligently and violated

Transportation Code Section 546.005 by acting with “conscious indifference and/or

reckless disregard” for the safety of the public when he proceeded through the red

light without first clearing the intersection for oncoming traffic. As the County does

on appeal, the County argued in its Motion and reply that there was no evidence

Deputy Saunders had violated any applicable law or had been reckless because

Section 546.001(2) of the Transportation Code permits an officer to proceed through

a red light in an emergency, which is what Deputy Saunders did. The County argued

that the evidence established that Deputy Saunders was “responding to a Priority 1

emergency call with authorized lights and sirens,” the “call was for a residential

burglary in progress,” he “slowed down as he entered the intersection,” and he

thought traffic in two of the lanes had stopped for him when he went through the

West Road intersection. In its appellate brief, the County similarly argues that

passing through a red light “is not alone evidence of violation of law because it is

permitted by [Section 546.001(2)] of the Transportation Code” and Deputy Saunders

“slowed in order to clear the intersection and safely proceed through the red lights.”

13

And it argues that Gariet did not establish that Deputy Saunders acted recklessly

under Section 546.005.

Given the evidence presented and the parties’ arguments, I disagree with the

Majority’s holding that only Section 546.005 is implicated and that the only relevant

inquiry is whether there was evidence Deputy Saunders was reckless. I would

conclude that Sections 546.001 and 546.005 are both implicated. See Powell, 704

S.W.3d at 449 (explaining that if law or ordinance has some application to

emergency action, then “the jurisdictional inquiry turns on whether the officer’s

action complied with the relevant law or ordinance”); Miranda, 133 S.W.3d at 227

(“[I]if a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, as the trial court is required to do.”).

Section 546.001 of the Transportation Code identifies certain permissive rules

that apply to the operation of an emergency vehicle. Section 546.001(2), which the

County cited for support in its Motion and on appeal, provides that the operator of

an “authorized emergency vehicle” may “proceed past a red or stop signal or stop

sign, after slowing as necessary for safe operation[.]” TEX. TRANSP. CODE

§ 546.001(2). Section 546.005 for its part provides that the permissive rules in

Section 546.001 “do not relieve the operator of an authorized emergency vehicle

from (1) the duty to operate the vehicle with appropriate regard for the safety of all

14

persons; or (2) the consequences of reckless disregard for the safety of others.” Id.

§ 546.005; see Powell, 704 S.W.3d at 452 (observing that Chapter 546 “sets a

baseline standard for all emergency responses”).

The undisputed evidence shows that Deputy Saunders was responding to a

“Priority 1” emergency call involving a residential burglary after dark. The dash cam

video shows that Deputy Saunders’ siren and lights were activated when he

proceeded through the intersection. In his deposition, Deputy Saunders testified that

he approached the intersection after emerging from underneath an overpass and saw

that “the first two [southbound] lanes of traffic [on the service road] were stopped

for [him] . . . . And so that’s why I thought that traffic was stopped for me, and I did

not see . . . the vehicle in the last lane, and that’s why I proceeded through—and we

didn’t see each other . . . .”

The HCSO’s report, with Gariet produced as evidence, reflects that the HCSO

reprimanded Deputy Saunders after conducting a review of the accident. The report

states that Deputy Saunders was responding to “Priority 1 (emergency lights and

siren activated)” and he

slowed as he entered the intersection but did not stop completely when

attempting to clear the intersection (confirmed by in-car video and

vehicle download). The driver of a vehicle traveling southbound in the

outside lane of the service road did not see the police car in the

intersection. Deputy Saunders’ actions of disregarding the red light

caused a major crash with the other vehicle.

15

The HCSO concluded that Deputy Saunders had violated Sections 545.151 and

546.005 of the Transportation Code. Deputy Saunders served a one-day suspension

and attended a one-day driver safety course.

The dash cam video confirms that Deputy Saunders’ sirens and emergency

lights were on when he entered the intersection, but a review of the dash cam video

shows that it is questionable whether, as the County alleges, Deputy Saunders

slowed down as necessary before entering the intersection as required under Section

546.001(2). See City of Houston v. Johnson, No. 01-23-00356-CV, 2025 WL

1521763, at *1–2 (Tex. App.—Houston [1st Dist.] May 29, 2025, no pet.)

(reviewing body camera video and concluding video recording did not conclusively

establish the officer’s version of events). Deputy Saunders’ own deposition

testimony raises a fact question on this point:

Q: Will you take my word for it that you don’t get even close to

stopping [at the West Road intersection]?

A: Yes, sir.

Q: Okay. Will you take my word for it that [] you didn’t even slow

down much when you came to that intersection?

A: I—I don’t recall the speed at which the collision happened, sir.

Deputy Saunders testified that “when [he] was going through the intersection, the

first two lanes of traffic were stopped for [him]” and “that’s why I thought that traffic

was stopped for me,” but later, when discussing the dash cam video and his actions

16

in proceeding through the West Road intersection and the prior intersection, he

testified:

Q: Now, at that intersection you just went through you didn't really slow

down much, did you?

A: Not as much as I should have, sir.

Q: That's right. And you got lucky on that intersection, right?

A: Yes, sir.

Q: We go to this next one [West Road]. You never slowed down until you

realized [Gariet] was coming into the intersection, right?

A: Yes, sir.

Q: That’s not how it's supposed to be done, is it?

A: No.

Deputy Saunders also testified that his view of oncoming traffic was obstructed by

the overpass.

The crash report, which Gariet also attached to her response, states that

Deputy Saunders “had a red light but entered the [West Road] intersection of the

West Sam Houston Parkway North southbound service road” and “failed to clear the

intersection properly.” The report states that as Deputy Saunders “proceeded through

the intersection on a red light,” he caused Gariet—who had “a green light and began

traveling south through the intersection”—to strike the patrol car.

17

Given this evidence—which we must construe in the light most favorable to

Gariet, indulging every reasonable inference and resolving any doubts in her favor—

I would conclude that the evidence raised a fact issue on the application of the

emergency exception. Our recent opinions in City of Houston v. Moran and City of

Houston v. Johnson are instructive.

In Moran, a City of Houston police officer collided with Moran at an

intersection while pursuing an aggravated robbery suspect through a red light. No.

01-24-00224-CV, 2025 WL 3545572, at *1 (Tex. App.—Houston [1st Dist.] Dec.

11, 2025, no pet.) (mem. op.). Moran sued the City which then filed a motion for

summary judgment asserting governmental immunity arguing it retained

governmental immunity under the TTCA’s emergency exception and based on

official immunity because the officer was acting in good faith and within the course

and scope of his discretionary authority as a police officer when the collision

occurred. Id. As Gariet does here, Moran relied on both a crash report and a Houston

Police Department (“HPD”) internal investigation letter that concluded the officer

had violated the Transportation Code. Id. The HPD letter suspended the officer for

three days due to his actions during the chase and collision, finding he violated HPD

rules and regulations regarding traffic laws and Sections 546.001 and 546.005 of the

Transportation Code. Id. We held that both the crash report and the HPD letter raised

18

fact issues as to whether the officer had complied with Transportation Code

provisions, precluding summary judgment on the emergency exception. Id. at *7.

Our decision in City of Houston v. Johnson is also illustrative. In Johnson, an

HPD officer was involved in an accident while running a red light on his way to

respond to a call of a reported shooting. 2025 WL 1521763, at *1–2. The parties

disputed the officer’s speed as he ran the red light, whether he had activated both his

emergency lights and siren before the crash, whether he slowed to make sure the

intersection was clear before running the light, and whether he looked in the

direction of oncoming traffic before running the light. Id. at *2. Johnson alleged the

officer had violated several Transportation Code sections, including Section

546.001(2), because he “ran the red light without slowing as necessary for safe

operation.” Id. The City argued in a summary judgment motion that the emergency

exception to the TTCA’s immunity waiver was applicable.5 Johnson proffered

several exhibits in response to the summary judgment motion: transcripts of three

witnesses’ deposition testimony, an expert witness declaration, Johnson’s affidavit,

and an excerpt of the body camera video. Id. at *19. Also of import was the fact that

the HPD investigator who wrote the crash report concluded that the officer had

violated Section 546.001(2) because “it didn’t appear that he slowed down before

5

As set forth below, the City also made an official immunity argument in its summary

judgment motion. City of Houston v. Johnson, No. 01-23-00356-CV, 2025 WL

1521763, at *9 (Tex. App.—Houston [1st Dist.] May 29, 2025, no pet.) (mem. op.).

19

proceeding—before approaching that intersection” or that he ran the red light safely,

and the fact that HPD suspended the officer for two days for “failing to exercise duty

and care.” Id. We concluded that the evidence raised factual disputes concerning the

officer’s speed; the use of his emergency siren; whether he slowed down or sped up

before running the red light; and whether he looked in the direction of oncoming

traffic. Id. at *18. We held that Johnson established genuine issues of material fact

over whether the officer violated Section 546.001(2) “by driving through the red

light at the intersection where the crash occurred without slowing as necessary for

safe operation.”6

As in Moran and Johnson, I would conclude that the evidence raised an issue

of material fact concerning whether Deputy Saunders slowed down as necessary for

safe operation at the intersection, the speed at which he was traveling, whether his

view was obstructed when he entered the intersection, and whether he cleared the

intersection properly and as required by law. Given the evidence proffered by Gariet

and the County—the crash report, the HCSO’s report, Deputy Saunders’ deposition,

and the dash cam video of the accident—and construing the evidence in the light

most favorable to Gariet, indulging every reasonable inference and resolving any

6

The officer also apparently failed to activate his siren, but “the more relevant cause

of the accident for purposes of the applicability of the emergency exception was

whether [he] slowed as necessary for safe operation before running the red light.”

Johnson, 2025 WL 1521763, at *21.

20

doubts in her favor, I would conclude there is a fact question as to the application of

the emergency exception and therefore, that the trial court properly denied the

County’s plea to the jurisdiction.

Recklessness

Even if Section 546.001 were not implicated and a recklessness inquiry were

warranted, I would conclude that there is an issue of material fact as to recklessness

based on the same evidence.

Under the Transportation Code, “reckless driving” consists of driving “a

vehicle in willful or wanton disregard for the safety of persons or property.” TEX.

TRANS. CODE § 545.401(a). Chapter 546 adopts a “comparable” tone by requiring

officers “to operate the vehicle with appropriate regard for the safety of all persons,”

Powell, 704 S.W.3d at 456 (citing TEX. TRANS. CODE § 546.005(1)), and refusing to

excuse officers for “the consequences of reckless disregard for the safety of others.”

Id. (citing TEX. TRANS. CODE § 546.005(2)). The applicable standard requires

“conscious indifference” or “subjective awareness of an extreme risk.” City of San

Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022). Recklessness reflects more

than a “momentary judgment lapse.” Id. It requires a showing that the driver

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

serious injury’ to others.” Id.; see also City of Houston v. Green, 672 S.W.3d 27, 30

(Tex. 2023) (quoting Tarrant Cnty. v. Bonner, 574 S.W.3d 893, 902 (Tex. 2019)).

21

While there is evidence that Deputy Saunders’ siren and emergency lights

were activated when he proceeded through the red light at the West Road

intersection, there is also evidence raising a fact question over whether Deputy

Saunders committed acts “he knew or should have known posed a high degree of

risk of serious injury’ to others.” The crash report indicates that Deputy Saunders

“failed to clear the intersection properly” causing the accident. And Deputy Saunders

received a reprimand based on the HCSO Board’s determination.

I respectfully take issue with the majority’s conclusion that the HCSO’s

internal investigation should be disregarded as “conclusory” and not “material” to

the determination at hand. The report is not, as the majority contends, devoid of

“facts disputed or undisputed,” nor was the HCSO’s decision made in a vacuum.

The HCSO reached it conclusion based on its review of Deputy Saunders’ actions

on the day of the accident that “he did not stop completely when attempting to clear

the intersection,” that he “disregard[ed] the red light caus[ing] a major crash with

the other vehicle,” that he violated “HCSO Patrol Policy 203” requiring an officer

responding to a Priority 1 call to “use caution when operating his or her vehicle,”

and that his conduct amounted to violations of two provisions of the Transportation

Code, including Section 546.006, which cautions that drivers of authorized

emergency vehicles have the duty to drive “with appropriate regard for the safety”

of others, and may not drive with “reckless disregard” for others’ safety. See TEX.

22

TRANS. CODE § 546.005. Given that at this stage, our Court is required to construe

the evidence in the light most favorable to the non-movant, indulging every

reasonable inference and resolving any doubts in her favor, it is error for the majority

to disregard the report as conclusory7 or immaterial in evaluating whether a fact issue

exists. See Huckabee v. Time Warner Entertainment Co. L.P., 19 S.W.3d 413, 422

(Tex. 2000) (“Texas law has always emphasized that trial courts must not weigh the

evidence at the summary judgment stage. Instead, a trial court's only duty at the

summary judgment stage is to determine if a material question of fact exist.”); see

also Moran, 2025 WL 3545572 at *7 (“The crash report and the HPD letter

[temporarily suspending the officer] both raise fact issues about whether Scott

complied with Transportation Code sections 546.001 and 546.005.”).8

7

The County did not argue that the HCSO’s report is conclusory. Rather, the County

argues that the report should not be considered in determining whether Deputy

Saunders violated a law applicable to emergency action because “evidence of a

policy violation or admissions to violation agency policy, does not constitute a

violation of law.” And that is correct. See Anderson, 2026 WL 1346925, at *3

(explaining that violation of an internal policy does not affect the application of the

emergency exception). The HCSO report, however, reflects more than just an

internal policy violation, and the majority discounts the report in its analysis of

recklessness (not in evaluating whether there is a violation of law, an issue the

majority does not address).

8

The majority posits that Moran and Johnson are distinguishable because they both

involved administrative conclusions that the officers violated a provision of Chapter

546 involving specific conduct, not merely the statutory duty of care set forth in

section 546.005. I disagree that our holding in those cases is that limited.

23

Deputy Saunders’ actions in proceeding through the intersection, including

whether he slowed before entering the intersection, whether traffic had stopped for

him to safely go through, whether he had a clear view of others as he entered the

intersection, whether others traveling on the intersection had a clear view of him, his

speed when he went through the intersection, and whether he was reprimanded for

his actions are directly relevant to the question of recklessness. While the law

permits an emergency responder to “proceed past a red or stop signal or stop sign,”

he may do so only “after slowing as necessary for safe operation.” TEX. TRANSP.

CODE § 546.001(2). In its reply in support of its Motion and in its appellate brief, the

County argues that Deputy Saunders slowed down as he approached the intersection.

However, during his deposition, Deputy Saunders conceded that motorists did not

have a clear field of view as he entered the intersection, yet he did not slow down

“until [he] realized [Gariet] was coming into the intersection,” which is “not how

it’s supposed to be done.” Indeed, while the dash cam video establishes that Deputy

Saunders’ lights and siren were activated when he entered the intersection, it is not

clear from the video that he slowed down as necessary before entering the

intersection. On that point, Deputy Saunders testified:

Q: Have you watched the [dash cam] video recently?

A: No, sir.

24

Q: Okay. Will you take my word for it that you don’t even get close to

stopping?

A: Yes, sir.

He further testified that cars in two of the three-lane service road stopped for him,

but he also knew from experience that there was a third lane “that he need[ed] to

take into account” in proceeding through the West Road intersection, but he

“proceeded [through the intersection] anyway.” He testified that his visibility was

impaired because “coming from underneath the overpass, [he] couldn’t see a

vehicle” and in that situation “you have to take more caution.” He similarly testified

that Gariet’s view of his car would have been obstructed by the overpass and the two

cars in the adjacent two lanes. Deputy Saunders also agreed that he “did not properly

clear [the] intersection” and further that “no reasonable officer, in [his] situation,

would have proceeded through that intersection in the manner that [he] did with

those circumstances[.]” He agreed he “could have done more to enter [the]

intersection safely” and he “didn’t follow Harris County policy’s procedures as [he]

engaged in this intersection and tried to go through it[.]”

Viewing the evidence in the light most favorable to Gariet and indulging every

reasonable inference and resolving any doubts in her favor, I would conclude this

evidence raised a fact issue as to whether Deputy Saunders was reckless when he

entered the intersection. See Bay City v. McFarland, No. 13-15-00122-CV, 2016

25

WL 5941891, at *5 (Tex. App.—Corpus Christi–Edinburg Oct. 13, 2016, no pet.)

(mem. op.) (holding trial court properly denied city’s plea to jurisdiction because

there was disputed issue as to recklessness in light of conflicting evidence as to

whether officer slowed down before entering intersection where collision occurred);

Zapata v. City of Gonzales, No. 13-18-00065-CV, 2020 WL 486489, at *5 (Tex.

App.—Corpus Christi–Edinburg Jan. 30, 2020, no pet.) (mem. op.) (evidence raised

fact issue in response to plea to jurisdiction as to whether officer was reckless when

evidence, viewed in light most favorable to non-movants, showed officer “drove

through the intersection on a red light without slowing his vehicle or waiting for the

cross-traffic to yield”).9

I would overrule the County’s first issue.

Summary Judgment

In its second issue, the County argues the trial court erred in denying its

motion for summary judgment because the evidence established Deputy Saunders

9

Compare with City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 702 (Tex.

App.—Austin 2005, no pet.) (“Merely stating the truck entered the intersection

without stopping is not evidence of recklessness or conscious indifference without

an indication of other observations describing the circumstances or conditions that

made the action reckless or consciously indifferent.”) (noting that automobile that

entered intersection without stopping could be traveling slowly or fast, and that

“conclusory observation that the large pumper truck ‘slammed’ into Hudson’s car

‘full force’ does not provide evidence raising a fact issue about firefighter’s regard

for the safety of others or whether he slowed as necessary”).

26

was acting in good faith when the accident occurred and, thus, the claims against the

County are barred by official immunity.

Standard of Review

We review a trial court’s summary judgment ruling de novo. Laverie v.

Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017). To obtain summary judgment on

traditional grounds, the 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. TEX.

R. CIV. P. 166a(c). When a governmental defendant moves for traditional summary

judgment on immunity grounds, it “carries the burden to meet the summary

judgment proof standard for its assertion that the trial court lacks jurisdiction.”

Powell, 704 S.W.3d at 448 (quoting Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 635 (Tex. 2012)).

A defendant who moves for summary judgment on an affirmative defense

“must conclusively establish each element of the defense.” Moran, 2025 WL

3545572, at *3 (citing City of Houston v. Nicolai, 695 S.W.3d 489, 494 (Tex. App.—

Houston [1st Dist.] 2024, pet. denied)). Evidence is conclusive if reasonable people

could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005); Moran, 2025 WL 3545572, at *3. Once the defendant establishes that

it is entitled to summary judgment, the burden shifts to the plaintiff to produce

27

evidence raising a fact issue concerning a waiver of immunity. Powell, 704 S.W.3d

at 448.

Like our review of a plea to the jurisdiction, in reviewing a summary judgment

ruling, we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Id. (quoting

Maspero, 640 S.W.3d at 528–29); Moran, 2025 WL 3545572, at *4. We may not,

however, disregard necessary contextual evidence or “evidence and inferences

unfavorable to the [nonmovants] if reasonable jurors could not.” City of Houston v.

Rodriguez, 704 S.W.3d 462, 470 (Tex. 2024) (quoting Alamo Heights Indep. Sch.

Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018)). If the plaintiff raises a fact issue

concerning the applicability of an immunity waiver, then the trial court must deny

the summary judgment motion. Powell, 704 S.W.3d at 448.

Official Immunity

“[O]fficial immunity protects [law enforcement] officers ‘when they are

performing (1) discretionary duties, (2) in good faith, and (3) within the scope of

their authority.’” Rodriguez, 704 S.W.3d at 468 (citations omitted). The only

element at issue here is whether Deputy Saunders was acting in good faith. In an

emergency response case, a police officer acts in good faith when “a reasonably

prudent officer, under the same or similar circumstances, could have believed that

the need to immediately apprehend the suspect” or respond to an emergency

28

“outweighed a clear risk of harm to the public in continuing the pursuit” or response.

Johnson, 2025 WL 1521763, at *10 (quoting Rodriguez, 704 S.W.3d at 472)

(emphasis in original). The good faith test is “one of objective legal reasonableness,

without regard to whether the government official involved acted with subjective

good faith.” Id. (citing City of Houston v. Sauls, 690 S.W.3d 60, 73 (Tex. 2024)

(quotation omitted)).

In applying the good faith test, we balance the need for immediate police

intervention against the risk inherent in countervailing public safety concerns.

Rodriguez, 704 S.W.3d at 472 (citing Sauls, 690 S.W.3d at 73). In assessing the need

for immediate police intervention, we consider (1) the seriousness of the crime to

which the officer is responding, (2) the need for the officer’s immediate presence to

prevent injury or loss of life or to apprehend a suspect, and (3) the availability of any

alternative courses of action to achieve a comparable result. Id. (citing Sauls, 690

S.W.3d at 73). In assessing the risk to public safety, we consider (1) the nature and

severity of harm that the officer’s actions could cause, including injuries to

bystanders as well as the possibility that the vehicle accident might prevent the

officer from reaching the scene of the emergency that drew the action, (2) the

likelihood that harm would occur, and (3) whether any risk of harm would be clear

to a reasonably prudent officer based on the officer’s perception of the facts at the

time. Id. (citing Sauls, 690 S.W.3d at 73).

29

To be entitled to summary judgment, the governmental unit’s summary

judgment evidence “must sufficiently assess particularized need-risk factors with

reference to specific facts” and show that a reasonably prudent officer, under the

same or similar circumstances, could have believed that the need to immediately

respond to the emergency outweighed a clear risk of harm to the public. Johnson,

2025 WL 1521763, at *11 (citing Rodriguez, 704 S.W.3d at 472). Magic words are

not required to satisfy this test, and the test is not onerous. Id. “The focus is ‘on the

objective facts and information the officer knew and perceived, not on whether the

officer had subjectively considered and assessed certain factors.’” Rodriguez, 704

S.W.3d at 472 (quoting Sauls, 690 S.W.3d at 74–75).

In support of its argument that Deputy Saunders acted in good faith, the

County argued in its Motion that Deputy Saunders used his lights and sirens when

responding to the call, and that his actions in responding to the call “were deliberate

after he was presented with the information from the emergency call” regarding a

home invasion. The County argued that because Gariet’s car was not visible until

after Deputy Saunders entered the intersection, he “could not slow down to avoid

the collision.” In its appellate brief, the County argues that Deputy Saunders

assessed the risks of traveling through the intersection with the

appropriate response to a residential burglary. The video and deposition

demonstrate that by slowing down as he approached the intersection,

and using his lights and sirens, Deputy Saunders was assessing the risks

at the time.

30

I would conclude the County did not conclusively establish the affirmative defense

of official immunity.

Here again, Moran and Johnson guide the analysis. In Moran, although the

officer testified that he “slowed down and checked for traffic before driving through

the red light” where the collision occurred, the crash report concluded that he “failed

to use due caution” when he struck Moran’s vehicle, and HPD suspended the officer

for three days based on its conclusion that he violated three sections of the

Transportation Code. Moran, 2025 WL 3545572, at *9–10. Noting the City had not

addressed the crash report or HPD’s suspension letter on appeal—although Moran

relied on them to raise fact issues—we concluded the City had not conclusively

established that the officer acted in good faith. Id. at *10-11.

We held similarly in Johnson, holding the City had not met its burden to

establish the officer performed his duties in good faith. 2025 WL 1521763, at *16.

We noted that the City’s summary judgment evidence “boils down to competing

versions of the car crash by the only two witnesses to it: [the officer] and [the

plaintiff].” Id. at *13. We explained that while the City’s argument contemplated the

seriousness of the crime to which the officer was dispatched and the availability of

alternative courses of action to achieve a comparable result, the City had not

provided evidence or argument “that the reported shooting was so serious and [the

officer’s] presence so immediately necessary that he could not have reduced his

31

speed, sounded his siren or horn, slowed down, and looked for oncoming traffic

before running the red light.” Id. at *14. We concluded that “reasonable people

viewing the City’s summary judgment evidence could differ in their conclusion

about whether a reasonably prudent officer, under the same or similar circumstances,

could have believed that the need to immediately respond to the emergency call

outweighed a clear risk of harm to the public in continuing the response[.]” Id. at

*16.

In its appellate brief, the County did not discuss the relevant factors or assess

particularized need-risk factors with reference to specific facts. It merely argues that

“the video and deposition demonstrate that by slowing down as he approached the

intersection, and using his lights and sirens, Deputy Saunders was assessing the risks

at the time,” that “[t]he dashboard camera video is the best evidence and

demonstrates that Deputy Saunders was making the need/risk assessment” required

under City of Lancaster v. Chambers,”10 and that Garnier “created the risk of harm

when she failed to yield or stop to the emergency vehicle.”11 It also argues that

10

As noted, there is an issue of material fact as to whether Deputy Saunders slowed

as he entered the intersection, and in his deposition, Deputy Saunders testified that

Gariet’s “view was blocked by [the vehicles] in the first couples of lanes” and by

the overpass. The HCSO report also states that the “driver of a vehicle traveling

southbound in the outside lane of the service road [Gariet] did not see the police car

in the intersection.”

11

In City of Lancaster v. Chambers, the Texas Supreme Court adopted the good faith

test in an officer-pursuit case. 883 S.W.2d 650, 656 (Tex. 1994). The test was

whether “a reasonably prudent officer, under the same or similar circumstances,

32

“Deputy Saunders was making moment-by-moment decisions when responding to

the Priority 1 residential burglary emergency call” and the “call [was] fluid in nature

because [] of how the situation can rapidly change.”

These statements, without more, do not conclusively establish that Deputy

Saunders acted in good faith as he crossed the intersection.12, 13 “Instead, testimony

on good faith must discuss what a reasonable officer could have believed under the

circumstances [] and [it] must be substantiated with facts showing that the officer

assessed both the need to apprehend the suspect and the risk of harm to the public.”

could have believed that the need to immediately apprehend the suspect outweighed

a clear risk of harm to the public in continuing the pursuit.” Id. Chambers does not

address the need and risk factors explored in City of Houston v. Rodriguez, 704

S.W.3d 462, 472 (Tex. 2024) and other more recent cases. The Supreme Court

expanded on Chambers by adding the required assessment of risk-need factors in

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).

12

“Evidence of an officer’s good faith must be substantiated with facts showing the

officer assessed both the need to apprehend the suspect and the risk of harm to the

public.” Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 644 (Tex. 2015)

13

The County asserts no need/risk assessment is required under Telthorster v. Tennell,

92 S.W.3d 457, 465 (Tex. 2002), a case that stemmed from the accidental discharge

of a police officer’s gun as he arrested a suspect, injuring the suspect. The Supreme

Court in Telthorster held that the need/risk balancing test need not be performed in

a claim arising out of an arrest. However, this Court has held that Telthorster did

not apply to a collision that occurred when a DPS officer ran a red light while

pursuing a suspect because the policy concerns in that scenario, where bystanders

can be injured, differ from those in which an injury occurs to a suspect as he is

arrested. See Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 495 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). Explaining our rejection of Telthorster in

the context of a police chase, we stated, “The inherent risk to the general public

created during an arrest are not as substantial as police action causing injuries during

a high-speed chase.” Id. at 492 (internal quotation marks omitted).

33

Univ. of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000) (explaining that bare

statements “that a reasonable officer could or could not have taken some action”

does not establish good faith in the summary judgment context); see also Rodriguez,

344 S.W.3d at 494 (noting that officer “must address the particular circumstances

present [when accident occurred] in order to avoid submitting conclusory proof”).

The County did not in its Motion address what a reasonable officer could have

believed under the circumstances substantiated with facts assessing the need to

apprehend the suspect and the risk of harm to the public, supported with evidence.14

I would thus conclude that the County did not conclusively establish that

Deputy Saunders acted in good faith because the County did not proffer evidence of

“facts and circumstances necessary to address the [] need-risk factors” and did not

establish that “a reasonably prudent officer in the same or similar circumstances

14

The portion of the County’s Motion addressing the good faith component consisted

primarily of argument. Citing to the dash cam video, the County argued that

“Deputy Saunders’s actions in responding to an emergency call were deliberate

decisions after he was presented with the information from the emergency call. The

emergency call was for a home invasion. This call is fluid in nature because [] of

how the situation can rapidly change. The risks of Deputy Saunders’ actions were

reduced by the use of the lights and sirens is a common practice among officers.

When Deputy Saunders approached the intersection, the other drivers around

responded to the lights and sirens and properly yielded to the emergency vehicles.

Therefore, Harris County has presented evidence that Deputy Saunders was acting

in good faith and meets the third prong of the test for official immunity.”

34

could have believed [Deputy Saunders’] actions were justified.” See Sauls, 690

S.W.3d at 78.15

I would overrule the County’s second argument.

Conclusion

For the reasons set forth above, I would affirm the trial court’s order denying

the County’s plea to the jurisdiction and motion for summary judgment. Because the

majority does not so hold, I respectfully dissent.

Veronica Rivas-Molloy

Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

Rivas-Molloy, J., dissenting.

15

Because the County did not satisfy its summary judgment burden, the burden of

proof never shifted to Gariet to establish that a fact issue remained. See City of

Houston v. Manning, 738 S.W.3d 842, 853–54 (Tex. App.—Houston [14th Dist.

2025, pet. denied) (holding burden did not shift to plaintiffs to present evidence

raising fact issue because City did not satisfy burden to conclusively prove officer’s

good faith).

35

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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