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