City of Houston v. Rogelio Cervantes Hernandez

Reversed and Rendered and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00916-CV

CITY OF HOUSTON, Appellant
V.
ROGELIO CERVANTES HERNANDEZ, Appellee

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2023-15487

MEMORANDUM OPINION

The City of Houston appeals the trial court’s denial of its Rule 91a motion to
dismiss appellee Rogelio Cervantes Hernandez’s personal-injury suit.1 See Tex. R.

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Civil Practice and Remedies Code section 51.014(a)(8) does not explicitly grant this
court subject-matter jurisdiction over an interlocutory appeal from an order that grants or denies
a plea to the jurisdiction by a governmental unit. See City of Houston v. Boodoosingh, No. 14-23-
00220-CV, 2024 WL 3188617, at *3 (Tex. App.—Houston [14th Dist.] June 27, 2024, no pet. h.)
(Spain, J., concurring). Nevertheless, we acknowledge that the supreme court has declared that
we have subject-matter jurisdiction over the interlocutory denial of a Rule 91a motion. See San
Jacinto River Auth. v. Medina, 627 S.W.3d 618, 621 (Tex. 2021).
Civ. P. 91a. In two issues on appeal, the City argues (1) Cervantes’s suit is barred
by claim preclusion and (2) the trial court erred in denying its Rule 91a motion.
We reverse and render judgment dismissing Cervantes’s suit for want of
jurisdiction.

I. BACKGROUND

This case arises from a motor-vehicle accident that occurred in November
2022 involving Cervantes and an officer working for the City of Houston Police
Department (HPD). Cervantes initially filed suit in Travis County by mistake,
which he voluntarily non-suited.

Cervantes filed a second lawsuit in Harris County, which was assigned to the
113th District Court. The trial court issued a final judgment, dismissing
Cervantes’s suit for “lack of jurisdiction”; it “dispose[d] of all parties and claims
and [was] final and appealable.” The judgment did not state whether the suit was
dismissed with or without prejudice.

The current appeal stems from Cervantes’s third lawsuit, which was again
filed in Harris County. The suit was transferred to the 113th District Court. In his
petition or amended petition, Cervantes alleged that his vehicle was struck by a
police vehicle driven by Officer Daniel Drummond. He relied on an HPD
investigation finding that “determined that Officer Daniel Drummond failed to
control speed and exercise due caution while utilizing emergency equipment at the
intersection.” He also claimed that the City was negligent in hiring, training, and
supervising Drummond. Accordingly, he brought the suit pursuant to the Texas
Tort Claims Act (“TTCA”).

The City filed a Rule 91a motion to dismiss, pointing out that Cervantes’s
case had already been dismissed by the same trial court. The City also claimed

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Cervantes failed to allege facts that would waive the City’s immunity. The trial
court denied the City’s motion.

II. ANALYSIS

A. Rule 91a

In its second issue, which we address first, the City argues that the trial court
erred in denying its Rule 91a motion because Cervantes did not assert sufficient
facts to state a claim. More specifically, the City claims Cervantes did not allege
facts demonstrating a waiver of the City’s immunity.

1. Standard of review and applicable law

Dismissal is appropriate under Rule 91a “if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought . . . [or] no reasonable person could believe the facts pleaded.”
Tex. R. Civ. P. 91a.1. Whether the dismissal standard is satisfied depends “solely
on the pleading of the cause of action.” Tex. R. Civ. P. 91a.6. “We review the
merits of a Rule 91a motion de novo because the availability of a remedy under the
facts alleged is a question of law and the rule’s factual-plausibility standard is akin
to a legal-sufficiency review.” City of Dallas v. Sanchez, 494 S.W.3d 722, 724
(Tex. 2016). “To determine whether dismissal under Rule 91a is required in this
case, we thus consider whether the pleadings, liberally construed, allege sufficient
facts to invoke a waiver of governmental immunity under the Tort Claims Act.” Id.
at 725.

The TTCA provides a limited waiver of immunity for tort suits against
governmental units. TTCA, Tex. Civ. Prac. & Rem. Code Ann. § 101.021; see
Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Under the section
of the TTCA relevant here, a governmental entity may be liable for the torts of its

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employee “acting within his scope of employment” arising from the operation or
use of motor-driven vehicles or equipment if, among other things, the “employee
would be personally liable to the claimant according to Texas law[.]” TTCA, Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1).

The TTCA includes a subchapter entitled “Exceptions and Exclusions” that
lists circumstances under which the waiver of immunity does not apply. TTCA,
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.051–.067; see City of San Antonio v.
Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006). The City does not challenge the
applicability of the TTCA; instead, the City argues that Cervantes failed to plead
facts to negate the applicability of the emergency and 9-1-1 exceptions.

Under the emergency exception, the TTCA does not apply to a claim based
on a governmental employee’s conduct if that employee, while responding to an
emergency call or reacting to an emergency situation, acts in compliance with laws
or ordinances applicable to the emergency actions or, absent such laws or
ordinances, the employee’s actions are not taken with conscious indifference to or
reckless disregard for the safety of others. See TTCA, Tex. Civ. Prac. & Rem.
Code Ann. § 101.055(2).

The 9-1-1 emergency service exception states, “This chapter applies to a
claim against a public agency that arises from an action of an employee of the
public agency . . . providing 9-1-1 service or responding to a 9-1-1 emergency call
only if the action violates a statute or ordinance applicable to the action.” TTCA,
Tex. Civ. Prac. & Rem. Code Ann. § 101.062. Therefore, both the emergency and
9-1-1 exceptions share a similar element: the plaintiff must demonstrate that the
public employee’s alleged actions violated a statute, ordinance, or law applicable
to the action.

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2. Cervantes did not allege sufficient facts to invoke a waiver of
governmental immunity

Cervantes had the burden to affirmatively show a waiver of immunity. City
of San Antonio v. Maspero, 640 S.W.3d 523, 529 (Tex. 2022). To do so, Cervantes
also needed to plead facts negating the applicability of the emergency and 9-1-1
exceptions because his pleadings implicate those exceptions. See Rattray v. City of
Brownsville, 662 S.W.3d 860, 867–68 (Tex. 2023) (“Plaintiffs thus need only
expressly negate those exceptions that their allegations plausibly implicate[.]”).

Cervantes’s pleadings reveal very little about the collision itself. It alleges
that Drummond and Cervantes collided as Cervantes was driving eastbound and
Drummond was driving southbound. His amended petition in his third lawsuit
contains general allegations that Drummond was negligent and conclusory
statements averring that Drummond was reckless, but there are no factual
assertions that would allow us to reasonably infer that Drummond drove
recklessly.2 Thus, even construing his pleadings liberally, we cannot conclude that
Cervantes alleged sufficient facts to affirmatively show a waiver of immunity.

To allege facts negating the emergency and 9-1-1 exceptions, Cervantes
needed to allege that Drummond’s acts were not in compliance with the statutes,
laws, or ordinances applicable to emergency action. See TTCA, Tex. Civ. Prac. &
Rem. Code Ann. §§ 101.055(2), 101.062(b). The laws regarding the operation of
an emergency vehicle are located in the Transportation Code. See Tex. Transp.
Code Ann. §§ 546.001–.007. But Cervantes does not allege any facts suggesting
that Drummond violated these laws. Cervantes disputes whether Drummond had
his “emergency equipment” activated at the time of the collision, but even if

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Such facts might include, but are not limited to, whether there were stop signs or traffic
lights at the intersection, who had the right of way, what time of day the collision occurred, the
relative speed of the vehicles, or any restrictions on the drivers’ visibility.

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Drummond did not have his lights and sirens activated, that alone does not indicate
noncompliance with the laws; depending on the situation, lights and sirens are not
always required to be activated. See, e.g., Tex. Transp. Code Ann. §§ 546.003
(requiring, generally, that police use sirens and visual signals, but stating that use
of audio and video signals are subject to “the discretion of the operator in
accordance with policies of the department or the local government”); 546.004
(listing situations in which officers are not required to use emergency equipment).
We note that Cervantes does not claim that Drummond violated any HPD polices
regarding the usage of his lights and sirens.

Cervantes alleges that an HPD investigation found that Drummond “failed to
control speed and exercise due caution.” This does not amount to a factual
allegation of noncompliance with applicable laws and ordinances. See id.
§ 546.001 (allowing officers, under certain conditions, to “exceed a maximum
speed limit”); Green v. Alford, 274 S.W.3d 5, 22 n.20 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied).

Cervantes additionally alleges that Drummond was negligent by being
inattentive, failing to keep a proper lookout, and “failing to obey the statutes of the
State of Texas as they pertain to the operation of a motor vehicle [in chapter 545 of
the Texas Transportation code].” However, chapter 545 contains laws generally
applicable to all drivers; alleging noncompliance with chapter 545 does not amount
to alleging noncompliance with chapter 546, which is only applicable to
emergency action. And alleging Drummond was negligent is insufficient to waive
immunity because section 546.005 “imposes a duty to drive with due regard for
others by avoiding negligent behavior, but it only imposes liability for reckless
conduct.” Gillespie v. Galveston Cnty. Health Dist., 639 S.W.3d 815, 819 (Tex.
App.—Houston [14th Dist.] 2021, no pet.). Thus, Cervantes needed to plead facts

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showing that Drummond committed acts or omissions that he knew or should have
known posed a high degree of risk of serious injury, or that he “knew the relevant
facts but did not care about the result.” Hartman, 201 S.W.3d at 672 n.19 ; see
Texas Dep’t of Pub. Safety v. Zakir, 665 S.W.3d 884, 892 (Tex. App.—Houston
[14th Dist.] 2023, no pet.) (“In other words, the Transportation Code does not
waive immunity for ‘mere negligence’; a showing of recklessness is required.”)
(quoting City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998)).

While Cervantes alleges in his petition that Drummond drove with
“conscious indifference or reckless disregard for the safety of others,” that
constitutes nothing more than a conclusory statement. Cervantes recites no facts to
support the allegation that Drummond acted in a way that he knew or should have
known posed a high degree of risk of serious injury, or that he knew the relevant
facts but did not care about the result. See In re Shire PLC, 633 S.W.3d 1, 23 (Tex.
App.—Texarkana 2021, no pet.) (“[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not [shown]—that the pleader is entitled to relief.”) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)); see Vasquez v. Legend Nat. Gas III,
LP, 492 S.W.3d 448, 450–51 (Tex. App.—San Antonio 2016, pet. denied) (“The
trial court . . . accepts the plaintiff’s factual allegations as true . . . . We remain
cognizant that threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”) (internal quotation marks and
citations omitted). Therefore, we conclude that Cervantes’s pleadings do not allege
noncompliance with the applicable laws governing emergency actions, and thus he
has not alleged a waiver of immunity for the collision.

Concerning Cervantes’s claims of negligent hiring, retention, training, and
supervision of Drummond, they do not demonstrate a valid waiver of immunity

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under the TTCA. See City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL
1257295, at *8 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem.
op.) (“Negligent hiring, retention, training, or supervision of employees does not
constitute operation or use of a motor vehicle, and therefore such claims against
governmental units are not cognizable under the TTCA.”). And Cervantes does not
plead the applicability of any other waiver of immunity other than the TTCA.
Therefore, the trial court did not have jurisdiction over these claims.

Because Cervantes failed to affirmatively plead a waiver of immunity, the
trial court was required to dismiss his suit against the City. Accordingly, we sustain
the City’s second issue. Because we affirm the City’s second issue, we need not
address its first issue concerning whether Cervantes’s claims are barred by claim
preclusion. See Tex. R. App. P. 47.1.

B. Opportunity to amend petition

Because the jurisdictional evidence establishes that all of Cervantes’s claims
are barred by governmental immunity, the trial court should have granted the
City’s motion to dismiss. Having reached this conclusion, we must next decide
whether Cervantes is entitled to an opportunity to amend his petition. See Dohlen
v. City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022) (“Texas courts allow
parties to replead unless their pleadings demonstrate incurable defects.”).
However, Cervantes has already had a reasonable opportunity to amend his
petition after the City filed its first motion to dismiss, which resulted in
Cervantes’s second suit being dismissed. Cervantes’s amended petition in his third
lawsuit still does not allege facts waiving immunity. Accordingly, Cervantes is not
entitled to another opportunity to amend, and we dismiss his suit with prejudice.
See Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has
been provided a reasonable opportunity to amend after a governmental entity files

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its plea to the jurisdiction, and the plaintiff’s amended pleading still does not allege
facts that would constitute a waiver of immunity, then the trial court should
dismiss the plaintiff’s action. Such a dismissal is with prejudice because a plaintiff
should not be permitted to relitigate jurisdiction once that issue has been finally
determined.”).

III. CONCLUSION

We reverse the trial court’s order denying the City’s motion to dismiss and
render the judgment the trial court should have rendered: a judgment dismissing—
with prejudice—Cervantes’s suit against the City for want of jurisdiction.

/s/ Charles A. Spain
Justice

Panel consists of Chief Justice Christopher and Justices Spain and Poissant.

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