Olga Reyes and Daniela Bonilla v. Montgomery County

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00014-CV
__________________

OLGA REYES AND DANIELA BONILLA, Appellants

V.

MONTGOMERY COUNTY, Appellee

__________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 24-04-05132-CV
__________________________________________________________________

MEMORANDUM OPINION

Appellants Olga Reyes and Daniela Bonilla (collectively “Appellants” or

“Plaintiffs”) sued Montgomery County (“Appellee” or “the County”) after a patrol

car driven by Brent Guidry, who was employed at the time of the accident by the

County as a patrol deputy, hit Appellants’ vehicle. The County filed a plea to the

jurisdiction, and the trial court granted the plea and dismissed the case with

prejudice. Appellants filed a motion for reconsideration and, in the alternative,

motion for new trial, which was overruled by operation of law. Appellants timely

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filed this appeal. In two issues, Appellants argue the trial court erred in granting the

County’s plea to the jurisdiction and erred in failing to grant Plaintiffs’ motion for

reconsideration and, in the alternative, motion for new trial. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.012; Tex. R. App. P. 26.1(a). We affirm the trial court’s

judgment.

Background

Plaintiffs filed a petition 1 alleging that on August 16, 2022, they were

traveling in a vehicle in Montgomery County when Brent Guidry drove his vehicle

into the rear of their vehicle. Plaintiffs alleged that Guidry “was acting within the

course and scope of his employment with Montgomery County when he was

following too closely and not maintaining a proper lookout or paying attention as an

ordinary, prudent individual would have in the same or similar situation.” According

to the petition, Defendant Guidry’s negligence was the proximate cause of Plaintiffs’

injuries and damages. The petition also asserted that Defendant Montgomery County

was liable for Guidry’s acts and omissions under the doctrines of agency and

respondeat superior. Plaintiffs filed Plaintiffs’ First Amended Notice of Partial Non-

Suit, requesting the trial court non-suit Plaintiffs’ claims against Guidry, and the trial

court signed an Order Granting Nonsuit and dismissed the claims against Guidry

1
We refer to Plaintiffs’ Second Amended Petition, the petition on file at the
time the trial court granted the County’s plea to the jurisdiction, as the “petition.”
2
without prejudice. The County filed an Answer denying Plaintiffs’ allegations,

including Plaintiffs’ allegation that Guidry was acting within the course and scope

of his employment at the time of the accident, and the County asserted “the

affirmative defense of sovereign/governmental immunity, including but not limited

to, the application of the Texas Tort Claims Act and limitations of damages.”

The County filed Defendant’s Plea to the Jurisdiction, arguing that

(1) Plaintiffs failed to plead and prove a valid waiver of immunity and claim against

the County, and (2) Plaintiffs’ claims against the County are barred by immunity and

do not fall under the Texas Tort Claims Act (“TTCA”) because Guidry was not

acting within the course and scope of his employment at the time of the accident. In

support of the plea, the County attached as exhibits: the Texas Peace Officer’s Crash

Report from the accident; Guidry’s typewritten “24-HOUR activities summary[]”

summarizing the accident and events just before and after the accident that he

provided to Sergeant Layman and Sergeant Lowery; and Sergeant Cody Lowery’s

affidavit with attached exhibits including a timesheet for Guidry on the day of the

accident, Guidry’s typewritten “24-HOUR activities summary[,]” and certain

Montgomery County Sheriff’s Office (“MCSO”) policies.

Plaintiffs filed Plaintiffs’ Response to Defendant’s Plea to the Jurisdiction,

arguing that the County’s immunity from Plaintiffs’ claims is waived by the TTCA

because, under Texas law, peace officers are never off duty, so the County is liable

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for Deputy Guidry’s actions while operating his patrol car; that Guidry had testified

during his deposition that he was on duty and acting within his scope of employment

at the time of the accident; and that the County had not met its burden to present

evidence showing that Guidry was off duty at the time of the accident and that the

County’s immunity was waived under the TTCA.

The trial court granted the County’s plea to the jurisdiction. Plaintiffs filed

Plaintiffs’ Motion for Reconsideration Granting of Defendant’s Plea to the

Jurisdiction or, in the Alternative, Motion for New Trial. In the motion, Plaintiffs

argued that, according to Guidry’s deposition transcript, which was not attached to

the response to the plea because Plaintiffs alleged it was unavailable, Guidry testified

that he was on duty at the time of the accident “per [the County’s] policy[]” and that

he was on duty until he pulled into his driveway of his home at the end of his shift.

Plaintiffs argued that Guidry’s testimony, along with Deputy Guidry’s timesheet

which shows no gaps in the time he worked on the day of the wreck, raise a fact

issue about whether Guidry was on duty at the time of the accident. The motion was

overruled by operation of law. Plaintiffs timely appealed.

Standard of Review and Applicable Law

Governmental immunity protects political subdivisions, including counties,

from lawsuits for damages, because unless the governmental unit has consented to

suit, a trial court lacks subject matter jurisdiction to consider a claim against it. See

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Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004);

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex.

Civ. Prac. & Rem. Code Ann. § 101.001(3)(B). Consent to suit is found in a

constitutional or legislative provision, and whether subject matter jurisdiction exists,

based on a waiver of immunity, is a question of law; we therefore review the trial

court’s ruling on a plea to the jurisdiction de novo. State v. Holland, 221 S.W.3d

639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226.

A plea to the jurisdiction may challenge either the sufficiency of the

jurisdictional allegations in the pleadings or the existence of jurisdictional facts.

Miranda, 133 S.W.3d at 226-27. A governmental entity may file a plea to the

jurisdiction to challenge a court’s power to resolve the merits of a plaintiff’s claims.

See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To defeat the

governmental immunity claim, the plaintiff must plead facts that affirmatively

demonstrate that governmental immunity has been waived and the trial court has

subject matter jurisdiction. See Holland, 221 S.W.3d at 642; Dall. Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether this burden

has been satisfied, we must construe the pleadings liberally in the plaintiff’s favor

and deny the plea if the plaintiff has alleged facts affirmatively demonstrating

jurisdiction to hear the case. Miranda, 133 S.W.3d at 226.

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If the governmental entity challenges the plaintiff’s jurisdictional allegations,

then the plaintiff must adduce some evidence to support jurisdiction. Id. at 227-28.

In such a case, the trial court then considers the relevant evidence submitted by the

parties. Id. at 227. When a plea to the jurisdiction includes evidence, and the

jurisdictional challenge implicates the merits of the plaintiff’s cause of action, the

trial court will review the relevant evidence to determine whether a fact issue exists.

Id. This standard mirrors the standard appellate courts use to review a trial court’s

ruling on a traditional motion for summary judgment. Id. at 228. When the relevant

evidence is undisputed or fails to raise a fact question on the issue of jurisdiction,

the trial court rules on the plea to the jurisdiction as a matter of law. Id. If, however,

the evidence creates a fact question regarding jurisdiction, then the trial court must

deny the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28. In

reviewing the evidence presented, we indulge every reasonable inference in the

plaintiff’s favor. Id. at 228.

Under the doctrine of governmental immunity, political subdivisions of the

State, including counties, cannot be held liable for actions of their employees unless

the governmental unit’s common-law immunity is waived by the TTCA. See City of

Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); see also Taylor, 106

S.W.3d at 694 n.3. In cases involving torts, the Legislature waived the immunity that

governmental entities otherwise enjoy if the plaintiff’s claim is one that falls within

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the requirements of the statutory waiver. See Tex. Civ. Prac. & Rem. Code Ann. §§

101.021.-.029. Section 101.021 of the TTCA allows a plaintiff to sue a governmental

unit for damages if the requirements in the TTCA apply to the plaintiff’s claim. See

id. § 101.021. Section 101.021(1) provides that a governmental unit is liable for

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[.]” Id. §

101.021(1). In addition to waiving a governmental unit’s immunity from liability,

section 101.025 also waives immunity from suit. Id. § 101.025(a); Tex. Dep’t of

Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). For purposes of the TTCA,

an “employee” includes “a person . . . who is in the paid service of a governmental

unit by competent authority[,]” and “scope of employment” means “the performance

for a governmental unit of the duties of an employee’s office or employment and

includes being in or about the performance of a task lawfully assigned to an

employee by competent authority.” Id. § 101.001(2), (5).

We review both the denial of a motion for reconsideration and the denial of a

motion for new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114

(Tex. 2006) (standard of review for denial of motion for new trial); Bustamante v.

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Moak Devs., LLC, No. 09-23-00154-CV, 2025 Tex. App. LEXIS 284, at **25-26

(Tex. App.—Beaumont Jan. 23, 2025, no pet.) (mem. op.) (standard of review for

denial of motion for reconsideration). A trial court abuses its discretion when it acts

in an arbitrary and unreasonable manner or when it acts without reference to any

guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d

682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-

42 (Tex. 1985).

Grant of the County’s Plea to the Jurisdiction

In issue one, Appellants argue that the trial court erred in granting the

County’s plea to the jurisdiction because the County’s own evidence demonstrates

a fact issue on whether Deputy Guidry was on duty when the crash occurred, and

Plaintiffs advised the trial court of Deputy Guidry’s deposition testimony that he was

on duty when the crash occurred. Relying on this Court’s opinion in Jefferson

County v. Dent, Appellants contend that because a genuine issue of fact was raised

on Guidry’s on-duty or off-duty status, the trial court erred in granting Appellee’s

plea to the jurisdiction. See No. 09-19-00005-CV, 2019 Tex. App. LEXIS 6388, at

*6 (Tex. App.—Beaumont July 25, 2019, no pet.) (mem. op.).

Here, Plaintiffs’ petition alleged that at the time of the accident Deputy Guidry

was acting within the scope of his employment with the County and that the County

was liable for Guidry’s negligence in causing the accident under the doctrines of

8
agency and respondeat superior. As for the County’s plea to the jurisdiction, the

County bore the burden of producing evidence to show that Deputy Guidry was not

in the scope of his employment when the accident occurred. See Miranda, 133

S.W.3d at 227-28.

In general, whether an officer is acting within the scope of his employment

depends on whether the general act from which an injury arose was in furtherance

of the employer’s business and for the accomplishment of the objective for which

the employee was employed. See Lara v. City of Hempstead, No. 01-15-00987-CV,

2016 Tex. App. LEXIS 7778, at **8-9 (Tex. App.—Houston [1st Dist.] July 21,

2016, pet. denied) (mem. op.); City of Balch Springs v. Austin, 315 S.W.3d 219, 225

(Tex. App.—Dallas 2010, no pet.) (citing Leadon v. Kimbrough Bros. Lumber Co.,

484 S.W.2d 567, 569 (Tex. 1972)). Even an officer who is on duty or on call twenty-

four hours a day is not necessarily always acting within the scope of his employment;

his actions at the time of the incident are critical to the determination. City of Balch

Springs, 315 S.W.3d at 225; Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex.

App.—El Paso 1990, writ denied); see also Garza v. Harrison, 574 S.W.3d 389, 403

(Tex. 2019) (“[W]hether an officer is on or off duty does not determine whether the

officer’s conduct falls within the scope of his employment.”); City of Houston v.

Mejia, 606 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)

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(“Whether a peace officer was on duty or off is not dispositive as to whether she was

acting within her employment’s scope.”).

In Dent, this Court explained

Under Texas law, “every peace officer [has a duty] to preserve the
peace within the officer’s jurisdiction.” Peace officers, including
deputy sheriffs, retain their status as peace officers “twenty-four hours
a day[.]” Consequently, peace officers are not relieved of the duty to
preserve the peace merely because they are no longer on duty. Because
off-duty officers may still be engaged in discharging their duty to
maintain the peace, it is not possible to determine whether a particular
officer is acting in the course and scope of his employment by
considering only whether the officer’s shift has ended. Instead, in cases
involving police officers, courts look to whether the officer or officers
involved were discharging their duties as police officers when the tort
occurred.

2019 Tex. App. LEXIS 6388, at **6-7 (citations omitted). The mere fact that Guidry

was driving a patrol vehicle is not dispositive. See Garza, 574 S.W.3d at 405. The

key question is whether, when viewed objectively, there was a connection at the time

the accident occurred between the officer’s job duties and his allegedly tortious act.

City of Houston v. Lal, 605 S.W.3d 645, 649 (Tex. App.—Houston [1st Dist.] 2020,

no pet.) (citing Garza, 574 S.W.3d at 401); see City of Balch Springs, 315 S.W.3d

at 225 (“In short, an employee is not acting within the scope of his duties unless the

activity has some connection with, and is being undertaken in furtherance of, the

employer’s business.”) (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.

1981); Vernon v. City of Dallas, 638 S.W.2d 5, 8-9 (Tex. App.—Dallas 1982, writ

ref’d n.r.e.)); see also Garza, 574 S.W.3d at 400; Martin v. Vill. of Surfside Beach,
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No. 14-22-00085-CV, 2023 Tex. App. LEXIS 3292, at **5-6 (Tex. App.—Houston

[14th Dist.] May 16, 2023, no pet.) (mem. op.); Lara, 2016 Tex. App. LEXIS 7778,

at *9 (citing City of Houston v. Wormley, 623 S.W.2d 692, 694 (Tex. App.—Houston

1981, writ ref’d n.r.e.); City of Houston v. Love, 612 S.W.2d 211, 213 (Tex. App.—

Houston [14th Dist.] 1980, writ ref’d n.r.e.)); In making this determination, we

“examine what the officer was doing at the time of the incident and why he was

doing [it].” Lara, 2016 Tex. App. LEXIS 7778, at *9.

Under the “coming-and-going rule,” an employee is generally not acting

within the scope of his employment when traveling to and from work. See Painter

v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 139 (Tex. 2018). It is true that “[i]n

automobile collision cases [under the TTCA] a presumption arises that the driver

was acting within the scope of his employment by the defendant when it is proved

that the employer owned the vehicle and employed the driver.” Wormley, 623

S.W.2d at 694 (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354,

357 (Tex. 1971)). “The presumption is only a procedural tool, however, and it

disappears from the case once it has been rebutted by positive evidence to the

contrary.” Id. (citing Robertson Tank Lines, 468 S.W.2d at 357).

It is undisputed that Deputy Guidry was an employee of the County at the time

of the accident, and that he was driving a vehicle owned by the County. Thus, the

evidence raised a presumption that Deputy Guidry was in the course and scope of

11
his employment at the time of the accident. See id. (citing Robertson Tank Lines,

468 S.W.2d at 357). If, however, there is evidence that Deputy Guidry’s actions at

the time of the accident were not in furtherance of the County’s business, the

presumption vanishes. See City of Houston v. Stoffer, No. 01-23-00335-CV, 2024

Tex. App. LEXIS 4957, at *12 (Tex. App.—Houston [1st Dist.] July 16, 2024, pet.

denied) (mem. op.); Valdez v. City of Houston, No. 01-21-00070-CV, 2022 Tex.

App. LEXIS 6679, at *13 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.)

(mem. op.) (citing Mejia-Rosa v. John Moore Servs., No. 01-17-00955-CV, 2019

Tex. App. LEXIS 6405, at *16 (Tex. App.—Houston [1st Dist.] July 25, 2019, no

pet.) (mem. op.)).

The County attached three exhibits in support of its plea to the jurisdiction.

Exhibit 1 is a Texas Peace Officer’s Crash Report from the accident. The accident

report states that the accident happened on August 16, 2022, at 1800 hours. Exhibit

2 is a typed statement by Deputy Guidry stating the following, in relevant part:

To: Sergeant Layman
CC: Sergeant Lowery
From: Deputy Brent Guidry #14615
24-HOUR activities summary:

On 08/15/2022 I reported for duty at 0600 hours. I completed patrols
and answered calls to service until 1800 hours. After being relieved of
patrol duty by night shift, I drove to my residence and notified dispatch
of being off duty. I had dinner with my family, which consisted of
McDonalds food and water for the beverage. I woke up on 08/16/2022
at approximately 0410 hours to get ready for work. I reported for duty
at 0600 hours and completed patrols and answered calls for service.
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After being relieved of patrol duty by night shift, I started driving home
towards my residence. I was traveling in my patrol unit Eastbound on
the Highway 99 overpass at the stop light to merge onto US Highway
59 South feeder. While attempting to merge I struck the Acura vehicle
in front of me, causing rear bumper damage to her vehicle and front-
end damage to my patrol unit. I notified dispatch of the fleet accident
and advised district 3 Sergeant Layman. I got out of my vehicle to check
the status of the driver and passenger of the Acura vehicle. DPS arrived
on the scene to complete crash report.

Respectfully,

Deputy Brent Guidry#14615

Exhibit 3 is an Affidavit of Sergeant Cody Lowery with the MCSO, stating the

following, in pertinent part:

. . . I was the supervisor for MCSO Deputy Brent Guidry on
August 16 and 17, 2022. Deputy Guidry was a patrol deputy on August
16, 2022. He was granted permission, not required, to drive a MCSO
vehicle on his commute between his work and residence before and
after being on-duty during scheduled work hours.
On or about August 17, 2022, Deputy Guidry submitted his
timesheet to me regarding his work hours for August 16, 2022, and I
approved them. Attached to my affidavit as Exhibit A and incorporated
herein by reference is a true and correct copy of Deputy Guidry’s
timesheet for August 16, 2022. Exhibit B, attached and incorporated
herein by reference, is a true and correct copy of the 24 hour memo
written by Deputy Guidry related to the accident the subject of this suit.
This page is an exact duplicate of the original memo written by Deputy
Guidry and sent to me. The memo was made at or near the time of each
act or event set forth by, or from information transmitted by, persons
with knowledge of the matters. The memo was kept in the course of
regularly conducted business activity. It is the regular practice of the
business activity to make the memo.
As stated in Exhibits A and B, Deputy Guidry worked his
regularly scheduled hours from 06:00 until 18:00 on August 16, 2022
and was “relieved of patrol duty by night shift” and “started driving
home towards [his] residence” immediately prior to the accident.
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Consistent with his statement and the attached timesheet, Deputy
Guidry had completed his job duties and ended his shift at 18:00 on
August 16, 2022. Deputy Guidry was off-duty immediately prior to and
at the time of the accident the subject of this suit. Deputy Guidry was
not conducting MCSO business, or taking action in furtherance of
MCSO business, or being paid for any service at the time of the
accident. Deputy Guidry was not assigned any official duties or
assignments at the time of the accident. According to his statement,
Deputy Guidry was simply commuting home after work at the time of
the accident.
I approved Deputy Guidry’s timesheet reflecting his additional
4.5 hours worked on August 16, 2022 until 22:30 in order to handle the
fleet issues following the accident. The 4.5 hours worked by Deputy
Guidry at the end of the day on August 16, 2022 were not previously
scheduled and were only worked by Deputy Guidry subsequent to, and
because of, the accident that occurred with his fleet vehicle while he
was off-duty.
Exhibit C, attached and incorporated herein by reference, is a true
and correct copy of MCSO policies related to sections 1.1.12 and 4.1.4
(the “record”). The record was made at or near the time of each act or
event set forth by, or from information transmitted by, persons with
knowledge of the matters. The record was kept in the course of
regularly conducted business activity. It is the regular practice of the
business activity to make the record.
Section 4.1.4 relates the MCSO policy that take-home vehicles
are not required, but are often authorized. Section 1.1.12 of the MCSO
policy states that even if you are driving a MCSO vehicle, patrol
deputies are off-duty after being relieved by the next shift or a
supervisor.

Exhibit A attached to Lowery’s affidavit, a timesheet for Guidry on August 16, 2022,

notes that Guidry worked 16.5 hours: 12 hours from 06:00 to 18:00, and 4.5 more

hours from 18:00 to 22:30. The timesheet noted that Sergeant Lowery authorized

Guidry’s 6:00 p.m. to 10:30 p.m. shift and for that shift included the notation

“Comment=FLEET[.]” Exhibit B is a typed statement from Guidry, which is

14
identical to Exhibit 2 attached to the County’s plea. Exhibit C contains excerpts of

MCSO’s Manual of Operations which provides in section 1.1.12 that “Deputies shall

remain on-duty until properly relieved by the next shift, or relieved by a supervisor.”

The manual also provides the following in section 4.1.4:

AUTHORIZED USE OF COUNTY VEHICLES AND NON-
EMERGENCY OPERATION OF OFFICIAL VEHICLES
[]
Sworn deputies may be authorized by the Sheriff to take Sheriff’s
Office owned vehicles home and use such vehicles in accordance with
established protocols and limitations. . . .
[]
Vehicles are assigned to employees at the discretion of the Sheriff or
Sheriff’s designee. No employee has a right to a vehicle by virtue of the
employee’s position.

Applying this Court’s analysis in Dent, in determining whether the County

has rebutted the presumption that Deputy Guidry was acting within the scope of his

employment, we need not determine whether Deputy Guidry was on duty or off duty.

See Dent, 2019 Tex. App. LEXIS 6388, at *7. Instead, the relevant inquiry is whether

at the time of the accident Guidry was acting in furtherance of the County’s business

by discharging his duties as a deputy. See id.; see also Garza, 574 S.W.3d at 401.

Deputy Guidry stated in his statement that on August 16, 2022, “[a]fter being

relieved of patrol duty by night shift, [he] started driving home towards [his]

residence[,]” and then the accident occurred. Sergeant Lowery, Guidry’s supervisor,

stated in his affidavit attached to the County’s plea that pursuant to MCSO’s policies,

Deputy Guidry was granted permission but not required to use his patrol car to
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commute to and from work and that patrol officers are off duty by being relieved by

the next shift or a supervisor, and the MCSO policies attached to Lowery’s affidavit

are consistent with Lowery’s statements. The accident report attached to the

County’s plea stated that the accident occurred at “1800” and Guidry’s timesheet

attached to Sergeant Lowery’s affidavit reflected that his normal shift ended at 18:00

hours. The evidence then shows that because of the accident he worked 4.5 more

hours from 18:00 to 22:30 which was authorized by Sergeant Lowery to deal with

the fleet vehicle. Sergeant Lowery explained in his affidavit that the additional 4.5

hours were worked by Guidry subsequent to, and as a result of, the accident. Sergeant

Lowery also stated that immediately prior to and at the time of the accident Guidry

was not conducting MCSO business or taking action in furtherance of MSCO

business.

This evidence supports the County’s contention that Guidry was not acting in

the scope of his employment, as he was neither engaged in the “performance for a

governmental unit of the duties of an employee’s office or employment” nor “in or

about the performance of a task lawfully assigned to an employee by competent

authority.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5). The evidence the

County presented supported that Deputy Guidry was commuting home after being

relieved from his shift and that immediately before or at the time of the accident

Guidry was not conducting MCSO business. This evidence is sufficient to rebut the

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presumption that Guidry was acting in the scope of his employment because driving

home had no connection to Deputy Guidry’s job duties at the time of the accident.

See Garza, 574 S.W.3d at 401; Wormley, 623 S.W.2d at 694; see also Valdez, 2022

Tex. App. LEXIS 6679, at *18 (officer not acting in the scope of her employment

where she was off duty, not on call, and returning home after completing her

assignment and act of listening to the police radio while driving home after having

finished work was out of personal interest and did not have a connection with, and

was not undertaken in furtherance of, the City’s business—and rebutted the

presumption that she was acting within the scope of her employment at the time of

the accident); City of Balch Springs, 315 S.W.3d at 227 (officer was not acting within

scope of employment at the time of accident where officer was returning to location

of his private, off-duty employment, had not been contacted by police dispatcher to

respond to call or to engage in his official police officer duties, was not responding

to an emergency, and he was not engaged in law enforcement duty of preserving

peace); cf. Dent, 2019 Tex. App. LEXIS 6388, at *12 (the plaintiff testified that the

officer admitted at the scene that he was responding to a dispatch and call at the time

of the accident); cf. also Mejia, 606 S.W.3d at 906-07 (City failed to meet its burden

to prove the sergeant who struck the plaintiffs’ vehicle was not acting within the

scope of her employment at the time of the accident where the evidence showed that

the sergeant was on her way home from work at the time of the accident and her

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husband, who was a superior officer employed by the sergeant’s employer, asked

her to pick up his City-issued vehicle from the City garage and drive it to their home

so he would have the vehicle available at the beginning of his shift, which benefitted

the sergeant’s employer); Lal, 605 S.W.3d at 647-49 (City failed to meet its burden

to prove the officer was not acting within the scope of his employment when he

struck the plaintiff’s vehicle; officer was returning home at night in his City-issued

motor vehicle and veered into oncoming traffic and struck plaintiff’s vehicle and the

evidence showed that the officer was “off duty” but “on call” and had looked at his

City-issued cell phone when it rang which caused him to crash into plaintiff’s

vehicle). We conclude the County’s evidence shifted the burden of proof to

Plaintiffs, so Plaintiffs were required to produce evidence showing that an issue of

material fact existed on whether Guidry was in the scope of his employment when

the accident occurred. See Miranda, 133 S.W.3d at 221; see also Martin, 2023 Tex.

App. LEXIS 3292, at *6 (“If the employer proffers evidence rebutting the

presumption, the burden shifts back to the plaintiff to produce other evidence that

the driver was acting in the course and scope of his employment at the time of the

collision.”) (citing Robertson Tank Lines, 468 S.W.2d at 358; Molina v. City of

Pasadena, No. 14-17-00524-CV, 2018 Tex. App. LEXIS 6579, at *10 (Tex. App.—

Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.)).

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Plaintiffs asserted in their response to the County’s plea to the jurisdiction that

“we [] do not know the exact time of the wreck[]” and that, although the accident

report reflects that the accident occurred at “1800” hours, the author of the police

report did not observe the accident. Plaintiffs argued in their response that Guidry

was deposed, and that the transcript was not yet available but that

[P]laintiff[s’] counsel will relay to [the trial] [c]ourt that Sheriff Deputy
Brent Guidry stated that he was on duty and acting within his scope of
employment during his deposition when the wreck occurred. Deputy
Guidry stated that his actions while on duty are recorded and stored in
the Spillman software used by Montgomery County to manage their
sheriff deputies. Plaintiff[s’] counsel was unaware of this software
information before Deputy Guidry’s deposition. Defendants did not
include this information in their Plea to the Jurisdiction, nor has
Montgomery County turned this information over to the Plaintiff[s].
Plaintiff[s’] counsel has requested the Spillman data after Deputy
Guidry’s deposition.[]

Plaintiffs, relying on Dent, argue that the County is liable for Guidry’s actions while

operating his patrol car because peace officers are never off duty, and Plaintiffs

contend that the plea to the jurisdiction should be denied because “Texas Courts are

clear that Montgomery County’s governmental immunity is waived when an injury

was caused by an employee’s use of a vehicle.[]” According to Plaintiffs, the County

“bears the burden to present evidence needed to show Deputy Guidry was off-duty”

and that the County’s immunity is not waived by the TTCA. Plaintiffs argued that

the County’s assertion that Guidry was off duty at the time of the accident “is simply

preposterous[]” because Guidry’s timesheet reflects that he worked between the

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hours of 06:00 and 22:30 without any breaks in time so he was “on duty operating

within the course of his employment” at the time of the accident. Plaintiffs argued

that Guidry’s typed summary of what transpired the day of the accident that was

attached to the County’s plea was not signed by Guidry and that Guidry did not state

that he was off duty at the time of the accident. Plaintiffs argued that Guidry stated

in his deposition that he was on duty. Plaintiffs presented no other evidence in their

response other than the documents the County attached to their plea and a

photograph from Guidry’s dashcam recording after the accident occurred, with the

time stamp of 18:01:20. On appeal, Appellants argue that the County’s own evidence

creates a fact issue on whether Guidry was on duty at the time of the accident because

Guidry’s timesheet lacks a gap of the time when the accident occurred and Lowery’s

affidavit states that Guidry was off duty immediately prior and at the time of the

accident, and that plaintiffs’ counsel had advised the trial court of Guidry’s

deposition testimony that he was on duty and believed he was acting within his scope

of employment until he pulled into his driveway at his home and defense counsel

did not object to plaintiffs’ counsel’s statement.

It is undisputed that Guidry was on his way home when the accident occurred.

Here, the issue is a legal issue as to whether Guidry, who was on his way home at

the end of his shift, was acting within the scope of his employment when the accident

occurred. See Quested v. City of Houston, 440 S.W.3d 275, 282 (Tex. App.—

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Houston [14th Dist.] 2014, no pet.) (citing Univ. of Tex. Health Sci. Ctr. at Hous. v.

McQueen, 431 S.W.3d 750, 756-57 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(noting appellate court reviews trial court’s ruling on a plea to the jurisdiction as a

matter of law when “parties do not dispute the facts presented on the jurisdictional

issue [but] simply dispute the legal significance of that evidence[]”)). Guidry’s

subjective belief or testimony about whether he is “on duty” until he pulls into his

driveway is not the controlling issue because we need not determine whether Deputy

Guidry was on duty or off duty. See Dent, 2019 Tex. App. LEXIS 6388, at *7.

Instead, the relevant inquiry is whether at the time of the accident Guidry was acting

in furtherance of the County’s business by discharging his duties as a deputy. See id.

See also Klumb v. Hou. Mun. Emps. Pension Sys., 405 S.W.3d 204, 227 (Tex.

App.—Houston [1st Dist.] 2013), aff’d, 458 S.W.3d 1 (Tex. 2015) (noting subjective

views are irrelevant to questions of law).

The evidence is uncontroverted that Guidry was driving home at the end of

his shift, and he was not responding to a call from dispatch or discharging any of his

duties at the time of the accident. Lowery’s affidavit in support of the County’s plea

stated that patrol officers are permitted but not required to commute to and from

work in their patrol vehicles, patrol deputies are off duty once relieved by the next

shift or a supervisor, and the County’s policies attached to the affidavit were

consistent with Lowery’s statements. Plaintiffs did not present any evidence that

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tended to controvert the County’s evidence that Guidry was merely commuting

home at the time of the accident, and Plaintiffs did not present any evidence that

tended to controvert the County’s evidence that immediately prior to or at the time

of the accident that Guidry was not conducting MCSO business or taking action in

furtherance of MCSO business. See City of Balch Springs, 315 S.W.3d at 225 (citing

Biggs, 611 S.W.2d at 627); see also El Paso Water Utils. Sys.-Pub. Serv. Bd. v.

Marivani, No. 08-23-00071-CV, 2023 Tex. App. LEXIS 5488, at **8-14 (Tex.

App.—El Paso July 26, 2023, no pet.) (mem. op.) (even assuming the Water Utilities

employee had not clocked out when he struck a parked vehicle, he was still not in

the scope of his employment because he was heading home and not in or about the

performance of a task lawfully assigned to him, and the fact that the Water Utilities’

policy stated that the use of the Water Utilities’ vehicles to commute is only allowed

if it is advantageous to the Water Utilities does not rebut the presumption that the

employee was merely coming or going to or from work because the employee’s use

of the Water Utilities’ vehicle was not necessary for the functioning of the Water

Utilities’ Department and was permissive and not mandatory; the Water Utilities did

not waive governmental immunity because there was no fact issue as to whether the

employee was in the scope of his employment at the time of the collision); cf. Love,

612 S.W.2d at 213 (evidence demonstrated that officer’s use of patrol car was

mandatory and officer was enforcing speeding laws moments before his accident

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and was actively fulfilling obligations imposed on officers who operate take-home

vehicles). Even indulging every reasonable inference in Plaintiffs’ favor, we

conclude Plaintiffs failed to raise a fact issue on whether Guidry was in the scope of

his employment at the time of the accident, and therefore the Plaintiffs did not

overcome the presumption of governmental immunity. See Miranda, 133 S.W.3d at

226-28. The trial court did not err in granting the County’s plea to the jurisdiction.

We overrule issue one.

Denial of Appellants’ Motion for Reconsideration and Motion for New Trial

In issue two, Appellants make essentially the same arguments as in issue one

and contend the trial court abused its discretion in denying Plaintiffs’ motion for

reconsideration or, in the alternative, motion for new trial, and that the trial court’s

order granting the plea should be reversed and remanded for a trial on the merits.

Specifically, Appellants argue that in Guidry’s deposition transcript, which was

attached to the motion and not available when Appellants filed their response to the

County’s plea to the jurisdiction, Guidry testified that he remains on duty until he

pulls into his driveway at his home. Appellants assert that “Guidry testified that until

officially off-duty, officers can be directed by their supervisor to drive to another

Sheriff’s Office district to assist with a major crash or other incident that

monopolizes all officers in that district[,]” and so, according to Appellants, Guidry

could have been assigned by his supervisor to assist other officers with a major

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incident anywhere in Montgomery County up until the time he pulled into his

driveway and announced he was off duty, and therefore, Guidry was discharging his

duties as a police officer when the tort occurred.

We have already noted that Guidry’s subjective belief as to whether he was

“on duty” until he pulled into his driveway is not the issue before us. See infra at p.

21; Dent, 2019 Tex. App. LEXIS 6388, at *7. Guidry’s deposition testimony cited

by Appellants does not create a fact issue as to whether he was acting within the

course and scope of his employment at the time of the accident. The trial court did

not abuse its discretion in denying Plaintiffs’ Motion for Reconsideration Granting

of Defendant’s Plea to the Jurisdiction or, in the Alternative, Motion for New Trial.

See In re R.R., 209 S.W.3d at 114; Bustamante, 2025 Tex. App. LEXIS 284, at **25-

26. We overrule issue two.

We affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on July 21, 2025
Opinion Delivered July 24, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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