City of McAllen v. Francisco J. Gonzalez

NUMBER 13-24-00361-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF MCALLEN, Appellant,

v.

FRANCISCO J. GONZALEZ, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 1
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice West

Appellant City of McAllen (the City) appeals the trial court’s denial of its plea to the

jurisdiction and motions for summary judgment. By its sole issue, the City argues the trial

court erred because appellee Francisco J. Gonzalez failed to establish a valid waiver of

governmental immunity under the Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(1)(A). We reverse and remand.
I. BACKGROUND

Gonzalez filed suit against the City asserting a claim for negligence under

§ 101.021 of the TTCA. Id. Gonzalez alleged that Jocelyn Reyes, a police officer

employed by the City, ran a red light without stopping or determining whether it was safe

to proceed, resulting in a collision with his car and injuries to his person.

After some discovery, the City filed, in one motion, a plea to the jurisdiction, a no-

evidence motion for summary judgment, and a traditional motion for summary judgment.

It asserted that it had governmental immunity because the exception to TTCA § 101.021

withdraws waiver of immunity where an officer is responding to an emergency call and

avoids violating the law or acting recklessly. See id. § 101.055(2).

On appeal, both parties rely on a traffic camera video, a dash-cam video, and

Officer Reyes’s deposition. This evidence demonstrates that Officer Reyes was on duty

and received a dispatch call for a possible drug overdose. She advised dispatch that she

was responding, and dispatch acknowledged her. She testified that she activated

emergency lights and sirens. The dash-cam and traffic cameras captured Officer Reyes

as she approached a red light at an intersection. The dash-cam footage shows that Officer

Reyes’s lights were on. It also recorded a sound that the parties agreed was a siren, the

intermittent use of a horn, and reduction of the cruiser’s speed from around eighty miles

per hour to four miles per hour when entering the middle of the intersection. In the footage,

vehicles are observed moving out of Officer Reyes’s path and stopping. As Officer Reyes

attempted to cross the last lane of perpendicular traffic, an SUV driven by Gonzalez

collided with her cruiser. Shortly after the collision, a large tour bus entered the traffic

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camera footage from the same direction as Gonzalez’s car. Gonzalez asserts that the

bus obstructed both his view and Officer Reyes’s view of each other.

The trial court denied the City’s motion, and this interlocutory appeal followed.

II. DISCUSSION

The City argues that Gonzalez failed to establish the City’s waiver of immunity

under the TTCA because it failed to present fact issues negating the exceptions to the

state’s immunity waiver found in § 101.055(2) and § 101.062. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 101.055(2), 101.062.

Gonzalez asserts that the City waived its immunity by consenting to jurisdiction in

a discovery response.

A. Standard of Review and Burden of Proof

Jurisdictional challenges are reviewed de novo. See City of Houston v. Gomez,

No. 23-0858, 2025 WL 1716878, at *2, __ S.W.3d __, __ (Tex. June 20, 2025) (citing

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). In de novo

review, no deference is given to the trial court's decision. See In re Est. of Slaughter, 305

S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.) (citing Quick v. City of Austin, 7

S.W.3d 109, 116 (Tex. 1998)). Challenges to jurisdiction are generally reviewed under

“two broad categories” depending on how the government responds to the purported

waiver. City of Austin v. Powell, 704 S.W.3d 437, 447–48 (Tex. 2024). The government

may (1) “challenge the pleadings,” similar “to a motion to dismiss under Rule 91a”; or

(2) “challenge the existence of jurisdictional facts,” similar to a “no-evidence motion for

summary judgment” or a “traditional motion for summary judgment.” Id.

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“Whatever the government may call its jurisdictional challenge—a plea to the

jurisdiction, a motion to dismiss, or a motion for summary judgment—we look to its

substance.” Id. The crux of the City’s combined motion is that Gonzalez could not present

a fact issue that exceptions relevant to the state’s waiver of tort immunity are inapplicable

in this case. Additionally, the City attached evidence to affirmatively support its claims.

Thus, we will treat the City’s jurisdictional challenge as one of the second category, a

challenge to jurisdictional facts. See Powell, 704 S.W.3d. at 448 (holding that “the City’s

plea to the jurisdiction most closely mirror[ed] a no-evidence motion for summary

judgment,” and analyzing the plaintiff’s “allegations and evidence” under that standard).

Regardless of how a jurisdictional challenge is classified or which party presents

the court with evidence, the burden is always the same: “the party suing the

government . . . bears the burden of affirmatively showing waiver of immunity.” Id. at 447

(internal citations omitted); see also County of Hidalgo v. Carlos, No. 13-24-00401-CV,

2025 WL 1764849, at *2 (Tex. App.—Corpus Christi–Edinburg June 26, 2025, no pet. h.)

(mem. op.) (citing Powell, 704 S.W.3d at 448). There is “a presumption against any waiver

until the plaintiff establishes otherwise.” Powell, 704 S.W.3d at 447 (quoting Rattray v.

City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023)). To survive a jurisdictional

challenge, a plaintiff must (1) prove that the statute clearly and affirmatively waives

jurisdiction and (2) negate any provision that creates exceptions to the waiver. Id. If, as

here, a jurisdictional challenge attacks the “existence of jurisdictional facts” and the

governmental entity identifies an exception to the waiver of immunity, the burden shifts to

the plaintiff, and he must produce enough evidence to raise a genuine issue of material

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fact to overcome the challenge. Id. at 448 (“When there is a dispute over jurisdictional

facts, the plaintiff must raise a genuine issue of material fact as to the immunity waiver’s

applicability.”); see City of San Antonio v. Maspero, 640 S.W.3d 523, 529 (Tex. 2022)

(quoting Univ. of Tex. at Austin v. Hays, 327 S.W.3d 113, 116 (Tex. 2000)) (“if the

evidence is undisputed or fails to raise a fact question, the plea must be granted” (internal

quotations omitted)); see also Cameron Cnty. v. Sossi, No. 13-21-00180-CV, 2022 WL

4374994, at *3 (Tex. App.—Corpus Christi–Edinburg Sept. 22, 2022, no pet.) (mem. op.).

“The plaintiff bears the burden of negating [TTCA] Section 101.055’s applicability.”

Maspero, 640 S.W.3d at 529 (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 672

(Tex. 2006).

B. Waiver by Consent

Gonzalez first asserts that the City is not immune because it responded to a

request for admission by admitting that the trial court had jurisdiction. We disagree. It is

an elementary principal of our jurisprudence that while parties may consent to personal

jurisdiction, parties cannot consent to subject matter jurisdiction. In re Fisher, 433 S.W.3d

523, 532 (Tex. 2014) (orig. proceeding) (providing that parties may consent to personal

jurisdiction); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (setting out that

parties cannot confer subject matter jurisdiction on courts by consent). Governmental

immunity is derived from the state’s sovereignty and deprives a court of subject matter

jurisdiction, regardless of any admissions. Miranda, 133 S.W.3d at 224; Wasson Ints.,

Ltd. v. City of Jacksonville, 489 S.W.3d 427, 431 (Tex. 2016). And waiver of the

government’s sovereign immunity is the sole province of the Legislature. Tex. Nat. Res.

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Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 858 (Tex. 2002). Government agents,

such as attorneys representing the City, are unable to waive the state’s sovereignty. See

id. (holding “administrative agents—even those who have authority to contract on the

agency’s behalf—cannot waive their agencies’ immunity from suit”). 1 Accordingly, we

reject Gonzalez’s claim that the City waived its immunity.

C. Legislature’s Immunity Waiver and Exceptions

The City, a political subdivision of the state, is immune from suit unless state law

has waived immunity. Gomez, 2025 WL 1716878, at *2. The TTCA has waived immunity

where personal injury arises from and is proximately caused by a government employee’s

negligent operation or use of a motor-driven vehicle while in the scope of employment.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). However, the TTCA expressly excepts

certain circumstances from this immunity waiver as specified in § 101.055(2) and §

101.062.

i. § 101.055(2)

An exception to the government’s TTCA waiver of immunity in motor vehicle

collisions applies when an officer “respond[s] to an emergency call” or “react[s] to an

emergency situation” unless: (1) the officer failed to 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.” See id.

1 Gonzalez also argues the Court should decide this issue in his favor without analysis because

the City failed to address it on appeal. But courts have a duty to ensure they have subject matter jurisdiction
even if no party raises the issue. S.C. v. M.B., 650 S.W.3d 428, 449 (Tex. 2022). This is because lack of
subject matter jurisdiction divests the judiciary of authority to decide a case. Rusk State Hosp. v. Black, 392
S.W.3d 88, 94 (Tex. 2012). Thus, the City’s failure to address the waiver issue on appeal does not affect
our analysis.

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§ 101.055(2).

a. Emergency Call

The City argues that Gonzalez failed to establish the City’s waiver of immunity

under the TTCA because no fact issue was presented as to whether Officer Reyes was

responding to an emergency call. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2).

Gonzalez disagrees. He argues that Officer Reyes was not “responding to an emergency”

call or “reacting to an emergency situation” because she was merely responding to a

“possible” overdose rather than a more certain threat to life. 2 However, Gonzalez does

not explain what degree of probability is necessary to trigger § 101.055(2), and he

provides no authority for this proposition.

The Supreme Court of Texas has broadly interpreted “emergency” under

§ 101.055(2) and reasoned “we cannot construe [§] 101.055(2) to exclude emergencies

the Legislature might have intended to include.” City of San Antonio v. Hartman, 201

S.W.3d 667, 673 (Tex. 2006) (rejecting appellate court’s holding that “emergency” does

not include “what might be colloquially referenced to as an ‘emergency’” and holding

government employees’ decisions regarding where to erect traffic barricades during

unprecedented flooding satisfied the “emergency” prong under § 101.055(2)). Similarly,

our sister court held the “emergency” prong of § 101.055(2) was satisfied by a collision

that occurred while the police officer was trying to discern whether the dispatched call he

was responding to was a true emergency. Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d

2 Gonzalez also complains that even if the call merited attention, it was not an emergency because

Officer Reyes could not have provided any meaningful assistance other than CPR and ensuring paramedics
arrived. To the extent Gonzalez finds futile an officer’s provision of CPR and a secure scene for paramedics
to administer lifesaving care, we disagree.
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236, 239 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Given the foregoing precedent, with no evidence from Gonzalez on this issue, and

in light of the evidence presented by the City concerning Officer Reyes’ response to the

emergency dispatch, we find Gonzalez failed to raise a fact issue as to whether Officer

Reyes was responding to an emergency under § 101.055(2). We sustain the City’s issue.

b. Compliance With Law

Next, the City argues that Gonzalez failed to establish the City’s waiver of immunity

under the TTCA because there is no fact issue as to whether Officer Reyes failed to

comply with laws and ordinances applicable to emergency action. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2). Gonzalez disagrees. He asserts that Officer Reyes failed

to comply with a municipal ordinance that provides as follows:

No person while driving or operating or in charge of any vehicle shall wilfully
[(sic)] or with negligence cause or suffer or permit such vehicle to come into
collision with any other vehicle of any nature whatever, or with any animal
or property in or on any street or public or private property.

MCALLEN, TEX., CODE OF ORDINANCES ch. 102, art. V, § 102–156. However, the Supreme

Court of Texas recently held in Powell that laws of “general applicability” which do not

“purport to regulate emergency personnel” are not “laws and ordinances applicable to

emergency action” under § 101.055(2). 704 S.W.3d at 451–52 (rationalizing that if laws

of general applicability applied, “officers would routinely violate § 101.055(2)” because,

for example, “it is likely that an officer in a high-speed chase will fail to ‘signal continuously

for not less than the last 100 feet’ before turning” (citing TEX. TRANSP. CODE ANN.

§ 545.104(b))).

Gonzalez failed to demonstrate Officer Reyes’ alleged failure to comply with laws

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and ordinances applicable to emergency actions. Therefore, immunity is retained unless

Gonzalez can show conscious indifference or recklessness. We sustain the City’s issue.

c. Conscious Indifference or Recklessness

The City argues that Gonzalez failed to establish the City’s waiver of immunity

under the TTCA because there is no fact issue that Officer Reyes engaged in conscious

indifference or reckless disregard for the safety of others. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.055(2). Gonzalez disagrees. He argues that the evidence indicates that

Officer Reyes did not activate her lights, her view at the intersection was blocked by a

bus, and she has been involved in three prior accidents. 3

Conscious indifference or reckless disregard involves willful or wanton disregard

for the safety of others. Gomez, 2025 WL 1716878 at *3. Proof of a “momentary judgment

lapse” or “inattentiveness” is not enough. Id. In the police immunity context, “we must

tread carefully” for certain police work involves “obvious risk of serious injury to

bystanders” but is necessary to prevent “even greater danger to the community.” City of

San Antonio v. Maspero, 640 S.W.3d 523, 531–32 (Tex. 2022). As a result, “[l]aw

enforcement must retain discretion to assess and balance these risks using reasoned

judgment.” Id. at 532. Thus, we consider whether the officer engaged in “some risk

assessment.” Id.

In Maspero, an officer engaged in a police chase through school zones and heavy

traffic, reaching speeds of 100 miles per hour. Id. at 527. The officer swerved around

3 Gonzalez also argues Officer Reyes failed to reduce her speed or stop prior to entering the

intersection. However, the only evidence before us related to Officer Reyes’s speed is the dash cam footage
which recorded the cruiser’s data. And it shows Officer Reyes slowed to four miles per hour.
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eighteen wheelers, spun out twice, and had to regain control of her cruiser. Id. Thereafter,

while attempting to pass a vehicle, she entered oncoming traffic and hit a motorist head

on. Id. The Supreme Court of Texas held there was no fact issue as to conscious

indifference or recklessness because the officer “engaged in some degree of risk

assessment” by “slow[ing] down at intersections” and “communicating with her supervisor

throughout the pursuit.” Id. at 532. The Court reasoned: “[t]hese facts do not suggest that

[the] Officer[’s] actions generated ‘extreme risk’ beyond that which is inherent in high-

speed pursuits.” Id. (quoting Tarrant County v. Bonner, 574 S.W.3d 893, 902 (Tex. 2019)).

In City of Houston v. Green, an officer responded to a call with lights on and only

intermittent use of his siren. 672 S.W.3d 27, 29 (Tex. 2023). The officer could not recall

whether he employed his siren as he attempted to pass through a red light. Id. He passed

the first few lanes of the intersection and, while traveling around ten to twenty miles per

hour, collided with a motorist that travelled behind other motorists that already stopped.

Id. The Supreme Court of Texas held that the officer was not reckless under § 101.055(2)

and noted the following:

[Plaintiff] provided no evidence to contradict that [the Officer] was
responding to a priority-two emergency call involving an armed suspect, that
he activated his overhead emergency lights, that he averaged 35 to 40 miles
per hour, that he at least slowed his speed (if not stopped) before
proceeding through each intersection, that he intermittently activated his
audible siren, that other vehicles noticed him and stopped as he proceeded
across Richmond Avenue, [and] that those vehicles blocked his view of the
lane [Plaintiff] was in . . . .

Id. at 31.

In Powell, two officers in separate cruisers responded to a welfare check and heard

shots fired. 704 S.W.3d at 446. While pursuing a suspect car leaving the location of the

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shots, the leading officer slowed to make a turn, and the following officer was unable to

slow down in time, colliding with the leading cruiser and causing the officers to lose control

of their cruisers. Id. One cruiser impacted a car stopped at a stop sign. Id. The crash

report cited the following officer’s inattention and failure to control speed as contributing

causes of the accident. Id. However, the Supreme Court of Texas held that the officer

was not reckless under § 101.055(2) and noted the “[the Officer’s] receipt of permission

to begin pursuit, his frequent contact with his superiors, as well as his use of lights and

siren are all useful evidence supporting the conclusion that he did not act recklessly.” Id.

at 462. 4

In Gomez, an officer was dispatched to an emergency call during moderate traffic

and heavy rain. 2025 WL 1716878 at *1. While responding, the officer did not turn on his

siren, and evidence was disputed as to whether he turned on his emergency lights. Id. As

the officer approached an intersection, he reached down to adjust the volume on his radio.

Id. When he looked up, he noticed the light changed to yellow and attempted to stop. Id.

However, his patrol car slid through the intersection and hit a motorist. Id. The officer was

reprimanded by his department and found at fault. Id. The Supreme Court of Texas held

that the officer was not reckless under § 101.055(2) and explained as follows:

[While the officer’s reaching] down to adjust his radio suggests that he might
have momentarily acted without due care . . . establishing a failure to
exercise due care does not establish reckless disregard of the safety of
others. At worst, [the Officer’s] actions can be characterized as a
momentary lapse of judgment or inattentiveness, not willful or wanton
disregard for the safety of his fellow Houston motorists.

4 The Supreme Court of Texas recognized that immunity is necessary to prevent deterring conduct

that may be necessary to protect the public but opined a different regime may be in the best interest of the
State to ameliorate the harsh results sometimes borne by faultless parties. Powell, 704 S.W.3d at 462. The
Court nevertheless stated these are policy decisions or “undertakings for the Legislature.” Id.
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Id. at 4.

Here, Gonzalez argues Officer Reyes was reckless because (1) her emergency

lights were not on, (2) she crossed an intersection when her view was obstructed by

motorists, and (3) Officer Reyes was involved in three prior accidents. The first two

assertions were found insufficient to generate fact issues as to recklessness or conscious

indifference by the Supreme Court of Texas—not to mention that the uncontroverted

evidence shows Officer Reyes activated her emergency lights. And regarding the third

assertion, proof that Officer Reyes may have been negligent in past incidents does not

prove that Officer Reyes was reckless in the incident for which Gonzalez seeks recovery.

See Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied) (“To prevail on a negligence or negligence per se claim, a

plaintiff must plead and prove that the defendant’s negligence was the proximate cause

of his injury.”); Powell, 704 S.W.3d at 459, 461 (“[T]he mere happening of an accident is

no evidence at all of negligence . . . . [m]ere involvement in a collision does not create an

inference or conclusion that a driver is incompetent or reckless.”); see also TEX. R. EVID.

404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.”). Without more, Gonzalez has failed to present a fact issue

concerning conscious indifference and recklessness under § 101.055(2). We sustain the

City’s issue.

d. Remedy

At the time of the trial court’s decision, the Powell case had not been decided and,

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thus, it appeared that a no-evidence plea to the jurisdiction was not proper under our

Court’s precedent. See, e.g., La Joya Indep. Sch. Dist. v. Gonzalez, 532 S.W.3d 892, 897

(Tex. App.—Corpus Christi–Edinburg 2017, pet. denied) (“a defendant may not advance

a ‘no-evidence’ plea to the jurisdiction”). Given the supreme court’s clarification of the law

since the trial court’s denial of the plea to the jurisdiction, we find the appropriate remedy

is to provide a final opportunity for appellee to amend his pleadings and/or present

evidence sufficient to create a fact issue. In reconsidering the jurisdictional issues raised

by appellant and the opportunity granted to Gonzalez to supplement his response, the

trial court should then follow Powell and consider whether appellee has met his burden

to show a waiver of immunity.

ii. § 101.062

There is an exception to the government’s TTCA immunity waiver related to “a

claim against a public agency . . . aris[ing] from an action of an employee of the public

agency . . . and inolv[ing] . . . respon[se] to a 9-1-1 emergency call only if the action

violates a statute or ordinance applicable to the action.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.062 (emphasis added). The City argues this waiver applies. However, the City

raised this exception for the first time on appeal. Appellee was never provided an

opportunity to re-plead and/or present new evidence in response. And while Appellee

carried the burden to plead and prove a waiver of immunity—including negation of

exceptions to waiver—this burden does not require “march[ing] through the Act provision

by provision.” Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex. 2023). Rather,

the government has a role in “identifying” and “raising” applicable TTCA exceptions. Id.

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at 868 (explaining “if the plaintiff omits or otherwise fails to negate a relevant exception to

the waiver, the defendant should speak up.”); Powell, 704 S.W.3d at 447 (explaining that

“the parties’ burdens will depend on the nature of the plaintiff's claim and how the

government poses its jurisdictional challenge.” (emphasis added)). Thus, Appellee must

be provided an opportunity to adjust its litigatory posture through pleading and

presentation of evidence in response to the City’s newly raised immunity waiver theory.

Therefore, we reject the City’s issue.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand

the case for further proceedings consistent with the opinion.

JON WEST
Justice

Delivered and filed on the
7th day of August, 2025.

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