The City of Houston v. Hollis F. Holmes

Opinion issued March 24, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00359-CV
———————————
THE CITY OF HOUSTON, Appellant
V.
HOLLIS F. HOLMES, Appellee

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2024-54734

MEMORANDUM OPINION

Hollis Holmes sued the City of Houston for negligence following a motor-

vehicle accident. The City filed a motion for summary judgment arguing it is

immune from suit because the City’s employee, a firefighter who was driving the

fire truck that collided with Holmes’ car, was not in the course and scope of
employment when the accident occurred. The trial court denied the City’s motion

and this appeal ensued.

We affirm.

Background

On September 11, 2022, at approximately 11 a.m., Houston firefighter

Eugene Schifani drove a Houston Fire Department (“HFD”) ladder truck to an H-

E-B grocery store in Houston, Texas with three other firefighters on board.

Schifani and firefighter Troy Dornak waited in the fire truck with its engine

running while the two other firefighters went inside the grocery store to purchase

groceries for the fire station’s crew to eat during their twenty-four-hour shift.

According to Schifani, the fire truck’s engine remained running during the forty-

five minutes the two firefighters were in the store “just in case we got an

emergency call for a ladder truck while on our grocery run.”

Holmes pled that as she drove eastbound in the grocery store parking lot, the

HFD fire truck collided with her car. She alleged that Schifani was acting in the

course and scope of his employment with the City when the collision occurred and

“carelessly failed to look ahead and make sure it was safe” to pull out from the

truck’s parked position. According to Schifani, Holmes’ car had stopped in the fire

truck’s blind spot and as he attempted to pull out the truck from where he parked in

2
front of the store, “the passenger front tire ring” on the fire truck caught the car’s

“passenger side back plastic bumper cover and pulled it off.”

Holmes sued the City for negligence under the Texas Tort Claims Act1 and

asserted the doctrine of respondeat superior.2 She sought damages for past and

future reasonable medical care and expenses, past and future physical pain and

suffering, and past and future mental anguish.3 The City pled in its answer, among

other things, that governmental immunity barred Holmes’ claims.

Summary Judgment Motion

The City filed a traditional motion for summary judgment based on

governmental immunity. In support of its motion, the City attached the unsworn

declarations of Schifani and Dornak, one of the firefighters who accompanied

Schifani to the grocery store,4 and a business record affidavit proving up ten photos

of the accident scene.

In his unsworn declaration, Schifani stated that

• His shift on September 11, 2022 began at 6 a.m.

1
TEX. CIV. PRAC. & REM. CODE § 101.001, et seq.
2
Holmes also sued Schifani but she later dropped her claims against him.
3
Holmes’ property damage claim was settled and was not part of the underlying
litigation.
4
Unsworn declarations that comply with section 132.001 of the Civil Practice and
Remedies Code constitute competent summary judgment evidence. Chagoya v.
Vilchis, No. 01-22-00864-CV, 2024 WL 3417049, at *4 (Tex. App.—Houston [1st
Dist.] July 16, 2024, no pet.) (mem. op.); see also TEX. CIV. PRAC. & REM. CODE
§ 132.001(c), (d) (enumerating requirements of unsworn declarations).

3
• That morning, each of the twelve crew members of the firehouse paid
$25 for groceries to cover the twenty-four-hour shift. The money was to
purchase food for lunch, dinner, breakfast, and snacks during the shift.

• At approximately 11 a.m., he drove ladder truck 64 to an H-E-B store to
purchase food with the money that had been collected. Three firefighters,
including Dornak, accompanied him.

• He parked the truck parallel to the front of the store.

• Two firefighters went into the store to shop and he and Dornak waited in
the truck outside the store “with the engine running,” and

• “Because on duty HFD firefighters work twenty-four hours during their
shift, we had to be available just in case we got an emergency call for a
ladder truck while on our grocery run.” They did not receive an
emergency call during the grocery trip.

Schifani also provided the details of the accident, which occurred at approximately

11:46 a.m.5

Dornak, a senior captain at the fire station, stated in his unsworn declaration

that

• He waited with Schifani in the ladder truck while the other two
firefighters shopped.

• He confirmed the engine was running while they waited, stating,
“Because we work twenty-four hours straight during our shift, we must
be prepared at all times to be able to respond to an emergency call for a
ladder truck.”

• The groceries were purchased “to be prepared at the station for lunch,
dinner and breakfast the next day. We have twelve firefighters at Station

5
Because liability is not contested in the summary judgment motion, we need not
go into the details of how the accident occurred.

4
62 for the shift. Each firefighter chips in $25.00, so we [have] $300.00 to
buy groceries for three really substantial meals.”

The City argued that Schifani was not acting within the scope of his employment

but was, rather, on a “grocery run” when the accident occurred.

In her summary judgment response, Holmes argued that this is not a simple

“gone to lunch” case. Rather, Schifani drove the fire truck and ladder crew to the

grocery store and stayed with the truck “just in case [they] got an emergency call

for a ladder truck.” She further argued that Schifani was driving the truck that day

because driving the truck “is his job,” and he is “assigned to Station 64 . . . driving

the Ladder truck.”

In addition, she argued that the grocery run “furthered the City’s business”

because it allowed the firefighters “to eat at the station and be available to respond

to emergency calls.” Based on Dornak’s statement, according to Holmes, the

grocery runs “appear[] to be a regular occurrence.” Further, sending the ladder

crew to the store “allowed them to take a truck that ‘tend[s] to receive less

emergency calls than other apparatuses,’ but can still ‘be prepared at all times to be

able to respond to an emergency call.’” She pointed to Schifani’s statement in his

declaration that he waited outside the grocery store with the engine running “just in

case we got an emergency call for a ladder truck while on our grocery run.”

Finally, she argued that Schifani “was not just another guy going to pick up

groceries for himself. Rather, [h]e was driving a City Ladder truck, carrying three

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other firefighters, to the grocery store, to carry out a task that had been assigned to

them for the benefit of Station 64, in a manner that allowed them to keep doing

their work.” Schifani’s “general duties include driving the Ladder truck and his

specific duties that day included driving the Ladder truck to HEB.” She argued the

City had not conclusively established Schifani was on a personal errand when the

accident occurred.

In its summary judgment reply, the City argued that “[c]o-workers tasked by

other co-workers to buy groceries during the shift and every shift does not make

the errand in the scope of employment;” going to purchase groceries in a HFD

ladder truck does not turn the errand into a “scope of employment endeavor;” the

City does not derive benefit from the grocery run; and the grocery run was not in

furtherance of the City’s business.

The trial court denied the City’s summary judgment motion. This appeal

ensued.

Standard of Review

Subject matter jurisdiction is implicit in a court’s power to decide a case.

City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). To establish subject

matter jurisdiction, a plaintiff must allege facts that demonstrate affirmatively the

court’s jurisdiction to hear her claims. Town of Shady Shores v. Swanson, 590

S.W.3d 544, 550 (Tex. 2019). “Whether a court has subject matter jurisdiction is a

6
question of law.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). Because the existence of subject matter jurisdiction is a question of

law, we review the trial court’s ruling on the City’s motion for summary judgment

de novo. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivs.

Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006).6

A governmental unit may raise the affirmative defense of governmental

immunity and challenge the trial court’s jurisdiction “through a plea to the

jurisdiction or other procedural vehicle, such as a motion for summary judgment.”

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). To

obtain a traditional summary judgment based on lack of jurisdiction, “a 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.” Town of Shady Shores, 590

S.W.3d at 551 (citing TEX. R. CIV. P. 166a(c)). The nonmovant “may raise a

genuine issue of material fact by producing ‘more than a scintilla of evidence

establishing the existence of the challenged element.’” Id. (quoting Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). In our review, “we view the

evidence in the light most favorable to the nonmovants by indulging every

6
We also review a trial court’s ruling on a summary judgment motion de novo. City
of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL 3556216, at *3 (Tex.
App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.) (citing Tex.
Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.
2007)).

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reasonable inference and resolving any doubts in their favor.” City of Houston v.

Rodriguez, 704 S.W.3d 462, 470 (Tex. 2024).

Governmental Immunity

Governmental immunity protects political subdivisions of the state from

lawsuits and liability for monetary damages unless their immunity is waived. See

Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329, 332 (Tex.

2022); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655

(Tex. 2008) (“Sovereign immunity and its counterpart, governmental immunity,

exist to protect the State and its political subdivisions from lawsuits and liability

for money damages.”) (citation omitted). As political subdivisions of the State,

cities are “immune from suit unless [their] immunity is waived by state law.” City

of Austin v. Powell, 704 S.W.3d 437, 448 (Tex. 2024) (quoting City of San Antonio

v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022)).

The Texas Tort Claims Act (“TTCA”) waives immunity from suit for

negligent acts in certain circumstances.7 City of Houston v. Gomez, 716 S.W.3d

161, 165 (Tex. 2025). Relevant to the issues here, the TTCA waives governmental

immunity for claims involving the negligent use or operation of a motor-driven

7
The starting point for our analysis is “a presumption against any waiver until the
plaintiff establishes otherwise.” Rattray v. City of Brownsville, 662 S.W.3d 860,
866 (Tex. 2023).

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vehicle. 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).

Scope of Employment

In its sole issue, the City argues that it retained its governmental immunity

from Holmes’ TTCA claims because Schifani, the driver of the HFD ladder truck,

was not acting in the scope of employment when the accident occurred.

In its summary judgment motion and again in its appellate brief, the City

cites eleven “acting within the scope of employment” cases involving

governmental entities. We are not persuaded by the number of cases the City cites.

The inquiry into whether an act was committed in the course and scope of

employment is “unavoidably fact-specific.” Tex. Mut. Ins. Co. v. Jerrols, 385

S.W.3d 619, 627 (Tex. App.—Houston [14th Dist.] 2012, pet. dism’d). And none

of the cases cited by the City is factually analogous to the present case.

9
The City relies on City of Houston v. Carrizales, No. 01-20-00699-CV, 2021

WL 3556216 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem.

op.) in support of its argument that Schifani was not in the scope of his

employment when the collision with Holmes occurred. Carrizales stemmed from

an accident involving a City of Houston sewer jet truck and Carrizales’ car. Id. at

*1. When the accident occurred, the truck’s driver (“Griffin”) was driving the truck

back to her place of work after stopping by her home for lunch. Id. at *2. Griffin

“was alone in the truck when the collision occurred. She explained that if she had

been investigating a stoppage or answering a request for service or investigating or

inspecting a sewer complaint, someone else would have been in the truck with her

because ‘[i]t takes two people to perform the job.’” Id. Carrizales sued the City

under the TTCA and the City moved for summary judgment based on

governmental immunity. Id. Carrizales asserted that there was a genuine issue of

material fact as to whether Griffin was acting in the course and scope of her

employment “because Griffin stated in her deposition that she ‘was on the clock’

when the collision occurred but also stated that she was not required to ‘clock out’

during the day, and she explained that ‘even while we are on our break, we are on

the clock.’” Id. The trial court denied the summary judgment motion.

In reversing the trial court, we held that Griffin’s testimony that she was

returning to her workplace “alone after lunch when the accident occurred” rebutted

10
the presumption that she was acting in the course and scope of her employment

when the accident occurred. Id. at *5. And we relied in part on Griffin’s deposition

testimony “that if she had been performing her job duties, such as investigating a

stoppage, answering a request for service, or investigating or inspecting a sewer

complaint, someone else would have been in the truck with her because ‘it takes

two employees to perform the job.’” Id.

Carrizales is inapposite; in fact, it lends support to Holmes’ position.

Whereas Griffin was alone—and thus could not have been actively on duty based

on her testimony—when the accident occurred, Schifani’s entire four-person

ladder crew was in the truck at the grocery store because they remained on duty.

While two of the firefighters were shopping, Schifani and Dornak remained in the

truck with the engine running in case they were needed for an emergency call.

Dornak stated in his declaration that he and Schifani waited in the truck with the

engine running because “we must be prepared at all times to be able to respond to

an emergency call for a ladder truck.” And Schifani stated that the engine was

running during the approximately forty-five minutes of grocery shopping because

as HFD firefighters, “we had to be available just in case we got an emergency call

for a ladder truck while on our grocery run.” We thus are not persuaded by

Carrizales.

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The City also relies on Cameron International Corp. v. Martinez, 662

S.W.3d 373 (Tex. 2022), a non-governmental entity case. In Cameron, a Cameron

employee (“Mueller”) traveled to another town after work “on his own time to

have dinner and to restock his personal groceries and fuel.” Id. at 377. He had

traveled to the town at the invitation of his supervisor, who asked him to “remain

on voluntary standby for potential work . . . the next day.” Id. at 375. After leaving

the gas station, Mueller was involved in a car accident that resulted in two deaths.

Id. The survivors and decedents’ estates sued Cameron, alleging Mueller was

acting in the scope of employment when the accident occurred. Id. at 376. The trial

court granted Cameron’s summary judgment motion in which it argued Mueller

was not its employee or acting within the scope of employment when the accident

occurred. Id. The court of appeals reversed, holding the summary judgment

evidence “raised fact issues” as to whether Mueller was acting in the scope of his

employment when the collision occurred and provided some evidence in support of

the plaintiffs’ claim “that Mueller’s purchases of food and water during his trip

constituted ‘a necessary service in furtherance of Cameron’s business[.]’” Id. The

Supreme Court reversed the court of appeals, stating:

Nearly every task that supports a worker’s personal needs, including
travel to and from work, indirectly benefits the employer. By traveling
to the workplace, a worker makes his services available, “and in that
sense he furthers the affairs or business of his employer by making the
journey.” Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex.
1965). Not every journey, however, falls within the course and scope
12
of an employment relationship. Id. To except from the general rule
Mueller’s travel to obtain personal groceries and fuel at his choice—
and not at Cameron’s direction—would turn nearly any personal
grocery errand into a special mission on an employer's behalf, a
concept that we rejected in Painter.8 See 561 S.W.3d at 138
(explaining that an employee’s decision to “conduct a personal
errand” while otherwise engaged in his employer’s business does not
give rise to vicarious liability for travel in connection with that
errand). Workers often travel for personal necessities during the
workday or leave for a meal before returning to work, but these
activities do not arise from the business of the employer. Rather, they
are daily tasks in which workers and nonworkers alike engage,
carrying the same attendant risks.

Id. at 377 (footnote added). The Supreme Court held “a personal trip for groceries

does not fall within the [] exception to the general rule that an employer is not

vicariously liable for an employee’s negligent acts while the employee travels to

and from work.” Id. at 379.

The fact that the employee in Cameron made a trip to purchase groceries

before the accident occurred does not render Cameron analogous to the present

case. Unlike the employee in Cameron, Schifani was not on a personal trip for

groceries. Viewing the evidence in the light most favorable to Holmes by indulging

every reasonable inference and resolving any doubts in her favor, the evidence

reflects that Schifani was actively on duty while at the grocery store. The engine of

the fire truck was running in case he and his cohorts were called to an emergency

scene. Dornak stated that “[b]ecause we work twenty-four hours straight during

8
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018).

13
our shift, we must be prepared at all times to be able to respond to an emergency

call for a ladder truck.” And Schifani was not simply buying personal groceries. He

and the other three firefighters were buying groceries to enable the twelve-person

crew to eat while on duty during their twenty-four-hour shift.9 That is, the

groceries were purchased by the entire crew to enable them to work for the entire

shift. Mueller is not persuasive.

Holmes relies on our decision in City of Houston v. Lal, 605 S.W.3d 645

(Tex. App.—Houston [1st Dist.] 2020, no pet), which stemmed from a Houston

police officer’s collision while driving a city-owned police car. Id. at 647. The

officer (“Ryans”) was off duty the day of the accident but remained on call to

respond to human-trafficking cases. Id. Immediately before the accident, Ryans,

who was driving, looked at his city-owned cell phone to see who was calling him.

Id. The distraction caused the accident. Id. The accident victim sued the City of

Houston for negligence, alleging Ryans was acting within the scope of his

employment when the accident occurred. Id. The City filed a plea to the

jurisdiction, arguing Ryans was not acting within the scope of his employment

when the collision occurred. Id. at 647–48. The trial court denied the plea to the

jurisdiction. Id. at 648.

9
Schifani stated in his declaration that the groceries were “all that the Station 64
crews would need during our twenty-four-hour shift. The crews agree and each
member provides $25.00 to the kitty so that we can buy groceries to cover our two
days/twenty-four-hour shift which includes lunch, dinner, breakfast and snacks.”

14
The City argued that Ryans “was not on duty and his on-call status, standing

alone, did not render his conduct within the scope of his employment.” Id. at 649.

The City argued that “looking at a ringing phone” did not render Ryans’ conduct

within the scope of employment, but this Court disagreed, noting that “Ryans’s

phone was issued by the city, and Ryans was on call. From these undisputed facts,

a factfinder could reasonably infer that Ryans was obligated in his capacity as a

peace officer employed by the city to answer incoming calls on this phone so that

he could be returned to duty if requested by the vice division.” Id. We observed

that even if Ryans was not on duty when the accident occurred, as the City

asserted, that fact was not dispositive. “The question is whether there is a

connection between Ryans’s job duties and his allegedly tortious conduct.” Id. at

650. Affirming the trial court, we held that the City failed to prove conclusively

that Ryans was not acting within the scope of his employment at the time of the

accident, and therefore, the trial court did not err in denying the City's

jurisdictional plea. Id. at 649.

Holmes also relies on our sister court’s holding in City of Houston v. Mejia,

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

involving a police officer (“Gallagher”) involved in a traffic accident while driving

a city-owned vehicle. In Mejia, the facts establish that Gallagher finished her shift

at 4 p.m. on the day of the accident. Id. at 906. Gallagher’s husband, a Houston

15
Police Department (“HPD”) lieutenant, asked her to pick up his city-issued vehicle

from the city garage and to drive it to their home so he would have his car

available at the start of his next shift. Id. After picking up the police car and on her

regular commute home, Gallagher was involved in an accident with the plaintiffs.

Id. at 904. Gallagher testified that at the time of the accident, she had no official

duties and, other than still being on call, was not being paid for her time. Id. The

City of Houston moved for summary judgment asserting it was entitled to

immunity because Gallagher was not in the course and scope of her employment

when the accident occurred. Id. The trial court denied the City’s summary

judgment motion. Id.

The City argued that Gallagher was not acting in the scope of her job as a

police officer but was, rather, “just another commuter on a Friday evening heading

home to enjoy time off on the weekend.” Id. at 906. The plaintiffs responded that

Gallagher was driving a city-owned vehicle, carrying out instructions issued by an

HPD officer who outranked her, and that HPD “would derive benefit from her

actions.” Id. The appellate court agreed with the plaintiffs, observing that

Gallagher’s affidavit reflected that “her husband (a superior officer employed by

Gallagher’s employer) asked her to pick up his City-issued vehicle from the City

garage so her superior officer would have the vehicle available at the beginning of

16
his shift (a benefit to Gallagher’s employer, HPD).” Id. Therefore, Gallagher was

not a mere commuter on the way home from work. Id.

We find both Lal and Mejia to be instructive.10 Viewing the evidence in the

light most favorable to Holmes, and indulging every reasonable inference and

resolving any doubts in her favor,” the evidence reflects that Schifani was not

acting under the guise of a typical grocery shopper, given that he was required to

remain prepared, with the engine running, in case he was called to an emergency

during the grocery run. The grocery trip was not made to purchase Schifani’s own

personal groceries, or even just for those four firefighters with him at the store, but

for the entire on-duty crew. Given that he was required to remain ready and able to

cover any emergency that arose during the grocery run, there is at least a fact

question as to whether he was acting in the course and scope of his employment

when the fire truck struck Holmes’ car.

The City argues that an employee is generally not in the scope of his

employment while driving to or from work, even if traveling in the company

vehicle and if the employee is “on call” twenty-four hours a day. The primary case

it cites, Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007),

involves an employee who drove a company truck at approximately 3 a.m. to a

10
The City does not address City of Houston v. Lal, 605 S.W.3d 645 (Tex. App.—
Houston [1st Dist.] 2020, no pet) or City of Houston v. Mejia, 606 S.W.3d 901
(Tex. App.—Houston [14th Dist.] 2020, pet. denied).

17
convenience store to purchase cigarettes, was supposed to be available via pager

twenty-four hours a day, and caused an accident on his way back home from the

store. Id. at 757. That is not tantamount to the present situation in which the

grocery trip was made during Schifani’s work shift to enable the fire crew to eat

during their twenty-four-hour shift. Being “on call” twenty-four hours a day is not

the same as being on a “twenty-four-hour” shift.

The City also argues “it is a well-established principle that merely because

an employee is on-duty, or on-call twenty-four hours a day, does not mean that the

person is always acting within the scope of his employment.” City of Laredo v.

Saenz, No. 04-05-00188-CV, 2006 WL 286006, at *3 (Tex. App.—San Antonio

Feb. 8, 2006, no pet.) (mem. op.). In Saenz, the city argued that the officer who

was involved in an accident with the plaintiff was off duty when the accident

occurred, and the plaintiff argued that the officer’s “status as a police officer

equates to his being ‘on-duty’ twenty-four hours a day.” Id. Here again, that is not

the present case. It is undisputed that the accident with Holmes happened during a

twenty-four-hour work shift, and that the engine was running in case Schifani was

called to an emergency during the forty-five-minute grocery run. From these

undisputed facts, a factfinder could reasonably infer that Schifani was on duty

when the accident occurred and acting for HFD’s benefit. See Lal, 605 S.W.3d at

649 (holding officer was in scope of employment when expected to answer

18
incoming calls so he could be returned to duty if needed); Mejia, 606 S.W.3d at

906 (holding officer was on duty because police department “would derive benefit

from her actions”). At a minimum, there was a fact issue on this point precluding

summary judgment.

Viewing the evidence in the light most favorable to Holmes, and indulging

every reasonable inference and resolving any doubts in her favor, as we must, we

hold the trial court properly denied the City’s motion for summary judgment. We

overrule the City’s sole issue.

Conclusion

We affirm the trial court’s denial of the City of Houston’s motion for

summary judgment.

Veronica Rivas-Molloy
Justice

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

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