City of San Antonio v. Jimmy Maspero and Regina Maspero, Individually and as Next Friends of W.M., W.M., W.M., and W.M., Minor Children

Supreme Court of Texas
══════════
No. 19-1144
══════════

City of San Antonio,
Petitioner,

v.

Jimmy Maspero and Regina Maspero, Individually and as Next
Friends of W.M., W.M., W.M., Deceased, and W.M., Deceased,
Minor Children,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

Argued September 28, 2021

JUSTICE LEHRMANN delivered the opinion of the Court.

This case concerns waiver of governmental immunity under the
Texas Tort Claims Act when innocent bystanders suffer harm during a
police chase. The plaintiffs, respondents in this Court, contend that
their injuries arose from a San Antonio police officer’s vehicular pursuit
of a fleeing suspect who crashed into their car. They sued the City
pursuant to Section 101.021 of the Act, which waives governmental
immunity when an injury “arises from the operation or use” of a motor
vehicle by a governmental employee. TEX. CIV. PRAC. & REM. CODE
§ 101.021(1)(A). The City filed a plea to the jurisdiction, arguing that
the officer’s actions were too attenuated from the plaintiffs’ injuries to
satisfy Section 101.021(1)(A) and that, in any event, the emergency
exception in Section 101.055(2) of the Act forecloses its application
because the officer’s actions were not reckless and did not violate
applicable laws or ordinances.
The trial court granted the City’s plea to the jurisdiction. The
court of appeals reversed, holding the City’s immunity was waived.
After reviewing the record, we agree with the trial court and hold that
the plaintiffs’ claims are barred by sovereign immunity. Specifically, we
hold that under the Act’s emergency exception, the Act “does not apply
to” the plaintiffs’ claims and thus cannot waive the City’s immunity from
suit. Id. § 101.055(2). We also reject the court of appeals’ holding that
independent grounds exist to waive immunity from a claim for negligent
implementation of policy. In light of those holdings, we do not reach or
express any opinion on the issue of whether the plaintiffs’ injuries arose
from the officer’s operation or use of a motor vehicle, as would be
required to establish waiver of immunity under Section 101.021(1)(A) if
the Act applied. We reverse the court of appeals’ judgment and dismiss
the plaintiffs’ claims for lack of jurisdiction.

I. Background

The incident at issue in this case arose from a 2012 joint task-
force investigation of a drug-trafficking operation at a rural property on
Morin Road in San Antonio. 1 The task force’s intelligence indicated that
an illegal organization had received a large shipment of marijuana at
the property for distribution. Further investigation revealed vehicles
were frequently entering and exiting the property, consistent with drug
trafficking.
The task force developed a plan that would allow potential
suspects to be stopped without exposing the rest of the operation.
Detectives in unmarked cars stationed themselves at the ranch, and
uniformed San Antonio Police Department (SAPD) officers and Bexar
County Sheriff’s Office deputies were deployed in the surrounding area.
When a vehicle left the Morin Road property, the detectives would trail
the suspect vehicle, broadcast its description, location, and direction of
travel, and then follow the vehicle until they observed a traffic violation.
Uniformed officers would then stop and detain suspects far from the
Morin Road property in order to avoid alerting others at the ranch. The
plan did not specify what was to be done in the event that a suspect
refused to pull over and fled.
On September 9, 2012, SAPD Officer Kimberly Kory was assigned
to assist with the investigation. At around 4:30 p.m., she positioned
herself at a Shell Station at Highway 16 and Loop 1604. Her supervisor,
Sergeant Dominic Scaramozi, arrived shortly thereafter. Meanwhile,
David Rodriguez entered the Morin Road property in a black Chevrolet

1 The task force consisted of San Antonio Police Department detectives,
Bexar County Sheriff’s Office deputies, and High Intensity Drug Trafficking
Area (HIDTA) officers. HIDTA includes officers from local, state, and federal
agencies “whose goal is to work together to dismantle drug organizations and
share information related to these organizations.”
Suburban. When Rodriguez later exited the property, two detectives
followed him and broadcast his description and license plate number.
Officer Kory received the radio communication, left the Shell Station,
and proceeded westbound on Loop 1604. Detectives broadcast that
Rodriguez committed a traffic violation by failing to signal when
changing lanes. Approximately one mile before IH-35, Officer Kory
caught sight of Rodriguez’s vehicle and activated her emergency lights
and siren. Rodriguez initially slowed and seemed to pull over, but he
then rapidly accelerated back into the main traffic lanes.
As noted, nothing in the record suggests that the task force
provided officers with specific guidance about how they should respond
to a fleeing suspect. However, the SAPD’s “General Manual” contains
detailed procedures governing vehicular pursuit of such suspects.
Procedure 609 of the manual states, among other things, that “pursuits
will not be initiated” for “[n]on-hazardous traffic violations,” for “[t]raffic
violations where the danger has passed,” or when the “individuals
fleeing are suspects only and the actual crime has not been determined.”
Further, officers must obtain “immediate authorization to continue the
pursuit,” and authorized pursuits of “[k]nown and felony offenders
(other than Evading Arrest)” may be continued “depending on the
hazardous circumstances and environmental factors.”
When Rodriguez fled, Officer Kory immediately gave chase,
following him down Loop 1604 and onto southbound IH-35. As she
pursued him, Officer Kory radioed information about the Suburban’s
movements to Sergeant Scaramozi, who neither affirmatively
authorized her to continue the pursuit nor instructed her to abandon it.
The parties highlight different aspects of the chase that ensued. The
plaintiffs emphasize that traffic conditions were heavy and that the
vehicles passed active school zones. They note that Officer Kory initially
tried to keep pace with Rodriguez, swerving around eighteen-wheelers
and speeding at close to 100 miles per hour.
The City emphasizes that Officer Kory slowed at two
intersections Rodriguez sped through. For this reason, a gap grew
between Officer Kory and Rodriguez, eventually causing her to
temporarily lose sight of him near the Kinney Road exit on IH-35. At
that point Officer Kory doubted she would catch Rodriguez, but she
continued on, hoping to “maintain[] a line of sight” with him. Rodriguez
reemerged heading south on the two-way access road adjacent to
southbound IH-35 between Kinney Road and Shepherd Road. Officer
Kory sped up and proceeded down the Shepherd Road exit ramp. While
she was on the exit ramp, Rodriguez spun out twice, kicking up dust.
Officer Kory continued to drive south on the access road towards him.
When Rodriguez regained control, the Suburban was pointing north,
and he headed back in that direction on the access road toward the
Shepherd Road exit ramp.
From this point forward, the record is unclear as to whether
Rodriguez intended to charge Officer Kory or evade apprehension.
However, Automatic Vehicle Location (AVL) records indicate that
Officer Kory never stopped driving toward Rodriguez, and she turned
her car toward him immediately after he drove past her on the access
road.
Meanwhile, north of Rodriguez and Officer Kory, the Maspero
family was proceeding onto the southbound lane of the two-way access
road at the Shepherd Road exit. As Rodriguez sped north on the access
road, he drove past Officer Kory’s patrol car, missing it, but collided with
the Masperos’ vehicle. A diagram in the crash report suggests that
Rodriguez had moved into the southbound lane to pass another car,
causing the head-on collision. The impact tragically caused Jimmy and
Regina Maspero to sustain incapacitating injuries and killed two of their
young children.
The record contains conflicting evidence as to whether, at the
time of the crash, Officer Kory’s siren remained activated as required by
statute and SAPD policy. Officer Kory attested that her siren was
activated throughout the chase. However, the SAPD Pursuit Evaluation
Report of the incident states that she had activated her emergency lights
but does not mention the siren, and a witness to the accident testified
that he recalled seeing the emergency lights but did not recall hearing
the siren.
The Masperos sued the City and several individuals, including
SAPD Chief of Police William McManus, Officer Kory, and Sergeant
Scaramozi, 2 asserting both state and federal causes of action. The
defendants removed the case to federal court, which dismissed all claims
against the individual defendants and remanded the remaining state-
law negligence claims against the City. The City subsequently filed a
plea to the jurisdiction asserting immunity from suit. It argued that the

2 The Masperos also sued Rodriguez, and the claims against him were
dismissed pursuant to settlement.
Masperos could not establish waiver of immunity under the Tort Claims
Act because (1) no causal nexus exists between Officer Kory’s operation
or use of a motor-driven vehicle and the Masperos’ injuries and (2) even
if such a causal nexus exists, the Act’s emergency exception preserves
the City’s immunity, as Officer Kory was responding to an emergency in
accordance with applicable law.
In support of its plea, the City attached Officer Kory’s and
Sergeant Scaramozi’s affidavits reflecting their accounts of the incident.
It also included a report authored by its expert witness, former SAPD
Chief of Police Albert Ortiz. In response to the plea, the Masperos
included the SAPD Pursuit Evaluation Report, Officer Kory’s and
Sergeant Scaramozi’s deposition testimony, the SAPD police report, the
AVL records, the SAPD General Manual, the Texas Peace Officer’s
Crash Report, eyewitness testimony, and their own expert’s report.
Following a hearing, the trial court granted the City’s plea to the
jurisdiction and dismissed the case, specifying in its order that
(1) immunity is not waived under Section 101.021 of the Tort Claims Act
because no nexus exists “between Officer Kory’s police car and the tragic
incident,” and (2) Section 101.055 of the Act applies because “there is no
fact issue on ‘emergency situation’ or conscious indifference/reckless
disregard.” The Masperos appealed, and the court of appeals reversed.
628 S.W.3d 476, 480 (Tex. App.—San Antonio 2019). First, the court of
appeals held that because the evidence demonstrates that Officer Kory
continued to pursue Rodriguez up until his collision with the Masperos’
vehicle, the Masperos had adequately shown that their injuries “arose
from” Officer Kory’s use of her patrol car under Section 101.021(1)(A).
Id. at 482–83. Additionally, the court held that the Act’s emergency
exception is inapplicable because the evidence demonstrates that Officer
Kory engaged in an unauthorized chase even when she suspected she
could not catch Rodriguez. Id. at 483–84. Finally, the court concluded
that Officer Kory’s violation of SAPD procedure established an
independent waiver of immunity from the Masperos’ claim for negligent
implementation of policy. Id. at 484–86.
The City petitioned this Court for review, arguing that its
immunity was not waived because (1) the Masperos’ injuries did not
arise from Officer Kory’s use or operation of her motor-driven vehicle as
a matter of law, (2) the Masperos’ claims did not arise from reckless
conduct, triggering the Act’s emergency exception, and (3) negligent
implementation of policy does not give rise to an independent ground for
waiver of governmental immunity.

II. Standard of Review

Governmental units are immune from suit unless immunity is
waived by state law. Dall. Area Rapid Transit v. Whitley, 104 S.W.3d
540, 542 (Tex. 2003) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636,
638 (Tex. 1999)). The Texas Tort Claims Act, at issue here, waives
immunity for the negligent acts of government employees in specific,
narrow circumstances. See TEX. CIV. PRAC. & REM. CODE § 101.021.
Because governmental immunity is jurisdictional, it is properly
raised through a plea to the jurisdiction, which we review de novo. State
v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). The party suing the
governmental unit bears the burden of affirmatively showing waiver of
immunity. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578
S.W.3d 506, 512 (Tex. 2019). “To determine whether the party has met
this burden, we may consider the facts alleged by the plaintiff and the
evidence submitted by the parties.” Id. (citing Tex. Nat. Res. &
Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001)). When
a plea challenges jurisdictional facts, our review mirrors that of a
traditional summary judgment motion. Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
To that end, in evaluating the parties’ evidence, we take as true
all evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When
the pleadings and evidence generate a “fact question on jurisdiction,”
dismissal on a plea to the jurisdiction is improper. Univ. of Tex. at
Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010); see also Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (noting that “the
proper function of a dilatory plea does not authorize an inquiry so far
into the substance of the claims presented that plaintiffs are required to
put on their case simply to establish jurisdiction”). However, “if the
evidence is undisputed or fails to raise a fact question,” the plea must be
granted. Hayes, 327 S.W.3d at 116.

III. Discussion

A. The Tort Claims Act’s Emergency Exception

We first address whether the Masperos’ claims fall within the
Texas Tort Claims Act’s emergency exception. TEX. CIV. PRAC. & REM.
CODE § 101.055(2). If they do, then Section 101.021(1)(A) of the Act does
not waive the City’s immunity from those claims regardless of whether
they would otherwise fall within the scope of that waiver. 3
Under Section 101.055, the Act:
does not apply to a claim arising . . . from the action of an
employee while responding to an emergency call or
reacting to an emergency situation if the action is in
compliance with the laws and ordinances applicable to
emergency action, or in the absence of such a law or
ordinance, if the action is not taken with conscious
indifference or reckless disregard for the safety of others.

Id. § 101.055(2). The plaintiff bears the burden of negating
Section 101.055’s applicability. See City of San Antonio v. Hartman, 201
S.W.3d 667, 672 (Tex. 2006). The Masperos do not dispute that Officer
Kory was responding to an “emergency situation.” Therefore, even if the
Masperos’ claims satisfy the requirements for waiver of immunity under
Section 101.021(1)(A), the Act “does not apply,” and the City thus retains
immunity, if the Masperos failed to raise a fact issue that either
(1) Officer Kory’s pursuit violated the laws and ordinances applicable to
emergency response or (2) the pursuit was reckless. TEX. CIV. PRAC. &
REM. CODE § 101.055(2).

3 Section 101.021(1)(A) of the Tort Claims Act waives immunity 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[.]

TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A).
Based on the structure and language of the pertinent statutory
provisions governing emergency response, the distinction between these
inquiries largely collapses in this case. Specifically, under Texas
Transportation Code Section 546.006, a driver of an emergency vehicle
must drive “with appropriate regard for the safety of all persons” and is
not relieved of “the consequences of reckless disregard for the safety of
others.” TEX. TRANSP. CODE § 546.006 (emphasis added). The Masperos
argue, however, that Officer Kory violated applicable “laws and
ordinances” in two respects independently of whether her conduct was
reckless.
First, the Masperos contend that the following actions
transgressed SAPD Procedure 609: (1) pursuing an individual who is not
a known felony offender (other than for evading arrest); (2) engaging in
and continuing the pursuit of Rodriguez without affirmative
authorization from a supervisor; (3) initiating and continuing a high-
speed chase through school zones; 4 and (4) engaging in a pursuit when
the “benefit of apprehension” did not “outweigh[] the risk to the officer
or the public.” 5 However, a police department’s internal policies, in and
of themselves, are not “laws” or “ordinances.” See BLACK’S LAW

4 In considering whether a pursuit should continue, Procedure 609
requires officers to consider nearby “[s]chool zones or areas where large crowds
gather.”
5 Procedure 609 states, “Officers engage in a vehicular pursuit only
when the benefit of apprehension outweighs the risk to the officer or the
public.” The Masperos point to testimony from Sergeant Scaramozi at
Rodriguez’s criminal trial, in which counsel asked whether “the benefit of
apprehension in this case [was] outweighed by the risk to the officer or the
public” and Scaramozi responded, “Not in my opinion.”
DICTIONARY (11th ed. 2019) (defining “law” as “[t]he aggregate of
legislation, judicial precedents, and accepted legal principles; the body
of authoritative grounds of judicial and administrative action,” and
defining “ordinance” as “[a]n authoritative law or decree; specif., a
municipal regulation, esp. one that forbids or restricts an activity”);
Roche v. City of Austin, No. 03-17-00727-CV, 2018 WL 3978333, at *2
(Tex. App.—Austin, Aug. 21, 2018, no pet.) (“A police department’s
internal policy or procedure is not a ‘law’ or ‘ordinance’ for purposes of
waiver of immunity pursuant to Texas Civil Practice and Remedies Code
section 101.055(2).”). Indeed, Procedure 609 explicitly states that it is
not binding law; rather, it “establishes guidelines for officers in
situations necessitating the use of emergency vehicles.” Therefore, even
if the evidence raises a fact issue as to Officer Kory’s alleged
noncompliance with Procedure 609, such noncompliance does not by
itself amount to a violation of “laws and ordinances applicable to
emergency action.” TEX. CIV. PRAC. & REM. CODE § 101.055(2).
The Masperos further argue, however, that Officer Kory’s failure
to comply with department policy does amount to a statutory violation
in one specific respect. They cite Transportation Code Section 546.003,
which states that “the operator of an authorized emergency vehicle
engaging in conduct permitted by Section 546.001 shall use, at the
discretion of the operator in accordance with policies of the department
or the local government that employs the operator, audible or visual
signals.” TEX. TRANSP. CODE § 546.003 (emphasis added). SAPD
Procedure 609 requires officers to activate their sirens for emergency
calls unless they have received “on-air authorization from a supervisory
officer,” and as noted, some evidence indicates that Officer Kory’s siren
was not activated when the collision occurred and that she did not
receive authorization for that conduct. Accordingly, the Masperos
reason that by violating Procedure 609 in this manner, she also violated
Section 546.003.
We disagree. Section 546.003 applies to officers while “engaging
in conduct permitted by section 546.001,” not while engaging in pursuit
of a fleeing suspect. Id. Section 546.001 in turn enumerates specific
conduct that would otherwise violate various traffic laws, including
“proceed[ing] past a red or stop signal or stop sign,” “exceed[ing] a
maximum speed limit,” and “disregard[ing] a regulation governing . . .
movement or turning in specified directions.” Id. § 546.001. Reading
these provisions together, they require officers to employ sirens,
consistent with department policy, when they are driving in a way that
would violate those laws.
While Officer Kory does not deny speeding earlier in the chase,
the AVL records show that she was driving below the speed limit once
she exited IH-35 and proceeded toward Rodriguez on the access road.
No evidence indicates that Officer Kory was engaged in any of the
conduct enumerated in Section 546.001 after exiting the highway and
before the collision. At that point, Section 546.003 did not govern her
use of lights or siren.
Moreover, Officer Kory’s use of her siren is inconsequential for
purposes of Section 101.055. Section 101.055(2) requires a causal nexus
between the plaintiff’s claim and the government employee’s reckless or
illegal action. TEX. CIV. PRAC. & REM. CODE § 101.055(2) (stating that
the Act does not apply to a claim “arising . . . from the action of an
employee . . . if the action is in compliance with the laws and ordinances
applicable to emergency action”) (emphasis added). The Masperos fail
to explain how their injuries arose from Officer Kory’s alleged failure to
use her siren. It is undisputed that she had activated her emergency
lights, and the crash report indicates that Rodriguez veered into the
Masperos’ lane to move around another vehicle. Any suggestion that
the siren would have prevented the collision, particularly given the
extreme recklessness of Rodriguez’s conduct, is speculation at best.
Therefore, the evidence that Officer Kory failed to use her siren does not
foreclose the Act’s emergency exception. Accordingly, the exception
applies unless a fact issue exists as to whether Officer Kory acted “with
conscious indifference or reckless disregard for the safety of others.” Id.
The court of appeals held that the Masperos presented sufficient
evidence to raise such a fact issue, citing the following facts: (1) Officer
Kory drove well above the speed limit, including while taking exits, and
mimicked Rodriguez’s reckless driving; (2) Officer Kory disregarded
Procedure 609, which required her to obtain authorization for the
pursuit; (3) the benefit of apprehending the suspect did not outweigh the
risk to the public; (4) Officer Kory failed to terminate the chase even
when she knew she could not catch Rodriguez; and (5) Officer Kory did
not activate her siren during the chase. 628 S.W.3d at 484. The court
concluded that these actions indicated that “Officer Kory acted with
conscious indifference or reckless disregard for the safety of others” and
was knowingly apathetic to the high risk of injury inherent in the
pursuit. Id.
Under the Transportation Code, reckless driving consists of
driving a vehicle in “willful or wanton disregard for the safety of persons
or property.” TEX. TRANSP. CODE § 545.401(a). In Tarrant County v.
Bonner, we explained that this standard requires “conscious
indifference,” or “subjective awareness of an extreme risk.” 574 S.W.3d
893, 902 (Tex. 2019). Further, recklessness reflects more than a
“momentary judgment lapse” and instead “requires a showing that the
driver committed an act he knew or should have known posed a high
degree of risk of serious injury.” Perez v. Webb County, 511 S.W.3d 233,
236 (Tex. App.—San Antonio 2015, pet. denied) (citing City of Amarillo
v. Martin, 971 S.W.2d 426, 430 (Tex. 1998)).
In this context, we recognize we must tread carefully. On one
hand, all high-speed car chases involve obvious risk of serious injury to
bystanders. 6 Yet, we have long recognized that fleeing suspects may
pose an even greater danger to the community. See Travis v. City of
Mesquite, 830 S.W.2d 94, 99 (Tex. 1992) (plurality opinion) (“[W]e
recognize that police pursuit is often important and necessary in
apprehending criminals posing a danger to our society,” but we cannot
“conclude that all chases are reasonable no matter what the
circumstances.”). Law enforcement must retain discretion to assess and
balance these risks using reasoned judgment. Id.
Here, Officer Kory had specific instructions to stop Rodriguez and
had reason to believe he was transporting drugs as part of a larger drug-

6 The Masperos’ expert report presented several statistics, including
that “41% of urban police pursuits will end in an accident” and “33–34% of
police fatalities will be innocent bystanders.”
trafficking operation. 7 She did not chase him into an obviously
dangerous area or force him to crash. The Masperos and the court of
appeals emphasize that early in the chase Officer Kory was speeding
and swerving. 628 S.W.3d at 484. But these acts in isolation are
insufficient to bypass the emergency exception. First, a police officer’s
speeding and swerving during a pursuit are not inherently reckless
actions. Exceeding the speed limit is part and parcel of a police chase.
As the U.S. Supreme Court noted in Scott v. Harris, to hold otherwise is
to incentivize fleeing criminals to drive as recklessly as possible. 550
U.S. 372, 385 (2007) (“[W]e are loath to lay down a rule requiring the
police to allow fleeing suspects to get away whenever they drive so
recklessly that they put other people’s lives in danger. . . . Every fleeing
motorist would know that escape is within his grasp, if only he
accelerates to 90 miles per hour, crosses the double-yellow line a few
times, and runs a few red lights.”). Moreover, no evidence suggests that
the speeding itself was a cause of the crash. Officer Kory was still
pursuing Rodriguez at the time of the collision, but by that point she had
significantly slowed down.
Finally, Officer Kory’s other actions during the chase indicate
that she engaged in some degree of risk assessment. She slowed down
at intersections even when she temporarily lost sight of Rodriguez’s
vehicle. Additionally, she communicated with Sergeant Scaramozi
throughout the chase, and she never disregarded or ignored any

7The City’s expert report states that officers were instructed to “detain
suspects leaving the ranch in an attempt to positively identify them and
whether they were involved in the reported drug distribution network.”
instructions to modify or terminate the pursuit. These facts do not
suggest that Officer Kory’s actions generated “extreme risk” beyond that
which is inherent in high-speed pursuits. Bonner, 574 S.W.3d at 902.
They also do not raise the inference that she “reckless[ly] disregard[ed]”
the increased danger generated by her actions. TEX. CIV. PRAC. & REM.
CODE § 101.055(2). In fact, by slowing down at intersections, she
demonstrated intent to minimize potential harm, even at risk of letting
Rodriguez get away.
In sum, we hold that pursuant to Section 101.055’s emergency
exception, the Tort Claims Act “does not apply” to the Masperos’ claims.
Id. Therefore, the Act does not waive the City’s immunity from suit.

B. Negligent Implementation of Policy

Finally, we address the court of appeals’ holding that the City’s
immunity was waived with respect to the Masperos’ claim for negligent
implementation of policy. 628 S.W.3d at 485–86. The Tort Claims Act
does not create the basis for that holding. Rather, the court of appeals
derived it from our statement in Ryder Integrated Logistics, Inc. v.
Fayette County that “a peace officer’s flawed execution of policy gives
rise to a colorable negligence claim.” 453 S.W.3d 922, 928 (Tex. 2015)
(citing State v. Terrell, 588 S.W.2d 784, 788 (Tex. 1979)).
As the City argues, no such independent ground for immunity
waiver exists. First, waiver of sovereign immunity is within the
province of the Legislature, not the courts. See, e.g., Lubbock Cnty.
Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442
S.W.3d 297, 300–01 (Tex. 2014); Texas Nat. Res. Conservation Comm’n
v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (“We have consistently
deferred to the Legislature to waive sovereign immunity from suit,
because this allows the Legislature to protect its policymaking
function.”).
Second, the court of appeals misconstrued both Ryder and Terrell
to support its holding. In Ryder, we addressed the requirement of
negligence or wrongful conduct by a government employee as part of a
waiver of immunity under the Tort Claims Act. 453 S.W.3d at 928. But
we did not purport to recognize an independent, common-law immunity
waiver for a claim of negligent implementation of policy. 8
The court of appeals also cited the following statement in Terrell:
[I]f the negligence causing an injury lies in the formulating
of policy—i.e., the determining of the method of police
protection to provide—the government remains immune
from liability. If, however, an officer or employee acts
negligently in carrying out that policy, government liability
may exist under the Act.

588 S.W.2d at 788 (emphasis removed). In that case, we analyzed
whether a claim for which the plaintiffs had already established waiver
under the Tort Claims Act fell within a statutory exception, not at issue
here, applicable to certain discretionary acts. See id. at 785–86; TEX.
CIV. PRAC. & REM. CODE § 101.056. Specifically, we clarified the
distinction between negligent-formulation-of-policy claims, which fall

8 In fact, in Ryder, we explicitly incorporated the cited discussion of
negligent implementation of policy into our broader analysis of whether
Section 101.021(1)(A) applied: “[T]he tortious act alleged must relate to the
defendant’s operation of the vehicle . . . . In other words, even where the
plaintiff has alleged a tort on the part of a government driver, there is no
immunity waiver absent the negligent or otherwise improper use of a motor-
driven vehicle.” 453 S.W.3d at 928.
under the exception, and negligent-implementation-of-policy claims,
which do not. Terrell, 588 S.W.2d at 788. Just as in Ryder, we did not
purport in Terrell to recognize an independent ground for waiver of
immunity unmoored from the Tort Claims Act or any other statutory
waiver. The court of appeals erred in doing so here.

IV. Conclusion

The Masperos failed to present evidence that Officer Kory’s
actions in responding to an emergency situation were reckless or
violated applicable laws or ordinances. Therefore, the Tort Claims Act’s
emergency exception applies, and the Act does not waive the City’s
immunity from suit. Further, no independent basis exists to support
waiver of the City’s immunity with respect to the Masperos’ claim for
negligent implementation of policy. We accordingly reverse the court of
appeals’ judgment and dismiss the Masperos’ claims for lack of
jurisdiction.

Debra H. Lehrmann
Justice

OPINION DELIVERED: February 18, 2022