The City of Austin v. Noel Powell

Supreme Court of Texas
══════════
No. 22-0662
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The City of Austin,
Petitioner,

v.

Noel Powell,
Respondent

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

Argued September 10, 2024

JUSTICE YOUNG delivered the opinion of the Court.

A fugitive led police officers on a high-speed chase through the
streets of Austin. While in pursuit, an officer lost control of his vehicle
and collided with a minivan stopped at an intersection. The collision
injured Noel Powell, the minivan’s driver. Powell, who was not at fault,
sued the City of Austin to recover damages for his injuries.
We must decide whether his claim may proceed. The legislature has
waived governmental immunity to suit for many torts, but it carved out an
exception when a governmental employee, like the officer who collided with
Powell, is “responding to an emergency call or reacting to an emergency
situation.” Tex. Civ. Prac. & Rem. Code § 101.055(2). This emergency
exception applies so long as the officer’s “action [was] in compliance with
the laws and ordinances applicable to emergency action, or in the
absence of such a law or ordinance, if the action [was] not taken with
conscious indifference or reckless disregard for the safety of others.” Id.
We hold that the officer’s conduct was not in violation of “a law or
ordinance” that governed emergency action and that Powell has raised no
fact question about whether the officer’s conduct was reckless. The Tort
Claims Act, therefore, does not waive the City’s immunity. We reverse
the court of appeals’ judgment and render judgment dismissing the case
for lack of jurisdiction.

I

Officer Brandon Bender was responding to a check-welfare call
when he heard “six or seven” gunshots ring out in the neighborhood. Four
additional shots followed within about fifteen minutes, and they “sounded
even closer than the first shots.” Three minutes after that, Officer
Michael Bullock spotted a Toyota FJ Cruiser coming from the same
direction as the gunshots. Officer Bullock told the vehicle’s driver to
stop. Instead of stopping, the car “took off.” Officer Bender received
authorization to pursue the FJ Cruiser with his lights and siren on.
Officer Bullock also received authorization to participate in the chase
and was assigned to back up other officers.
During the chase, Officer Bender decided to make a right turn
onto Brandt Road to “get in front of the pursuit . . . or to close the distance

2
to enter the pursuit.” Officer Bullock was following Officer Bender. As
Officer Bender slowed to make the turn, Officer Bullock hit the brakes.
Unable to slow down in time, Officer Bullock struck the passenger side
of Officer Bender’s car, causing the two cars to be “semi-stuck together.”
Both officers lost control of their vehicles. Officer Bender’s vehicle
slid through the intersection, running over a stop sign and coming to
rest against a fence post. Officer Bullock’s vehicle collided with Powell’s
minivan, which was stopped at the intersection. The impact caused
Powell’s vehicle to spin 180 degrees before coming to rest, while Officer
Bullock’s car came to rest against a tree. The post-crash report opined
that Officer Bullock’s inattention and failure to control his speed
contributed to the accident.
Powell sued the City, seeking recovery for his damages. The City
filed a plea to the jurisdiction based on the Tort Claims Act’s emergency
exception and Officer Bullock’s official immunity. The trial court denied
the City’s plea without explanation. The City appealed, raising only the
emergency exception. The court of appeals affirmed. 684 S.W.3d 455
(Tex. App.—Austin 2022). It held that there was a fact issue about
whether Officer Bullock’s actions were reckless, requiring further
proceedings in the trial court. Id. at 465.
We granted the City’s petition for review.

II

More than twenty years ago, we described the process for resolving
a plea to the jurisdiction asserting immunity from suit as one that
“generally mirrors that of a summary judgment.” Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We reaffirm this

3
description but acknowledge that dispositive-pleading practice has
evolved in the interim. The conceptual similarity largely reflects that the
parties’ burdens will depend on the nature of the plaintiff’s claim and how
the government poses its jurisdictional challenge. Just as the Texas rules
now include not only traditional summary judgment but also no-evidence
summary judgment and dismissal under Rule 91a, for example, pleas to
the jurisdiction may involve competing evidence, the denial of any
probative evidence, or the assertion that the law compels a result
regardless of the evidence.
The foundational rule in all cases is that “[a] party suing the
governmental unit bears the burden of affirmatively showing waiver of
immunity.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex.
2022) (citing Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578
S.W.3d 506, 512 (Tex. 2019)). There is “a presumption against any waiver
until the plaintiff establishes otherwise.” Rattray v. City of Brownsville,
662 S.W.3d 860, 866 (Tex. 2023). The plaintiff—the nonmovant—
survives the plea to the jurisdiction only by showing that the statute
“clearly and affirmatively waive[s] immunity” and by also “negating any
provisions that create exceptions to, and thus withdraw, that waiver.” Id.
at 867. Though a plaintiff need not anticipate and defeat every defense
the government could conceivably raise, see, e.g., id. at 867–68, a plea to
the jurisdiction may obviously rely on the plaintiff’s own pleadings in
arguing that they fail to “affirmatively demonstrate the court’s
jurisdiction to hear the case.” Mission Consol. Indep. Sch. Dist. v. Garcia,
372 S.W.3d 629, 635 (Tex. 2012). Where those pleadings indicate, for
example, that the emergency exception applies, the government need not

4
produce additional affirmative evidence to invoke the exception.
Whether the plaintiff bears an evidentiary burden depends on how
the government responds to the purported waiver. In Miranda, we
divided pleas to the jurisdiction into two broad categories. First, the
government may “challenge[] the pleadings.” Miranda, 133 S.W.3d at
226. In such a plea, the government does not dispute the plaintiff’s
factual allegations, and evidence is irrelevant. The question is whether
the alleged facts “affirmatively demonstrate a trial court’s subject matter
jurisdiction.” Id. That is “a question of law reviewed de novo.” Id. If
the plaintiff’s allegations neither establish jurisdiction nor negate it, the
plaintiff is given an opportunity to amend its pleadings, but if the
allegations negate jurisdiction, the plaintiff as a matter of law cannot
establish jurisdiction, so the court must grant the plea. Id. at 226–27.
This type of plea is thus similar—though not identical—to a motion to
dismiss under Rule 91a in that it asserts that the plaintiff’s allegations,
taken as true, do not show a waiver of immunity. See Tex. R. Civ. P.
91a.1. In that event, the plaintiff needs to respond not with evidence but
with legal argument showing the court that, as a matter of law, its
allegations demonstrate an immunity waiver despite the government’s
contrary arguments.
Second, the government’s plea to the jurisdiction may instead
“challenge[] the existence of jurisdictional facts,” requiring the trial court
to “consider relevant evidence submitted by the parties when necessary
to resolve the jurisdictional issues raised.” Miranda, 133 S.W.3d at 227.
The plea to the jurisdiction may, for example, be like a no-evidence motion
for summary judgment by asserting that the plaintiff has produced no

5
evidence of an element required for the immunity waiver to apply. See
Tex. R. Civ. P. 166a(i). In that event, the plaintiff may respond with
additional evidence establishing that element of the waiver. The plea
may mirror a traditional motion for summary judgment by attaching
evidence in an effort to conclusively negate jurisdiction. See id. R. 166a(c).
In such a case, the plaintiff must produce enough evidence to raise a
genuine issue of material fact to survive the plea. Miranda, 133 S.W.3d
at 227–28. Or the plea may be like a hybrid motion for summary
judgment where both parties attach evidence. The “ultimate issue” in
that instance is likewise “whether the nonmovant raised a fact issue to
preclude summary judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d
874, 882 (Tex. 2024).
Thus, when we stated in Mission Consolidated Independent School
District v. Garcia that “[i]nitially, the defendant carries the burden to
meet the summary judgment proof standard for its assertion that the trial
court lacks jurisdiction,” 372 S.W.3d at 635, we were referring to cases in
which the plea to the jurisdiction mirrors a traditional or hybrid motion
for summary judgment. After all, if the government wants to truly negate
the plaintiff’s evidence, then it must present evidence of its own. See id.
at 637 (“While a plaintiff must plead the elements of her statutory cause
of action . . . she will only be required to submit evidence if the defendant
presents evidence negating one of those basic facts.” (emphasis added)).
We did not, of course, contradict the bedrock principle that the plaintiff
bears the burden to establish a waiver of immunity. 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 Miranda,

6
133 S.W.3d at 227; see also Tex. Health & Hum. Servs. Comm’n v. Pope,
674 S.W.3d 273, 281 (Tex. 2023). When that happens, “we take as true
all evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor.” Maspero,
640 S.W.3d at 528–29. If the evidence raises a fact question as to the
court’s jurisdiction, then the trial court may not grant the plea. Univ. of
Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). But the court
must grant the plea if the evidence fails to raise a question as to the
existence of a jurisdictional fact. Maspero, 640 S.W.3d at 529.
A party’s characterization of its pleadings does not control how the
courts review them. 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. See, e.g., Oscar Renda
Contracting, Inc. v. Bruce, 689 S.W.3d 305, 311 (Tex. 2024) (noting that
“our Court has consistently held that we examine the substance of a
motion or pleading rather than requiring the formality of a title”); Thomas
v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (treating a summary-judgment
motion as a plea to the jurisdiction for purposes of appellate jurisdiction).
Here, the City’s plea to the jurisdiction most closely mirrors a no-
evidence motion for summary judgment. It argues that Powell failed to
establish jurisdictional facts after adequate time for discovery. We
therefore review Powell’s allegations and evidence (considering the City’s
undisputed evidence only for context), and we determine whether Powell
has raised a fact issue regarding the Tort Claims Act’s immunity waiver.

7
III

A

As a political subdivision of the state, the City is “immune from
suit unless [its] immunity is waived by state law.” Maspero, 640 S.W.3d
at 528. The Tort Claims Act waives immunity for certain torts, but it
“withdraws” the waiver in various circumstances. Rattray, 662 S.W.3d at
866. As relevant here, if an injury arises from an officer’s response to an
emergency call or reaction to an emergency situation, the Act withdraws
the waiver of immunity unless (1) the officer did not 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.” Tex. Civ. Prac. & Rem. Code
§ 101.055(2); see Maspero, 640 S.W.3d at 529. The court of appeals held
that Officer Bullock was responding to an emergency situation. 684
S.W.3d at 462. The parties do not dispute this holding, and it is one with
which we agree.
This case therefore turns on the applicability of the emergency
exception. The issue reduces to whether Officer Bullock (1) “compli[ed]
with the laws and ordinances applicable to emergency action,” or (2) “in
the absence of such a law or ordinance,” acted “with conscious indifference
or reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem.
Code § 101.055(2). No party before us argues that this latter inquiry is
distinct from showing recklessness, and our cases generally have
proceeded by regarding recklessness as what the latter inquiry requires.
See, e.g., Maspero, 640 S.W.3d at 529; City of Amarillo v. Martin, 971
S.W.2d 426, 430 (Tex. 1998). We therefore again assume for purposes of

8
this case that there is no difference between “conscious indifference or
reckless disregard” and “recklessness.”
The court of appeals, in reliance on Maspero, held that both
components of the emergency exception’s jurisdictional inquiry—the
law-or-ordinance prong and the recklessness prong—“ ‘collapse[]’ into
one inquiry concerning [Officer Bullock’s] recklessness.” 684 S.W.3d at
463 n.3 (quoting Maspero, 640 S.W.3d at 529). Maspero did not hold that
the two distinct inquiries are in fact only one. It said that “the distinction
between these inquiries largely collapses in this case.” Maspero, 640
S.W.3d at 529 (emphasis added). Such a result may often occur, as in
Maspero, and will depend on the content of an applicable statute or
ordinance.
The plain language of the emergency exception, however,
contemplates two distinct inquiries to be undertaken in a particular
order. First, the court must assess whether any laws or ordinances apply
to the emergency action at issue in the case. Such a law or ordinance may
apply to some aspect of the emergency action (hypothetically, for example,
by controlling maximum speed) or to the entire action. If there is an
applicable law or ordinance that governs the emergency action or governs
the only parts of that action that allegedly justify the imposition of
liability, the jurisdictional inquiry turns on whether the officer’s action
complied with the relevant law or ordinance. See Martin, 971 S.W.2d at
428 (“Because [a statute] controls Clark’s action as an emergency vehicle
operator in an emergency situation, we look to see if Clark complied with
that [statute].”). The second inquiry is triggered only if no law or
ordinance governs the emergency action at issue or any part of it. The

9
jurisdictional inquiry would then become whether there is a fact issue
as to that officer’s recklessness in undertaking the action that led to the
injury; any conduct that complied with an applicable law or ordinance
would not be subject to that analysis.
It was not always this way. The first version of the Tort Claims
Act, enacted in 1969, contained an emergency exception that was nearly
identical in wording to today’s version except that it lacked the
recklessness prong. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292,
§ 14(8), 1969 Tex. Gen. Laws 874, 878 (codified at Tex. Civ. Prac. & Rem.
Code § 101.055(2) by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1,
1985 Tex. Gen. Laws 3242, 3304). Thus, under the old version, the waiver
of immunity did not apply if the officer acted “in compliance with the laws
and ordinances applicable to emergency action.” Id. In Black v. Nueces
County Rural Fire Prevention District No. 2, we read that language to
require a specific “law[] or ordinance[] pertaining to this emergency
situation.” 695 S.W.2d 562, 563 (Tex. 1985) (emphasis added).
In Black, a volunteer firefighter sued the department after he was
struck by an engine reversing from the scene of a fire. Id. Because
neither the plaintiff nor the government defendant pointed to any law or
ordinance applicable to that particular action, we held that the exception
did not apply, and immunity was therefore waived. Id. Importantly,
Black treated the “laws and ordinances” prong of that version of the
emergency exception as a potential shield for the government. That is,
if the officer’s allegedly tortious action was undertaken in compliance
with an applicable law or ordinance, then his employer would enjoy
governmental immunity. With this defensive view in mind, it made sense

10
for the set of laws applicable to emergency action to be narrow. If the
general rules of the road were the laws and ordinances applicable to
emergency action, then the government could always show compliance
with some law, and the emergency exception would swallow the Act’s
immunity waiver. Instead, the Court understood the statute to address
only laws or ordinances that target emergency action.
But as Black construed it, the emergency exception generated less
protection for emergency responders than the legislature may have
anticipated. In the legislative session following our decision in Black, the
legislature added the recklessness prong to the emergency exception.
When no specific law or ordinance applied, therefore, the emergency
exception could still cover the government defendant if its actions were
not “taken with conscious indifference or reckless disregard for the safety
of others.” Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.05, 1987 Tex.
Gen. Laws 37, 49 (amending Tex. Civ. Prac. & Rem. Code § 101.055(2)).
Notably, the legislature left the first part of the emergency exception
intact. Accordingly, Black’s holding that laws and ordinances must
specifically address emergency action to qualify as “applicable to
emergency action” remains good law. The legislature supplemented that
provision by adding the recklessness prong, which provides additional
protection for government defendants.
Thus, where a case arises from “emergency calls or [a] react[ion] to
emergency situations,” official “compliance with [] laws and ordinances”
will be relevant only if the law or ordinance expressly “pertain[s] to th[e]
emergency situation.” Black, 695 S.W.2d at 563. Both parties may find
it useful to identify such a provision. If the plaintiff can point to a law or

11
ordinance that directly and specifically governs emergency responses and
can show that the government defendant did not comply, then immunity
is waived. On the other hand, if the government defendant can point to
an applicable law or ordinance, and can establish compliance, then at
least that aspect of the claim is off the table. Imagine, for example, a
hypothetical statute providing a safe harbor such that it is always
acceptable to exceed the posted speed limit by twenty miles per hour
during an authorized police pursuit. Under such a regime, speed would
often be unavailable to a plaintiff seeking to negate the emergency
exception, and if elevated speed was the only basis for the claim, then the
plea would be granted without proceeding to the recklessness prong.
Where neither party can point to such a law, however, the first
prong of § 101.055(2) is irrelevant to dislodging governmental immunity.
After all, an officer cannot comply with (or violate) a law that does not
exist. See id. The legislature’s apparent response to Black was to shift
the consequence of the absence of a law or ordinance. Under Black, such
an absence confirmed the waiver of immunity and the case would proceed
in the trial court. But after the 1987 amendment, which created the
emergency exception essentially in its current form, the case must then
proceed through an additional recklessness analysis.
All of this is reflected in the approach we took in Maspero. True,
in that case we framed the question as whether the plaintiff could prove
the “pursuit violated the laws and ordinances applicable to emergency
response,” rather than whether the government could prove compliance.
Maspero, 640 S.W.3d at 529 (emphasis added). But that is really just
another way of expressing the same idea: under the first prong of

12
§ 101.055(2), official compliance with a relevant statute may foreclose
liability, while a violation (obviously) will not. Compliance and violation
are two sides of the same coin. Either way, the kind of statute at issue
is what matters. Maspero and Black both rejected the plaintiff’s broad
reading of “laws and ordinances applicable to emergency action.” Id. at
529–31; Black, 695 S.W.2d at 563.
We reaffirm this sound reasoning today. Where a plaintiff seeks
to raise a fact issue as to official compliance with “laws and ordinances
applicable to emergency action,” but points to no law or ordinance that
specifically applies to that action, the first prong of § 101.055(2) has no
role to play. By the same token, generally applicable rules of the road
that do not specifically address or reference emergencies are not
applicable to emergency action for purposes of the emergency exception.
After all, if every rule of the road applied to emergency action unless a
statute expressly says otherwise, officers would routinely violate
§ 101.055(2). For instance, 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. Tex. Transp. Code § 545.104(b). And the Court in Black could
not have concluded that “there were no laws or ordinances pertaining to
[the] emergency situation” if nearly every traffic law pertained to the
emergency. Black, 695 S.W.2d at 563. Nor, by common sense, should the
emergency exception’s shield apply automatically whenever a government
employee happens to comply with one of the thousands of traffic
regulations that govern our state’s highways but have nothing particular
to do with the special context of emergency responses. Neither extreme
result is defensible under, much less required by, the text of § 101.055(2).

13
It is of course true that, under Transportation Code § 542.002, the
general rules of the road are “applicable to . . . a vehicle owned or
operated by . . . this state[] or a political subdivision of this state.” State
employees are not, as a class, above the traffic laws, and government-
owned vehicles of every variety must coexist with the public on the roads.
To say that the rules of the road apply to the class of public servants and
vehicles owned by the government, however, is not to say that such rules
are automatically “applicable to [the] emergency action[s]” that Texans
rely on public servants to perform. Tex. Civ. Prac. & Rem. Code
§ 101.055(2). Nor does § 542.002’s caveat—that it applies “except as
specifically provided otherwise . . . for an authorized emergency
vehicle”—change the analysis. It confirms it by acknowledging that there
are provisions of the law that do specifically address emergency contexts.
Notably, “authorized emergency vehicle” is broadly defined in § 541.201
to include even vehicles owned by private entities, such as a blood bank
or a private ambulance company. Tex. Transp. Code § 541.201(B), (I).
In short, while statutes that specifically govern emergency action
are relevant where a plaintiff attacks governmental immunity in the
emergency context, generally applicable traffic rules are not.

B

Accordingly, we must first resolve whether Officer Bullock’s
actions were governed by any applicable law or ordinance. If so, the
jurisdictional question is only whether there is a fact issue as to his
compliance with those laws.

14
1

Powell first argues that Officer Bullock did not comply with laws
governing emergency responses because he violated § 545.062(a) of the
Transportation Code. That statute requires an operator of a motor
vehicle following another motor vehicle to “maintain an assured clear
distance between the two vehicles so that . . . the operator can safely
stop without colliding with the preceding vehicle or veering into another
vehicle, object, or person on or near the highway.” Id. § 545.062(a).
Officer Bullock admitted that he was following so closely behind Officer
Bender’s car that he “was unable to slow in time” to avoid colliding with
it. We agree that such behavior would likely constitute a violation of
§ 545.062(a)—in other words, non-officers could not drive so closely
without violating the statute, and if the statute applies to police in
emergency situations, then there would at the least be a fact question.
The key legal question, then, is whether § 545.062(a) is a law or
ordinance applicable to emergency action for purposes of § 101.055(2). We
conclude that it is not. Section 545.062(a) does not purport to regulate
emergency personnel; it is a statute of general applicability. Following
Black and the legislature’s reenactment of § 101.055(2)’s first prong, we
expect something more to indicate that a law “pertain[s] to this
emergency situation.” Black, 695 S.W.2d at 563. Chapter 546, by
contrast, fits the bill: it is a specific body of rules and regulations that
govern the operation of emergency vehicles. It lists a few specific actions
that, outside the emergency context, would violate the laws governing
drivers, but that are permissible for officers responding to emergencies.
See Tex. Transp. Code § 546.001. For example, an officer may “proceed

15
past a red or stop signal or stop sign, after slowing as necessary for safe
operation.” Id. § 546.001(2). Chapter 546 then sets a baseline standard
for all emergency responses: emergency responders retain “the duty to
operate the vehicle with appropriate regard for the safety of all persons”
and must bear “the consequences of reckless disregard for the safety of
others.” Id. § 546.005.
Laws that specifically regulate emergency responses further
indicate that generally applicable traffic laws are inapplicable to
emergency responses. Our precedent, the statutory text, and
longstanding principles of statutory interpretation make this plain. The
Transportation Code provides that the generally applicable rules-of-the-
road provisions (such as Chapter 545) apply “to the operator of a vehicle
owned or operated by . . . a political subdivision of this state, except as
specifically provided otherwise by this subtitle for an authorized
emergency vehicle.” Id. § 542.002. Put another way, “where in one
section a general rule is prescribed, which without qualification would
embrace an entire class of subjects, and in another section a different rule
is prescribed for individual subjects of the same class, the latter must be
construed as exceptions to the general rule, and be governed by the
section which is applicable to them alone.” Lufkin v. City of Galveston,
63 Tex. 437, 439 (1885); see also Perez v. Perez, 59 Tex. 322, 324 (1883)
(noting that “when the law makes a general provision, apparently for all
cases, and a special provision for a particular class, the general must
yield to the special clause, so far as the particular class is concerned”).
General rules for safe driving do not constitute specific rules to govern
emergencies.

16
Chapter 545, moreover, confirms this reading because it contains
two provisions that expressly apply to emergency-response situations. See
Tex. Transp. Code §§ 545.365(a)(1) (authorizing emergency vehicles to
exceed the speed limit when responding to emergency calls), 545.204(b)
(noting that emergency-vehicle operators are not exempt “from the duty
to drive with due regard for the safety of all persons”). These are
exceptions that prove the rule: unless otherwise specified, Chapter 545’s
provisions do not regulate emergency responses. See Dolan v. Walker, 49
S.W.2d 695, 697 (Tex. 1932) (explaining that “when there are words in a
statute expressive of a particular intent, and other words indicating a
general intent inconsistent therewith, the particular intent must be taken
as an exception to the general rule”).
We thus conclude that § 545.062(a) is a law of general
applicability that is not specifically “applicable to emergency action”
under § 101.055(2) of the Tort Claims Act.

2

Powell next argues that Officer Bullock violated Chapter 546 of the
Transportation Code because his actions did not fall within § 546.001’s
four expressly authorized responses to emergency situations. As noted
above, at least some of § 546.001’s provisions are specifically applicable to
emergency situations: § 546.002(b)(1) specifies that subsections (2), (3),
and (4) of § 546.001 apply when “responding to an emergency call.” Tex.
Transp. Code § 546.002(b)(1). Each of § 546.001’s relevant provisions,
however, is phrased in the affirmative. They do not forbid any official
action but instead permit the enumerated actions under certain
conditions. Powell’s argument thus relies on the expressio unius canon of

17
statutory interpretation: “expressing one item of a commonly associated
group or series excludes another left unmentioned.” United States v.
Vonn, 535 U.S. 55, 65 (2002). Because the legislature expressly identified
four departures from the ordinary rules, the argument goes, it must have
intended to make all the rest of the ordinary rules binding even in
emergency contexts.
We reject this argument. The expressio unius canon does not apply
unless the statutory context makes it “fair to suppose that the legislature
considered the unnamed possibility and meant to say no to it.” Forest
Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 429 (Tex. 2017)
(brackets omitted) (quoting Marx v. Gen. Revenue Corp., 568 U.S. 371,
381 (2013)). Nothing suggests that this condition is satisfied here.
For one thing, as we noted above, Chapter 545 refers several times
to emergency conduct, which would be pointless if the standards for
emergency driving and for ordinary driving were the same except for the
four situations enumerated in § 546.001. Indeed, the express references
to emergency contexts in some Chapter 545 provisions could present a
competing expressio unius argument—one that is consistent with our
decision in Black, which indicated that the laws and ordinances
“applicable to emergency action” are those that specifically say so. 695
S.W.2d at 563.
This larger context is consistent with the very nature of emergency
action, which calls for split-second, fact-specific decisions in unpredictable
situations. The legislature’s attention to emergency contexts without
greater specificity reflects a recognition that it cannot—and, perhaps
more to the point, that the police cannot—predict and plan in advance for

18
every possible emergency. Likewise fruitless would be any attempt to
delineate every way an officer might permissibly react in an emergency
situation. The statute as a whole therefore confirms § 546.001’s role as
identifying some particularly important and common examples of
permissible emergency-response actions, which does not convey that
those examples constitute an exclusive list. To the contrary, it is
reasonable to read the enumerated authorizations in § 546.001 as
constituting safe harbors. They remove any doubt that undertaking those
actions is categorically permissible, which makes it especially hard to pin
liability on an officer who undertakes them. What is more, where an
officer does undertake one of the enumerated actions, the legislature has
provided standards with which a court can judge the officer’s “compliance”
with § 546.001. For example, an officer who accepts the authority to
“proceed past a red or stop signal” also accepts the responsibility to “slow[]
as necessary for safe operation.” Tex. Transp. Code § 546.001(2).
We reject Powell’s construction for a third reason, as well: it would
require us, by invocation of a canon of construction that does not readily
fit here, to ascribe to the legislature the intent to hamstring officers in
the performance of especially dangerous duties. If Powell’s construction
were correct, officers would be severely limited in their ability to respond
to emergencies—they would have discretion to disregard only four rules
of the road. As we have acknowledged, the legislature has determined
“that the public good will be better served by encouraging public
employees to take immediate action in emergency situations.” City of
San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006).
The facts here illustrate the point. If § 546.001 plays the role that

19
Powell alleges, officers could never closely follow behind another vehicle
during a police chase. But officers often must do so. The Austin Police
Department policy manual, for example, authorizes officers to perform
Precision Immobilization Technique maneuvers. The whole point of a
PIT maneuver is for an officer to closely follow a fleeing vehicle—and then
to make contact with the rear quarter panel of that vehicle, causing it to
spin out. Other officers then surround the suspect’s vehicle, preventing
the car from driving away. The policy manual refers to this (and other
similar measures) as a “tactical vehicle containment procedure.” Other
officers must then physically restrain the suspect, preventing him from
fleeing on foot. For these reasons, it generally takes at least three police
officers to perform a successful PIT maneuver. This is likely one reason
why the APD manual requires at least three police units to be involved in
a car chase before attempting such a maneuver. The maneuver requires
closely following a suspect, who is far less likely than a fellow police officer
to act predictably.
Beyond pursuing a suspect at close range, officers must sometimes
closely follow each other. If the other officers are far behind the action,
risking increased separation and the insertion of the general public
within an action, they cannot successfully surround the suspect’s vehicle
once the lead officer begins the maneuver. Detaining the suspect would
take longer and become riskier. Such a result would expose not just the
officers but other members of our society to a fugitive who has
demonstrated a willingness to do whatever it takes to avoid capture. In
such emergency scenarios, time is of the essence and inches matter. But
under Powell’s theory, officers could never undertake maneuvers like

20
these—or anything else that is forbidden to ordinary motorists and not
exempted by § 546.001. If the statute commanded such a result, we would
have no choice but to follow it. But the text of the statute does not compel
or justify Powell’s reading, and for the reasons we have articulated, it is
easy to see why the statute instead bears the meaning that we have
ascribed to it.

3

We next address the invocation of § 546.005’s refusal to “relieve”
an officer either of “the duty to operate the vehicle with appropriate
regard for the safety of all persons” or of “the consequences of reckless
disregard for the safety of others.” Tex. Transp. Code § 546.005. This
provision largely corresponds to the second prong in the Tort Claims Act’s
emergency exception. See Tex. Civ. Prac. & Rem. Code § 101.055(2)
(providing that the emergency exception does not apply if the officer acted
“with conscious indifference or reckless disregard for the safety of
others”). We thus explained in Maspero that the statutory “structure and
language” often collapse into an inquiry into whether the officer acted
recklessly. 640 S.W.3d at 529. Put another way, whether the emergency
exception’s applicability turns on § 546.005 of the Transportation Code (a
law applicable to emergency responses) rather than some other emergency-
specific law, or § 101.055(2) of the Tort Claims Act (which imposes a
recklessness standard in the absence of laws applicable to emergency
responses), the inquiry will often reduce to whether the officer acted
recklessly.
As we have explained, however, that does not mean that the
inquiry will always be one into the officer’s recklessness. Beyond

21
§ 545.062(a) and Chapter 546, the parties do not identify any other
statutes (or ordinances) that expressly regulate emergency action. We
thus confine our analysis in this opinion to the provisions the parties have
raised. Advocates, however, should present to the courts all statutes that
may be “laws and ordinances applicable to emergency action” for purposes
of § 101.055(2), looking in every instance for an express and specific
indication that the statute is so applicable.

4

Finally, Powell argues that Officer Bullock did not comply with
laws and ordinances applicable to emergency action because he violated
Austin Police Department policy by (1) not using his best judgment in
starting the chase, (2) not terminating the chase when the suspect
vehicle’s whereabouts were unknown, and (3) following Officer Bender’s
car too closely.
Solely for argument’s sake, we will assume that these assertions
reflect violations of departmental policy. But even indulging that
assumption, § 101.055(2) expressly conditions its reach on compliance
with “laws and ordinances”—not internal police-department policies. See
Maspero, 640 S.W.3d at 530. We certainly do not contend that violations
of departmental policy are of no consequence—but the consequences,
whether from internal discipline or otherwise, are immaterial to the legal
question before us.

* * *
In short, § 545.062(a) is not a law or ordinance applicable to
emergency action for purposes of the Tort Claims Act. Officer Bullock did
not violate Chapter 546 simply by doing something that was not expressly

22
enumerated in § 546.001. And even assuming a violation of the police
department’s policy manual, such a violation would not inherently violate
any laws or ordinances under § 101.055(2).

C

Because no other law or ordinance governed his emergency actions,
the jurisdictional question instead becomes whether there is a fact issue
as to Officer Bullock’s recklessness. The Transportation Code defines
“reckless driving” as driving “a vehicle in wilful or wanton disregard for
the safety of persons or property.” Tex. Transp. Code § 545.401(a).
Chapter 546 adopts a comparable tone. It requires officers “to operate the
vehicle with appropriate regard for the safety of all persons,” id.
§ 546.005(1), and refuses to excuse officers for “the consequences of
reckless disregard for the safety of others,” id. § 546.005(2). The Tort
Claims Act imposes a similar duty. The emergency exception does not
apply if the officer acts “with conscious indifference or reckless disregard
for the safety of others.” Tex. Civ. Prac. & Rem. Code § 101.055(2).
As we have noted, no party has contended that there is any
distinction between this standard and simple “recklessness,” and we have
previously assumed as much. See supra Part III.A. We accordingly
assume as much again, reserving for a future case, if one ever comes, the
possibility that the statutory standard is more nuanced. For present
purposes, it is enough to apply our precedents concerning recklessness.
To do so in Maspero, we asked whether the officer “knew or should
have known” that her act posed an unacceptable risk of injury, separating
out subjective actual knowledge from imputed knowledge. 640 S.W.3d
at 531. We also highlighted the officer’s use of her lights and siren and

23
communication with a commanding officer as evidence that she “engaged
in some degree of risk assessment” and “intend[ed] to minimize potential
harm.” Id. at 532. Likewise, in City of San Antonio v. Hartman, we said
that conscious indifference or reckless disregard “require[s] proof that a
party knew the relevant facts but did not care about the result.” 201
S.W.3d at 672 n.19 (emphasis added). Our case law thus seems to read
§ 101.055(2) as bifurcated between the officer-specific subjective
awareness (what the officer knew) and the hypothetical objective (what
the officer should have known). It seems unlikely that this distinction
would often or perhaps ever make a difference; only a rare defendant
would testify that he was consciously indifferent to a risk of harm. In
nearly every case, the officer’s state of mind will be inferred from the
circumstances of his actions. The question seems to reduce to asking
whether, under the circumstances, the officer’s action was reckless.
Answering that question may mean asking whether a given officer
“engaged in some degree of risk assessment,” as well as whether his
actions simply “generated [an] ‘extreme risk’ beyond that which is
inherent in high-speed pursuits.” Maspero, 640 S.W.3d at 532 (quoting
Tarrant County v. Bonner, 574 S.W.3d 893, 902 (Tex. 2019)).
Today we also decide City of Houston v. Rodriguez, another
challenge to police action, on official-immunity grounds. ___ S.W.3d ___,
___ (Tex. Dec. 31, 2024) (No. 23-0094). This Court has seemingly never
noted any links between the Tort Claims Act’s recklessness prong and our
“good faith” inquiry in the official-immunity context. The affirmative
defense of official immunity “inures to all governmental employees who
perform discretionary functions in good faith and within their authority.”

24
City of San Antonio v. Riojas, 640 S.W.3d 534, 538 (Tex. 2022) (quoting
DeWitt v. Harris County, 904 S.W.2d 650, 652 (Tex. 1995)). To claim
official immunity, an officer’s actions “must be justified with reference to
what a reasonably prudent officer, possessed of the same information and
under the same or similar circumstances, could have believed.” City of
Houston v. Sauls, 690 S.W.3d 60, 75 (Tex. 2024). This language should
sound familiar: Maspero also treated official “risk assessment” based on
factual circumstances as a key indicator that an officer was not reckless
under the Tort Claims Act. 640 S.W.3d at 532. Because risk assessment
must be “based on the officer’s perception of the facts at the time of the
event,” both inquiries necessarily require careful consideration of those
facts by a reviewing court. Riojas, 640 S.W.3d at 539 (quoting Wadewitz
v. Montgomery, 951 S.W.2d 467 (Tex. 1997)). Put simply, the factual
context of the action will be relevant either way.
At the same time, official immunity and the Act’s emergency
exception remain importantly distinct. Official immunity is a “common
law defense,” the purpose of which “is to insulate the functioning of
government from the harassment of litigation.” Kassen v. Hatley, 887
S.W.2d 4, 8 (Tex. 1994). But the emergency exception is a creature of
statute, an exercise of the legislative prerogative “to determine how and
when to allow tax resources to be shifted away from their intended
purposes toward defending lawsuits and paying judgments.” Hughes v.
Tom Green County, 573 S.W.3d 212, 218 (Tex. 2019) (quotation marks
omitted). Additionally, the scope of official immunity, extending to all
“discretionary functions . . . within [an officer’s] authority,” Riojas, 640
S.W.3d at 538, exceeds that of the emergency exception, which is

25
expressly limited to “responding to an emergency call or reacting to an
emergency situation,” Tex. Civ. Prac. & Rem. Code § 101.055(2).
The official-immunity doctrine and the emergency exception
accordingly have significant substantive and procedural differences.
Both may apply in some cases; neither will apply in others; and in yet
others one but not the other will apply. We have no occasion here to
decide how these differences in purpose and scope may affect how each of
the related inquiries is conducted. Rather, we merely note that deciding
whether an officer’s action implicates official immunity or the emergency
exception will involve reasoned consideration of the action’s context.
Considering the context of Officer Bullock’s actions, it was Powell’s
burden to raise a fact issue as to Officer Bullock’s recklessness as
understood in our precedents. The facts advanced, moreover, must show
“more than a ‘momentary judgment lapse’ and instead ‘[] that the driver
committed an act he knew or should have known posed a high degree of
risk of serious injury.’ ” Maspero, 640 S.W.3d at 531 (quoting Perez v. Webb
County, 511 S.W.3d 233, 236 (Tex. App.—San Antonio 2015, pet. denied)).
The court of appeals listed several considerations that, in its view,
created a fact issue as to Officer Bullock’s recklessness: Officer Bullock’s
failure to control his speed, his inattentiveness, his failure to maintain a
safe following distance, and the seriousness of the accident. 684 S.W.3d
at 464–66. It also ignored context suggesting that Officer Bullock was not
reckless. We address each point in turn and then consider them jointly.
Failure to control speed. Officer Bullock’s failure to control his
speed does not create a fact issue as to recklessness. Officers are expressly
authorized to exceed the speed limit when responding to emergency

26
situations as long as they do not endanger life or property. Tex. Transp.
Code § 546.001(3). In part, this is because “[e]xceeding the speed limit is
part and parcel of a police chase.” Maspero, 640 S.W.3d at 532.
Notably, Powell agrees in his brief that “speed is not the issue in
this case.” And in the very next sentence, he argues that the main issue
is Officer Bullock’s failure to maintain a safe distance from Officer
Bender’s car. In other words, Powell does not meaningfully argue that
Officer Bullock’s failure to control speed was reckless. Instead, he focuses
on Officer Bullock’s failure to comply with § 545.062(a).
In any event, Officer Bullock’s failure to control his speed does not
create a fact issue as to recklessness. The accident report notes that
Officer Bullock’s failure to control his speed was a contributing factor to
the accident. True, going more slowly may have prevented the accident,
but vague descriptions of a high rate of speed “lack specificity” and by
themselves do not “support a finding of reckless disregard.” City of
Houston v. Green, 672 S.W.3d 27, 31 (Tex. 2023). Moreover, even if some
exceedingly high rate of speed could amount to recklessness, evidence of
the actual speeds involved would be necessary to make such a showing.
Yet the record is devoid of any such evidence: neither officer’s speed before
the accident is known. Having failed to put on any evidence of the
cruisers’ speeds, such as expert reconstruction, GPS data, dashcam
footage, bodycam footage, or surveillance footage, Powell cannot rely on
the crash report’s vague statement that speed contributed to the collision
to raise a fact question as to that speed’s recklessness. Id.
We do not hold that excessive speed is categorically a matter of
only negligence that never could be relevant to recklessness. Adverse

27
weather conditions, roadworks, or the presence of pedestrians could make
some speeds reasonable or negligent in one chase but inordinately risky
and reckless in another. As Maspero observed, speeding is ordinarily
“part and parcel of a police chase,” 640 S.W.3d at 532, so deeming speed
in and of itself to raise a fact question about recklessness in such cases
would be exceptional. Absent any evidence as to Officer Bullock’s speed
in the context of this chase, we decline to hold that this is one of the
exceptional cases. At most, in the context of a pursuit, there could be a
question only of negligence—a momentary lapse in judgment within a
chase that inherently would involve high speed. Momentary lapses in
judgment are not grounds for finding recklessness. Id. at 531; see also
4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 911 (Tex. 2016)
(stating that to establish recklessness, it was “not enough to show that
4Front knew or should have known that Reyes would have a momentary
lapse in judgment or otherwise act negligently”). There is simply no
evidence in the record that under any test for recklessness the alleged
“failure to control speed” would qualify. Nothing, for example, raises a
fact question that Officer Bullock consciously disregarded others’ safety
by driving quickly (or even that he was violating the speed limit at all).
Failure to maintain a safe following distance. Powell asserts
that Officer Bullock violated § 545.062(a) of the Transportation Code by
failing to maintain a safe following distance from Officer Bender’s
vehicle. He also asserts that Officer Bullock failed to comply with police-
department policy, which requires officers to space themselves from
other vehicles so that they can safely react to other vehicles’ movements.
Officer Bullock’s alleged failure to comply with either requirement,

28
Powell argues, creates a fact issue as to his recklessness.
The City argues that this point is simply a restatement of the
“failure to control speed” category. We disagree. The two are conceptually
distinct; two cars traveling even at low rates of speed can still be too close,
such that the second car cannot stop in time to avoid rear-ending the first.
Rush-hour traffic jams on urban interstate highways supply ample
evidence. More importantly, the Transportation Code itself distinguishes
between the two concepts by imposing separate requirements for each.
Compare Tex. Transp. Code § 545.351 (forbidding operators from
driving at a speed “greater than is reasonable and prudent under the
circumstances then existing”), with id. § 545.062 (requiring operators to
maintain a safe following distance between other vehicles “considering
the speed of the vehicles, traffic, and the conditions of the highway”).
But this point does not affect the outcome here. Either way, Officer
Bullock’s alleged failure to maintain a safe following distance does not
create a fact issue as to his recklessness. Perhaps most important is the
absence of evidence that would be essential to Powell’s theory—in
particular, some evidence of the actual distance between the two cruisers
preceding the crash, which is not in the record. Rather than showing
Bullock’s supposedly reckless proximity to Bender, Powell relies on the
very fact that Bullock hit Bender to reverse-engineer the conclusion that
he must have been following too closely—and doing so recklessly.
This approach gets the matter backwards by supposing the cause
based on the result, which is insufficient even to establish negligence:
“[N]egligence is never presumed, and [] the mere happening of an accident
is no evidence at all of negligence.” Wells v. Tex. Pac. Coal & Oil Co., 164

29
S.W.2d 660, 662 (Tex. 1942). Far less, then, can the “happening of an
accident” supply any evidence of recklessness. And even assuming that
the conduct was negligent, “[e]vidence of negligence does not establish
recklessness.” 4Front Engineered Sols., 505 S.W.3d at 911. Said
differently, we cannot accept as legally sufficient a rationale that starts
with an accident, reasons that the accident’s occurrence creates evidence
of negligence, and then leaps to the conclusion that evidence of negligence
must also entail evidence of recklessness.
Most significant is the leap from negligence to recklessness.
Logically, failing to maintain a safe distance generally sounds in
negligence. Absent some evidence of the actual proximity, proving that
Officer Bullock was following too closely would at most show negligence—
but standing alone, that is not enough to trigger a fact question about
recklessness. See id.
Spacing between vehicles obviously helps prevent collisions.
Bullock’s testimony that he tried but failed to slow in time to avoid hitting
Bender allows an inference that, in the heat of the chase, he may not have
complied with the general departmental policy that Powell invokes. But
none of that provides any evidence that the officer was reckless—wholly
indifferent to the risks to others (and to himself ). Violating the policy in
a chase would require some showing that the distance between the two
vehicles was far less than even the policy minimum, but no party testified
as to the exact (or even approximate) distance between the two vehicles.
As Powell’s counsel conceded at oral argument, the policy violation alone
obviously cannot raise a fact question as to recklessness.
Holding otherwise would belie our law’s mandate that officers

30
“retain discretion” to balance needs and risks when responding to
emergency situations. Maspero, 640 S.W.3d at 532. As part of this
discretion, officers are expressly permitted to violate provisions of the
Transportation Code when responding to emergency situations. See, e.g.,
Tex. Transp. Code § 546.001. Having authorized deviation from traffic
laws, the law’s command would border on absurdity by then treating any
deviation from mere department policy as evidence of recklessness.
Moreover, as we noted above, perfect compliance with the Transportation
Code and departmental policy may be impossible: the Austin Police
Department’s General Orders themselves, after all, instruct officers on
procedures (like the PIT maneuver) that require officers to follow both the
suspect and one another extremely closely. On Powell’s quasi-strict-
liability approach to the safe-distance requirement, nearly every step of
any such tactic would automatically constitute evidence of reckless
disregard. Instead, the law provides that as long as officers do not act
recklessly in maintaining close proximity during a chase, they are within
the bounds of their discretion and satisfy the duty of care expected of them.
Powell has not directed us to any evidence that Officer Bender “did
not care about the result” that could be caused by his following too closely.
Hartman, 201 S.W.3d at 672 n.19. Nor could he, without making a
prerequisite showing of what the following distance was. We thus
conclude that Officer Bullock’s alleged failure to maintain a safe distance
does not create a fact issue as to his recklessness.
Inattentiveness and the severity of the accident. The accident
report listed Officer Bullock’s inattentiveness as a contributing factor to
the crash. Even if Officer Bullock was inattentive, however, that evidence

31
by itself would amount only to ordinary negligence. Failure to pay
attention is a paradigmatic example of negligence and does not by itself
constitute reckless conduct. As we recently held, “[a]n act or omission that
is merely thoughtless, careless, or not inordinately risky” is nothing more
than ordinary negligence. Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex.
2019) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).
Recklessness requires more: in this case, “conscious indifference or
reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem. Code
§ 101.055(2). As with Officer Bullock’s speeding and proximity to Officer
Bender, Powell again does not offer evidence of Bullock’s inattention
sufficient to create a fact issue as to recklessness. Neither the crash
report, nor Officer Bullock’s testimony, nor any other evidence indicates
how long Bullock was supposedly inattentive or whether the
inattentiveness is merely the conclusory summary of the fact that the
accident happened. The crash report’s bare statement that inattention
contributed to the collision “lacks specificity” and does not establish the
type of inattention “that, by itself, could support a finding of reckless
disregard.” Green, 672 S.W.3d at 31.
The court of appeals also noted the seriousness of the accident and
subsequent injuries when discussing the evidence that Officer Bullock
recklessly caused it. 684 S.W.3d at 466. As we have explained, it is error
to reason from result to cause in finding negligence. Wells, 164 S.W.2d at
662. Perhaps unsurprisingly, we appear never to have clarified that the
same rule applies for the higher showing of recklessness, but that result
is logically inescapable. We agree with the observation made by the Fifth
Court of Appeals that “[m]ere involvement in a collision does not create

32
an inference or conclusion that a driver is incompetent or reckless.”
Monroe v. Grider, 884 S.W.2d 811, 818 (Tex. App.—Dallas 1994, writ
denied). Therefore, neither Officer Bullock’s alleged inattentiveness nor
the fact that a serious accident resulted create a fact issue as to Officer
Bullock’s recklessness.
The combination of these allegations. Powell argues that,
even if the above acts would be merely negligent in isolation, their
combination in one collision raises a fact issue as to recklessness. We
take Powell to assert that a set of simultaneous negligent acts may in
some circumstances be stacked so as to create a question of
recklessness—that is, that being negligent on multiple fronts actually
constitutes recklessness. For purposes of our decision, we will assume
without deciding that such a scenario is possible. Even so, the burden of
establishing the necessary predicates of negligence was on Powell, the
party challenging governmental immunity. See McKenzie, 578 S.W.3d at
512. Absent any showing of Bullock’s speed or his proximity to Bender,
and given that speeding and proximity to others are “part and parcel” of
high-speed chases, it is doubtful that Powell even raised a fact issue as
to negligence on those points. See Maspero, 640 S.W.3d at 532. The only
allegation that sounds in traditional negligence—Bullock’s inattention—
finds similarly slim support in the record, and in any event stands alone.
On this thin evidence, even if we were inclined to craft a novel “negligence
plus negligence” rule of recklessness, it would not suffice to show
recklessness here.
As we did in Maspero, we also consider evidence suggesting that
Officer Bullock was not reckless. See id. (discussing evidence showing

33
that the officer “engaged in some degree of risk assessment” and thus
was not reckless); see also Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 771 (Tex. 2018) (explaining that although we take as true
all evidence favorable to the plaintiff, “we cannot disregard evidence
necessary to show context”). Officer Bullock was expressly assigned to
the chase, authorized to pursue it, and stayed in contact with his
supervisors throughout it. He also drove with his lights and siren
activated during the chase. These actions affirmatively demonstrate
Officer Bullock’s “intent to minimize potential harm,” not his intent to
ignore or exacerbate the possible risks posed by a car chase. Maspero,
640 S.W.3d at 532. The court of appeals erred in not considering evidence
that contextualizes the circumstances and suggests that Officer Bullock
was not reckless. See id. (holding that the officer was not reckless
during the chase because, among other things, she stayed in constant
communication with her sergeant).
To be clear, as we noted at the outset, the City was not required to
affirmatively marshal evidence of Officer Bullock’s non-recklessness. It
was, and remains, Powell’s burden to raise a fact issue. So long as the
City did not “challenge the existence of [the] very [] facts” Powell relied
on to do so (by alleging that a different entity’s employee struck Powell,
for instance), it was under no burden to provide evidence, including
evidence of Officer Bullock’s good behavior. Garcia, 372 S.W.3d at 635.
Evidence of risk assessment is still relevant to the recklessness inquiry,
however, as it undermines Powell’s contention that Officer Bullock “did
not care about the result” of his action. Hartman, 201 S.W.3d at 672 n.19.
Officer Bullock’s receipt of permission to begin pursuit, his frequent

34
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.
The City then argues that the court of appeals erred in ignoring
evidence that Powell did not move out of the way as the officers
approached the intersection. We disagree with the City and conclude
that the court of appeals correctly disregarded this contention. The
Transportation Code provides that when the operator of a vehicle sees
an emergency vehicle approaching, the operator must “stop and remain
standing until the authorized emergency vehicle has passed.” Tex.
Transp. Code § 545.156(3).
Powell complied with this law and, based on this record, is without
fault. He “stopped at the stop sign” behind the intersection and did not
move as the officers approached Brandt Road. To avoid a collision,
particularly in light of fast-moving vehicles, it is often better to stay still
rather than to try to move out of the way, which risks getting in the way.
Two people walking down a hallway might try to move out of each other’s
way, only to collide because each has mirrored the other (like-minded)
person. From an officer’s point of view, it is oftentimes easier to avoid a
stationary object than a moving target. Counting Powell’s inaction
against him, however, would incentivize more moving targets and cause
more crashes. The court of appeals thus correctly decided not to consider
how Powell’s actions (or inaction) may have contributed to the crash.
Powell’s lack of culpability illustrates the consequences of the law
of immunity. The legislature has determined that under circumstances
like those before us—where an officer was at most negligent but not
reckless—the governmental unit must be immune because the law would

35
otherwise unduly deter conduct that is necessary to protect the public
as a whole. On the other hand, innocent individuals like Powell are left
bearing the costs of actions that benefit us all. Any of us might find
ourself in Powell’s shoes; the very nature of emergency responses is that
they are unpredictable. Perhaps the current rules best serve the interests
of the State as a whole. Or perhaps some other system allowing
recovery—even if only to a highly circumscribed degree—for those
without fault who are injured as a result of emergency responses would
be better. Such an inquiry and any resulting decision are proper
undertakings for the legislature, not this Court.

IV

The City of Austin’s immunity to suit is not waived. Its plea to
the jurisdiction should have been granted. We reverse the judgment of
the court of appeals and render judgment dismissing the case for lack of
jurisdiction.

Evan A. Young
Justice

OPINION DELIVERED: December 31, 2024

36