Opinion issued February 27, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00625-CV
                           ———————————
                       CITY OF HOUSTON, Appellant
                                        V.
                            VARUN LAL, Appellee


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2018-44527


                                O P I N I O N

      The City of Houston appeals from an order denying its plea to the jurisdiction

based on governmental immunity from suit. We affirm the trial court’s order.
                                    BACKGROUND

      This suit arises out of an auto accident. M. Ryans, a peace officer with the

Houston Police Department, was returning home at night in his City-issued motor

vehicle when he veered into oncoming traffic and struck Varun Lal’s vehicle head-

on. Ryans was off duty on the day of the accident; however, like other officers in the

Department’s vice division, he remained on call to respond to human-trafficking

cases. Just before the accident, Ryans’s City-issued cellular phone rang. Ryans

looked over to pick up his phone to see who was calling him. His momentary

distraction precipitated the accident.

      Lal sued the City for negligence. He alleged that the City had waived its

governmental immunity from suit because Ryans was acting within the scope of his

employment as a City employee at the time of the accident.

      The City filed a plea to the jurisdiction. It argued that the evidence showed

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

accident and that the City thus had not waived its immunity.

      The trial court denied the City’s jurisdictional plea without stating the basis

for its ruling. The City appeals.

                                    DISCUSSION

      It is undisputed that municipalities like the City have governmental immunity

from suit except to the extent that it is waived by the Tort Claims Act and that the


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Act waives this immunity from suit for certain negligent acts by governmental

employees. The City contends that Lal’s suit does not come within the Act’s limited

waiver of immunity because the undisputed evidence conclusively proves that Ryans

was not acting within the scope of his employment at the time of the accident.

                                 Standard of Review

      A plea to the jurisdiction based on governmental immunity challenges the trial

court’s subject-matter jurisdiction. City of Houston v. Downstream Envtl., 444

S.W.3d 24, 31 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). The existence of

subject-matter jurisdiction is a question of law subject to de novo review. Anderson

v. Bessman, 365 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

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

facts pleaded in the petition or the existence of jurisdictional facts. City of Houston

v. Nicolai, 539 S.W.3d 378, 385 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

The City’s motion challenges the existence of a jurisdictional fact, namely, whether

Ryans was acting within the scope of his employment when the accident happened.

      When, as here, a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider the evidence material to the jurisdictional issues

raised by the parties. Lenoir v. U.T. Physicians, 491 S.W.3d 68, 76 (Tex. App.—

Houston [1st Dist.] 2016, pet. denied). If the evidence is conclusive or does not raise

a fact question as to the jurisdictional issue, then we decide the jurisdictional issue


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as a matter of law. Id. Conclusive evidence includes undisputed evidence that solely

permits one logical conclusion, evidence that is admittedly true, and evidence that is

conclusively disproved. Id. If, however, the evidence instead raises a fact question

as to the jurisdictional issue, then the plea must be denied and a factfinder must

resolve the issue. Nicolai, 539 S.W.3d at 386; Lenoir, 491 S.W.3d at 76.

      The standard of review governing pleas that challenge the existence of

jurisdictional facts thus essentially mirrors the one for summary judgment. Lenoir,

491 S.W.3d at 76. Under this standard, the City bears the burden of proof to present

conclusive evidence that the trial court lacks jurisdiction; if it carries its burden, then

Lal must present evidence sufficient to raise a fact issue. Nicolai, 539 S.W.3d at 386.

We must accept as true all evidence favorable to Lal, indulging every reasonable

inference and resolving any doubts in his favor. Lenoir, 491 S.W.3d at 76–77.

                                    Applicable Law

      The Tort Claims Act waives a governmental unit’s immunity from suit for

personal injuries arising from the negligent use of a motor vehicle by an employee

acting within the scope of his employment when the employee would be personally

liable to the claimant under Texas law. TEX. CIV. PRAC. & REM. CODE § 101.021(1).

The City of Houston is a governmental unit for purposes of the Act. Id.

§ 101.001(3)(B); Nicolai, 539 S.W.3d at 386. Under the Act, “scope of employment”

means the performance of “the duties of an employee’s office or employment and


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

employee by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5).

      Whether a peace officer was on duty or off is not dispositive as to whether he

was acting within his employment’s scope. Garza v. Harrison, 574 S.W.3d 389, 405

(Tex. 2019). Nor is the officer’s use of a police vehicle dispositive. Id. Instead, we

must examine the capacity in which the officer was acting at the time he committed

the allegedly tortious act. Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL

6277409, at *5 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.);

Harris Cty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.]

2004, no pet.). In simpler terms, we consider what the officer was doing and why he

was doing it. Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794,

at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.).

      In general, an officer acts within the scope of his employment when his act

furthers his employer’s business and is undertaken to accomplish an objective for

which he is employed. Id. at *3. Thus, the mere fact that an off-duty officer was on

call does not render his act within his employment’s scope. City of Balch Springs v.

Austin, 315 S.W.3d 219, 225 (Tex. App.—Dallas 2010, no pet.). On the other hand,

mixed motives do not prevent an officer’s act from being within his employment’s

scope if his act served a purpose of his employer in addition to any other purpose the

act served. Kraidieh, 2016 WL 6277409, at *6. Accordingly, an officer’s act falls


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outside the scope of his employment if and only if his act did not serve any purpose

of his employer. Garza, 574 S.W.3d at 400–01. The key question in a case like this

one therefore is whether, when viewed objectively, there was a connection between

the officer’s job duties and his allegedly tortious act. Id. at 401.

                                        Analysis

      The material facts are undisputed. Ryans was off duty at the time of the

accident but remained on call with the vice division. His City-issued cell phone rang,

and he tried to see who was calling him. This momentary distraction caused him to

veer into oncoming traffic and crash into Lal’s vehicle.

      As the City correctly contends, Ryans was not on duty and his on-call status,

standing alone, did not render his conduct within the scope of his employment. See

Austin, 315 S.W.3d at 225. The City further contends that “looking at a ringing

phone” could not render Ryans’s conduct within his employment’s scope. On this

record, however, we disagree. We must indulge every reasonable inference in Lal’s

favor. See Lenoir, 491 S.W.3d at 76–77. Ryans’s phone was issued by the City, and

Ryans was on call. From these undisputed facts, a factfinder could reasonably infer

that Ryans was obligated in his capacity as a peace officer employed by the City to

answer incoming calls on this phone so that he could be returned to duty if requested

by the vice division. The City therefore failed to carry its burden to conclusively

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


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the accident. Because the City failed to carry its burden of proof, the trial court did

not err in denying the City’s jurisdictional plea. See Nicolai, 539 S.W.3d at 386.

      The City argues that the incoming call likely was not a request for Ryans to

return to duty. In support, it relies on the affidavit of Ryans’s supervisor, who averred

that two squads were on duty and available to address human-trafficking cases and

that officers other than Ryans also were on call that day. But the identity of the caller

and the call’s purpose are immaterial. As he was on call, Ryans was obligated to

monitor his phone for incoming work-related calls. Or so a factfinder could

reasonably infer from his on-call status and use of a City-issued phone.

      The City further argues that, as a matter of Department policy, an on-call

peace officer does not become on duty until after he responds to a call placing him

on duty. Because Ryans never answered the incoming call, the City asserts, he was

never on duty. Whether Ryans was on duty, however, is not dispositive. See Garza,

574 S.W.3d at 405. The question is whether there is a connection between Ryans’s

job duties and his allegedly tortious conduct. See id. at 401. Contrary to the City’s

argument, a factfinder could reasonably conclude that such a connection existed.

      In sum, we hold that the City did not carry its burden to conclusively prove

that the trial court lacked subject-matter jurisdiction over Lal’s suit. The trial court

therefore did not err in denying the City’s plea to the jurisdiction.




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                                 CONCLUSION

      We affirm the trial court’s order denying the City’s jurisdictional plea.




                                              Gordon Goodman
                                              Justice

Panel consists of Justices Keyes, Goodman, and Countiss.




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