Affirmed and Memorandum Opinion filed August 21, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00524-CV

                          MARTIN MOLINA, Appellant
                                          V.
                         CITY OF PASADENA, Appellee

                    On Appeal from the 129th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-57458

                   MEMORANDUM OPINION


      This appeal arises from the trial court’s grant of a plea to the jurisdiction.
Appellant Martin Molina filed a personal-injury suit against appellee, the City of
Pasadena. Appellant was injured when he was struck in a crosswalk by Victor
Alfonso Rendon, a City employee, while Rendon was driving a City truck. The City
filed a plea to the jurisdiction claiming it was immune from suit because Rendon
(1) was not in the paid service of the City at the time of the accident; and (2) was not
acting within the scope of his employment at the time of the alleged incident.
Following a hearing, the trial court granted the plea without specifying which ground
had merit. On appeal, appellant challenges both possible grounds. Because Rendon
was not acting within the course and scope of his employment at the time of the
accident, we affirm.

                                  THE EVIDENCE

       Rendon is an “Inspector I” for the City’s engineering department. At the time
of the incident, Rendon was a full-time City employee and driving a vehicle owned
by the City. The City provided the vehicle to Rendon for the performance of his job
duties. Rendon retrieved the vehicle from dispatch at the beginning of each work
day and returned it at the end of the work day. During the work day, Rendon drove
from one construction site to another to inspect concrete pours, paving of streets,
drainage, water lines, sewer lines, pump stations, and water tanks, etc. Rendon’s job
description required a valid Texas driver’s license. Rendon testified that at the time
of the occurrence his itinerary averaged approximately seven construction sites per
day.

       Rendon was permitted a one-hour lunch break. The City allowed employees
to use City-owned vehicles to drive to lunch rather than requiring them to drive back
to the station to retrieve their personal vehicles. On the day of the accident, Rendon
ate lunch at Southmore Asian Fast Food Restaurant between noon and 1:00 p.m.
Southmore Asian Fast Food was in the same area as the Pansy Water Tank, one of
the sites Rendon had been instructed to go to that day. Rendon was not directed to a
take a particular route to any of his worksites. Around 1:00 p.m., Rendon exited west
out of the restaurant’s parking lot and turned right onto Ruella Lane heading north.
Rendon came to a complete stop at the stop sign located at Ruella Lane’s intersection
with Southmore Avenue. Rendon intended on turning right onto Southmore Avenue

                                          2
and proceed toward the Pansy Water Tank. Before turning, Rendon looked both
ways and saw appellant on the sidewalk approximately twenty feet away and
heading west toward the intersection. Rendon believed he had time to turn,
confirmed there was no on-coming traffic from his left, and took his foot off the
brake. Rendon did not accelerate but the truck traveled approximately one foot
before Rendon saw appellant in front of the vehicle. Rendon immediately applied
the brake, stopping the vehicle. Appellant extended his arm, pushed on the hood of
the vehicle, and fell to the ground. Rendon parked the vehicle and checked on
appellant, helping him up. Appellant said that he was fine and wanted to go home.

      Rendon called the City’s safety supervisor to report the incident. Rendon
testified that it was his understanding that if he was driving to an inspection site, he
was on duty. The City agreed that driving to job sites during the work day qualified
as compensable work by “Inspector I” employees such as Rendon.

                               PROCEEDINGS BELOW

      Appellant filed suit under the Texas Tort Claims Act (“TTCA”). See Tex. Civ.
Prac. & Rem. Code § 101. In his second amended petition, appellant alleged the
City’s sovereign immunity was waived under the TTCA because his claim involved
personal injury caused by the negligent operation or use of a motor-driven vehicle
by the City’s employee and the City would be liable under Texas law. See Tex. Civ.
Prac. & Rem. Code § 101.021(1). Appellant further alleged the City was liable under
section 101.0215, which provides that when engaged in a governmental function, a
municipality is afforded the State’s sovereign immunity except to the extent the State
has waived its immunity under the TTCA. See Tex. Civ. Prac. & Rem. Code
§§ 101.0215(22), (24). Appellant’s pleadings assert the City is liable for his damages
arising from the accident under the doctrine of respondeat superior.



                                           3
      The City’s amended plea to the jurisdiction alleged the trial court did not have
jurisdiction under the TTCA because, at the time of the accident, Rendon was not in
the paid service of the City or acting within the course and scope of his employment.
Appellant responded arguing that Rendon was in the course and scope of his
employment because, at the time of the accident, he was driving to a location where
his employer had instructed him to go in furtherance of his employer’s interests.
Appellant also argued there was no evidence Rendon was “off the clock” when the
accident occurred.

      The trial court signed an order granting the City’s plea. After appellant’s
motion for new trial was denied, appellant filed a timely notice of appeal.

                               STANDARD OF REVIEW

      Sovereign immunity protects the State and its political subdivisions from
lawsuits for damages unless immunity has been waived by the Legislature. Texas
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Sovereign
immunity from suit deprives a trial court of subject matter jurisdiction and is
properly asserted in a plea to the jurisdiction. Reata Constr. Corp., 197 S.W.3d at
374; Miranda,133 S.W.3d at 225–26.

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a
court has subject matter jurisdiction is a question of law. Texas Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Texas Natural Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Whether a party
has alleged facts that affirmatively demonstrate a trial court’s subject matter
jurisdiction and whether undisputed evidence of jurisdictional facts establishes a trial
                                           4
court’s jurisdiction are questions of law reviewed de novo. Miranda, 133 S.W.3d at
226. However, in some cases, disputed evidence of jurisdictional facts that also
implicate the merits of the case may require resolution by the finder of fact. Id.

      When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in
favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings do not
contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but
do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency, and the plaintiff should be afforded the opportunity to
amend. Id. at 226–27. If the pleadings affirmatively negate the existence
of jurisdiction, then a plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend. Id. at 227.

      If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d
at 227 (citing Bland, 34 S.W.3d at 555). In a case in which the jurisdictional
challenge implicates the merits of the plaintiff’s cause of action and the plea to
the jurisdiction includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists. Id. If the relevant evidence is undisputed or fails to
raise a fact question, the trial court rules on the plea as a matter of law. Id. at 228.

      The standard of review for a plea to the jurisdiction based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil Procedure
166a(c).” Miranda, 133 S.W.3d at 228; see also Thornton v. Ne. Harris Cty.
MUD 1, 447 S.W.3d 23, 32 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Under this standard, we take as true all evidence favoring the non-movant and draw

                                            5
all reasonable inferences and resolve any doubts in the non-movant’s
favor. Miranda, 133 S.W.3d at 228. If the movant presents conclusive proof that the
trial court lacks subject matter jurisdiction, then the non-movant must present
evidence sufficient to raise a material issue of fact regarding jurisdiction, or
the plea will be sustained. See id.; City of Galveston v. Murphy, 533 S.W.3d 355,
358–59 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

                                APPLICABLE LAW

      Under the doctrine of respondeat superior, an employer may be held liable
for the tortious acts of an employee if the acts are within the course and scope of
employment. Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex.
2007). The tortious act must fall “within the scope of the employee’s general
authority in furtherance of the employer’s business and for the accomplishment of
the object for which the employee was hired.” Minyard Food Stores, Inc. v.
Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (citing Robertson Tank Lines, Inc. v.
Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); see also Davis-Lynch, Inc. v. Asgard
Techs., LLC, 472 S.W.3d 50, 70 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
Andrews v. Houston Lighting & Power, 820 S.W.2d 411, 413 (Tex. App.—Houston
[14th Dist.] 1991, writ denied). To be within the scope of employment, the
employee’s acts must be of the same general nature as, or incidental to, authorized
conduct. Minyard Food Stores, 80 S.W.3d at 577 (citing Smith v. M Sys. Food Stores,
Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957)); Andrews, 820 S.W.2d at 413.

      It is the general rule that use of public streets or highways in going to or
returning from one’s place of employment is not within the scope of one’s
employment. Painter v. Amerimex Drilling I, Ltd., No. 16-0120, 2018 WL 2749862,
at *7 (Tex. Apr. 13, 2018); American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303
S.W.2d 370, 374 (1957). “This rule is based on the premise that an injury occurring

                                         6
while traveling to and from work is caused by risks and hazards incident to driving
on public streets, which has nothing to do with the risks and hazards emanating from
a person’s employment.” Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 205
(Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Smith v. Texas Employers’
Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192, 193 (1937)).

      When the vehicle involved in an accident was owned by the defendant and the
driver was an employee of the defendant, however, a presumption arises that the
driver was acting within the scope of his employment when the accident occurred.
Robertson Tank Lines, 468 S.W.2d at 357. The presumption prevails when it is
unrefuted. Id. Evidence that the driver was on a personal errand at the time of the
accident rebuts the presumption. Id. at 358; see also Minyard Food Stores, 80
S.W.3d at 577. It is then the plaintiff’s burden to produce other evidence that the
driver was in the course and scope of his employment. Robertson Tank Lines, 468
S.W.2d at 358.

                                     ANALYSIS

      In his first issue, appellant claims the City failed to offer evidence rebutting
the presumption that Rendon was acting in the course and scope of his employment.
Appellant further argues that even if the City did rebut the presumption, his evidence
raises a genuine issue of material fact as to whether Rendon was acting in furtherance
of the City’s interests at the time of the accident. Appellant also claims he raised a
fact issue under the dual-purpose doctrine. The underlying basis of all of these
arguments is that Rendon was acting in furtherance of the City’s business by
proceeding to the Pansy Water Tank.

      It is undisputed that Rendon was an employee of the City. For purposes of this
discussion we assume, without deciding, that Rendon was an employee at the time


                                          7
of the accident.1 It is also undisputed that Rendon was driving a vehicle owned by
the City. Thus the evidence raised a presumption that Rendon was in the course and
scope of his employment at the time of the accident.

       It is undisputed that Rendon drove to Southmore Asian Fast Food for lunch
and had left that location to drive to the Pansy Water Tank when the accident
occurred. “But where the evidence shows that the driver turned aside, even briefly,
for a personal errand, the presumption is rebutted.” Morris v. JTM Materials, Inc.,
78 S.W.3d 28, 47 (Tex. App.—Fort Worth 2002, no pet.) (citing Robertson Tank
Lines, 468 S.W.2d at 359; Mitchell v. Ellis, 374 S.W.2d 333, 335 (Tex. Civ. App.—
Fort Worth 1963, writ ref’d)). The presumption that the employee driving an
employer’s car is acting in the course and scope of his employment vanishes if the
collision occurred while the employee was returning from attending to his personal
business of eating lunch en route to work. Gant v. Dumas Glass & Mirror, Inc., 935
S.W.2d 202, 212 (Tex. App.—Amarillo 1996, no writ). Evidence that the employee
was on a personal errand to eat at the time of the accident refutes an allegation that
he was acting in the course and scope of his employment. J & C Drilling Co. v.
Salaiz, 866 S.W.2d 632, 637 (Tex. App.—San Antonio 1993, no writ). Because the
accident in this case occurred as Rendon was returning from a personal errand, the
presumption that he was acting in the course and scope of his employment was
rebutted. See Morris, 78 S.W.3d at 47; Gant, 935 S.W.2d at 212. Thus, the burden
shifted to appellant to present other evidence that Rendon was in the course and
scope of his employment when the accident occurred.




       1
          Appellant’s second issue contends there is no competent evidence that Rendon was not
in the paid service of the City at the time of the accident. Accordingly, appellant argues, Rendon
was an employee under the TTCA.

                                                8
      An employee who has turned aside, even briefly, for a personal errand is no
longer in the scope of employment until he returns to “the path of duty.” Sw. Dairy
Products Co. v. De Frates, 132 Tex. 556, 560, 125 S.W.2d 282, 284 (1939).
Appellant asserts “Rendon had resumed his job duties by driving to the next
construction site, same as he would do at various other points throughout the day.”
As evidence, appellant relies upon the undisputed facts that Rendon was required to
drive to and from different construction sites during the workday and was driving to
the Pansy Water Tank because he had been instructed to go there that day.

      The Texas Supreme court rejected a similar argument in De Frates. 132 Tex.
at 556, 125 S.W.2d at 282. In that case, the employee was driving the employer’s
vehicle when he diverted from his route to eat. Id. The collision occurred while the
employee was returning to his route. Id. The Court held that as a matter of law the
employee was not within the scope of his employment when the accident occurred
because he was not engaged in his employer’s business, even though he was in the
process of resuming it. Id.

      In a much more recent case, the Texas Supreme Court again recognized that
if an employee is engaged in a personal errand at the time of the accident, an
employer is not responsible. See Painter, 2018 WL 2749862, at *9. In that case, the
accident occurred while the employee was driving a crew back to the bunkhouse. Id.
at *2. Because the employee’s job duties required driving the crew between the
bunkhouse and the drilling site, the Court concluded a fact issue existed as to whether
the employee was acting in the course and scope of his employment when the
accident occurred. Id. at *8-10. In its’ analysis, the Court noted that if the employee
had stopped for a meal or run a personal errand, “the course-and-scope analysis
would be affected.” Id. at *9. The Court stated that “an employer is not responsible
for what occurs when an employee deviates from the performance of his duties for

                                          9
his own purposes. . . . even if the deviation occurs with the employer’s express or
implied permission. Id. (citations omitted).

      In Painter, the evidence showed that at the time of the accident the employee
was engaged in his employer’s business by driving the crew to the bunkhouse. Id. at
*2. The employee had not deviated from that task. Id. In this case, however, Rendon
was not engaged in his employer’s business at the time of the accident. Rather,
Rendon had deviated from the performance of his duties (i.e., to inspect concrete
pours, paving of streets, drainage, water lines, sewer lines, pump stations, and water
tanks, etc.) to eat lunch, albeit with the City’s permission. At the time of the accident
he had not resumed those duties. The undisputed evidence is that Rendon was in the
process of returning to work. The fact that he was going to another inspection spite
does not preclude application of the cases, some of which are cited herein, holding
that an employee returning to work from a personal errand is not acting within the
course and scope of his employment. An accident that occurs while an employee is
“returning to the zone of his employment” does not fix liability against the employer.
De Frates, 125 S.W.2d at 284.

      We find appellant’s reliance upon Rendon’s testimony that he believed he was
“on duty” at the time of the accident to be misplaced. The law is well-settled that
such testimony is not probative evidence that an employee was acting within the
course and scope of his employment. See Robertson Tank Lines, 468 S.W.2d at 360–
61. An employee’s conclusory testimony that he was acting in the course and scope
of his employment amounts to no evidence if the contrary is established as a matter
of law. See Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 576–77
(Tex. App.—Houston [14th Dist.] 2007, pet. denied).

      The City’s evidence that Rendon was returning to work from a personal errand
at the time of the accident rebutted the presumption that he was acting in the course

                                           10
and scope of his employment. Appellant’s undisputed evidence that Rendon was en
route to an inspection site does not raise a genuine issue of material fact as to whether
Rendon was acting in furtherance of the City’s interests at the time of the accident.
Because there is no probative evidence that raises a genuine of material fact as to
whether Rendon was engaged in the City’s business at the time of the accident, there
was no dual purpose to Rendon’s personal errand. For these reasons, appellant’s first
issue is overruled.2

                                         CONCLUSION

       Having found the trial court properly granted the City’s plea to the jurisdiction
on the grounds Rendon was not in the course and scope of his employment at the
time of the accident, the judgment of the trial court is affirmed.




                                                     /s/      John Donovan
                                                              Justice


Panel consist of Justices Boyce, Donovan and Wise.




       2
        It is therefore unnecessary to address appellant’s second issue challenging the City’s other
ground for its’ plea to the jurisdiction.

                                                11
