Appellee’s Motion for Rehearing Denied; Appellee’s Motion for En Banc
Reconsideration Granted; Memorandum Opinion and Judgment of December
21, 2018, Withdrawn; Reversed and Remanded and Majority and Dissenting
En Banc Opinions filed October 29, 2019.




                                     In The

                     Fourteenth Court of Appeals

                             NO. 14-17-00811-CV

                   MARIA CHRISTINA GOMEZ, Appellant

                                       V.
                     THE CITY OF HOUSTON, Appellee

                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2013-59953

            EN BANC DISSENTING OPINION

         The en banc court grants the City of Houston’s motion for en banc
reconsideration, withdraws the panel opinion, and issues a new en banc majority
opinion and judgment that do not vary in result from that reached by the original
panel.    Like the panel on original submission, the en banc court holds in a
comprehensive majority opinion that the trial court erroneously granted the City’s
plea to the jurisdiction because the City did not conclusively establish its officer’s
good faith and, separately, a material fact issue exists as to whether the police
officer acted recklessly under the “emergency response” exception to the waiver of
immunity under the Texas Tort Claims Act (TTCA). Regrettably, I part ways with
the majority on the latter point and conclude that this record does not contain a
scintilla of evidence that the responding officer took any challenged action with
conscious indifference or reckless disregard for the safety of others. For that
reason, I would hold that no genuine issue of material fact exists on the emergency
response exception, and that the trial court correctly granted the City’s plea. I
would affirm the judgment.

      Under the doctrine of governmental immunity, political subdivisions of the
State, including municipalities, cannot be sued and held liable for the actions of
their employees unless a constitutional provision or statute waives immunity to suit
and from liability. See, e.g., City of Houston v. Williams, 353 S.W.3d 128, 134
(Tex. 2011); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994);
Mem’l Villages Police Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL
3612309, at *2-3 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem.
op.); see also Tex. Civ. Prac. & Rem. Code § 101.025 (immunity to suit waived to
extent of liability created by TTCA). The TTCA waives governmental immunity
from suit and liability in certain limited circumstances, including when, as here, a
party alleges property damage or personal injury arising from the operation or use
of a motor-driven vehicle. Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025; see
also Dallas Cty. Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339,
342-43 (Tex. 1998). Exempted from this waiver of immunity, however, are claims
included within the TTCA’s “emergency response exception.” Tex. Civ. Prac. &
Rem. Code § 101.055(2); Harris County v. Spears, No. 14-17-00662-CV, 2018


                                          2
WL 4571841, at * 2 (Tex. App.—Houston [14th Dist.] Sept. 25, 2018, no pet.)
(mem. op.). Under that exception to immunity from liability, the TTCA does not
apply to a claim based on a governmental unit’s employee’s allegedly wrongful
conduct if that employee, while responding to an emergency call or reacting to an
emergency situation, acts in compliance with laws or ordinances applicable to the
emergency actions or, absent such laws or ordinances, the employee’s actions are
not taken with conscious indifference or reckless disregard for the safety of others.
Tex. Civ. Prac. & Rem. Code § 101.055(2); see also City of San Antonio v.
Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006); Tex. Dep’t of Public Safety v.
Little, 259 S.W.3d 236, 238 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The
exception is designed to prevent second-guessing of split-second and time-
pressured decisions that public safety personnel must make. See City of San
Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 699 (Tex. App.—Austin 2005, no
pet.).

         Among other arguments in its plea to the jurisdiction, the City asserted that
the TTCA did not waive the City’s immunity from liability and from suit because
the emergency response exception applies. See Tex. Civ. Prac. & Rem. Code
§§ 101.021, 101.025, 101.055.        The City argued that Officer Simmons was
responding to an emergency situation, that he complied with any applicable laws or
ordinances, and that his conduct was not reckless or consciously indifferent. In
support, the City attached among other evidence the affidavits of two police
officers, including Officer Simmons. Once a defendant invokes the exception, the
plaintiff bears the burden to establish that the exception does not apply. See
Hartman, 201 S.W.3d at 672; Quested v. City of Houston, 440 S.W.3d 275, 285
(Tex. App.—Houston [14th Dist.] 2014, no pet.); Little, 259 S.W.3d at 238-39.
Thus, Gomez was required to present evidence sufficient to raise a fact issue that:


                                           3
(1) Officer Simmons was not responding to an emergency call or reacting to an
emergency situation; (2) Officer Simmons’s actions did not comply with the laws
or ordinances applicable to the emergency situation; or (3) Officer Simmons’s
challenged actions were taken with conscious indifference or reckless disregard for
the safety of others. See Quested, 440 S.W.3d at 285; Little, 259 S.W.3d at 238.
Here, the inquiries under (2) and (3) above are essentially identical because the
only law Gomez argued Officer Simmons violated is Texas Transportation Code
section 546.005, which provides that a driver of an emergency vehicle is not
relieved of “the consequences of reckless disregard for the safety of others.” Tex.
Transp. Code § 546.005(2); see also City of Amarillo v. Martin, 971 S.W.2d 426,
430 (Tex. 1998).1 Accordingly, the emergency response exception applies unless
Gomez presented some evidence that Officer Simmons was not responding to an
emergency or that his actions showed conscious indifference or reckless disregard
for the safety of others.

       My colleagues in the majority conclude that Gomez met her burden by
presenting some evidence of recklessness, citing three fact disputes that they say
together rise to a level sufficient to support a finding that Officer Simmons acted
recklessly during his response to the armed-robbery call.                  According to the
majority opinion, Officer Simmons: (1) did not slow his speed below the posted
speed limit to compensate for the wet conditions; (2) did not use his patrol car’s
overhead lights and siren; and (3) did not maintain visual contact with the road as

       1
          Martin interpreted the statutory predecessor to Texas Transportation Code section
546.005. See Martin, 971 S.W.2d at 428-30. Like the current version of section 546.005, the
statute analyzed in Martin stated that the driver of an emergency vehicle is not protected “from
the consequences of his reckless disregard for the safety of others.” See Act of June 5, 1947,
50th Leg., R.S., ch. 421, § 24, 1947 Tex. Gen. Laws 967, 970 (Tex. Rev. Civ. Stat. Ann. art.
6701d, § 24(e)), codified and repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec.
546.005, 1995 Tex. Gen. Laws 1025, 1647 (codification), 1871 (repealer); Tex. Civ. Prac. &
Rem. Code § 546.005(2).

                                               4
he approached the intersection. In my view, the record does not support the
majority’s holding.

      The terms “conscious indifference” and “reckless disregard” are not defined,
and therefore we afford them their ordinary meaning.         See Tex. Gov’t Code
§ 311.011(a) (Code Construction Act); Hartman, 201 S.W.3d at 672 n.19; City of
Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no
pet.); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410-11 (Tex. App.—
Fort Worth 2006, pet. denied). In defining these terms, the Supreme Court of
Texas has stated that “[t]o recover damages resulting from the emergency
operation of an emergency vehicle, a plaintiff must show that the operator has
committed an act that the operator knew or should have known posed a high
degree of risk of serious injury.” Martin, 971 S.W.2d at 429-30. As the supreme
court stated in Martin, the relevant standard imposes a duty to drive with due
regard for others by avoiding negligent behavior, but it only imposes liability for
reckless conduct. Id. at 431 (emphasis in original). More recently, the supreme
court has stated that the terms “conscious indifference” and “reckless disregard”
“require proof that a party knew the relevant facts but did not care about the
result.” Hartman, 201 S.W.3d at 672 n.19. Significantly, this standard “requires a
showing of more than a momentary judgment lapse.” Martin, 971 S.W.2d at 430;
see also Quested, 440 S.W.3d at 285; Perez v. Webb County, 511 S.W.3d 233
(Tex. App.—San Antonio 2015, pet. denied); Kuhn, 260 S.W.3d at 99. Though a
plaintiff need present only some evidence of recklessness to create a genuine issue
of material fact,2 the evidence offered must show that the emergency responder
knew or should have known that his or her conduct posed a high degree of risk of
serious injury, and that the official simply did not care about the result. This is a

      2
          See Hartman, 201 S.W.3d at 673.

                                            5
materially and substantively higher bar than mere negligence. See Martin, 971
S.W.2d at 430.3

A.     Lights and siren

       The majority’s reliance on the assertion that Officer Simmons did not use his
patrol car’s lights and siren to support a potential recklessness finding is
problematic for more than one reason.4 To begin with, the en banc majority
reverses the trial court’s judgment based in part on a contention Gomez never
advanced below. Gomez did not contend in her response to the City’s plea that
Officer Simmons was reckless because he failed to activate his overhead lights or
siren. Although Gomez cited evidence that Officer Simmons did not activate his
lights, she never asserted that his failure to do so constituted recklessness or
established a fact issue under the emergency response exception. As Gomez did
not advocate that position to the trial court, we should not rely upon it to reverse
the judgment. See Tex. R. App. P. 33.1(a); Murphy v. City of Galveston, 557
S.W.3d 235, 244 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (refusing to
consider on appeal argument not advanced in response to city’s plea to the
jurisdiction).

       In any event, the larger problem I see with the en banc majority’s rationale is
that responding without activating the patrol vehicle’s lights and siren simply is not
reckless conduct given the evidence in our record concerning procedures for
responding to “priority two” calls. Officer Simmons and Sergeant Jefferson both

       3
          In support of its definition of “recklessness,” the supreme court in Martin cited its
decision in Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993). In Alexander, the
court discussed at length the factors elevating gross negligence from ordinary negligence, which
include in general terms an extreme risk component and a subjective intent component. Id. at
326.
       4
        It is undisputed that Officer Simmons did not activate his vehicle’s siren; it is disputed
whether he activated the overhead lights.

                                                6
explained that “priority two” calls deal mainly with in-progress property crimes or
a threat to human welfare and assume an in-progress event or one that has recently
occurred, or that a response to the scene is “urgent.” As both officers stated, the
standard response to priority two calls is to “run silent without red lights and
siren.” The City also attached HPD General Order #600-01, which confirms that
the standard response to priority two calls is without lights and siren. 5 Gomez
presented no controverting evidence, expert or otherwise, that it is reckless for an
officer to respond to a priority two call without activating the patrol vehicle’s
overhead lights or siren even though responding in that manner is standard HPD
procedure.      We cannot rely upon the presumed fact that Officer Simmons’s
overhead lights were not activated to reverse on recklessness grounds because the
record demonstrates conclusively that not activating visible signals in this
circumstance complies with department policy. If a responding officer is permitted
under HPD protocol to respond to a priority two call without activating overhead
lights or sirens, then responding to the call in that manner cannot be reckless or
provide any support for a recklessness finding as a matter of law.6 Accepting the
majority’s view will potentially produce absurd results. For example, insofar as use
of audible or visual signals are concerned, emergency vehicle operators engaging
in conduct permitted by Transportation Code section 546.001 are required by
statute to act “in accordance with policies of the department or the local


        5
        If the situation clearly warrants it, the officer has discretion to activate the lights or siren
but must so notify the dispatcher.
        6
          Analysis of the emergency response exception is distinct from the good faith test for
official immunity, so whether or not Officer Simmons’s affidavit actually assumed that his
overhead lights were not activated for purposes of a risk/need evaluation is irrelevant. Gomez
presented evidence that Officer Simmons’s lights were not on when the accident occurred. To
analyze recklessness under section 101.055(2), we accept the plaintiff’s facts as true and evaluate
whether they create a genuine issue of material fact on recklessness. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004).

                                                   7
government that employs the operator.” Tex. Transp. Code § 546.003.7 Acting in
accordance with department policy as required by law is not reckless.

B.     Visual contact with the road

       As additional support for reversing the judgment, the majority states that
Officer Simmons did “not maintain visual contact with the road as he approached
the intersection.” This conduct is not reckless either because Gomez presented no
evidence that it was consciously indifferent to her or other motorists under the
circumstances. According to the record, as Officer Simmons drove south on
Lockwood, the road was wet but traffic was moderate, he was careful to watch for
other drivers, he observed cross traffic on Crosstimbers without obstruction or
impediment, and he did not exceed the speed limit. The traffic light was green as
he approached the Crosstimbers intersection. While the light was green, Officer
Simmons looked to his police radio to increase the volume. The light changed to
yellow and he immediately applied his brakes before entering the intersection.

       With her response to the City’s plea, Gomez presented the deposition
excerpts of Officer Simmons, Sergeant Isaac Jefferson, and Sergeant Connie Park.
None of these witnesses, however, testified that it would be reckless or consciously
indifferent to other motorists for an officer responding to an emergency, and
approaching an intersection with a green traffic light, to momentarily look at the
police radio knob to increase the volume. Sergeants Jefferson and Park were not
even asked a question on that topic. When Officer Simmons looked up, the light
changed to yellow and he stopped immediately rather than proceeding through the


       7
         The full text of section 546.003 provides: “Except as provided by Section 546.004, the
operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001
shall use, at the discretion of the operator in accordance with policies of the department or the
local government that employs the operator, audible or visual signals that meet the pertinent
requirements of Sections 547.305 and 547.702.”

                                               8
intersection. Gomez presented no evidence controverting the officer’s affidavit
and deposition testimony that the light ahead of him was green when he briefly
looked down at his police radio. I question whether the officer’s conduct was even
a failure to exercise ordinary care, but assuming as much it certainly was not
consciously indifferent.   At most, this is precisely the type of “momentary
judgment lapse” that the emergency response exception protects from suit. See
City of Houston v. Davis, No. 01-13-00600-CV, 2014 WL 1678907, at *6 (Tex.
App.—Houston [1st Dist.] Apr. 24, 2014, pet. denied) (mem. op.); Kuhn, 260
S.W.3d at 99.

C.    Rate of speed

      What we are left with is the officer’s rate of speed. According to the en banc
majority, Officer Simmons’s decision not to slow below the posted speed limit to
compensate for the wet conditions contributes to and, along with the other facts
discussed above, may support a potential recklessness finding.             Again, I
respectfully disagree. Officer Simmons was not exceeding the speed limit as he
approached the intersection, and he checked traffic before entering the intersection
and saw no vehicles coming westbound. He applied his brakes immediately upon
seeing the yellow light. Gomez asserts that Officer Simmons was driving too fast
to stop before entering the intersection, but she presented no evidence of his speed
at the relevant time or that Simmons knew or should have known that his rate of
speed, though not exceeding the speed limit, nonetheless presented a high degree
of risk of serious injury or indicated that he simply did not care about other
motorists—as is required to raise a fact issue on recklessness. She presented no
expert testimony, and none of the officer deposition excerpts attached to her
response states such an opinion. Sergeant Park said that it is not protocol for a
responding officer to stop at an intersection if the traffic light is yellow, and the

                                         9
sergeant acknowledged the unremarkable proposition that that officers responding
to an emergency are supposed to drive at a “safe rate of speed where you can stop.”
One fact not included in Officer Simmons’s affidavit but acknowledged in his
deposition is that he was not issued a citation for the accident, but later received a
letter of reprimand stating that he was at fault.8 None of this constitutes evidence
that Officer Simmons knew or should have known that driving at the speed limit in
response to an emergency, even in wet conditions but with moderate traffic on
Christmas Eve morning, posed a high degree of risk of serious injury to others but
that he just did not care.

D.     Gomez’s evidence shows at most negligent, not reckless, conduct

       The supreme court has said that the applicable standard under Civil Practice
and Remedies Code section 101.055(2) requires a plaintiff to show that the
operator has committed an act that the operator knew or should have known posed
a high degree of risk of serious injury, but did not care about the result. Hartman,
201 S.W.3d at 672 n.19; Martin, 971 S.W.2d at 429-30. I fear the en banc majority
opinion collapses the critical distinction between negligence and recklessness. See
Perez, 511 S.W.3d at 241-42 (Barnard, J., concurring) (concluding plaintiff’s
evidence raised fact question on negligence, but not recklessness); cf. Martin, 971
S.W.2d at 430 (noting “reckless disregard” test under Transportation Code not
satisfied with proof of ordinary negligence or momentary lapses of judgment). The
result exposes the City to suit and potential liability based on at most, and on this
record, an officer’s negligence.          Here, indulging all material fact disputes in

       8
         The letter is not in our record and Officer Simmons did not contest that he was at fault.
At most, such a letter of reprimand may support negligence, not recklessness. See City of
Arlington v. Barnes, No. 02-07-00249-CV, 2008 WL 820385, at *4 (Tex. App.—Fort Worth
Mar. 27, 2008, pet. denied) (mem. op.). Because the letter is not in our record, it is unknown
why the reprimand issued or whether the letter detailed circumstances that may support a
recklessness finding.

                                               10
Gomez’s favor, no evidence shows that Officer Simmons knew or should have
known that the conduct the majority cites posed a high degree of risk of serious
injury, but did not care what happened to Gomez or other drivers. See Quested,
440 S.W.3d at 286; Davis, 2014 WL 1678907, at *6; City of San Antonio v. Riley,
No. 04-09-00162-CV, 2009 WL 2045231, at *2 (Tex. App.—San Antonio July 15,
2009, no pet.) (mem. op.) (plaintiff presented no evidence of recklessness when
affidavit describing ambulance actions that caused wreck amounted only to
negligent conduct; plaintiff presented no evidence of officer’s conscious
indifference); Pakdimounivong, 219 S.W.3d at 410-12 (holding that officers’
actions were not taken with conscious indifference or reckless disregard for safety
of deceased when no evidence showed that officers did not care what happened to
deceased). The en banc majority opinion could be read to mean that a scintilla of
evidence of negligence is sufficient to raise a fact issue on recklessness, which is
clearly contrary to supreme court precedent. This accident resulted from at most
momentary negligence, not recklessness or conscious indifference.

E.    Emergency response

      Gomez asserts in our court, as she asserted in the trial court, that an
emergency situation did not exist at the time of the accident, and for that reason the
TTCA’s emergency response exception in section 101.055(2) does not apply. The
TTCA does not define the terms “emergency call” or “emergency situation,” but
Texas courts have interpreted the term “emergency” broadly. See, e.g., Hartman,
201 S.W.3d at 672 (concluding that section 101.055(2) applied to a suit involving
city’s reaction to roadway flooding); Little, 259 S.W.3d at 237-39 (call to assist
with a wanted person considered an emergency); Pakdimounivong, 219 S.W.3d at
410-11 (officers were responding to an emergency situation in which suspect in
patrol car tried to escape through back window); see also Jefferson County v.

                                         11
Hudson, No. 09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont
Aug. 25, 2011, no pet.) (mem. op.) (“emergency” as used in section 101.055
“refers to unforeseen circumstances that call for immediate action”).

      The majority opinion does not address the issue. I would reject Gomez’s
argument because the City presented evidence that Officer Simmons responded to
an emergency call, and Gomez presented no controverting evidence on that point.
For example, the affidavits filed with the City’s plea establish that Officer
Simmons received a “priority one” dispatch report of a robbery in progress, which
was reduced to a “priority two” due to rainy weather conditions.           Officers
Simmons and Jefferson both stated that the priority two dispatch to which Officer
Simmons responded was an emergency. In response to the plea, Gomez offered no
evidence to controvert the City’s proof that Officer Simmons was responding to an
emergency call. Therefore, the evidence is conclusive that Officer Simmons was
responding to an emergency. See, e.g., Hartman, 201 S.W.3d at 672; Spears, 2018
WL 4571841, at *4-5 (priority two response presents an emergency situation;
claimant failed to raise fact issue that officer was responding to emergency at time
of collision); Galveston Cty. Health Dist. v. Hanley, No. 01-14-00166-CV, 2014
WL 6853608, at *3 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) (mem.
op.) (holding plaintiff failed to create a fact issue that ambulance was responding
to emergency).

      Finally, Gomez argues in her appellate brief that the City failed to establish
that Officer Simmons was responding to an emergency call because the affidavits
offered in support of that proposition are substantively defective. In particular,
Gomez contends that Sergeant Jefferson’s affidavit, which states that Officer
Simmons’s overhead lights were activated, conflicts with the accident report,
which states that they were not.     Based on the accident report, Gomez says,

                                        12
Sergeant Jefferson’s affidavit is legally insufficient because it assumes facts that
vary from the actual facts.

      Gomez’s criticism of Sergeant Jefferson’s affidavit does not render it
substantively defective.      Rather, the affidavit and accident report differ on a
material fact, which, as stated, must be (and has been) construed in Gomez’s favor.
In a final challenge to all three officers’ affidavits, Gomez contends that each
merely assumes an emergency situation existed, but that their assumptions are not
supported by the “CFS call slip” report relating to this incident.        Gomez’s
argument, however, relies on her unsupported personal interpretation of the report
and its codes—as opposed to expert testimony—that in turn is based on
information outside the record, which we cannot consider. See Bencon Mgmt. &
Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).

      For these reasons, the en banc court having granted the City’s motion for
rehearing en banc, I would affirm the trial court’s judgment.




                                        /s/    Kevin Jewell
                                               Justice



Chief Justice Frost authored the En Banc Majority Opinion, in which Justices
Christopher, Bourliot, Zimmerer, Hassan, and Poissant joined. Justice Jewell
authored an En Banc Dissenting Opinion, in which Justices Wise and Spain joined.




                                          13
