                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION

                                         No. 04-17-00572-CV

     CITY OF SAN ANTONIO by and through City Public Service Board of San Antonio
                              d/b/a CPS Energy,
                                  Appellant

                                                   v.

                                            Chris SMITH,
                                              Appellee

                     From the 407th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015-CI-08496
                            The Honorable Renée Yanta, Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Irene Rios, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Irene Rios, Justice

Delivered and Filed: August 22, 2018

REVERSED AND RENDERED

           The City of San Antonio by and through City Public Service Board of San Antonio d/b/a

CPS Energy appeals the trial court’s order denying, in part, its plea to the jurisdiction based on

governmental immunity. We reverse and render.

                                            BACKGROUND

           The City of San Antonio by and through City Public Service Board d/b/a CPS Energy

(hereinafter, “CPS Energy”) was sued by Christopher Smith for damages he sustained in a
                                                                                       04-17-00572-CV


motorcycle accident. In his petition, Smith alleged that he was driving his motorcycle on an exit

ramp from Interstate Highway 10 to Interstate Highway 37 when he struck a light pole that had

fallen onto the roadway. Smith also alleged that he was unable to avoid the light pole and was

thrown from his motorcycle and sustained serious injuries. According to Smith’s petition, the

downed light pole created a driving hazard and CPS Energy was negligent in failing to timely

remove the light pole blocking the roadway and in failing to warn him of the light pole blocking

the roadway. Smith asserted negligent activity, premises liability, and gross negligence claims

against CPS Energy.

       CPS Energy filed a plea to the jurisdiction and a supplemental plea to the jurisdiction

(collectively, “the plea to the jurisdiction”), asserting that it was entitled to governmental immunity

because the Texas Tort Claim Act’s (“TTCA’s”) waiver of immunity did not apply. Specifically,

CPS Energy argued Smith’s claims did not fall within the limited waiver of immunity provided by

section 101.021 of the TTCA. Additionally, CPS Energy argued that even if Smith had alleged

facts that brought his claims within section 101.021’s limited waiver of immunity, his claims were

barred by statutory exceptions for emergencies provided under sections 101.055(2) and 101.062(b)

of the TTCA. Finally, CPS Energy argued that it was immune from suit under section 101.056 of

the TTCA because any act on its part regarding the downed light pole was a discretionary act for

which the Legislature had not expressly waived immunity.

       In his response to the plea to the jurisdiction, Smith argued that CPS Energy shared with

the City of San Antonio responsibility for the maintenance and removal of downed light poles in

emergency situations under a joint enterprise theory; that CPS Energy and the City’s light pole

maintenance was a proprietary function that was not protected by immunity; that CPS Energy was

not protected by immunity because immunity does not extend to private companies exercising



                                                 -2-
                                                                                       04-17-00572-CV


independent discretion; and that even if immunity did apply, it would be waived because the light

pole obstructing the roadway was a special defect under the TTCA.

        After a hearing, the trial court granted CPS Energy’s plea to the jurisdiction as to Smith’s

negligent activity claims, but denied its plea to the jurisdiction as to Smith’s premises liability and

gross negligence claims. CPS Energy appealed.

                                              DISCUSSION

        The only part of the trial court’s ruling challenged on appeal is the denial of CPS Energy’s

plea to the jurisdiction as to Smith’s premises liability and gross negligence claims. Thus, our

review is limited to this part of the trial court’s ruling.

Appellate Standard of Review

        Whether the trial court had subject-matter jurisdiction over Smith’s claims is a question of

law that we review de novo. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004); City of San Antonio v. Cervantes, 521 S.W.3d 390, 394 (Tex. App.—San Antonio

2017, no pet.). Our ultimate inquiry is whether the particular facts presented affirmatively

demonstrate a claim within the trial court’s subject-matter jurisdiction. Bacon v. Texas Historical

Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.).

Governmental Immunity

        Under the common-law doctrine of sovereign immunity, the sovereign cannot be sued

without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). “Governmental

immunity operates like sovereign immunity to afford similar protection to subdivisions of the

State, including counties, cities, and school districts.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). The Texas Supreme Court has explained that “[t]he City of San Antonio acts by and

through CPS Energy, so CPS Energy is treated as a municipality” for purposes of the TTCA.



                                                   -3-
                                                                                      04-17-00572-CV


Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 448, 450 n.1 (Tex.

2016).

         A party suing a governmental entity must establish the state’s consent, which may be

alleged either by reference to a statute or to express legislative permission. Texas Dep’t of Transp.

v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Absent the state’s consent to suit, a trial court lacks

subject-matter jurisdiction. Id. Section 101.021 of the TTCA provides a limited waiver of

immunity if certain conditions are met. TEX. CIV. PRAC. & REM. CODE ANN. 101.021 (West 2011).

Section 101.021 has been interpreted to waive immunity in three general areas: use of publicly

owned automobiles, premises defects, and injuries arising out of conditions or use of property.

Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).

Application of Governmental Immunity

         We first address Smith’s argument that governmental immunity does not apply here

because the activities that form the basis of his claims were proprietary in nature. A governmental

entity like CPS Energy does not have immunity when it engages in a proprietary function.

Wheelabrator, 489 S.W.3d at 451. A municipality’s operation of its own public utility is a

propriety function. Id. at 452. However, the fact that CPS Energy primarily functions as a public

utility does not prevent it from performing activities that are governmental in nature. See City of

San Antonio v. BSR Water Co., 190 S.W.3d 747, 753 (Tex. App.—San Antonio 2005, no pet.);

City of San Antonio v. Butler, 131 S.W.3d 170, 177-78 (Tex. App.—San Antonio 2004, pet.

denied). In section 101.0215 of the TTCA, the legislature provided a nonexclusive list of activities

by a municipality that are categorized as governmental in nature. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.0215(a) (West Supp. 2017). “Although the operation of a public utility is a proprietary

function, a municipality’s proprietary functions do not include those activities listed as

governmental in section 101.0215(a).” BSR Water Co., 190 S.W.3d at 753. “This court has held

                                                -4-
                                                                                     04-17-00572-CV


that all activities associated with the operation of one of the governmental functions listed in

section 101.0215(a) are governmental and cannot be considered proprietary regardless of the city’s

motive for engaging in the activity.” Butler, 131 S.W.3d at 177-78.

       The activities listed in section 101.0215(a) include “regulation of traffic” and “maintenance

of traffic signals, signs, and hazards.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (21), (31)

(West Supp. 2017). In his petition, Smith alleged a light pole fell on the roadway and created a

driving hazard. Smith further alleged that CPS Energy was negligent in failing to timely remove

the light pole blocking the roadway and in failing to warn him of the light pole blocking the

roadway. The activities that form the basis of Smith’s claims involve CPS Energy’s response to a

traffic hazard either by removing the hazard from the roadway or by warning drivers of the hazard.

We conclude that these activities qualify as governmental functions. See Ethio Exp. Shuttle Serv.,

Inc. v. City of Houston, 164 S.W.3d 751, 756 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(holding city’s activities were governmental in nature when they were well-aligned with functions

the legislature had designated as governmental in section 101.0215(a)). Therefore, we reject

Smith’s argument that governmental immunity does not apply here because the activities that form

the basis of his claims were proprietary in nature.

Plea to the Jurisdiction

       Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it may be

raised in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26. A plaintiff bears the burden of

affirmatively demonstrating a trial court’s jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d

137, 150 (Tex. 2012); Cervantes, 521 S.W.3d at 394. “[A] court deciding a plea to the jurisdiction

is not required to look solely to the pleadings but may consider evidence and must do so when

necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000).

                                                -5-
                                                                                         04-17-00572-CV


        When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial

court considers the relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised. Univ. of Texas v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin

2009, no pet.). “Such cases fall into two categories: (1) those in which the jurisdictional issue or

facts do not substantially implicate the merits of the plaintiff’s case, but rather are, for the most

part, separate and distinct from the merits; and (2) those in which the jurisdictional issue or facts

do implicate the merits of the plaintiff’s case.” Id. “Courts treat these two categories of cases in

markedly different ways.” Id. A jurisdictional issue implicates the merits of a case when the

determination of many, if not most, of the challenged jurisdictional facts will also determine

whether the plaintiff is entitled to relief on the merits. Id. at 807.

        The first category, cases in which the jurisdictional issue or facts do not implicate the merits

of the plaintiff’s case, contains two types of cases: (1) cases in which the relevant jurisdictional

facts are disputed, and (2) cases in which the relevant jurisdictional facts are undisputed. See id. at

806. When the relevant jurisdictional facts are disputed, the trial court—not the jury—makes the

necessary fact findings to resolve the jurisdictional issue. Id. (citing Miranda, 133 S.W.3d at 226);

Cervantes, 521 S.W.3d at 394. Stated another way, “[w]hen a jurisdictional issue is not intertwined

with the merits of the claims . . . disputed fact issues are resolved by the court, not the jury.” Vernco

Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015). However, when the relevant

jurisdictional facts are undisputed, the trial court makes the jurisdictional determination as a matter

of law based solely on those undisputed jurisdictional facts. Poindexter, 306 S.W.3d at 806.

        As to the second category, cases in which the jurisdictional issue or facts do implicate the

merits of the plaintiff’s case, the trial court does not act as a factfinder. Id. at 807. Instead, the

defendant is put to a burden very similar to that of a summary judgment movant. Id. If the evidence

creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea

                                                   -6-
                                                                                                    04-17-00572-CV


to the jurisdiction and the fact issue will be resolved by the factfinder at trial. Id. (citing Miranda,

133 S.W.3d at 227-28). However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law. Poindexter, 306 S.W.3d at 806 (citing Miranda, 133 S.W.3d at 227-28). As with a summary

judgment, the trial court’s determination in such a case is a purely legal one. Id. (citing Miranda,

133 S.W.3d at 228). Furthermore, the appellate court reviews the trial court’s determination de

novo, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.

Id. (citing Miranda, 133 S.W.3d at 228).

           As will be discussed in more detail below, the relevant jurisdictional facts in this case do

not implicate the merits of Smith’s claims and are undisputed. Therefore, the trial court was

required to make the jurisdictional determination as a matter of law based solely on those

undisputed jurisdictional facts. See Poindexter, 306 S.W.3d at 806.

The “Emergency Exception” under Section 101.055(2)

           We next address CPS Energy’s argument that the trial court erred in denying its plea to the

jurisdiction because, even if immunity was waived under the TTCA, the undisputed evidence

established that the “emergency exception” to any waiver of immunity barred Smith’s claims. 1

           The TTCA waives immunity from suit in a number of circumstances. City of San Antonio

v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006). The TTCA also includes a subchapter entitled

“Exceptions and Exclusions,” which lists circumstances in which its waiver provisions do not

apply. Id. One section in this subchapter, section 101.055(2), excludes any waiver of immunity for

           a claim arising . . . from the action of an employee while responding to an
           emergency call or reacting to an emergency situation if the action is in compliance
           with the laws and ordinances applicable to emergency action, or in the absence of
           such law or ordinance, if the action is not taken with conscious indifference or
           reckless disregard for the safety of others . . . .

1
    For purposes of analyzing this appeal, we will assume, without deciding, that immunity was waived under the TTCA.

                                                          -7-
                                                                                    04-17-00572-CV


TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) (West 2011). Thus, under section 101.055(2),

commonly called the “emergency exception,” immunity is not waived for a claim arising from the

action of an employee while responding to an emergency call or reacting to an emergency situation,

if the action was in compliance with the laws and ordinances applicable to the situation. Id. If no

law or ordinance is applicable to the situation, then the “emergency exception” will apply if the

employee’s action was not taken with conscious indifference or reckless disregard for the safety

of others. Id.

        The statute does not define the terms “emergency call” or “emergency situation,” but the

Texas Supreme Court has interpreted the term “emergency” broadly. See Hartman, 201 S.W.3d at

672-73 (concluding that section 101.055(2) applied to suit involving the city’s reaction to roadway

flooding). As the Texas Supreme Court stated in Hartman: “[B]ecause the [TTCA] creates liability

where it would not otherwise exist, we cannot construe section 101.055(2) to exclude emergencies

the Legislature might have intended to include.” Id. at 673. “While the statute certainly has been

applied to traffic accidents, it also has been applied in other circumstances….” Id. at 672-73.

Additionally, Texas appellate courts have concluded that claims arising from objects blocking

lanes on highways were emergency situations, and the actions of government employees in

response to these emergency situations fell within the scope of section 101.055(2). See City of

College Station v. Kahlden, No. 10-12-00262-CV, 2014 WL 1269026, at *5-6 (Tex. App.—Waco

2014, pet. denied) (holding that an officer who stopped to remove debris from the roadway was

reacting to an emergency situation under section 101.055(2)); City of El Paso v. Segura, No. 08-

02-00240-CV, 2003 WL 1090661, at *1-3 (Tex. App.—El Paso 2003, pet. denied) (recognizing

that actions of city employees who arrived on the scene where light generator was blocking two

lanes of traffic fell within the scope of section 101.055(2)).



                                                 -8-
                                                                                    04-17-00572-CV


       In Hartman, the Texas Supreme Court explained the interaction between the plaintiff’s

pleadings and the burden of proof when determining if the emergency exception applies. Texas

Dep’t of Public Safety v. Little, 259 S.W.3d 236, 238 (Tex. App.—Houston [14th Dist.] 2008, no

pet.). Once the governmental entity asserts and presents evidence to support the application of the

“emergency exception” under section 101.055(2), the plaintiff has the burden to plead and prove

that the emergency exception does not apply. See Hartman, 201 S.W.3d at 672; Quested v. City of

Houston, 440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.); City of San

Antonio v. Rosenbaum, No. 04-11-00498-CV, 2011 WL 6739583, at *2 (Tex. App.—San Antonio

2011, no pet.) (“Once the City asserted the two emergency exceptions, the [plaintiffs] had the

burden to plead and prove that the actions taken by [the city employee] violated a law or ordinance

in order for immunity to be waived under these emergency exceptions…. Alternatively, the

[plaintiffs] would be required to present some evidence showing that [the city employee] was not

reacting to an emergency situation or responding to a 9-1-1 emergency call.”); Little, 259 S.W.3d

at 238-39. To do so, the plaintiff has the burden to plead and present evidence of at least one of

the following: (1) the entity was not responding to an emergency call or reacting to an emergency

situation; (2) the entity was not in compliance with the laws and ordinances applicable to the

emergency action; or (3) the entity’s actions were taken with conscious indifference or reckless

disregard for the safety of others. See Hartman, 201 S.W.3d at 672; Quested, 440 S.W.3d at 284;

Rosenbaum, 2011 WL 6739583, at *2; Little, 259 S.W.3d at 238-39.

   •   Application of the Law to the Present Case

       We believe the jurisdictional issue in this case did not implicate the merits of Smith’s

claims because the determination of the relevant jurisdictional facts—whether CPS Energy was

responding to an emergency call or reacting to an emergency situation—would not determine

whether Smith was entitled to recover on his premises liability and gross negligence claims. See

                                               -9-
                                                                                        04-17-00572-CV


Poindexter, 306 S.W.3d at 807-08 (noting that a jurisdictional issue implicates the merits of a case

when the determination of many, if not most, of the challenged jurisdictional facts will also

determine whether the plaintiff is entitled to relief on the merits). Thus, the trial court was required

to consider the relevant evidence and resolve the jurisdictional issue based either on the facts it

found or those that were undisputed. See Cervantes, 521 S.W.3d at 394. In this case, the relevant

jurisdictional facts were undisputed. Therefore, the trial court was required to make the

jurisdictional determination as a matter of law based solely on those undisputed jurisdictional facts.

See Poindexter, 306 S.W.3d at 806.

        In this case, Smith alleged in his petition that a light pole fell on the roadway and created

a driving hazard. Smith further alleged that CPS Energy was negligent in failing to timely remove

the light pole blocking the roadway and in failing to warn him of the light pole blocking the

roadway. In its plea to the jurisdiction, CPS Energy contended that Smith’s claims regarding its

failures to report, warn, remove, or make safe the roadway after the light pole was struck and

knocked down by another driver constituted complaints about the manner in which it responded

to an emergency call or reacted to an emergency situation and fell within the scope of section

101.055(2) of the TTCA. CPS Energy presented evidence to support its contention that section

101.055(2) applied. Smith, however, did not file any pleadings asserting that the emergency

exception did not apply.

        The evidence before the trial court included the undisputed testimony of Jose Guadalupe

Trevino, CPS Energy’s Director of Construction and Maintenance. In his deposition testimony,

Trevino testified that CPS Energy employs first responders called “troublemen.” CPS Energy’s

troublemen are dispatched to emergencies throughout the city. According to Trevino, a downed

light pole blocking a lane of highway at an interchange would be considered an emergency once

it was reported to CPS Energy. Once a downed light pole is reported to CPS Energy, it dispatches

                                                 - 10 -
                                                                                     04-17-00572-CV


a troubleman to patrol the area to find it. If a troubleman arrives at the scene of a downed light

pole and decides that it is too dangerous to get the pole out of the road on his own, he will try to

set up cones or at least alert drivers to the downed pole so they will be more cautious. And, if CPS

Energy’s troubleman cannot remove the downed pole himself, he will call for assistance from the

police department or a crew to help him get the downed pole out of the way.

       In his affidavit, Trevino testified CPS Energy’s dispatch records and audio recordings

showed that at about 3:49 p.m. on the day of Smith’s accident, CPS Energy received a call from

the San Antonio Police Department (“SAPD”) stating that a light pole had been knocked down

and was in the middle of the highway. The caller specified that the downed light pole was located

at Eastbound IH-10 and Pine. CPS Energy dispatched a troubleman to look for the downed light

pole located at Eastbound IH-10 and Pine. At approximately 4:26 p.m., the troubleman contacted

the dispatcher and advised that he had “been from Hackberry all the way to Walters on both sides

of 10” and was “not seeing anything.” At approximately 4:27 p.m., CPS Energy’s dispatcher called

SAPD to request clarification about the downed light pole and was told that the light pole was

actually located at Eastbound 10 to Northbound 37 and that the police had already left the scene.

       Other undisputed evidence showed the downed light pole near Pine Street and IH-10 was

not the one struck by Smith. Smith’s accident occurred at approximately 4:46 p.m. when he struck

the downed light pole located at Eastbound 10 to Northbound 37. Thus, the evidence showed that

on the afternoon of Smith’s accident CPS Energy was informed of two downed light poles located

in the same vicinity.

       In sum, the undisputed evidence showed that CPS Energy considered a downed light pole

blocking the roadway to be an emergency and it employed first responders, troublemen, who

responded to this type of emergency. The undisputed evidence also showed that on the day of

Smith’s accident CPS Energy was notified of a downed light pole in the middle of the highway

                                               - 11 -
                                                                                      04-17-00572-CV


near Pine Street and IH-10 and it responded by sending a troubleman to locate the downed light

pole. When the troubleman was unable to locate the downed light pole, he contacted the dispatcher

who sought clarification of the location of the downed light pole. At this point, the dispatcher was

informed of another downed light pole, the downed light pole involved in Smith’s accident. We

conclude that the evidence established that Smith’s claims arose from CPS Energy’s response to

an emergency call or reaction to an emergency situation.

       Once CPS Energy presented evidence establishing that the emergency exception applied,

Smith was required to plead and present evidence of at least one of the following: (1) CPS Energy

was not responding to an emergency call or reacting to an emergency situation; (2) CPS Energy

was not in compliance with the laws and ordinances applicable to the emergency action; or (3)

CPS Energy’s actions were taken with conscious indifference or reckless disregard for the safety

of others. See Hartman, 201 S.W.3d at 672; Quested, 440 S.W.3d at 284; Rosenbaum, 2011 WL

6739583, at *2; Little, 259 S.W.3d at 238-39. Smith failed to do so.

       Smith did not plead or prove that CPS Energy was not responding to an emergency call or

reacting to an emergency situation. Smith did not plead or prove that CPS Energy violated a statute

or ordinance. See Hartman, 201 S.W.3d at 672 (providing that emergency exception under section

101.055(2) applied when the plaintiffs did not assert that any law or ordinance applied to the

activity). Nor did Smith, in response to the plea to the jurisdiction, plead or prove that CPS Energy

acted with conscious indifference or reckless disregard in responding to the emergency situation.

See id. (providing that emergency exception under section 101.055(2) applied when the plaintiffs

did not assert that the city’s acts or omissions showed that it did not care what happened to

motorists). A showing of conscious indifference or reckless disregard in responding to an

emergency situation requires proof that a party knew the relevant facts but did not care about the

result. Id. n.19. Here, the undisputed evidence showed that, upon notification of a downed light

                                                - 12 -
                                                                                                  04-17-00572-CV


pole near Pine Street and IH-10, CPS Energy dispatched a troubleman to locate the downed light

pole. Unable to locate the downed light pole, the troubleman called the CPS Energy dispatcher and

advised the dispatcher that he had been searching for the pole and had not been able to locate it.

The dispatcher sought clarification of the location of the downed light pole. At this point, the

dispatcher was informed of another downed light pole, the light pole involved in Smith’s accident. 2

We conclude the evidence does not show that CPS Energy acted with conscious indifference or

reckless disregard in responding to an emergency call or reacting to an emergency situation.

    •   Smith’s Argument

        In his appellate briefing, Smith offers only one argument for why the emergency exception

did not apply. According to Smith, the emergency exception did not apply here because there was

“no evidence that CPS Energy ever responded to the scene of the wreck involving [him.]” We

reject this argument for several reasons. First, Smith cites no authority to support this argument.

Second, whether or not CPS Energy arrived at the scene of Smith’s accident is irrelevant. Smith’s

claims involve CPS Energy’s response or reaction to the downed light pole that he struck, a light

pole that had been knocked down by another motorist prior to Smith’s accident. Finally, Smith’s

argument conflicts with the Texas Supreme Court’s broad construction of section 101.055(2)

articulated in Hartman. 201 S.W.3d at 672-73. In Hartman, the Texas Supreme Court

acknowledged that section 101.055(2) applied to a variety of circumstances, refused to construe

section 101.055(2) “to exclude emergencies the Legislature might have intended to include,” and

emphasized that the “statute exempts governments reacting to an emergency situation….” Id. at

673 (emphasis in original). In Hartman, the plaintiffs sued the city after their family members

drowned when their car drove into a flooded street and was swept away by the current. Id. at 669.


2
 The evidence also includes a police report which indicates that the San Antonio Fire Department removed the downed
light pole from the roadway while at the scene of Smith’s accident.

                                                      - 13 -
                                                                                         04-17-00572-CV


The crux of the plaintiffs’ lawsuit was that the city’s placement of barricades around the flooded

street was inadequate. See id. at 673. The Texas Supreme Court held that an emergency situation

existed, and the trial court had no subject-matter jurisdiction over the plaintiffs’ claims because

the city retained its governmental immunity under the emergency exception. Id. at 669, 673.

Similarly, in this case, the crux of Smith’s lawsuit is that CPS Energy’s response or reaction to the

downed light pole was inadequate. Furthermore, the evidence in this case conclusively established

that Smith’s claims arose from CPS Energy’s response to an emergency call or a reaction to an

emergency situation. Therefore, the emergency exception applies and the trial court has no subject-

matter jurisdiction over Smith’s claims against CPS Energy.

        •   City of San Antonio v. Torres

        Although the dissent asserts otherwise, our reasoning in this case is consistent with our

reasoning in City of San Antonio v. Torres, No. 04-17-00309-CV, 2017 WL 5472537, at *1 (Tex.

App.—San Antonio Nov. 15, 2017, no pet.). In Torres, the jurisdictional facts overlapped with the

merits of the plaintiffs’ case, and the evidence was disputed as to (1) whether the officer’s actions

were in compliance with the applicable statutes and ordinances, and (2) whether the officer did not

act with conscious disregard for the safety of others. Id. at *5. Therefore, in Torres, the trial court

was required to analyze the plea to the jurisdiction under a summary judgment-like framework.

See Poindexter, 306 S.W.3d at 806 (noting that when the jurisdictional issue or facts do implicate

the merits of the plaintiff’s case, the trial court does not act as a factfinder and the defendant is put

to a burden very similar to that of a movant in a summary judgment; that is, if the evidence creates

a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction and the fact issue will be resolved by the factfinder at trial). Our reasoning in Torres

was necessarily guided by these circumstances. See id. at *3 (stating that because the “immunity

inquiry is inextricably bound to the merits of [the plaintiffs’] claim, the burdens and our review

                                                  - 14 -
                                                                                                        04-17-00572-CV


mirror summary judgment practice.”). Here, by contrast, the jurisdictional facts do not overlap

with the merits of Smith’s claims and the jurisdictional evidence is undisputed. See Poindexter,

306 S.W.3d at 806 (noting that when the jurisdictional issue or facts do not implicate the merits of

the plaintiff’s case and the relevant jurisdictional facts are undisputed, the trial court makes the

jurisdictional determination as a matter of law based solely on those undisputed facts). 3

                                                    CONCLUSION

         Because Smith’s claims arise from CPS Energy’s actions in responding to an emergency

call or reacting to an emergency situation, they are barred by section 101.055(2) of the TTCA.4

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). We, therefore, conclude the trial court erred

by not granting CPS Energy’s plea to the jurisdiction as to all of Smith’s claims.

         We reverse the portion of the trial court’s order denying CPS Energy’s plea to the

jurisdiction, and render judgment granting CPS Energy’s plea to the jurisdiction in its entirety and

dismissing all of Smith’s claims against CPS Energy.

                                                             Karen Angelini, Justice




3
 We recognize that even if the jurisdictional issue in this case did implicate the merits of Smith’s claims, thus requiring
the use of a summary judgment-like framework, the trial court was still required to rule on the plea to the jurisdiction
as a matter of law because the relevant jurisdictional facts were undisputed. See Univ. of Texas v. Poindexter, 306
S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.) (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 227-28 (Tex. 2004)).

4
 When applicable, the emergency exception overrides any waiver of immunity See City of San Antonio v. Hartman,
201 S.W.3d 667, 671 (Tex. 2006). Because we have determined that the emergency exception applies here, we need
not address whether CPS Energy’s immunity was waived because the issue is unnecessary to the disposition of this
appeal. See TEX. R. APP. P. 47.1 (requiring appellate courts to address only issues necessary to the final disposition of
an appeal).

                                                          - 15 -
