                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00262-CV

THE CITY OF COLLEGE STATION,
                                                             Appellant
v.

PATRICIA KAHLDEN, INDIVIDUALLY AND
AS REPRESENTATIVE OF THE ESTATE OF
LILLIE MAY WILLIAMS BAYLESS,
                                                             Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 11-003172-CV-272


                           MEMORANDUM OPINION


       Lillie Bayless was killed in a traffic accident in College Station, Texas.      She

stopped behind a College Station police officer, James Elkins. Elkins had stopped his

patrol car in the roadway to remove debris. While Bayless was stopped behind Elkins,

she was struck from the rear by Laura Sue Striegler.          Patricia Kahlden, Bayless’

daughter, sued Officer Elkins, the City of College Station, and Striegler. The City filed a

motion for summary judgment alleging sovereign immunity which was denied by the
trial court. The City then brought this interlocutory appeal. Because the trial court

erred in denying the City’s motion for summary judgment, we reverse the trial court’s

order denying the City’s motion for summary judgment and remand the case to the trial

court for further proceedings.

TEXAS TORT CLAIMS ACT

        In this proceeding, the City is immune from suit unless the Tort Claims Act

expressly waives immunity. See TEX. CIV. PRAC. & REM. CODE §§ 101.001-.109 (West 2011

& Supp. 2013). Sovereign immunity protects the State and its various divisions, such as

agencies and boards, from suit and liability, whereas governmental immunity provides

similar protection to the political subdivisions of the state, such as counties, cities, and

school districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011)

(citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)); Coryell

County v. Harrell, 379 S.W.3d 345, 347 (Tex. App.—Waco 2011, no pet.). Sovereign or

governmental immunity includes two distinct principles, immunity from suit and

immunity from liability. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

(Tex. 2004). Although immunity from liability is an affirmative defense, immunity from

suit is not because it deprives a court of subject matter jurisdiction. Id. Thus, the party

suing the governmental entity must establish the State's consent, which may be alleged

either by reference to a statute or to express legislative permission. Texas DOT v. Jones, 8

S.W.3d 636, 638 (Tex. 1999).


The City of College Station v. Kahlden                                                Page 2
THE LAWSUIT

        Kahlden initially sued Elkins and Striegler, for negligence, wrongful death, and

survival damages.        She sued the City, as Elkins’s employer, under the theory of

respondeat superior, also known as vicarious liability. In the petition, Kahlden alleged

that the City’s immunity was waived pursuant to the Texas Tort Claims Act, section

101.021 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE §

101.021 (West 2011).

        The City answered and alleged, among other allegations, the applicability of

section 101.055, an emergency action exception to the general waiver of the Tort Claims

Act. Id. § 101.055. Kahlden amended her petition and again alleged that the City’s

immunity was waived pursuant to section 101.021.            She also alleged that the

“emergency action” exception found in section 101.055 did not apply to the 101.021

waiver because Elkins’ actions were allegedly not in compliance with laws and

ordinances applicable to emergency action.

SUMMARY JUDGMENT

        The City then moved for summary judgment alleging the exceptions of sections

101.055 and 101.062 to the Tort Claims Act were applicable to the underlying incident.

Kahlden amended her petition a second time in which she expanded on a section in the

first amended petition entitled “Texas Tort Claims Act.” In that section, Kahlden again

alleged that because Elkins was negligent in the operation of a motor vehicle, sovereign


The City of College Station v. Kahlden                                            Page 3
immunity was waived pursuant to section 101.021. She further specifically alleged that

the exception pursuant to section 101.055 did not apply because: 1) Elkins was not

responding to an emergency call nor reacting to an emergency situation at the time of

the collision; 2) Elkins acted with conscious indifference or reckless disregard for the

safety of others at the time of the collision; and 3) Elkins’ actions were not in compliance

with all applicable laws and ordinances because Elkins exhibited a reckless disregard

for the safety of others in violation of section 546.005 of the Texas Transportation Code.

Kahlden further alleged that the exception under section 101.062 was inapplicable

because at the time of the collision, Elkins was not providing 9-1-1 service or

responding to a 9-1-1 emergency call.

           Thus, we have the following allegations of the applicable common law doctrine,

statutory waiver, exceptions, and limitations:

           1. General common law rule of sovereign immunity (Wichita Falls State Hosp. v.
              Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003));

           2. The general tort claims act (TCA) waiver, 101.0211;



1   A governmental unit in the state is liable for:

           (1) property damage, personal injury, and death proximately caused by the wrongful act
           or omission or the negligence of an employee acting within his scope of employment if:

                    (A) the property damage, personal injury, or death arises from the operation or
           use of a motor-driven vehicle or motor-driven equipment; and

                   (B) the employee would be personally liable to the claimant according to Texas
           law; and


The City of College Station v. Kahlden                                                                Page 4
           3. An exception to the TCA 101.021 waiver, 101.0552;

           4. A limitation to the application of the exception of 101.055 in the
              Transportation Code section 546.0053;

           5. Another exception to the TCA 101.021 waiver, 101.0624;

           6. A limitation within the 101.062 exception that excludes its application
              under certain circumstances.

           In one issue on appeal, the City argues that the trial court erred in denying its

motion for summary judgment on the issue of subject matter jurisdiction because the

           (2) personal injury and death so caused by a condition or use of tangible personal or real
           property if the governmental unit would, were it a private person, be liable to the
           claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

2   This chapter does not apply to a claim arising:
                                                       ***
           (2) 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 a law or ordinance, if the action
           is not taken with conscious indifference or reckless disregard for the safety of others[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) (West 2011).

3   This chapter does not relieve the operator of an authorized emergency vehicle from:
           (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or
           (2) the consequences of reckless disregard for the safety of others.

TEX. TRANSP. CODE ANN. § 546.005 (West 2011).

4(a) In this section, "9-1-1 service" and "public agency" have the meanings assigned those terms
by Section 771.001, Health and Safety Code.

(b) This chapter applies to a claim against a public agency that arises from an action of an
employee of the public agency or a volunteer under direction of the public agency and that
involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates
a statute or ordinance applicable to the action.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.062 (West 2011).


The City of College Station v. Kahlden                                                                     Page 5
material facts are undisputed and demonstrate that the City retains its immunity to the

claims asserted by Kahlden.

Standard of Review

        The procedural posture in which a case is presented sometimes limits the form

and nature of relief we can grant as well as the standard and scope of review. Because

the City filed a motion for summary judgment and not a motion under section 101.106

of the Texas Civil Practice and Remedies Code for election of remedies or a plea to the

jurisdiction, we are limited to reviewing the trial court’s ruling on the motion for

summary judgment; and the objections to and rulings on the summary judgment

evidence control what evidence we may consider. The only exception to this general

rule is when the governmental entity or its employee can assert a lack of jurisdiction for

the first time on appeal; an instance where we are not reviewing anything the trial court

did but rather are determining whether the trial court has jurisdiction at all, so long as

the appellant has otherwise properly invoked this Court’s jurisdiction. See Univ. of Tex.

Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004) (“Not only may an

issue of subject matter jurisdiction ‘be raised for the first time on appeal by the parties

or by the court’, a court is obliged to ascertain that subject matter jurisdiction exists

regardless of whether the parties have questioned it.” (footnote omitted)).          Thus,

contrary to the City’s argument in its brief, because the City filed a motion for summary

judgment rather than a plea to the jurisdiction, we review the trial court’s decision to


The City of College Station v. Kahlden                                               Page 6
grant or deny the motion pursuant to established standards of review of a motion for

summary judgment.5

        The summary judgment movant bears the burden to show that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c). In reviewing a traditional motion for summary judgment, as it

appears the City filed, we must consider whether reasonable and fair-minded jurors

could differ in their conclusions in light of all of the evidence presented. See Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We review the motion and

the evidence de novo, taking as true all evidence favorable to the nonmovant, and

indulging every reasonable inference and resolving any doubts in the nonmovant's

favor. Id. at 756; Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Once a

defendant establishes its right to summary judgment as a matter of law, the burden

shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby

precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979); Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d

462, 464 (Tex. App.—Dallas 2006, no pet.); Bosque Trading Enters. v. Business Loan Ctr.,

LLC, No. 10-11-00016-CV, 2012 Tex. App. LEXIS 8595, *10 (Tex. App.—Waco Oct. 11,

2012, no pet.) (mem. op.).

5However, to some extent, the standard is the same since the Supreme Court has held that a review of the
denial of a plea to the jurisdiction “generally mirrors” that of a motion for summary judgment. Tex. Dep't
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Thus, unless the summary judgment rules
provide a procedural hurdle that a plea to the jurisdiction does not, the standards are, in this instance,
substantially the same.

The City of College Station v. Kahlden                                                             Page 7
The Motion

        The City did not concede in its motion for summary judgment that its immunity

was waived by section 101.021 of the Tort Claims Act for injuries or death proximately

caused by an act, omission, or negligence of an employee if the injuries or death arose

from the use of a motor driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021

(West 2011). Rather, it argued that even if immunity was waived by section 101.021 of

the Act, the exceptions to the Act listed in sections 101.051-.066 of the Civil Practice and

Remedies Code, specifically sections 101.055 and 101.062, govern the underlying

incident and immunity is not waived. Id. §§ 101.055 and 101.062. In essence, the City

asserts that these two statutes act as exceptions to the section 101.021 waiver of

sovereign immunity.

Section 101.055

        The City argued in its motion for summary judgment that it retained immunity

because Elkins was reacting to an emergency situation as set forth in section 101.055 of

the Tort Claims Act. As it applies to this proceeding, section 101.055 provides:

                This chapter [the Tort Claims Act] does not apply to a claim arising:
                ***
                (2) 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 a law or ordinance, if the action is not taken with
        conscious indifference or reckless disregard for the safety of others[.]

Id. at § 101.055(2) (bracketed information and emphasis added).


The City of College Station v. Kahlden                                                  Page 8
        Emergency Situation

        The City argues that the evidence it presented with its motion showed as a

matter of law that Elkins was reacting to an emergency situation to remove debris from

the road. Kahlden objected to some of the City’s evidence, and that objection was

sustained. Our recitation of the evidence does not include, and therefore, in accordance

with summary judgment procedure, our opinion and judgment do not rely upon, that

excluded evidence.

        The City presented evidence that a motorist called 9-1-1 to report that there was

something in a “bag” in the exit ramp which she and another driver had just run over

because they could not avoid it. A motorist behind the caller had to swerve “real fast”

to get around the bag. The motorist thought the bag would cause problems because it

was located on a part of the roadway where some vehicles are entering the roadway

and other vehicles are exiting the roadway; in essence what was both an acceleration

ramp for persons entering the highway and a deceleration ramp for persons exiting the

highway.

        The call was then dispatched by being announced over the police radio and

Elkins volunteered to take the call. Upon his initial arrival at the reported location, he

could not find the “bag” but discovered that drivers were swerving to avoid a pair of

boots on the (north bound) entrance/exit ramp of Highway 6 between Harvey Road and

University Drive.       An accident almost occurred in Elkins’ presence involving two


The City of College Station v. Kahlden                                              Page 9
vehicles trying to swerve around the debris, a pair of boots. He determined the debris,

and the reaction of drivers to the debris, created an emergency situation. But because

he could not safely stop when he first spotted the debris, he looped around on

University Drive to then be able to return and re-approach where the debris was

located. To make this second approach, Elkins took the Harvey Road exit, went under

the Highway 6 overpass on Harvey Road, and came back onto the entrance ramp from

Harvey Road onto Highway 6. Elkins slowed his patrol car and activated his amber

directional lights to notify traffic behind him that he was slowing down to block the

lane. As he neared the debris, he activated his overhead emergency lights and came to

a complete stop. His overhead emergency lights were on for approximately twenty

seconds prior to Elkins completely stopping and putting his vehicle into “park.” Before

Elkins exited his patrol car, his vehicle was struck from behind by Bayless’s vehicle

which was shoved forward when it was struck from behind by Striegler.

        In response to the City’s motion, Kahlden asserted that the situation to which

Elkins was responding was not an emergency. Citing the memorandum opinion of

Jefferson County v. Hudson, No. 09-11-00168-CV, 2011 Tex. App. LEXIS 6986 (Tex. App.—

Beaumont Aug. 25, 2011, no pet.) (mem. op.) as authority, Kahlden asserted that, in this

type of case, a jury must resolve the fact issue of whether an emergency situation exists

by considering both the government employee’s subjective belief as well as whether a

reasonably prudent officer could have believed these circumstances called for


The City of College Station v. Kahlden                                            Page 10
immediate action. Kahlden argued that there was a disputed fact issue that Elkins did

not subjectively believe “the two boots” created an emergency situation and that

objectively, no reasonably prudent officer could have believed “the two boots” created

an emergency situation.

        In Jefferson County, the County filed a plea to the jurisdiction asserting that its

officer was responding to an emergency situation; the plaintiffs filed a partial motion

for summary judgment. The trial court granted the plaintiffs’ motion for summary

judgment and denied the plea to the jurisdiction. In two issues, the County claimed the

trial court erred in denying its plea to the jurisdiction and in ruling as a matter of law

that no emergency existed. After discussing the standard for reviewing a plea to the

jurisdiction, what happens when the governmental unit raises the emergency situation

exception, the facts submitted, and that “emergency situation” is not defined, the court

simply concludes:

               There is at least a fact question at this stage, precluding the
        summary judgment the trial court granted for the plaintiffs, as to whether
        a reasonably prudent officer could have believed these circumstances
        called for immediate action.

Jefferson County v. Hudson, No. 09-11-00168-CV, 2011 Tex. App. LEXIS 6986, *10 (Tex.

App.—Beaumont Aug. 25, 2011, no pet.) (mem. op.).6                   There is no reference to a



6We note that the Court in Jefferson County was only addressing the granting of a summary judgment
which held that Hudson had negated an “emergency situation” as a matter of law. It was not a question,
as in this case, of whether the government had established its immunity by its summary judgment
evidence.

The City of College Station v. Kahlden                                                        Page 11
subjective test, i.e, what the officer believed; only an objective test. Nowhere does the

court cite any cases for the proposition that a reasonably prudent officer standard, the

objective test, applies or that it is the entire test. Further, none of the cases cited by the

court use that standard. We decline to follow the implied holding that the objective test

is the only standard.

        The word “emergency” is not defined in the Act. Because it is not defined in the

statute, we give it its ordinary meaning. TEX. GOV'T CODE ANN. § 312.002 (West 2013);

City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006). The word, emergency,

has been defined as “an unforeseen combination of circumstances or the resulting state

that calls for immediate action.”        Merriam-Webster Online Dictionary, available at

http://www.merriam-webster.com/dictionary/emergency.

        As the Texas Supreme Court has said in construing another exception to the Tort

Claims Act, we must construe the statute according to what it says, not according to

what we think, or a party thinks, it should have said. See City of San Antonio v. Hartman,

201 S.W.3d 667, 673 (Tex. 2006). The statute is designed to limit the government’s

liability when it is reacting to an emergency situation, which necessarily includes

prioritizing some risks over others. Id. And because the Act first creates and then limits

governmental liability where it would not otherwise exist, we cannot construe section

101.055 to exclude “emergencies” the Legislature might have intended to include as a

limitation of the waiver of sovereign immunity. See id. There will be cases, such as this


The City of College Station v. Kahlden                                                 Page 12
one, in which the existence of an "emergency" might be challenged as “unclear;” but we

cannot re-write this section to make its boundaries more distinct. Id.

        Kahlden presented her expert’s testimony by affidavit who opined that no

reasonably prudent officer would have stopped to retrieve the boots.7 But we have held

that this is not the standard to use in determining whether an emergency situation

existed. The undisputed evidence is that Elkins saw a near collision because of the

boots. He considered this an emergency situation, and, using precautionary measures,

Elkins stopped to remove the boots. Elkins thus determined that the situation required

immediate action and he took action that was consistent with his determination that this

was an emergency. He was taking action in response to it.

        As we note in footnote 7, the affidavit of Kahlden’s expert is conclusory in a

number of aspects. The expert may take issue with the discretionary decisions made by

Elkins about the way to remove the debris that would best balance all the associated

risks including the risk that the evasive actions drivers were making could result in a

collision before any other action could be taken versus the reduction of the duration of

the risk if Elkins was immediately able to remove the debris acting as an impediment to

the free flow of traffic. Upon Elkins’s first approach, he made the determination he

could not safely stop. He circled and, using emergency lights, stopped the flow of


7 Kahlden’s expert’s testimony is conclusory and is not to be relied upon. See Anderson v. Snider, 808
S.W.2d 54, 55 (Tex.1991). This also shows the fundamental problem with the expert’s testimony. It is not
“the boots” that is the emergency situation; it is how the drivers were reacting when they came upon the
debris in the roadway.

The City of College Station v. Kahlden                                                          Page 13
traffic so that the debris could be quickly removed. Little did Elkins know, or could

have reasonably anticipated, that Striegler would completely overlook the large SUV

that was slowing and that ultimately came to a stop in front of her. Rather than

showing recklessness, all the evidence presented, other than the conclusory affidavit of

Kahlden’s expert, shows that Elkins acted in response to an emergency situation to

safeguard the public and took reasonable efforts in the execution thereof and did so

with due regard and deliberation in doing so for the safety of others.

          Thus, we hold that the City established that Elkins was reacting to an emergency

situation.

          Compliance with Laws and Ordinances

          The City also argues that the evidence it presented with its motion showed as a

matter of law that Elkins’ action of stopping on the roadway to remove the debris was

in compliance with laws applicable to emergency action.

          In its motion for summary judgment, the City asserted that section 546.001 of the

Texas Transportation Code authorized Elkins to stop on the roadway to remove the

debris.     See TEX. TRANSP. CODE ANN. § 546.001 (West 2011).           The operator of an

authorized emergency vehicle is permitted to “park or stand, irrespective of another

provision of this subtitle.”        Id. (1).   Section 546.001 applies when the operator is

directing or diverting traffic for public safety purposes. Id. § 546.002(b)(4) (West Supp.




The City of College Station v. Kahlden                                               Page 14
2013). When stopping for the purpose of directing or diverting traffic for public safety

purposes, the operator shall use audible or visual signals. Id. § 546.003 (West 2011).

        The undisputed evidence established that Elkins was in an emergency vehicle

and that he was “parked” or “standing” when the collision occurred.              It is also

undisputed that Elkins was using visual signals to direct or divert traffic around his

location for public safety purposes.        Like “emergency,” the phrase, “public safety

purpose” is not defined.          But, just as the near miss collision to avoid the debris

established that Elkins was reacting to an emergency situation, it also establishes that

Elkins’ stop and use of directional lights to remove the debris from the roadway was

done for “public safety purposes.”          Thus, the City established by its undisputed

evidence that the action taken by Elkins, that is, to stop in the roadway while activating

amber directional signals, was in compliance with the laws applicable to emergency

action, specifically sections 546.001-003 of the Texas Transportation Code.

        Kahlden did not dispute that sections 546.001-003 were laws applicable to the

emergency action. Kahlden focused, instead, on whether a fact issue existed to prove

Elkins was reckless. In a combined argument against the applicability of either section

101.055 or 101.062, Kahlden argued that even if the officer was responding to an

emergency call or reacting to an emergency situation, the jury still must decide whether

the officer was reckless or violated a statute.




The City of College Station v. Kahlden                                              Page 15
        Kahlden argues that section 546.005 of the Texas Transportation Code, the Duty

of Care provision, applied and that because Elkins operated the city vehicle with

reckless disregard for the safety of others, neither section 101.062 nor 101.055 applied or

that at least she had presented evidence that created a question about a material fact,

whether Officer Elkins was reckless, that had to be determined by a fact finder.        TEX.

TRANSP. CODE ANN. § 546.005 (West 2011). Section 546.005 provides:

                This chapter does not relieve the operator of an authorized
        emergency vehicle from:
               (1) the duty to operate the vehicle with appropriate regard for the
        safety of all persons; or
               (2) the consequences of reckless disregard for the safety of others.

Id.

        Proof of lack of recklessness, however, is only necessary under section 101.055 if

there is no other law or ordinance applicable to the emergency action. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2) (West 2011) (“…or in the absence of such a law or

ordinance, if the action is not taken with conscious indifference or reckless disregard for

the safety of others[.]”). As we stated, Kahlden did not dispute that sections 546.001-003

were laws applicable to the emergency action.

        Further, if the City was required to prove lack of recklessness under section

456.005 of the Texas Transportation Code regardless of whether there was another law

or ordinance applicable to the emergency action with which Elkins complied, the

second part of section 101.055(2) would be rendered meaningless. Courts are to avoid


The City of College Station v. Kahlden                                                Page 16
interpreting statutes in such a way that renders provisions meaningless. See Kerrville

State Hosp. v. Fernandez, 28 S.W.3d 1, 8-9 (Tex. 2000). Thus, because the City established

by its undisputed evidence that the action taken by Elkins was in compliance with the

laws applicable to emergency action, it was not required to prove that Elkins was not

reckless pursuant to section 546.005 of the Texas Transportation Code.

CONCLUSION

        The City proved that Elkins was reacting to an emergency situation and his

action was in compliance with the laws applicable to the emergency action taken. Thus,

the City proved an exception to the general waiver provision of the Tort Claims Act.

Because the City proved the exception stated in section 101.055, we need not discuss

whether it also proved the application of the exception stated in section 101.062.

        Accordingly, the trial court erred in denying the City’s motion for summary

judgment. The trial court’s order is reversed, and this case is remanded for further

proceedings.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed March 27, 2014
[CV06]


The City of College Station v. Kahlden                                               Page 17
