                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-17-00258-CV

CITY OF FORT WORTH,
                                                                       Appellant
    v.

JEFF HART, AS NEXT FRIEND
OF K.H., A MINOR,
                                                                       Appellees



                               From the 18th District Court
                                  Johnson County, Texas
                              Trial Court No. DC-C201600644


                               MEMORANDUM OPINION

         Appellee Jeff Hart, as Next Friend of his minor child, K.H., sues the City of Fort

Worth for injuries K.H. suffered as the result of an automobile accident involving a police

officer employed by Appellant City of Fort Worth. The City’s plea to the jurisdiction1

was denied by the trial court. On appeal, the City argues that the trial court erred because




1
 The City filed a plea to the jurisdiction and subsequently filed an amended plea to the jurisdiction. For
brevity, we will refer to both as the plea to the jurisdiction.
Hart failed to demonstrate that the officer was acting in the scope of his duties as a police

officer for the City at the time of the accident. The City also asserts that the trial court

erred in sustaining objections to the City’s evidence in support of its plea to the

jurisdiction. We will reverse.

                                              Background

        On May 4, 2016, City of Fort Worth police officer Aldo Castaneda, who was

driving a City-owned vehicle, was involved in an accident with another vehicle driven

by Rachel E. Howard. At the time of the wreck, Castaneda was on his way to work in

Fort Worth. He exited the parking lot of the Burleson Police Department, where he was

permitted to park the City-owned vehicle overnight, and collided with Howard’s vehicle

as she was backing out of a driveway. The accident resulted in damages to both vehicles

involved and injuries to Howard and to K.H., who was a passenger in Howard’s vehicle.

After Hart filed suit on behalf of K.H., Howard and her insurer, Farmers Texas Mutual

Insurance Company, intervened in the suit, seeking recovery for Howard’s injuries and

the damages to her vehicle. Howard and Farmers adopted the allegations contained in

Plaintiff’s original petition in their pleas in intervention.

        In support of its plea to the jurisdiction, the City presented excerpts from

Castaneda’s deposition and an affidavit from Javier Aguilar, a Legal Liaison Officer and

custodian of records for the City’s police department, that included pertinent provisions

of City policies regarding officers’ use of City-owned vehicles. Hart and the Intervenors2



2
 Hart and the Intervenors filed identical responses and objections. For brevity, we will refer to all of the
parties as “Hart.”

City of Fort Worth v. Hart                                                                           Page 2
filed responses and also filed objections to the City’s exhibits. After a hearing, the trial

court denied the City’s plea and sustained the objections to the exhibits. The trial court

orally stated: “I do find that the fact issue does exist as to whether or not the Officer was

acting within the course and scope of his duties.” A subsequent motion for rehearing by

the City was also denied.

                                        The Evidence

        Before considering the merits of the City’s plea to the jurisdiction, we must address

whether the trial court erred in sustaining Hart’s objections to the excerpts from

Castaneda’s deposition that were included as an exhibit to the City’s plea. The admission

and exclusion of evidence is committed to the trial court’s sound discretion. See Gen. Tire,

Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); see also Cypress Creek EMS v. Dolcefino, 548

S.W.3d 673, 688 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). Trial court error is

reversible, however, only when it is harmful—that is, when the error probably caused the

rendition of an improper judgment. Diamond Offshore Services, Ltd. v. Williams, 542 S.W.3d

539, 551 (Tex. 2018). A successful challenge to evidentiary rulings usually requires the

complaining party to show that the judgment turned on the particular evidence excluded

or admitted. See GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex. App.—

Houston [1st Dist.] 1991, writ denied); Sanchez v. Balderrama, 546 S.W.3d 230, 234-35 (Tex.

App.—El Paso 2017, no pet.). We determine whether the case turns on the evidence

excluded by reviewing the entire record. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000). We will not reverse a judgment for erroneous evidentiary rulings when the




City of Fort Worth v. Hart                                                             Page 3
evidence in question is merely cumulative and is not controlling on a material issue

dispositve to the case. Id.

        Whether the exclusion of evidence was harmful must be evaluated in relation to

the provisions of the Texas Tort Claims Act (TTCA) applicable to Hart’s claims—

specifically, whether Castaneda was acting within the scope of his employment with the

City at the time of the accident. Without Castaneda’s deposition, the Court is unable to

evaluate whether Castaneda was acting within the scope of his employment and whether

or not the City is entitled to immunity from liability. Castaneda’s deposition testimony

is, therefore, material and dispositive of the issue of jurisdiction, and the exclusion of that

testimony would be harmful to the City. As such, we next determine whether the trial

court erred in excluding Castaneda’s deposition.

        Hart objects that Castaneda’s deposition was hearsay and not properly

authenticated.     If the trial court’s ruling is based upon a finding that Castaneda’s

deposition is hearsay, that ruling is erroneous because statements made in a deposition

taken in the same proceeding are not hearsay. See TEX. R. OF EVID. 801. If the trial court’s

ruling is based upon a determination that the deposition is not properly authenticated,

that is likewise an erroneous ruling. Generally, the standard for resolving a plea to the

jurisdiction mirrors that of a summary judgment motion under Texas Rule of Civil

Procedure 166a(c). Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.

2004). Rule 166a(c) does not require that deposition excerpts submitted in support of or

in opposition to a summary judgment motion be authenticated. McConathy v. McConathy,

869 S.W.2d 341, 342 (Tex. 1994). As the McConathy court notes, “All parties have ready

City of Fort Worth v. Hart                                                               Page 4
access to depositions taken in a cause, and thus deposition excerpts submitted with a

motion for summary judgment may be easily verified as to their accuracy.” Id.; see also

Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, L.L.P., 499 S.W.3d 169, 181

(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (Boyce, J., concurring) (“For more

than two decades, summary judgment movants have not been required to authenticate

excerpts from depositions taken in the case in which the motion was filed.”); see also City

of Dallas v. Papierski, No. 05-17-00157-CV, 2017 WL 4349174, at * 4 (Tex. App.—Dallas Oct.

2, 2017, no pet.) (mem. op.). We see no reason that deposition excerpts included as

exhibits to a plea to the jurisdiction should be treated differently. The deposition excerpts

attached to the City’s plea to the jurisdiction do not, therefore, require separate

authentication.

        Hart further argues that the deposition excerpts should be excluded because

certain passages were highlighted, thus rendering them contrary to the affidavit

certifying that the excerpts were “photocopied without alteration from the copy of the

transcript.” Hart offers no authority to support this argument. The definition of “alter”

is “to make different in details but not in substance; modify.” WEBSTER’S NEW WORLD

COLLEGE DICTIONARY (4th ed. 1999). Merely highlighting certain questions and answers

does not constitute a modification that changes the details of the deposition. If the trial

court excluded Castaneda’s deposition because of the highlighting, that ruling was in

error. We conclude that the trial court’s order granting Hart’s objections to Castaneda’s

deposition was an abuse of discretion resulting in the exclusion of evidence that is

material to the ultimate issue—whether Castaneda was acting within the scope of his

City of Fort Worth v. Hart                                                             Page 5
employment with the City when the accident occurred. We, therefore, sustain the City’s

second issue. We will consider the excerpts from Castaneda’s deposition in analyzing

whether the trial court erred in denying the City’s plea to the jurisdiction.3

                                     Governmental Immunity

        A. Standard of Review. We review de novo a trial court’s ruling on a plea to the

jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226.

“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the

court’s jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v.

Whitley, 104 S.W.3d 540, 542 (Tex. 2003). The plaintiff must allege facts that affirmatively

establish the trial court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). In determining whether this burden has been

satisfied, we must construe the pleadings liberally in the claimant’s favor and deny the

plea if the claimant has alleged facts affirmatively demonstrating jurisdiction to hear the

case. Miranda, 133 S.W.3d at 226; Smith v. Galveston Cnty., 326 S.W.3d 695, 697-98 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

        If the governmental entity challenges the plaintiff’s jurisdictional allegations, then

the plaintiff must adduce some evidence to support jurisdiction. Miranda, 133 S.W.3d at

227-28. In such a case, the trial court then considers the relevant evidence submitted by

the parties. Id. at 227. When the relevant evidence is undisputed or fails to raise a fact



3
 We need not reach the trial court’s ruling on the specific questions from Castaneda’s deposition as the
other evidence in the record is sufficient to analyze the merits of the appeal.

City of Fort Worth v. Hart                                                                       Page 6
question on the issue of jurisdiction, the trial court rules on the plea to the jurisdiction as

a matter of law. Id. at 228. If, however, the evidence creates a fact question regarding

jurisdiction, then the trial court must deny the plea, and the fact issue will be resolved by

the factfinder. Id. at 227-28. In reviewing the evidence presented, we indulge every

reasonable inference in the plaintiff’s favor. Id. at 228.

        Generally, the common law doctrine of sovereign immunity prevents the state

from being sued without the state’s consent. City of Houston v. Williams, 353 S.W.3d 128,

134 (Tex. 2011). Political subdivisions of the State, such as the City of Fort Worth, are also

protected from suit by what is labeled “governmental immunity.” See Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003); City of Balch Springs v. Austin, 315

S.W.3d 219, 223 n.2 (Tex. App.—Dallas 2010, no pet.); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 101.001(3)(B) (West Supp. 2017) (defining “governmental unit” to include political

subdivisions of the state, including cities). The State and its political subdivisions may

be sued only if the Legislature waives immunity in “clear and unambiguous language.”

City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). In the TTCA, the Legislature

has expressly waived the state’s immunity in limited circumstances, including when an

injury is caused by the negligent operation or use of a public-owned, motor-driven

vehicle or piece of equipment by a city employee acting within the scope of his

employment. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2011); see also

Austin, 315 S.W.3d at 224. “Scope of employment” is defined in the TTCA as “the

performance for a governmental unit of the duties of an employee’s office or employment

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

City of Fort Worth v. Hart                                                              Page 7
employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West

Supp. 2017).

        B. Scope of Employment. As the excerpts from Castaneda’s deposition are

sufficient to support the City’s immunity and challenge the court’s jurisdiction, the

burden is on Hart to present some evidence that Castaneda was acting in the scope of his

duties as an employee of the City of Forth Worth at the time of the accident.

        It is undisputed that at the time of the accident, Castaneda was a police officer with

the City of Fort Worth assigned to a narcotics detail. Castaneda did not live in the City

of Fort Worth and was given permission to use a city-owned vehicle to drive to and from

work. The City paid for gas for the vehicle, and also provided Castaneda a credit card to

be used to purchase the gas. All other expenses, such as for oil changes and routine

maintenance, were to be completed by the City. The City did not pay or reimburse for

mileage, and Castaneda’s salary did not include the time commuting in the vehicle to and

from work. Castaneda was also issued a mobile phone and radio by the City and was

subject to being called to work if needed.

        The accident occurred between 8:00 a.m. and 8:30 a.m., and Castaneda’s usual

work hours were from 8:00 a.m. to 6:00 p.m. After the wreck, Castaneda identified

himself as a police officer to the 911 operator, the Burleson police officer who investigated

the accident, and Howard. Castaneda called his supervisor, Sergeant Lacroix, and

advised him of the accident. Lacroix told Castaneda to take photographs of both vehicles

and to submit them along with the accident report prepared by the Burleson police officer

when he received it. Lacroix also told Castaneda to give the investigating officer the

City of Fort Worth v. Hart                                                              Page 8
telephone number for Fort Worth Risk Management and to advise the officer that he was

driving a city vehicle that was self-insured. Lacroix did not tell Castaneda to provide his

personal insurance information.

        “In general, whether a person is acting within the scope of his employment

depends on whether the general act from which an injury arose was in furtherance of the

employer’s business and for the accomplishment of the objective for which the employee

was employed.” Austin, 315 S.W.3d at 225 (citing Leadon v. Kimbrough Bros. Lumber Co.,

484 S.W.2d 567, 569 (Tex. 1972)). An employee is not acting within the scope of his

employment unless his actions have some connection with, and is being undertaken in

furtherance of, the employer’s business. Id. (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d

624, 627 (Tex. 1981)); see also Vernon v. City of Dallas, 638 S.W.2d 5, 8-9 (Tex. App.—Dallas

1982, writ ref’d n.r.e.).

        In automobile collision cases under the TTCA, an employee driving an employer-

owned vehicle is presumed to be acting within the scope of his employment. City of

Houston v. Wormley, 623 S.W.2d 692, 694 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d

n.r.e.). However, the presumption is merely a procedural tool that disappears from the

case when rebutted by positive evidence to the contrary. Id. The courts must also

examine what the officer was doing at the time of the incident and why he was doing so.

Id.

        The evidence presented by the City indicates that Castaneda, at the time of the

accident, was “off-duty, was not being paid for his time, had no official duties, and was

merely commuting to work at the time of the collision.” Lara v. City of Hempstead, No. 01-

City of Fort Worth v. Hart                                                             Page 9
15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet.

denied) (mem. op.). This is sufficient to rebut the presumption that Castaneda was acting

in the scope of his employment merely by driving a city-owned vehicle. Id.; see Wormley,

623 S.W.2d at 694.

        Hart responds that various circumstances and City policies are sufficient to at least

raise a fact issue as to whether Castaneda was acting in the scope of his employment

because: (1) the accident occurred during the hours Castaneda was scheduled to work;

(2) City policy permitted Castaneda to use the vehicle only for City business; (3) the City-

issued mobile phone and radio resulted in Castaneda being on-call at all hours; (4)

Castaneda identified himself as a police officer after the wreck; (5) the police report

identified the City as the financially responsible party; and (6) Castaneda was required

to report off-duty usage of the vehicle and he did not file such a report for the day of the

accident. None of these are sufficient either alone or together to raise a fact issue as to

whether Castaneda was acting in the scope of his employment at the time of the wreck.

        The fact that the accident may have occurred during Castaneda’s scheduled work

hours does not indicate that he was on duty at the time. Nor does the fact that Castaneda

failed to file a report regarding the off-duty usage of the city-owned vehicle on the day

of the accident translate into him being on duty. Such matters may be a violation of City

or department policy and subject Castaneda to censure or loss of pay, but such violations

do not alter the nature of the actions he was performing. See Lara, 2016 WL 3964794, at

*4. Additionally, the fact that Castaneda was issued a mobile phone and radio by the

City in order to enable him to respond to after-hours calls does not mean that he is on-

City of Fort Worth v. Hart                                                            Page 10
duty at all times. Austin, 319 S.W.3d at 225 (“[T]he fact that an off-duty police officer is

subject to being called to service twenty-four hours a day while within the City does not

mean he is acting within the scope of government employment at all times while off-

duty.”); see also Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex. App.—El Paso 1990,

writ denied) (“[E]ven where an employee is on call 24 hours a day he must be engaged

in or about the furtherance of the affairs or business of his employer to be in the scope of

his employment.”). The fact that Castaneda identified himself as a police officer after the

wreck also does not alter his off-duty status. He did not investigate the wreck or do

anything other than what an ordinary citizen would do in a similar situation. Finally, the

fact that Castaneda was incorrectly told by his supervisor to name the City as the

financially responsible party for the Burleson Police report does not transform his off-

duty status.

                                         Conclusion

        We conclude that the trial court erred in denying the City’s plea to the jurisdiction.

We reverse the trial court’s order denying the City’s plea to the jurisdiction and render

judgment dismissing the claims of Hart, Howard, and Farmers Texas Mutual Insurance

Company against the City for lack of subject matter jurisdiction.




                                                   REX D. DAVIS
                                                   Justice




City of Fort Worth v. Hart                                                             Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed October 10, 2018
[CV06]




City of Fort Worth v. Hart                     Page 12
