City of Houston v. Rita Renee Ramos and Jesse Joe Rodriguez
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledOctober 20, 2026
Docket01-24-00967-CV
StatusPublished
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Full Opinion
Opinion issued October 20, 2026.
In the
Court of Appeals
for the
First District of Texas
————————————
NO. 01-24-00967-CV
———————————
CITY OF HOUSTON, Appellant
v.
RITA RENEE RAMOS AND JESSE JOE RODRIGUEZ, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2024-55402
MEMORANDUM OPINION
This interlocutory appeal arises from a motor-vehicle collision allegedly
caused by the negligence of an employee of the City of Houston. The City filed a
motion to dismiss under rule 91a of the Texas Rules of Civil Procedure and asserted
governmental immunity under the Texas Tort Claims Act (TTCA). The trial court
denied the motion, and the City appealed.1
In its sole issue, the City contends that the trial court erred by denying the
motion to dismiss because appellees Rita Ramos and Jesse Rodriguez failed to allege
facts that negate statutory exceptions to the City’s waiver of governmental
immunity. Because appellees pled facts sufficient to demonstrate a waiver of
governmental immunity, and their allegations do not plausibly implicate any
statutory exception to that waiver, we overrule the City’s sole issue and affirm the
trial court’s order denying the City’s rule 91a motion.
1
The legislature has authorized interlocutory appeals from certain non-final orders.
See TEX. CIV. PRAC. & REM. CODE § 51.014(a) (specifying types of orders from
which interlocutory appeal is available). Section 51.014(a) does not expressly
authorize an interlocutory appeal from an order denying a motion under rule 91a of
the Texas Rules of Civil Procedure. See id. However, that section authorizes an
interlocutory appeal from an order that “grants or denies a plea to the jurisdiction
by a governmental unit.” Id. § 51.014(a)(8). The reference to “plea to the
jurisdiction” in subsection (a)(8) “is not to a particular procedural vehicle but to the
substance of the issue raised,” and “an interlocutory appeal may be taken from a
refusal to dismiss for want of jurisdiction whether the jurisdictional argument is
presented by plea to the jurisdiction or some other vehicle.” Tex. Dep’t of Crim.
Just. v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). A governmental unit’s immunity
from suit is jurisdictional. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). And
this Court has repeatedly held that a rule 91a motion filed by a governmental unit
that challenges the trial court’s subject matter jurisdiction is reviewable via
interlocutory appeal. See, e.g., City of Houston v. Ortiz, No. 01-24-00361-CV, 2025
WL 3521320, at *1 n.1 (Tex. App.—Houston [1st Dist.] Dec. 9, 2025, no pet.)
(mem. op.); accord City of Houston v. Tennon, No. 01-25-00391-CV, 2026 WL
168814, at *2 n.4 (Tex. App.—Houston [1st Dist.] Jan. 22, 2026, no pet.) (mem.
op.); City of Houston v. Hernandez, No. 01-24-00031-CV, 2024 WL 3817374, at *2
(Tex. App.—Houston [1st Dist.] Aug. 15, 2024, pet. denied) (mem. op.).
2
Background
Appellees sued the City for negligence resulting from a City vehicle’s
allegedly colliding with Ramos’s car. Shortly after filing suit, appellees filed their
first amended petition, which is their live pleading. In that petition, appellees allege
that:
[A]n automobile collision . . . occurred on or about November 29, 2022,
near the Intersection of the 1600 Block of FM 1960 Road and the 17000
Block of Rolling Creek Parkway in Harris County, Texas. Plaintiff
drove her vehicle reasonably and prudently when Defendant’s vehicle
proximately caused the collision made the basis of this lawsuit when it
failed to exercise duty of care clearing the intersection and crashed into
Plaintiff s vehicle. As a result of the incident, Plaintiff sustained serious
personal bodily injuries amongst other damages. . . .
Defendant had common law and statutory duties to use ordinary care in
the operation of its vehicle. Defendant negligently breached those
duties, and that negligence proximately caused the Plaintiffs injuries
and damages. Specifically, Defendant was negligent in the following
particulars:
a. Driver inattention;
b. Failing to timely apply the brakes;
c. Failing to maintain a proper lookout;
d. Failing to maintain proper control of Defendant’s vehicle;
e. Failing to turn the vehicle to avoid the crash;
f. Driving distracted while using a mobile device;
g. Failing to yield the right of way;
h. Failing to keep a safe distance between his vehicle and
Plaintiff; and
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i. Failing to exercise duty of care clearing the intersection[.]
Appellees did not allege the identity of the City employee who caused the collision.
Following appellees’ first amended petition, the City filed a motion to dismiss
under rule 91a of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 91a.1
(authorizing motion to dismiss cause of action that has no basis in law or fact). In
that motion, the City argued that (1) governmental immunity shields the City from
suit and liability and (2) appellees pled no facts that would establish a waiver of that
immunity or that would negate any applicable exclusion or exception to the waiver.2
In their response, appellees argued that their allegations demonstrated the City’s
waiver of governmental immunity. Appellees also affirmatively addressed two
related exceptions to the waiver of governmental immunity that apply to certain
claims related to emergency situations or 9-1-1 services and argued that neither
applied. See TEX. CIV. PRAC. & REM. CODE §§ 101.055(2) (preserving immunity for
certain claims arising from actions in response to emergency call or situation),
101.062(b) (preserving immunity for certain claims arising from actions while
responding to 9-1-1 emergency call). In arguing the inapplicability of both
exceptions, appellees attached unauthenticated exhibits to their response, including
2
In its rule 91a motion, the City did not identify any specific exclusion or exception
that it believed applied. See TEX. CIV. PRAC. & REM. CODE §§ 101.051-.067
(providing exclusions and exceptions to waivers of governmental immunity).
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(1) a photo that, according to appellees, shows the City vehicle that caused the
collision and (2) a Texas Peace Officer’s Crash Report of the alleged collision.
Rule 91a Motion to Dismiss and Governmental Immunity
In its sole issue, the City argues that the trial court erred by denying the City’s
rule 91a motion because appellees failed to allege facts that negated two exceptions
to the City’s waiver of governmental immunity that apply to claims arising out of a
government employee’s responding to an emergency situation or emergency call
under certain circumstances. Appellees respond that their allegations do not
plausibly implicate either exception and, in the alternative, their allegations are
sufficient to negate both exceptions.
A. Standard of Review and Applicable Law
The TTCA provides a limited waiver of immunity for certain tort claims
against “governmental units,” which includes the state and its political subdivisions,
such as municipalities. Tex. Adjutant Gen. Off. v. Ngakoue, 408 S.W.3d 350, 354
(Tex. 2013) (citing TEX. CIV. PRAC. & REM. CODE §§ 101.001-.109). A
governmental unit, such as the City, may assert immunity from suit through a motion
to dismiss under rule 91a of the Texas Rules of Civil Procedure. City of Dallas v.
Sanchez, 494 S.W.3d 722, 724-25 (Tex. 2016); City of Houston v. Tennon, No. 01-
25-00391-CV, 2026 WL 168814, at *3 (Tex. App.—Houston [1st Dist.] Jan. 22,
2026, no pet.) (mem. op.); see TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B)
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(defining “governmental unit” to include “any city”). Dismissal under rule 91a is
appropriate “if the allegations, taken as true, together with inferences reasonably
drawn from them, do not entitle the claimant to the relief sought . . . [or] no
reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1; Sanchez,
494 S.W.3d at 724. The pleadings are construed liberally in favor of the plaintiff.
Sanchez, 494 S.W.3d at 725; Tennon, 2026 WL 168814, at *2. The trial court “may
not consider evidence” and “must decide the motion based solely on the pleading of
the cause of action, together with any pleading exhibits” permitted by the Texas
Rules of Civil Procedure. TEX. R. CIV. P. 91a.6. We review a trial court’s decision
on a rule 91a motion de novo. Sanchez, 494 S.W.3d at 724-25.
B. Waiver of Governmental Immunity
As political subdivisions of the state, cities are “immune from suit unless
[their] immunity is waived by state law.” City of Austin v. Powell, 704 S.W.3d 437,
448 (Tex. 2024) (citation modified). The legislature’s intent to waive immunity must
be clear and unambiguous and, thus, we interpret narrowly statutory waivers of
governmental immunity. City of Houston v. Ortiz, No. 01-24-00361-CV, 2025 WL
3521320, at *2 (Tex. App.—Houston [1st Dist.] Dec. 9, 2025, no pet.) (mem. op.).
Governmental immunity deprives courts of subject matter jurisdiction over suits
against the state or its political subdivisions. State v. Shumake, 199 S.W.3d 279, 283
(Tex. 2006). Accordingly, although the City does not argue on appeal that appellees
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failed to plead sufficient facts that demonstrate the City’s waiver of governmental
immunity, we nonetheless consider that issue because the City’s immunity from
liability and from suit implicates our jurisdiction. See Rattray v. City of Brownsville,
662 S.W.3d 860, 869 (Tex. 2023) (“[N]o court should proceed to the merits of a case
brought under the Act if that requires turning a blind eye to jurisdictional concerns
that the court itself perceives or that the parties have raised.”).
Relevant here, the TTCA waives a governmental unit’s immunity 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[.]
TEX. CIV. PRAC. & REM. CODE § 101.021(1). “When a vehicle involved in a collision
is owned by the driver’s employer, a presumption arises that the driver was acting
in the course and scope of her employment when the collision occurred.” City of
Houston v. Wahhab, No. 01-25-00783-CV, 2026 WL 1025764, at *4 (Tex. App.—
Houston [1st Dist.] Apr. 16, 2026, no pet.) (mem. op.) (citing cases); see City of
Houston v. Ward, No. 14-25-00583-CV, 2026 WL 1955933, at *3 (Tex. App.—
Houston [14th Dist.] July 7, 2026, no pet.) (mem. op.) (applying presumption on
review of ruling on rule 91a motion); City of Houston v. Gabiola, No. 14-25-00725-
7
CV, 2026 WL 1876169, at *2 (Tex. App.—Houston [14th Dist.] June 30, 2026, no
pet.) (mem. op.) (same); see also City of Houston v. Hazim, No. 14-25-00627-CV,
2026 WL 1792983, at *4 (Tex. App.—Houston [14th Dist.] June 23, 2026, no pet.)
(mem. op.) (concluding that “allegation that a uniformed City employee was
operating a City-owned ambulance when the collision occurred” supported inference
that City employee was acting within scope of employment).
Appellees have alleged facts sufficient to demonstrate the City’s waiver of
governmental immunity under section 101.021(1) of the Texas Civil Practice and
Remedies Code. Appellees alleged that “an automobile collision . . . occurred” and
that the City’s “vehicle proximately caused the collision . . . when it failed to exercise
duty of care clearing the intersection and crashed into Plaintiff s vehicle.” Appellees
also alleged that the vehicle was driven by the City’s employee. Because appellees
have alleged that a collision was caused by the City’s employee with the City’s
vehicle, the presumption arises that the City’s employee was acting within the scope
of his employment. Wahhab, 2026 WL 1025764, at *4; Ward, 2026 WL 1955933,
at *3. Overcoming that presumption requires evidence, which cannot be considered
in ruling on the merits of a rule 91a motion. TEX. R. CIV. P. 91a.6. Accordingly,
appellees have sufficiently alleged that the negligence of the City’s employee acting
in the scope of his employment caused property damage or personal injury that arises
from the operation or use of a motor vehicle and, thus, have sufficiently alleged a
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waiver of immunity under the TTCA. See TEX. CIV. PRAC. & REM. CODE
§ 101.021(1).
C. “Emergency” and “9-1-1” Exceptions
Even if a plaintiff pleads facts sufficient to demonstrate a waiver of
governmental immunity, the TTCA’s waiver is not absolute. City of Houston v.
Gomez, 716 S.W.3d 161, 165 (Tex. 2025). The TTCA provides exceptions “that
function as a withdrawal of the waiver.” Rattray, 662 S.W.3d at 866. In addition to
pleading facts that demonstrate a waiver of governmental immunity, a plaintiff also
bears the burden of pleading facts that negate any exceptions “plausibly
implicate[d]” by her allegations. Id. at 867-68; City of Houston v. Hernandez, No.
01-24-00031-CV, 2024 WL 3817374, at *5 (Tex. App.—Houston [1st Dist.] Aug.
15, 2024, pet. denied) (mem. op.).
The City contends that appellees’ allegations plausibly implicate the
“emergency” and “9-1-1” exceptions to the TTCA’s waiver of governmental
immunity and that appellees’ allegations fail to negate those exceptions. Under the
“emergency” exception, the TTCA does not apply to—and, therefore, does not
waive governmental immunity for—claims arising from the actions of an employee
“while responding to an emergency call or reacting to an emergency situation” if
(1) “the action is in compliance with the laws and ordinances applicable to
emergency action,” or (2) “in the absence of such a law or ordinance, if the action is
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not taken with conscious indifference or reckless disregard for the safety of others.”
TEX. CIV. PRAC. & REM. CODE § 101.055(2). Relatedly, under the “9-1-1” exception,
there is no waiver of governmental immunity for claims against a public agency,
which, here, includes the City,3 that (1) arise from that agency’s employee’s actions
“under direction of the public agency” and (2) involve “providing 9-1-1 service or
responding to a 9-1-1 emergency call” unless (3) “the action violates a statute or
ordinance applicable to the action.” Id. § 101.062(b).
The City does not explain how or why appellees’ allegations plausibly
implicate either exception. Appellees do not allege that the City’s employee was
responding to an emergency call or reacting to an emergency situation. See TEX. CIV.
PRAC. & REM. CODE §§ 101.055(2) (“emergency” exception), 101.062(b) (“9-1-1”
exception). Appellees also do not allege that the City’s vehicle “had its emergency
lights or sirens engaged” or was “negligently parked . . . at the scene of [an]
accident.” Ortiz, 2025 WL 3521320, at *5.4 Instead, the City argues that it is
3
For purposes of the “9-1-1” exception, “public agency” includes “a municipality . . .
that provides, participates in the provision of, or has authority to provide fire-
fighting, law enforcement, ambulance, medical, 9-1-1, or other emergency
services.” TEX. HEALTH & SAFETY CODE § 771.001(7); see TEX. CIV. PRAC. & REM.
CODE § 101.062(a) (defining “public agency” under “9-1-1” exception to have same
meaning as under section 771.001 of the Texas Healthy and Safety Code).
4
This Court has held that the following allegation—although negating the presence
of emergency lights or sirens—was sufficient to plausibly implicate the
“emergency” and “9-1-1” exceptions: the City employee “who did not have his
lights or sirens activate[d] . . . negligently attempted an unsafe pass on the left and
sideswiped [plaintiff’s] vehicle” and the employee’s actions “were not in
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undisputed that the vehicle that allegedly caused the collision was the City’s
“ambulance traveling with its light and siren activated.” That allegation appears
nowhere in appellees’ operative petition. The City elected to challenge appellees’
suit under rule 91a of the Texas Rules of Civil Procedure and, under that rule, a court
“must decide the motion based solely on the pleading of the cause of action,” along
with any pleading exhibits permitted by the Texas Rules of Civil Procedure. TEX. R.
CIV. P. 91a.6 (emphasis added); see Ortiz, 2025 WL 3521320, at *5 (noting that
court could not consider facts or evidence outside pleadings on rule 91a motion that
asserted governmental immunity).5
Nonetheless, the City relies on two recent decisions of the Fourteenth Court
of Appeals to argue that we may consider undisputed facts that do not appear in a
compliance with the statutes, laws, or ordinances applicable to emergency action.”
City of Houston v. Tennon, No. 01-25-00391-CV, 2026 WL 168814, at *8 (Tex.
App.—Houston [1st Dist.] Jan. 22, 2026, no pet.) (mem. op.). Here, unlike in
Tennon, appellees’ petition does not allege that the City’s vehicle had emergency
lights or sirens—regardless of whether such lights or sirens were activated—or that
the employee’s actions were not in compliance with laws “applicable to emergency
action.” See id.
5
The City also argues, without citation to authority, that appellees have judicially
admitted that a City ambulance allegedly caused the collision and that, as a judicial
admission, we may consider this fact on review of the City’s rule 91a motion.
Assuming, without deciding, that the factual assertions in appellees’ response to the
City’s rule 91a motion are judicial admissions, the party’s briefs in the trial court
are not “the pleading of the cause of action.” TEX. R. CIV. P. 91a.6; see City of
Houston v. De La Cruz, No. 01-24-00797-CV, 2025 WL 3672311, at *4-5 (Tex.
App.—Houston [1st Dist.] Dec. 18, 2025, no pet.) (mem. op.) (noting that, under
rule 91a, court could not consider “purported judicial admissions”). The “pleading
of the cause of action” is appellees’ first amended petition.
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party’s “pleading of the cause of action”: City of Houston v. State Farm Mut. Auto.
Ins. Co., 712 S.W.3d 707 (Tex. App.—Houston [14th Dist.] 2025, no pet.), and City
of Houston v. Warren, No. 14-23-00756-CV, 2024 WL 5132252 (Tex. App.—
Houston [14th Dist.] Dec. 17, 2024, no pet.) (mem. op.). Although the pleadings in
State Farm and Warren made no mention that the driver of the City’s vehicle was a
police officer, the Fourteenth Court of Appeals considered that fact in each case
because it was undisputed. State Farm, 712 S.W.3d at 711 n.2; Warren, 2024 WL
5132252, at *1. In State Farm, having already concluded that the plaintiff failed to
plead facts that constituted negligence, the court of appeals determined that the
plaintiff should not be given another opportunity to amend its petition because it
failed to allege sufficient facts negating the “emergency” and “9-1-1” exceptions to
the waiver of governmental immunity. 712 S.W.3d at 715-17. The court of appeals
noted that “State Farm . . . did not allege that the Houston driver was a police officer,
even though this is undisputed and would have been known to State Farm at the time
of pleading” and apparently relied on that fact to find that the two exceptions were
plausibly implicated. Id. at 715. In Warren, although the plaintiff never pleaded that
the City employee was a “police officer operating a police vehicle at the time of the
alleged collision,” the court of appeals relied on that fact to conclude that the plaintiff
failed to negate the “emergency” exception. 2024 WL 5132252, at *1, *4.
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We respectfully disagree with any holding of our sister court of appeals that
appellate courts may consider facts, even if undisputed, outside “the pleading of the
cause of action” on review of a rule 91a motion. See TEX. R. CIV. P. 91a.6 (requiring
that motion to dismiss be decided “solely on the pleading of the cause of action”).
This Court has repeatedly held that we may not consider evidence or facts outside
the plaintiff’s petition on appeal from an order granting or denying a rule 91a motion
asserting immunity. See, e.g., Tennon, 2026 WL 168814, at *4, *5 & n.9 (noting that
court may not consider evidence in ruling on rule 91a motion); Ortiz, 2025 WL
3521320, at *5 (refusing to consider evidence on review of order denying rule 91a
motion); see also San Jacinto River Auth. v. Burney, 570 S.W.3d 820, 830-31 (Tex.
App.—Houston [1st Dist.] 2018) (declining to take judicial notice of adjudicative
facts because rule 91a “expressly prohibits a court’s consideration of evidence”),
aff’d sub nom. San Jacinto River Auth. v. Medina, 627 S.W.3d 618 (Tex. 2021). We
are bound by the prior decisions of this Court. See Mitschke v. Borromeo, 645
S.W.3d 251, 256 (Tex. 2022) (“[T]hree-judge panels must follow materially
indistinguishable decisions of earlier panels of the same court unless a higher
authority has superseded that prior decision.”). Under those decisions and the clear
text of rule 91, we may not consider facts—even if undisputed—that are outside the
pleading of the cause of action. TEX. R. CIV. P. 91a.6.
13
Because nothing in appellees’ live petition plausibly implicates the
“emergency” or “9-1-1” exceptions, appellees were not required to allege additional
facts negating these exceptions. See Ortiz, 2025 WL 3521320, at *5 (concluding that
plaintiffs were not required to negate exceptions that were not plausibly implicated
by pleadings); see also City of Houston v. Valdes Gutierrez, No. 01-25-00047-CV,
2026 WL 2523428, at *2 (Tex. App.—Houston [1st Dist.] Aug. 27, 2026, no pet. h.)
(mem. op.) (concluding that, because plaintiff “pled no facts suggesting that the City
employee in question was responding to a 9-1-1 call or other emergency,” neither
“9-1-1” nor “emergency” exception was plausibly implicated); Gabiola, 2026 WL
1876169, at *2 (concluding that allegation that City employee caused motor-vehicle
collision did not “plausibly implicate . . . the emergency exception, or any other
exception to the TTCA”); City of Houston v. Cruz, No. 01-22-00647-CV, 2023 WL
8938408, at *7-8 (Tex. App.—Houston [1st Dist.] Dec. 28, 2023, no pet.) (mem.
op.) (concluding that City was not entitled to summary judgment based solely on
plaintiff’s failure to plead the inapplicability of “emergency” exception where
petition did not plausibly implicate that exception).
We overrule the City’s sole issue.
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Conclusion
We affirm the trial court’s order denying the City’s motion to dismiss under
rule 91a of the Texas Rules of Civil Procedure.
Amparo “Amy” Guerra
Justice
Panel consists of Justices Rivas-Molloy, Guerra, and Gunn.
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