Full Opinion

NUMBER 13-26-00281-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG EMMANUEL GONZALEZ, Appellant, v. TEXAS MILITARY DEPARTMENT, Appellee. ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Cron and Fonseca Memorandum Opinion by Justice Fonseca Appellant Emmanuel Gonzalez argues the trial court erred when it granted appellee Texas Military Department’s (TMD) plea to the jurisdiction based on sovereign immunity. 1 As we have examined in Texas Military Department v. Lopez, 728 S.W.3d 1 “Sovereign immunity protects the state and its various divisions, such as agencies and boards, 731, 741–42 (Tex. App.—Corpus Christi–Edinburg 2025, pet. denied) and Texas Military Department v. Uresti-Martin, No. 13-25-00476-CV, 2026 WL 1690226, at *5 (Tex. App.— Corpus Christi–Edinburg June 11, 2025, no pet.) (mem. op.), the parties’ disagreement focuses on whether a TMD employee’s travel falls within the state-military forces exception to the motor-vehicle waiver of immunity under the Texas Tort Claims Act (TTCA). We conclude, as we did in both prior cases, that TMD’s employee was engaged in an activity of the state military forces when the underlying accident happened. See id. Accordingly, we affirm. I. BACKGROUND This accelerated interlocutory appeal arises from a motor vehicle accident that occurred on August 26, 2024. Gonzalez was driving on West Interstate 2 in Pharr when TMD employee Esteven Dave Rosales, a member of the Texas Army National Guard, merged onto the highway behind Gonzalez. Rosales failed to control his speed and collided into the rear of Gonzalez’s vehicle, damaging it and allegedly causing injuries to Gonzalez. The “Texas Peace Officer’s Crash Report” faulted Rosales for failing to control his speed. According to TMD, the accident occurred after the TMD adjutant general ordered Rosales to go to the “South Texas Region” to support Joint Task Force – Operation Lone Star (JTF-OLS). See TEX. GOV’T CODE ch. 437. Specifically, he was ordered to support Task Force East from September 1, 2023, to December 31, 2024, and was considered on active duty throughout the entirety of this period. In his affidavit, Rosales averred he 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). TMD is a state agency, and thus sovereign immunity is at issue. 2 was a member of Texas Army National Guard and was driving a vehicle TMD rented “for the purposes of this duty assignment.” Rosales further averred he was traveling on the day of the accident with two other active-duty service members after they were orally ordered to travel from McAllen, where they were stationed during the activity duty orders, to Brownsville to “begin road construction projects and barrier installment.” He stated he was in uniform at the time of the accident and was only in Pharr where the accident occurred as “a result of my military orders, fulfilling my assigned duties in support of Operation Lone Star.” Lieutenant Colonel Michael Blew, TMD Director of Manpower and Personnel, also averred Rosales was present in Pharr pursuant to oral orders. Gonzalez filed suit on June 6, 2025. 2 Gonzalez asserted causes of action for negligence, negligence per se, and respondeat superior and claimed TMD’s immunity from suit was waived pursuant to Texas Civil Practice and Remedies Code Section 101.021. See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). TMD filed its answer asserting it retained sovereign immunity and various other defenses. TMD subsequently filed a plea to the jurisdiction and motion to dismiss arguing the motor-vehicle waiver of immunity did not apply because Rosales was on active duty at the time of the collision, and, therefore, the claim arose out of activities of the state military forces. See id. § 101.054. Gonzalez responded to TMD’s plea arguing immunity was waived because his claim arose out of the operation or use of a motor-driven vehicle. See id. § 101.021(1)(A). He further asserted the travel was not an activity of the state military forces because 2 Gonzalez initially filed suit against the State of Texas but later nonsuited this defendant. 3 Rosales was merely commuting to a duty location and because the collision was not the result of a military operation or function. He also argued the statute required conduct with a “military character,” not merely civilian conduct during military employment, and that policy considerations favored denial of the plea. He finally advocated for adoption of a military nexus test. The trial court held a hearing on the plea on March 3, 2026. The parties largely reiterated their written arguments with Gonzalez emphasizing that traveling to work is not an act within the course and scope of employment. On April 2, 2026, the trial court signed an order granting TMD’s plea to the jurisdiction and motion to dismiss. This accelerated interlocutory appeal followed. See id. § 51.014(a)(8); TEX. R. APP. P. 28.1(a). II. ANALYSIS The parties’ disagreement centers on whether Rosales, the TMD employee, was performing an activity of the state military forces when he was headed to his worksite after a superior orally ordered him to travel. A. Standard of Review Agencies of the State, such as TMD, are generally immune from suit unless the Texas Legislature clearly and unambiguously waives this immunity. TEX. GOV’T CODE § 311.034; City of Houston v. Hou. Mun. Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018). Immunity from suit is properly asserted through a plea to the jurisdiction. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). “A plea to the jurisdiction challenges the existence of subject matter jurisdiction; that is, the court’s power to decide the case.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024) (citing Suarez v. City of 4 Texas City, 465 S.W.3d 623, 632 (Tex. 2015)). “The trial court’s ruling on a plea to the jurisdiction is a question of law we review de novo.” Id. (citing Hou. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016)). In de novo review, we give no deference to the trial court’s decision. See In re Est. of Slaughter, 305 S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). Gonzalez bore the initial burden to plead facts affirmatively demonstrating the trial court’s jurisdiction. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). TMD could then challenge jurisdiction based either on the pleadings or on the existence of jurisdictional facts. See Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022). When reviewing pleadings, we must “determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe pleadings liberally in favor of the pleader and a plaintiff “should be afforded the opportunity to amend” if the challenged jurisdictional defect may be cured with further factual allegations. Tex. Tech. Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024). “[W]e will grant a plea to the jurisdiction without an opportunity to replead only if the pleadings affirmatively negate jurisdiction.” Jones, 646 S.W.3d at 325. We cannot sustain a plea to the jurisdiction if the pleadings generate a fact question. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam); see also City of Corpus Christi v. Muller, No. 13-18-00443-CV, 2019 WL 2384162, at *1 (Tex. App.—Corpus Christi–Edinburg June 6, 2019, no pet.) (mem. op.). However, “[w]hen a defendant challenges jurisdiction, a court ‘is not required to 5 look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.’” Swanson, 590 S.W.3d at 550 (quoting Blue, 34 S.W.3d at 555); see Miranda, 133 S.W.3d at 227. We must consider relevant evidence even when the jurisdictional issue intertwines with the merits of the case. Swanson, 590 S.W.3d at 550. If jurisdictional facts are challenged, our standard of review mirrors that of a summary judgment. Clark, 544 S.W.3d at 770–71; see TEX. R. CIV. P. 166a(a). We take as true all evidence favorable to the nonmovant, indulge every reasonable inference and resolve doubts in the nonmovant’s favor, and disregard contrary evidence if a reasonable factfinder could do so. Clark, 544 S.W.3d at 771. It is foundational that the “party suing the governmental entity bears the burden of affirmatively showing waiver of immunity.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). Thus, a plaintiff can only survive a plea to the jurisdiction “by showing that the statute ‘clearly and affirmatively waive[s] immunity’ and by also ‘negating any provisions that create exceptions to, and thus withdraw, that waiver.’” City of Austin v. Powell, 704 S.W.3d 437, 447 (Tex. 2024) (alteration in original) (quoting Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023)); see TEX. GOV’T CODE § 311.034. B. Applicable Law Generally, the TTCA waives sovereign immunity for property damage and personal injury that “arises from the operation or use of a motor-driven vehicle” when “proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment.” TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). However, the waiver does not apply to “a claim arising from the activities of the state military forces when on active duty under the lawful orders of competent authority.” Id. § 101.054. The 6 state military forces include the Texas National Guard, Texas State Guard, and other military forces organized under state law. TEX. GOV’T CODE § 437.001(10), (14). The TMD is “the state agency charged with administrative activities in support of the Texas military forces.” Id. § 437.001(13). The Texas Government Code defines active duty as “the performance of military or emergency service for this state at the call of the governor or governor’s designee,” while it defines military duty as “any activity of a service member performing a duty under a lawful military order, including training.” Id. § 437.001(7), (9). It further defines active military service as “state active duty service, federally funded state active duty service, or federal active duty service.” Id. § 431.001(1). Meanwhile, “[t]he adjutant general is the governing officer, policy maker, and head of [TMD].” Id. § 437.052. “We review questions of statutory interpretation de novo.” Ferchichi v. Whataburger Rests. LLC, 713 S.W.3d 330, 337 (Tex. 2025). Our objective when reviewing a statute “is to determine and give effect to the Legislature’s intent.” Id. (quoting City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). To do so, we will give words their plain meaning in context of the statute as a whole and will avoid constructions that lead to absurd results. Id. (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)). Our guiding principle in interpreting statutory language in the context of immunity is to construe waivers of immunity narrowly. See Tex. Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013). C. Discussion This matter involves the recurring question around the parameters of what constitutes an “activity of the state military forces.” TEX. CIV. PRAC. & REM. CODE 7 § 101.054. We recently decided two matters where a TMD member was operating a motor vehicle while on active duty and allegedly caused an accident while exiting a rest stop. See Lopez, 728 S.W.3d at 741–42; Uresti-Martin, 2026 WL 1690226, at *5. In both matters, we found these temporary stops did not take the TMD employee outside the scope of state military force activities. See Lopez, 728 S.W.3d at 741–42; Uresti-Martin, 2026 WL 1690226, at *5. Here, the undisputed record also shows that the TMD employee, Rosales, was on active duty upon lawful orders from the adjutant general. See Lopez, 728 S.W.3d at 741– 42; Uresti-Martin, 2026 WL 1690226, at *5; TEX. GOV’T CODE §§ 437.001(10), (14), 437.052; TEX. CIV. PRAC. & REM. CODE § 101.054. The parties also do not dispute Rosales caused a motor vehicle accident for which there would typically be a waiver of immunity. See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). Thus, we are faced with largely the same dispositive question as the prior cases: whether Rosales was conducting an “activity of the state military forces” during the accident. See TEX. CIV. PRAC. & REM. CODE § 101.054. Here, however, Rosales was beginning his shift by driving to a work site after receiving oral orders to head to Brownsville on the same day. The Section 101.054 waiver exception is a broad one and applies to any claim arising from a servicemember’s “activities” undertaken “when on active duty under the lawful orders of competent authority.” Id. While Gonzalez correctly notes the TTCA usually waives immunity for auto accidents caused by governmental employees, he must also demonstrate the Section 101.054 waiver exception does not apply. See id. §§ 101.021(1)(A), 101.054; Powell, 704 S.W.3d at 447. 8 Gonzalez argues the statute requires activity with a “military character” in order for the waiver exception to apply. See TEX. CIV. PRAC. & REM. CODE § 101.054. He asserts Rosales “had not begun any operational task” because he was merely commuting to a worksite and was not on patrol, executing any mission, or transporting any materials. Gonzalez argues this commuting is not activity of a military nature and thus is not an “activity of the state military forces.” See id. Conversely, TMD argues broadly that, because Gonzalez was present in the area under orders from September 1, 2023, to December 31, 2024, any activity during the length of his orders qualifies for immunity. TMD asserts its members can be called into service for non-military purposes but that such purposes are still activities of the state military forces. We find this matter most analogous to Texas Military Department v. Estrada, No. 04-25-00299-CV, 2025 WL 2408733, at *1 (Tex. App.—San Antonio Aug. 20, 2025, no pet.) (mem. op.). In Estrada, the TMD employee was involved in an auto accident when “he was following orders to travel from a weapons check-out location . . . to his assigned duty station.” Id. Our sister court of appeals determined the Section 101.054 waiver exception applied because the accident occurred when the employee “was on active duty and actively in the process of following his commanding officer’s orders to travel from one assigned duty station to another.” Id. at *5. Of import, the plaintiffs in that case did not present any evidence the employee deviated from his orders. Id. Likewise, the uncontroverted evidence here demonstrated Rosales caused the accident after a lieutenant colonel orally ordered him to head from his McAllen station to a worksite in Brownsville. Therefore, we hold Rosales “was on active duty and actively in the process of following his commanding officer’s orders to travel” to his assigned duty 9 station. See id. The only difference between this case and Estrada is that Rosales’s travel did not start at a duty station, but we do not find this difference dispositive to whether Rosales was engaged in an “activity of the state military forces.” See TEX. CIV. PRAC. & REM. CODE § 101.054. From the moment Rosales set out after direct orders to travel to a location, Rosales was engaging in an “activit[y] of the state military forces.” See id. While TMD argues for a broader reading of immunity that we do not adopt, we also decline to adopt Gonzalez’s proposed military nexus test or to read into the statute a requirement that the activity must be “uniquely military” in nature for the waiver exception to apply. Recalling the same statutory analysis we conducted in Lopez and Uresti-Martin, we note immunity is retained for the service member’s “activities” while on active duty— not just the specific conduct ordered by competent authority. See TEX. CIV. PRAC. & REM. CODE § 101.054; Lopez, 728 S.W.3d at 739; Uresti-Martin, 2026 WL 1690226, at *4–5. The statute never uses the phrase “military activity” as would be needed to support Gonzalez’s interpretation. See TEX. CIV. PRAC. & REM. CODE § 101.054. To be clear, we do not adopt TMD’s broad interpretation that merely being on duty under lawful orders renders anything an employee might do during the length of those orders immune from suit, as such interpretation would swallow the waiver of immunity. See id. But nor does the statute require “conduct with some recognizably military character” for the waiver to apply. See TEX. CIV. PRAC. & REM. CODE § 101.054. This query remains a fact-intensive case-by-case determination. See Lopez, 728 S.W.3d at 739; Uresti-Martin, 2026 WL 1690226, at *5. And when further reviewing the facts here, we note Rosales was not merely engaged in a morning commute as Gonzalez contends but was traveling pursuant to a 10 specific oral order similar to Estrada. 2025 WL 2408733, at *5. Gonzalez argues Estrada is inapplicable because the TMD employee there was traveling between two operational tasks and was not in a commute from rest to work as here. We disagree because the controlling fact in Estrada was not that the employee started at one operational task but that he was “actively in the process of following his commanding officer’s orders to travel from one assigned duty station to another.” See id. Here, Rosales was actively following a commanding officer’s orders to travel and averred he was ordered “to travel from the assigned duty location” to another. See id. While the hypothetical of whether immunity would be waived if Rosales was not specifically ordered to travel to Brownsville and was merely engaging in a morning commute as part of typical daily activities remains an open question, those are not the facts before us. We note again “activities” in the statute is a broad term because TMD members are on duty twenty-four hours a day, and we should give greater deference to the executive as to what constitutes such “activities” due to the unique nature of these particular governmental employees. See Van Dorn Preston v. M1 Support Servs., L.P., 642 S.W.3d 452, 457 (Tex. 2022) (“When the Executive Branch acts within its constitutional discretion, ‘nothing can be more perfectly clear than that their acts are only politically examinable.’” (quoting Marbury v. Madison, 5 U.S. 137, 166 (1803))). In sum, we hold that Gonzalez’s claim arises from the activities of the state military forces because Rosales was on activity duty pursuant to the adjutant general’s orders and following specific oral orders the morning of the accident. See TEX. CIV. PRAC. & REM. CODE § 101.054; Estrada, 2025 WL 2408733, at *5; Miranda, 133 S.W.3d at 227; Swanson, 590 S.W.3d at 550; Clark, 544 S.W.3d at 770–71. Therefore, we conclude that, even when construing the facts in a light most favorable to Gonzalez, the TTCA’s waiver 11 of immunity does not apply to Rosales’s negligence. See Clark, 544 S.W.3d at 771. As we are bound to do, we construe the waiver of immunity narrowly and overrule Gonzalez’s sole issue. See Ngakoue, 408 S.W.3d at 353. III. CONCLUSION We affirm the trial court’s judgment. YSMAEL D. FONSECA Justice Delivered and filed on the 22nd day of October, 2026. 12