Full Opinion

Opinion issued August 27, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-01028-CV ——————————— CITY OF HOUSTON, Appellant V. JUAN CASTRO, INDIVIDUALLY AND AS NEXT FRIEND OF A.C. AND DIEGO LOPEZ AND ANA LOPEZ, Appellees On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2024-56213 MEMORANDUM OPINION This is an interlocutory appeal from the trial court’s order denying the City of Houston’s motion to dismiss, which was premised on governmental immunity. We affirm. BACKGROUND The Appellees sued the City, alleging one of its employees, an officer with the Houston Police Department, negligently struck their vehicle with an unmarked HPD vehicle while on duty. They further alleged that the officer “did not have his emergency lights and sirens activated and was not responding to an emergency.” The Appellees invoked the Texas Tort Claims Act, alleging that the City’s governmental immunity is waived in these circumstances. See TEX. CIV. PRAC. & REM. CODE §§ 101.021(1), 101.055(2), 101.062 (waiver of governmental immunity for motor vehicle accidents and exceptions for emergencies and 9-1-1 emergency calls). The City moved to dismiss the suit under Rule 91a of the Texas Rules of Civil Procedure. In its motion, the City argued that the Appellees had not pled sufficient facts to show waiver of its governmental immunity under the Texas Tort Claims Act or to negate any applicable exceptions to the Act’s waiver of its immunity. The trial court denied the City’s motion to dismiss. The City appeals. DISCUSSION Applicable Provisions of the Texas Tort Claims Act Governmental units, like the City of Houston, enjoy immunity from suit unless this immunity has been waived. The TTCA waives this immunity for damages arising from motor vehicle accidents when a municipal employee acting within the 2 scope of his employment is behind the wheel, so long as the employee would otherwise be liable under Texas law. Id. § 101.021(1). The TTCA also contains exceptions to its waiver of governmental immunity. One is the emergency exception. Under it, immunity generally is not waived when a governmental employee is “responding to an emergency call or reacting to an emergency situation.” Id. § 101.055(2). Another is the 9-1-1 emergency call exception, which generally provides that immunity is not waived when a governmental employee is “responding to a 9-1-1 emergency call.” Id. § 101.062(b). The City’s Position on Appeal The City argues that the Appellees’ allegations are too conclusory to show waiver of governmental immunity or to negate the applicable exceptions to waiver. In particular, the City says the Appellees have not pled sufficient facts alleging the HPD officer was acting within the scope of his employment when the accident happened: “Whether Tran was in the scope of his employment depends on what he was doing at the time. Castro alleged no facts about what Tran was doing at the time other than driving a Houston Police car; that is not enough.” Thus, the City posits, the Appellees have not shown a waiver of its governmental immunity. See id. § 101.021(1) (immunity waived when employee acted within scope of employment). The City also claims that the Appellees have not pled sufficient facts to negate the emergency and 9-1-1 emergency call exceptions to the TTCA’s waiver of 3 governmental immunity. The City says that the Appellees merely alleged that Tran did not have his emergency lights and sirens activated and was not responding to an emergency but that these allegations do “not show that he [was] not involved in an emergency situation or responding to a 9-1-1 call.” Therefore, the City asserts, the Appellees have not shown that the emergency and 9-1-1 emergency call exceptions do not apply and make it immune in this case. See id. §§ 101.055(2), 101.062. Standard of Review When, as here, a party moves for dismissal under Rule 91a of the Texas Rules of Civil Procedure, we review de novo the trial court’s ruling based on the allegations in the plaintiff’s live pleading, which we must accept as true. In re Home Depot U.S.A., Inc., 735 S.W.3d 719, 721 (Tex. 2026); see also TEX. R. CIV. P. 91a.1. Analysis The City urges that to avoid dismissal in this instance, the Appellees had to allege facts bringing their claim within the TTCA’s waiver of immunity for motor vehicle accidents and negate the emergency and 9-1-1 emergency call exceptions to this waiver. See Rattray v. City of Brownsville, 662 S.W.3d 860, 867–68 (Tex. 2023). In their live pleading, the Appellees allege that the HPD officer in question was acting “in the course and scope [of] his employment” with the City while “operating an unmarked Houston Police Department vehicle” when he “failed to yield the right of way” and struck the Appellees’ vehicle. These allegations are 4 sufficient to allege that the officer was acting within the scope of his employment as required by the TTCA. See, e.g., City of Houston v. Tennon, No. 01-25-00391-CV, 2026 WL 168814, at *5–7 (Tex. App.—Houston [1st Dist.] Jan. 22, 2026, no pet.) (mem. op.) (at early stage of litigation, allegation that named city employee was acting in scope of employment at time of motor vehicle accident was sufficient); Hsu v. Hernandez, No. 01-24-00948-CV, 2025 WL 3236294, at *3 (Tex. App.—Houston [1st Dist.] Nov. 20, 2025, no pet.) (mem. op.) (same holding based on similar allegations); see also City of Houston v. Antonio, — S.W.3d —, 2026 WL 1979035, at *3 (Tex. App.—Houston [14th Dist.] July 9, 2026, no pet. h.) (plaintiff’s allegations that HPD officer was city employee driving city vehicle sufficed). The Appellees also allege in their live pleading that at the time of the accident, the HPD officer, who was traveling on a driveway entering a movie theater parking lot, “did not have his emergency lights and sirens activated and was not responding to an emergency.” These allegations are sufficient to negate both the emergency and 9-1-1 emergency call exceptions. See, e.g., City of Houston v. Hernandez, No. 01- 24-00031-CV, 2024 WL 3817374, at *5–6 (Tex. App.—Houston [1st Dist.] Aug. 15, 2024, pet. denied) (mem. op.) (allegation that HPD officer was not responding to emergency call sufficed to negate 9-1-1 emergency call exception); City of Houston v. Hazim, No. 14-25-00627-CV, 2026 WL 1792983, at *5 (Tex. App.— Houston [14th Dist.] June 23, 2026, no pet.) (mem. op.) (allegation that on 5 information and belief city ambulance was not responding to emergency given that its lights and sirens were not activated sufficed to negate 9-1-1 emergency call exception).1 We overrule the City’s appellate issues. Thus, we hold the trial court did not err in denying the City’s motion to dismiss premised on governmental immunity. CONCLUSION We affirm the trial court’s order denying the City’s motion to dismiss. David Gunn Justice Panel consists of Justices Gunn, Caughey, and Morgan. 1 A plaintiff need only negate an exception to the TTCA’s waiver of immunity that is plausibly implicated by the facts he alleges in his live pleading. See Rattray, 662 S.W.3d at 867–68; see, e.g., City of Houston v. Stephens, No. 01-25-00180-CV, 2025 WL 3275142, at *5 (Tex. App.—Houston [1st Dist.] Nov. 25, 2025, no pet.) (mem. op.) (allegation that HPD officer side-swiped plaintiffs’ car while pursuing unknown driver of another vehicle plausibly implicated emergency and 9-1-1 emergency call exceptions to waiver of immunity); see also City of Houston v. Ortiz, No. 01-24-00361-CV, 2025 WL 3521320, at *5 (Tex. App.—Houston [1st Dist.] Dec. 9, 2025, no pet.) (mem. op.) (plaintiffs were not required to negate emergency or 9-1-1 emergency call exceptions because their allegations did not implicate them). Here, we question whether the Appellees’ allegations—an accident in a parking lot in which the HPD vehicle’s lights and sirens were not activated—plausibly implicate the emergency or 9-1-1 emergency call exceptions. But we assume that these exceptions are plausibly implicated in this instance because this issue has not been raised or briefed by the parties and the City’s position fails even if these exceptions are implicated. See TEX. R. APP. P. 47.1. 6