NUMBER 13-25-00593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF EDINBURG, Appellant,
v.
KENIA ABIGAIL CAZARES,
INDIVIDUALLY AND A/N/F OF
K.V. AND J.E. JR., MINORS, Appellee.
ON APPEAL FROM THE 430TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Peña, West, and Fonseca
Memorandum Opinion by Justice Fonseca
This accelerated interlocutory appeal arises from an auto collision between
appellee Kenia Abigail Cazares, who sued individually, and as next friend of K.V. and J.E.
Jr., minors, and a City of Edinburg (Edinburg) police officer. By two issues on appeal,
Edinburg argues the trial court erred in denying its traditional and no-evidence motions for summary judgment because the officer was responding to an emergency call and was
not driving with conscious disregard or reckless indifference for the safety of others. We
affirm because the record evidence created a genuine issue of material fact as to whether
the officer was responding to an emergency situation.
I. BACKGROUND
The collision at issue in this case occurred on January 18, 2024. Earlier in the
evening, a woman reported to the Edinburg Police Department (EPD) that her apartment
had been burglarized. EPD call logs establish EPD initially designated the case Priority
“1” before changing it to Priority “2” seven seconds later. The log also noted a change
from “In Progress to Just Occurred” within that same period.
EPD dispatched several units in response, including diverting Officer Romel
Villarreal from another call. Villarreal testified he responded “to a burglary of habitation in
progress” and followed another unit until that unit entered an apartment complex at what
turned out to be a wrong address. Villarreal called over by voice and explained to the
other officer that they had gone to the wrong address.
As the officers discussed this, Cazares, a resident of this apartment complex,
testified that during this time she drove up and waited for the officers to move in order to
park because they were parked back-to-back “blocking the parking lot.” Cazares was
driving her vehicle with two minor passengers, K.V. and J.E. Jr. She stated the police cars
did not have emergency lights on, and she could see Villarreal sitting in his car talking to
another officer. She observed they appeared calm. Villarreal testified he put his lights on
when first responding to the call but could not recall when he turned them off. He further
testified that police cars typically record footage when the lights are on, though not all of
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EPD’s dash cameras worked consistently. Villarreal was unsure if his vehicle in this
incident recorded footage. There are no dashcam or bodycam recordings in the record.
After clarifying the correct address, Villarreal then placed his vehicle in reverse,
checked his mirrors, did not see Cazares’s red vehicle, and, when he reversed, collided
into Cazares’s vehicle. Cazares testified she honked when he reversed and that instead
of reversing slowly, he reversed at “full speed,” faster than reasonable. After Villarreal hit
her vehicle, he told her he was looking for somebody and went to the wrong address.
Villarreal testified he did not recall where his vehicle was positioned after the collision. He
called his sergeant after the accident per typical procedure. The other officer proceeded
to respond to the burglary.
The incident call log notes unit “EA97” (which Villareal testified was his call
number) was available and cleared from the call as of 7:47 PM. The incident report notes
the collision occurred at 7:48 PM. Cazares filed suit on November 19, 2024, asserting
Edinburg was vicariously liable for Villarreal’s negligence and was independently liable
for negligent hiring, training and supervision.
On September 16, 2025, Edinburg filed traditional and no-evidence motions for
summary judgment arguing the trial court lacked subject-matter jurisdiction. Specifically,
Edinburg asserted Cazares could not show Villarreal (1) was not responding to an
emergency situation, (2) did not comply with the laws and ordinances applicable to
emergency action, or (3) acted with conscious indifference or reckless disregard for the
safety of others. Edinburg contended the evidence clearly demonstrated Villarreal was
only at the apartments to respond to an emergency and that his leaving was a
continuation of that response. Further, Edinburg pointed to Villarreal’s testimony that he
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checked his mirrors and simply did not see Cazares as evidence that such acts were
merely ordinary negligence. Edinburg attached as evidence Cazares’s petition, EPD call
logs, Cazares’s deposition transcript, Edinburg’s special exceptions, and Villarreal’s
deposition transcript.
Cazares responded to Edinburg’s motions arguing that Villarreal could not have
been responding to an emergency call because according to call logs, the call was only
three minutes long, and it was “physically impossible” for the events described by
Villarreal to have occurred within that time. Specifically, Cazares pointed to Villarreal’s
testimony that he allegedly, within those three minutes, was reassigned to the burglary
call, arrived at the apartment complex, and then was cleared off the emergency. Cazares
argued it was impossible for Villarreal to drive to the wrong address, park, have a
discussion with another officer, and leave the parking spot within only three minutes, and
that a jury could rationally infer that Villarreal was removed from the emergency call before
the accident occurred. Cazares also argued that even if he was responding to an
emergency, Villarreal did not comply with applicable laws and ordinances and acted with
conscious indifference or reckless disregard.
Edinburg replied that any argument regarding the time period being too short was
speculative and conclusory. Further, Edinburg argued the evidence established that all of
the events could have occurred in the three-minute period. Finally, Edinburg asserted that
Cazares presented no evidence establishing anything more than negligent conduct by
Villarreal.
The trial court held a hearing on Edinburg’s motions on October 21, 2025, and on
October 31, 2025, the trial court denied Edinburg’s motions via written order. This
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accelerated interlocutory appeal followed. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
II. ANALYSIS
Edinburg raises two issues on appeal. However, we resolve this appeal solely on
the first issue because it is dispositive.
A. Standard of Review
Political subdivisions of the State such as Edinburg are generally immune from suit
unless immunity has been clearly and unambiguously waived by the legislature. 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 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)). Jurisdiction can also be challenged via a traditional or noevidence summary judgment, and the applicable standards generally mirror those
governing review of an order denying a plea to the jurisdiction. City of Austin v. Powell,
704 S.W.3d 437, 447–48 (Tex. 2024); Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004).
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Challenges to jurisdiction can be based either on pleadings or the existence of
jurisdictional facts. Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022). Where
jurisdictional facts are challenged, as here, “we consider relevant evidence submitted by
the parties when necessary to resolve the jurisdictional issues raised, as the trial court is
required to do.” Miranda, 133 S.W.3d at 227; TEX. R. CIV. P. 166a(c). If the governmental
entity asserts a no-evidence motion for summary judgment, the plaintiff may respond with
additional evidence establishing that element of the waiver. See Powell, 704 S.W.3d at
447. “In both traditional summary judgment and plea to the jurisdiction contexts, we take
as true all evidence favorable to the nonmovant and indulge every reasonable inference
and resolve any doubts arising from such evidence in the nonmovant’s favor.” City of
Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *4 (Tex. App.—Houston
[14th Dist.] Apr. 6, 2021, pet. denied) (citing Miranda, 133 S.W.3d at 228). Regardless of
how the government labels its jurisdictional challenge, “we look to its substance.” Powell,
704 S.W.3d at 448.
“If the evidence creates a fact question regarding the jurisdictional issue, the trial
court cannot grant the plea, and the fact issue will be resolved by the fact finder.” Id. (citing
Miranda, 133 S.W.3d at 227–28). 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 party 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.’” Powell, 704 S.W.3d at 447 (alteration in original) (quoting Rattray v. City of
Brownsville, 662 S.W.3d 860, 867 (Tex. 2023)).
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B. Applicable Law
Typically, the Texas Tort Claims Act waives immunity for injuries caused by a
governmental employee operating a motor vehicle. TEX. CIV. PRAC. & REM. CODE
§ 101.021(1)(A). But the waiver is not absolute and does not apply to a claim arising 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 § 101.055(2); see City of Houston v. Gomez, 716 S.W.3d
161, 165 (Tex. 2025) (quoting Powell, 704 S.W.3d at 449). It is Cazares’s burden to
“negat[e] the applicability of the emergency exception and affirmatively show[] a waiver
of immunity.” City of Houston v. Gonzales, 682 S.W.3d 921, 927 (Tex. App.—Houston
[14th Dist.] 2024, no pet.) (citing Maspero, 640 S.W.3d at 529).
The statute does not define “emergency call” or “emergency situation,” so we
“apply the common, ordinary meaning of those words” unless the common meaning
“leads to absurd results.” Malouf v. State ex rel. Ellis, 694 S.W.3d 712, 718 (Tex. 2024).
“Texas courts have interpreted the term ‘emergency’ broadly.” Gonzales, 682 S.W.3d at
927 (gathering cases). “Emergency” is defined as “an unforeseen combination of
circumstances or the resulting state that calls for immediate action.” Emergency,
MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/emergency (last
visited May 29, 2026). While emergencies are often found in the context of traffic
accidents involving law enforcement, courts have also found emergencies to exist in
situations as diverse as a city’s reaction to widespread roadway flooding, responding to
a detained suspect attempting to escape the back of a patrol car, stopping a vehicle
containing multiple occupants and requesting help even if there is no immediate threat,
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or responding to medical emergencies requiring the officer’s “immediate presence.” See
City of San Antonio v. Hartman, 201 S.W.3d 667, 672–73 (Tex. 2006); Harris County v.
Spears, No. 14-17-00662-CV, 2018 WL 4571841, at *4 (Tex. App.—Houston [14th Dist.]
Sep. 25, 2018, no pet.) (mem. op.); City of Beaumont v. Brocato, No. 09-10-00473-CV,
2011 WL 4716296, at *4 (Tex. App.—Beaumont Oct. 6, 2011, no pet.) (mem. op.);
Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410–11 (Tex. App.—Fort Worth
2006, pet. denied).
However, if the evidence creates a fact issue as to whether the officer was truly
responding to an emergency, it is not appropriate to grant summary judgment on the
issue. See Gonzales, 682 S.W.3d at 927. If a governmental entity meets its burden to
present initial evidence that the officer was responding to an emergency, then the burden
shifts to the opposing party to a raise a genuine issue of material fact on that issue. See
City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *9 (Tex. App.—
Houston 2020 [1st Dist.] Nov. 19, 2020, pet. denied) (mem. op.). Evidence that can create
a genuine issue of material fact includes a crash report not reflecting that an officer was
responding to an emergency, the lack of lights and sirens, or only activating the lights and
siren for part of a vehicle’s route. See Gonzales, 682 S.W.3d at 927; Hussein, 2020 WL
6788079, at *9; Jefferson County v. Hadnot, 699 S.W.3d 787, 798 (Tex. App.—Beaumont
2024, no pet.); Collins v. City of Houston, No. 14-13-00533-CV, 2014 WL 3051231, at *7–
8 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.).
C. Discussion
The parties do not dispute that Villarreal was an officer working in the course of his
employment for Edinburg when he backed into Cazares’s vehicle, and, therefore,
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preliminarily agree that this is a situation where a waiver of immunity would typically apply.
See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). However, the parties dispute the
applicability of the withdrawal of waiver based on an emergency call or situation. See id.
§ 101.055(2). Edinburg argues the record plainly demonstrates Villarreal was only
present at Cazares’s property because he was in the middle of responding to a call, and
backed out of the spot and struck Cazares’s vehicle as he was headed to the correct
location. Cazares responds there is a fact issue regarding whether Villarreal was
“removed” from responding to the emergency before the time of the collision.
1. No-Evidence Motion for Summary Judgment
We begin by addressing Edinburg’s no-evidence grounds. See Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (“When a party moves for summary
judgment on both traditional and no-evidence grounds[,] . . . we first address the noevidence grounds.”); Webb Consol. Indep. Sch. Dist. v. Marshall, 690 S.W.3d 698, 710
(Tex. App.—San Antonio 2023) (stating the same in the context of summary judgment
motions challenging jurisdiction), aff’d, No. 24-0339, 2026 WL 1108676 (Tex. Apr. 24,
2026). Edinburg had to allege no evidence existed to one or more elements of Cazares’s
claims. Here, Edinburg successfully alleged the emergency situation exception to the
waiver of immunity applied because Villarreal was responding to a burglary call and that
Cazares produced no evidence to the contrary. See Marshall, 690 S.W.3d at 711.
Thus, the burden shifted to Cazares to present more than a scintilla of evidence
raising a genuine issue of material fact. See id. “Less than a scintilla of evidence exists
when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’
of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting
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Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). We find the record
demonstrates Cazares responded to Edinburg’s no-evidence motion with multiple pieces
of evidence that could establish this accident arose from negligence not involving a
response to an emergency as we detail below. See Powell, 704 S.W.3d at 447. This
evidence included Cazares’s testimony and observations, the call log, the incident report,
and Villareal’s testimony.
While there may be competing inferences from this evidence, we resolve doubts
in Cazares’s favor. See Manning, 2021 WL 1257295, at *4. Taking the evidence as
favorable to Cazares, there is a reasonable inference that Villareal had ceased
responding to an emergency prior to backing into Cazares. Accordingly, the trial court’s
grant of the no-evidence motion for summary judgment was improper. See Powell, 704
S.W.3d at 448; Marshall, 690 S.W.3d at 711.
2. Traditional Motion for Summary Judgment
Next, turning to Edinburg’s traditional motion for summary judgment, we agree with
Cazares that the record evidence creates a genuine issue of material fact as to whether
Villarreal was still responding to an emergency at the time of the accident. See TEX. CIV.
PRAC. & REM. CODE § 101.055(2); Gonzales, 682 S.W.3d at 927; Hussein, 2020 WL
6788079, at *9; Hadnot, 699 S.W.3d at 798. We agree with Edinburg that it may be
reasonable to infer, based on the evidence EPD assigned and removed Villarreal from
the burglary call within a three-minute period, that EPD removed him because of the
collision with Cazares, and he was therefore still responding to an emergency at the time
the collision occurred. See Hartman, 201 S.W.3d at 672–73; Spears, 2018 WL 4571841,
at *4; Brocato, 2011 WL 4716296, at *4; Pakdimounivong, 219 S.W.3d at 410–11. The
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other unit accompanying Villarreal leaving after the accident to continue to respond to the
burglary is certainly evidence supporting this inference.
However, Cazares’s version of events is also reasonable. As we are required to
construe pleadings liberally in favor of Cazares, take as true all evidence favorable to her,
and indulge every reasonable inference in her favor, and because it is reasonable to infer
that three minutes was too short of a timeframe for Villarreal to drive to a location, park,
have a conversation, and then leave, we must resolve these doubts in Edinburg’s
evidence in Cazares’s favor. See Martinez, 691 S.W.3d at 419; Manning, 2021 WL
1257295, at *4. Indeed, as Villareal testified he was unit “EA97,” the record reflects he
was removed from the call at 7:47 PM but the incident report notes the collision occurred
at 7:48 PM, meaning after making reasonable inferences, the record evidence indicates
Villareal was removed from the call before the accident. See Martinez, 691 S.W.3d at
419; Manning, 2021 WL 1257295, at *4.
Furthermore, the call logs do not even explicitly identify the burglary call as an
emergency. The call logs note the incident was changed from a Priority “1” to Priority “2”
and changed from “In Progress” to “Just Occurred” all in less than ten seconds and before
Villareal was assigned to the incident. The lack of physical evidence in the record as to
whether this was an emergency situation at the moment of the collision further supports
finding a genuine issue of material fact exists. See cf. Gonzales, 682 S.W.3d at 927
(finding evidence that a “priority two call” is an emergency based on Houston Police
Department protocol).
Finally, Cazares’s testimony that Villarreal’s sirens and lights were not on, and that
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Villarreal appeared calm, 1 also helps create a fact issue as to whether this was an
emergency situation. See Hadnot, 699 S.W.3d at 798 (finding not activating siren or
emergency lights helps create a genuine issue of material fact on whether officer was
responding to emergency call); Hussein, 2020 WL 6788079, at *9; Collins, 2014 WL
3051231, at *7. While Edinburg correctly notes the lack of sirens alone does not indicate
an officer isn’t responding to an emergency situation, we must resolve doubts in
Cazares’s favor, and this is at least some further evidence that Villarreal was no longer
responding to an emergency situation at the time of the collision. See Hussein, 2020 WL
6788079, at *9; Collins, 2014 WL 3051231, at *7.
In sum, there is a genuine issue of material fact as to whether Villarreal was still
responding to an emergency at the time of the collision. See Gonzales, 682 S.W.3d at
927. We therefore find the trial court’s denial of Edinburg’s motions proper and overrule
Edinburg’s first issue on appeal. We need not review the second issue because denial of
the motions was affirmed on the ground of a fact issue on the emergency exception.
See TEX. R. APP. P. 47.1.
III. CONCLUSION
We affirm the trial court’s ruling.
YSMAEL D. FONSECA
Justice
Concurring Memorandum Opinion by Justice West.
Delivered and filed on the
20th day of August, 2026.
1 An officer’s demeanor alone may not necessarily raise a fact issue concerning the nature of the
call to which he is responding, but, in this case, it is an additional piece of evidence supporting her contention that avoids the summary disposition of her claim.
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