Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-25-00047-CV
CITY OF HOUSTON, Appellant
V.
MA YOLANDA VALDES GUTIERREZ, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2024-72514
MEMORANDUM OPINION
The City of Houston appeals the trial court’s denial of its Rule 91a motion to
dismiss Ma Yolanda Valdes Gutierrez’s negligence claim, arguing it retains
governmental immunity to suit. See TEX. R. CIV. P. 91a. We affirm.
Background
Gutierrez filed a claim against the City alleging that a police officer, while
operating a City-owned vehicle in the course and scope of his employment,
negligently rear-ended her vehicle. Gutierrez’s claim sought personal-injury
damages that resulted from the incident under section 101.021 of the Texas Tort
Claims Act (TTCA). TEX. CIV. PRAC. & REM. CODE § 101.021. The City
answered and filed a motion to dismiss under Rule 91a, arguing Gutierrez’s claims
have no basis in law because the allegations do not show a waiver of governmental
immunity under the TTCA. See TEX. R. CIV. P. 91a. The trial court denied the
motion, and the City filed this interlocutory appeal. See TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(8).
Analysis
A. Rule 91a and standard of review
A governmental entity may move to dismiss a claim under Rule 91a because
the claim has no basis in law due to immunity. TEX. R. CIV. P. 91a.1; see also City
of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016); City of Houston v.
Johnson, No. 01-23-00938-CV, 2025 WL 1033754, at *1 (Tex. App.—Houston
[1st Dist.] Apr. 8, 2025, no pet.) (mem. op.). A claim “has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought.” TEX. R. CIV. P. 91a.1.
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We review a ruling on a Rule 91a motion de novo. San Jacinto River Auth.
v. Medina, 627 S.W.3d 618, 628 (Tex. 2021); Johnson, 2025 WL 1033754, at *1.
We must accept the factual allegations in the pleadings as true and liberally
construe the pleadings in favor of the plaintiff. Johnson, 2025 WL 1033754, at *1.
B. Gutierrez alleged sufficient facts
The City argues Gutierrez’s allegations are insufficient to state a claim
within TTCA section 101.021(1)’s waiver of governmental immunity. To plead
within section 101.021(1)’s waiver, the pleading must allege: (1) property damage
or personal injury; (2) that was proximately caused by the wrongful act, omission,
or negligence; (3) of a government employee; (4) while acting within the scope of
employment; and (5) that arises from the operation or use of a motor-driven
vehicle. TEX. CIV. PRAC. & REM. CODE § 101.021(1).
Gutierrez alleges in her live pleading that (1) while driving east on
Kingwood Drive, the rear of her vehicle was struck by the front of a City-owned
vehicle being driven by Police Officer Daniel Torres Robert, (2) at the time of the
incident, Officer Robert was employed by the City and acting within the course
and scope of his employment, and (3) the collision and Gutierrez’s injuries were
proximately caused by Officer Robert’s negligence, including his using a phone
while driving, failing to keep a proper lookout, following too closely, and failing to
control vehicle speed. Viewing these allegations and reasonable inferences drawn
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from them in the light most favorable to Gutierrez, the elements required to
establish a waiver of governmental immunity under section 101.021(1) have been
pled. TEX. CIV. PRAC. & REM. CODE § 101.021; see 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.) (“Hernandez alleged that a City employee caused her
damages by operating a car negligently, listing several ways in which he did so. At
this stage of the litigation and under our standard of review, we accept the factual
allegations in Hernandez’s pleading as true.”).
The City also contends Gutierrez failed to expressly negate the 9-1-1 and
emergency exceptions to section 101.021(1)’s immunity waiver. See TEX. CIV.
PRAC. & REM. CODE §§ 101.055(2) (emergency exception), 101.062 (9-1-1
exception).
A plaintiff suing a governmental unit must allege facts to negate the TTCA’s
exceptions that the “allegations plausibly implicate, which will depend on the
nature of the dispute.” Rattray v. City of Brownsville, 662 S.W.3d 860, 867–68
(Tex. 2023). “It will be readily apparent in most cases” which exceptions are
plausibly implicated, and when exceptions are not plausibly implicated, the
plaintiff need not negate them. Id. at 868.
Gutierrez pled no facts suggesting that the City employee in question was
responding to a 9-1-1 call or other emergency. Thus, she was not required to
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allege additional facts negating these exceptions. 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.).
Conclusion
We affirm the trial court’s denial of the City’s Rule 91a motion.
Andrew Johnson
Justice
Panel consists of Justices Caughey, Johnson, and Dokupil.
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