Opinion issued October 2, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00820-CV
THE CITY OF HOUSTON, Appellant
V.
JAVIER ALEXANDER GUEVARA AND MIGUEL A. MUNGUIA,
Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2024-13233
MEMORANDUM OPINION
This is an interlocutory appeal arising out of a car accident. On the day of the
accident, Bernard Simien, a Houston Police Department Sergeant, was scheduled to
work a “Bike to the Beach” event. He was required to be at the starting point of the
event in his work-issued vehicle at 6:00 a.m. Simien left home at 5:30 a.m. He collided with a vehicle (driven by Javier Alexander Guevara)1 one to two blocks
from his house. Guevara sued the City of Houston (the City).2
The City moved for summary judgment on the basis of governmental
immunity. A city is generally immune from suit, absent an applicable waiver of
immunity. The Texas Tort Claims Act (TTCA) waives governmental immunity
when an employee acting in the scope of his employment negligently causes
property damage or personal injury to another if the injuries arise from the operation
or use of a motor-driven vehicle. TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A).
The City’s position here is that Simien was outside the scope of his
employment at the time of the car accident, so this waiver of immunity is
inapplicable. As support, the City attached an affidavit from Simien to its motion for
summary judgment, which stated that he was traveling to work—and not on duty—
at the time of the accident. Guevara did not introduce evidence to the contrary.
The trial court denied the City’s motion for summary judgment. We reverse
that ruling. On this record, the City retained its governmental immunity.
DISCUSSION
A government entity such as the City “is immune from suit and liability unless
the state consents.” Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d
1
Appellant Miguel A. Munguia was a passenger in the vehicle.
2
Guevara also sued Simien. Simien moved to dismiss the claims against him,
and the trial court granted his motion. That ruling is not at issue in this appeal.
2
922, 926 (Tex. 2015) (quoting Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex. 2003)). Where, as here, “a government entity challenges jurisdiction on
the basis of immunity, ‘the plaintiff must affirmatively demonstrate the court’s
jurisdiction by alleging a valid waiver of immunity.’” Id. at 927 (quoting Whitley,
104 S.W.3d at 542). An immunity analysis begins with a presumption against any
waiver unless the plaintiff proves otherwise. Rattray v. City of Brownsville, 662
S.W.3d 860, 866 (Tex. 2023).
A plaintiff establishes waiver of immunity “by demonstrating that the
legislature, as the branch of government constitutionally empowered to manage the
State’s financial affairs, has waived immunity by statute.” Id. at 865. The TTCA is
one such statute; as noted, it waives governmental immunity in certain
circumstances, including when “an employee acting within his scope of
employment” negligently causes property damage or personal injury to another if the
injuries “arise[ ] from the operation or use of a motor-driven vehicle.” See TEX. CIV.
PRAC. & REM. CODE § 101.021(1)(A) (emphasis added).
The City argues that that limited waiver does not apply here because Simien
was not acting in the scope of his employment. On this record, we agree.
A. Standard of Review
Interlocutory orders denying summary judgment are typically not appealable.
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). But “the nature
3
of a pleading is determined by its substance, not by its format or caption.” Baylor
Coll. of Med. v. Tate, 77 S.W.3d 467, 471 (Tex. App.—Houston [1st Dist.] 2002, no
pet.); see also TEX. R. CIV. P. 71 (“When a party has mistakenly designated any plea
or pleading, the court, if justice so requires, shall treat the plea or pleading as if it
had been properly designated.”). Here, while the City styled its motion as a motion
for summary judgment, the motion’s text asserts that the trial court lacked subject
matter jurisdiction over Guevara’s claims against the City based on governmental
immunity. Substantively, this was a plea to the jurisdiction. See Nivens v. City of
League City, 245 S.W.3d 470, 474 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (“Governmental immunity from suit defeats a trial court’s subject-matter
jurisdiction and is properly asserted in a plea to the jurisdiction.”). We construe the
City’s motion as such. See Baylor Coll. of Med., 77 S.W.3d at 471 (recognizing that
a motion for summary judgment may be construed as a plea to the jurisdiction
depending on the substance of the pleading).
Texas law allows an appeal in this circumstance. “A person may appeal from
an interlocutory order of a district court, a county court at law, a statutory probate
court, a county court, or the business court that . . . grants or denies a plea to the
jurisdiction by a governmental unit . . . .” TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(8).
4
The City’s plea challenges the existence of a jurisdictional fact—namely,
whether Simien was acting within the scope of his employment at the time of the
accident. When “a plea to the jurisdiction challenges the existence of jurisdictional
facts, our standard of review generally mirrors the standard of review for traditional
summary judgment.” Harris Cent. Appraisal Dist. v. Houston Pipe Line Co. LP, 706
S.W.3d 568, 573 (Tex. App.—Houston [1st Dist.] 2024, no pet.); see Tex. Dep’t of
Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Our review is thus
de novo. Harris Cnty. v. Anderson, No. 01-25-00239-CV, 2025 WL 3236297, *2
(Tex. App.—Houston [1st Dist.] Nov. 20, 2025, no pet.).
The movant has the initial burden to establish that the trial court lacks
jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.
2012); Houston Pipe Line Co., 706 S.W.3d at 573. Once the movant “asserts and
supports with evidence that the trial court lacks subject matter jurisdiction,” the
burden then shifts to the plaintiff to show a “disputed material fact” exists as to “the
jurisdictional issue.” Miranda, 133 S.W.3d at 228. We “take as true all evidence
favorable to the nonmovant,” and “indulge any reasonable inference and resolve any
doubts in the nonmovant’s favor.” Id.; Harris Cnty. v. Hudson, No. 01-25-00833-CV, 2026 WL 2522651, *1 (Tex. App.—Houston [1st Dist.] Aug. 27, 2026, no pet.).
5
B. The City produced evidence that Simien was acting outside the scope of
employment at the time of the collision.
The TTCA defines “scope of employment” as “the performance for a
governmental unit of the duties of an employee’s office or employment,” including
“being in or about the performance of a task lawfully assigned to an employee by
competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5). Conversely,
“[a]n employee’s act is not within the scope of employment when it occurs within
an independent course of conduct not intended by the employee to serve any purpose
of the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (quoting
Restatement (Third) of Agency § 7.07(2) (A.L.I. 2006)). In determining whether an
employee was acting in the scope of employment, courts make “an objective
assessment of whether the employee was doing her job when she committed an
alleged tort . . . .” Laverie v. Wetherbee, 517 S.W.3d 748, 753 (Tex. 2017).
Each side points to a legal background rule to support their position, so we
briefly explain those two rules, then turn to our analysis.
1. The Employer-Owned Vehicle Presumption
Guevara asserted that Simien was acting in the scope of his employment at
the time of the accident because he was driving a City-owned vehicle. Under Texas
law, generally, “a presumption arises” that the driver of a vehicle owned by his
employer “was acting within the scope of his employment when the accident
occurred.” Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.
6
1971); accord Harris Cnty. v. Anderson, No. 01-25-00239-CV, 2025 WL 3236297,
at *3 (Tex. App.—Houston [1st Dist.] Nov. 20, 2025, no pet.); City of Houston v.
Stoffer, No. 01-23-00335-CV, 2024 WL 3417137, at *4 (Tex. App.—Houston [1st
Dist.] July 16, 2024, pet. denied); Valdez v. City of Houston, No. 01-21-00070-CV,
2022 WL 3970066, at *5 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.).
This presumption “is only a procedural tool, however, and it disappears from
the case once it has been rebutted by positive evidence to the contrary.” City of
Houston v. Wormley, 623 S.W.2d 692, 694 (Tex. App.—Houston [1st Dist.] 1981,
writ ref’d n.r.e.). Thus, when the presumption applies, if the defendant proffers
evidence rebutting the presumption, the burden shifts back to the plaintiff to produce
other independent evidence that the driver was acting within the scope of
employment at the time of the collision. See Robertson Tank Lines, Inc., 468 S.W.2d
at 358. Vehicle ownership and employment facts alone, once rebutted by positive
evidence, do not constitute probative evidence of scope of employment. See id. at
359.
The City disputes whether the employer-owned vehicle presumption applies
in this case, suggesting that it is inapplicable to claims brought under the TTCA
because it functions as a presumption against immunity. We need not decide this
question, however, as the result here is the same regardless of whether the
presumption applies or not.
7
That is, if the presumption applies, the City must then respond by providing
evidence that Simien was not acting within the scope of employment at the time of
the collision. See id. at 358. As we discuss in more detail below, the City did so;
thus, the burden shifts back to Guevara to produce other evidence that Simien was
acting in the course and scope of his employment. See City of Houston v. Barfield,
No. 01-25-00467-CV, 2026 WL 1501182, *3 (Tex. App.—Houston [1st Dist.] May
28, 2026, no pet.) Moreover, if the presumption does not apply, the burden still rests
with Guevara to establish a valid waiver of immunity—i.e., that Simien was acting
in the course and scope of his employment at the time of the collision. See Rattray,
662 S.W.3d at 866.
2. Coming-and-Going Rule
The City asserted that Simien was not acting in the scope of his employment—
and, thus, the City did not waive immunity from suit—because he was on his way
to work, not at work. In support of its motion, the City attached a sworn affidavit
from Simien which averred that he was traveling to work at the time of the accident
and was not yet on duty.
Under the coming-and-going rule, “an employee is generally not acting within
the scope of his employment when traveling to and from work,” and therefore, the
employer is not vicariously liable for the employee within those windows of time.
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 139 (Tex. 2018). Texas courts
8
have found that an employee is not acting within the scope of his employment under
these circumstances even when he is driving a vehicle owned by his employer. See,
e.g., City of Houston v. Amadour, No. 01-87-0483-CV, 1988 WL 81750, *1 (Tex.
App.—Houston [1st Dist.] Aug. 4, 1988, writ denied) (not designated for
publication); Salmon v. Hinojosa, 538 S.W.2d 22, 24 (Tex. App.—San Antonio
1976, no writ).
3. The City’s evidence showed Simien was not acting in the scope of
employment.
If the employer-owned vehicle presumption applies here, the question we
must answer is whether the City effectively rebutted that presumption. See Wormley,
623 S.W.2d at 694. Or, if the presumption does not apply, we must ascertain whether
the City produced evidence that “conclusively establishes its entitlement to
governmental immunity.” City of Houston v. Carrizales, No. 01-20-00699-CV, 2021
WL 3556216, at *3 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied).
Both inquiries ultimately require us to determine the same thing: whether the City’s
affidavit established that Simien was not acting within the scope of his employment
at the time of the accident. See Wormley, 623 S.W.2d at 694; Carrizales, 2021 WL
3556216, at *3. It does.
9
The affidavit3 at issue here states, in relevant part, that Simien was assigned
to assist with police management of a “Bike to the Beach” event on the day of the
accident, beginning at 6:00 a.m. Simien left his house at 5:30 a.m. and had traveled
“one to two blocks” from his home when he collided with another vehicle while
traveling through an intersection. Simien swore in the affidavit that he was on his
way to work at the time of the accident, was not performing any official job duties,
and was not being paid for his time.
Despite the plaintiff’s argument to the contrary, Simien did not offer mere
estimations or beliefs. The affidavit contained factual information based on Simien’s
personal knowledge of his actions on the day in question, his work schedule, and the
event that he was traveling to. This evidence supported the City’s assertion that
Simien was traveling to work at the time of the accident and was acting outside the
scope of his employment. This court has found similar evidence sufficient to
3
On February 27, 2026, the Texas Supreme Court approved amendments to Rule
166a of the Texas Rules of Civil Procedure. Final Approval of Amendments to Rule
166a of the Texas Rules of Civil Procedure, No. 26-9012, 89 Tex. B.J. 286 (Tex.
Feb. 27, 2026). The lawsuit in this case was filed in February 2024; thus, we rely on
the prior version of Rule 166a. Under the prior (and current) rule, evidence in
support of a motion for summary judgment may include affidavits. TEX. R. CIV. P.
166a(f), 60 Tex. B.J. 872 (Tex. 1997, amended 2026). In these circumstances, an
affidavit “shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein.” TEX. R. CIV. P. 166a(f), 60 Tex. B.J. 872
(Tex. 1997, amended 2026). An affidavit from an interested witness “which recites
that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support
summary judgment.” Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.
1996).
10
establish an employee was acting outside the scope of his employment. See Lara v.
City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794, *4 (Tex. App.—
Houston [1st Dist.] July 21, 2016, pet. denied) (police affidavits stating that officer
“was not being paid for his time, had no official duties, and was merely commuting
to work at the time of the collision” supported contention that he was not acting in
scope of his employment); Carrizales, 2021 WL 3556216, at *5 (excerpts from
employee’s deposition testimony that detailed she was returning to work after lunch
and was alone in truck when collision occurred, whereas she would have had
someone else in the vehicle if she had been working, conclusively proved that she
was not acting in course and scope of employment). The City established that Simien
was not acting in the course and scope of employment at the time of the collision.
C. Guevara did not produce evidence establishing that Simien was acting in
the course and scope of his employment.
Where, as here, the governmental entity “conclusively establishes” that its
employee was not acting in the scope of his employment, the burden shifts to the
opposing party “to present evidence sufficient to create a fact issue” as to whether
the employee “was acting in the course and scope of her employment at the time of
the collision.” Carrizales, 2021 WL 3556216, at *3, *4. Guevara has not done so.
Rather than offering evidence of his own, Guevara argues that the affidavit is
insufficient to establish that Simien was not acting in the course and scope of his
11
employment because it contains (1) conclusory statements from (2) an “interested
witness.” We disagree. We address each in turn.
Conclusory. First, the affidavit was not conclusory. An affidavit is conclusory
when it “states only legal or factual conclusions without providing factual support.”
Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.]
2013, no pet.). In Brown, our Court deemed an affidavit conclusory—and thus
insufficient to support summary judgment—when it contained only the legal
conclusion that Brown had breached the contract and money was still owed under
the terms of the lease, without specific “factual information regarding the
circumstances surrounding the alleged breach.” Id. Such an affidavit was “not proper
summary judgment evidence because it [was] not credible or susceptible to being
readily controverted.” Id.
But an affidavit that “gives detailed accounts of the facts it attests to” is not
conclusory in nature and “is sufficient summary judgment evidence.” Id.; see also
Carrizales, 2021 WL 3556216, at *5 (excerpts from employee’s deposition
testimony were not conclusory in nature where employee “did not conclusorily state
that she was acting in the course and scope of her employment at the time of the
collision” but instead detailed that she was returning to work after lunch and was
alone in the truck when the collision occurred).
12
Here, Simien’s affidavit did not merely state that he was not acting in the
course and scope of his employment. To the contrary, the affidavit provided detailed
facts, including that Simien was on his way to work, was not being paid for his time,
and was not yet on duty at the time of the accident. The affidavit included dates and
times. This evidence was not conclusory in nature; it was sufficient to establish that
Simien was not acting in the course and scope of his employment at the time of the
collision. See Carrizales, 2021 WL 3556216, at *5; see also Molina v. City of
Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex. App.—Houston
[14th Dist.] Aug. 21, 2018, no pet.) (city employee’s testimony that he was returning
to work after eating lunch refuted allegation that he was in scope of employment).
Guevara offers no evidence to the contrary.
Interested Witness. Next, assuming for these purposes that Simien qualifies
as an “interested witness,” Guevara’s argument nonetheless fails. A court may grant
“summary judgment on the basis of uncontroverted testimonial evidence of an
interested witness if that evidence ‘is clear, positive and direct, otherwise credible
and free from contradictions and inconsistencies, and could have been readily
controverted.’” Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (quoting source
omitted); accord Means v. Prop. Mgmt. Contractors, LLC, No. 01-21-00415-CV,
2023 WL 138620, *2 (Tex. App.—Houston [1st Dist.] Jan. 10, 2023, no pet.). The
affidavit meets this requirement.
13
Texas courts have found affidavits to be “clear, positive, and direct” when
they credibly convey information from a witness with personal knowledge and
conclusively establish particular facts. See Tex. Div.-Tranter, Inc. v. Carrozza, 876
S.W.2d 312, 313 (Tex. 1994) (affidavits from supervisory and administrative
personnel detailing the reasons for employee’s termination were “clear, positive, and
direct”); Green v. City of Friendswood, 22 S.W.3d 588, 593–94 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied) (affidavit from responding police officer was
“clear, positive, and direct” where he described in detail events that transpired and
“conclusively established that he was properly operating his emergency vehicle
within the privileges established by the Transportation Code” for operators of
emergency vehicles in emergency situations); Harris v. Jackson, No. 01-90-01149-CV, 1991 WL 119185, *4 (Tex. App.—Houston [1st Dist.] July 3, 1991, no pet.)
(not designated for publication) (affidavit from defendant physician was “clear,
positive and direct” where it “properly identified the appropriate standard of care,
stated he complied with that standard, and declared he did not cause appellant’s
injuries”).
Here, Simien’s affidavit was clear, positive, and direct: it conclusively
established based on Simien’s personal knowledge that he was on his way to work
at the time of the accident.
14
The affidavit was also credible and free from contradictions and
inconsistencies. Affidavits that are internally inconsistent or contradict other
evidence create a fact issue and thus are insufficient summary judgment evidence.
See Stoffer, 2024 WL 3417137,*5–6 (witness’s affidavit was inconsistent with her
deposition testimony, thus creating fact issue and rendering summary judgment
improper); Franco v. Cronfel, 311 S.W.3d 600, 608 (Tex. App.—Austin 2010, no
pet.) (where record contained evidence that discredited witness’s affidavit and
deposition testimony, affidavit did not support summary judgment). But here,
nothing in the record suggests that Simien was not credible, nor is the affidavit
internally inconsistent or inconsistent with any other evidence in the record. The
affidavit thus satisfies this second requirement.
Finally, the affidavit could have been readily controverted. The Texas
Supreme Court has explained that the “could have been readily controverted”
requirement for affidavits “does not mean that the summary judgment evidence
could have been easily and conveniently rebutted, but rather indicates that the
testimony could have been effectively countered by opposing evidence.” Trico
Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997); see Bastida v. Aznaran,
444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no pet.) (statements in affidavit could
have been readily controverted with “deposition testimony, interrogatories, or other
discovery”); Swanson v. Steak & Ale of Tex., Inc., No. 01-97-01019-CV, 1998 WL
15
350586, at *12 (Tex. App.—Houston [1st Dist.] June 25, 1998, no pet.) (not
designated for publication) (witness testimony could have controverted the affidavits
from other witnesses). Such is the case here.
The statements in Simien’s affidavit that he was on his way to work could
have been controverted with opposing evidence. That Guevara did not produce such
evidence does not render the affidavit incontrovertible. See Swanson, 1998 WL
350586, at *12 (that no witness controverted the affidavits “does not mean that the
testimony could not have been controverted”).
On this record, we find no basis on which to conclude that Simien’s affidavit
constituted improper evidence in support of the City’s motion. See Klein Indep. Sch.
Dist. v. Wardlaw, 693 S.W.3d 610, 618 (Tex. App.—Houston [14th Dist.] 2023, pet.
denied) (affidavit from interested witness was competent summary judgment
evidence).
Because the uncontroverted evidence established that Simien was not acting
within the course and scope of his employment at the time of the accident, the City
did not waive its immunity. See Ryder Integrated Logistics, Inc., 453 S.W.3d at 927
(“Where a government entity challenges jurisdiction on the basis of immunity, ‘the
plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging
a valid waiver of immunity.’” (quoting Whitley, 104 S.W.3d at 542)); Miller, 51
S.W.3d at 587 (plaintiff bears the burden of affirmatively showing that the trial court
16
has jurisdiction). The trial court lacked jurisdiction and erred in denying the City’s
motion for summary judgment.
CONCLUSION
We reverse the trial court’s order denying the City’s motion for summary
judgment and render judgment dismissing Guevara’s suit for lack of jurisdiction.
Jennifer Caughey
Justice
Panel consists of Justices Caughey, Morgan, and Dokupil.
17