AFFIRMED and Opinion Filed July 9, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00740-CV 

CARLOS GREEN AND PAMELA GREEN, Appellants 

V. 

CITY OF DESOTO, Appellee 

On Appeal from the 162nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-16541 

MEMORANDUM OPINION 

Before Justices Reichek, Carlyle, and Miskel 

Opinion by Justice Reichek 

Appellants Carlos Green and Pamela Green sued the City of DeSoto alleging 

the City’s negligent use or operation of motor-driven equipment caused flood 

damage to their home. They appeal the trial court’s order granting the City’s plea to 

the jurisdiction. Because the motorized equipment did no more than furnish the 

condition that caused the flooding, we affirm. 

Background 

 The Greens live in a hilly subdivision in the City. Their home sits lower than 

houses to the East and South of them. To prevent flooding, the subdivision had a 
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drainage system in which surface water flowed to an alleyway “built with a channel 

in the middle.” Water flowed down the channel and eventually exited onto the 

Greens’ street and safely into the City storm sewer. The Greens alleged that on June 

2, 2021, the City’s water department used motor-driven equipment—“a dump truck, 

tractor, backhoe and trackhoe”—to dig a deep hole in the alleyway behind their 

house to repair a sewer line. The City placed the dirt and debris removed to form 

the hole across the alleyway, where it formed a “dirt dam” several feet high that 

blocked the drainage channel. The first week of June 2021 was exceptionally rainy. 

On June 4, 2021, when rainwater reached the dirt dam, the drainage plan did not 

operate as intended and surface water from the subdivision was diverted onto the 

Greens’ driveway and into their home. Their home flooded, causing severe property 

damage, anguish, inconvenience, and over $100,000 in repair and remediation costs. 

The Greens alleged the City’s governmental immunity was waived and the 

City was liable for their damages under section 101.021 of the Texas Tort Claims 

Act (“the Act”). Section 101.021 provides: 

A governmental unit in the state is liable for: 

(1)property damage, personal injury, and death proximately 

caused by the wrongful act or omission or the negligence of 

an employee acting within his scope of employment if: 

(A) the property damage, personal injury, or death arises 

from the operation or use of a motor-driven vehicle or 

motor-driven equipment; and 
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(B) the employee would be personally liable to the 

claimant according to Texas law . . . . 

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. The Greens alleged the City, using 

motor-driven equipment, negligently placed the dirt and debris on the channel in the 

middle of the alleyway. 

 After filing an answer, the City filed a plea to the jurisdiction, arguing the 

Greens failed to establish a waiver of immunity under section 101.021 because the 

flooding had not arisen from the use of motor-driven equipment. Citing Dallas, 

Garland & Northeastern Railroad v. Hunt County, 195 S.W.3d 818 (Tex. App.—

Dallas 2006, no pet.) (“Dallas, Garland”), the City asserted the Greens did not show 

the required nexus between the operation or use of the motor-driven equipment and 

their injuries because the equipment did not actually cause the injury. The Greens 

responded that the City’s construction of a dam with motorized equipment caused 

the flooding in their home and the two-day delay between City’s use of equipment 

and the flooding did not mean their damages did not arise from the equipment’s use. 

 The trial court granted the City’s plea to the jurisdiction and dismissed the 

Greens’ claims with prejudice. The Greens filed a motion for new trial which was 

denied by a visiting judge. This appeal followed. 

Analysis 

 Our opinion in Dallas, Garland is at the center of this appeal. The Greens 

concede the decision is “an impediment to their recovery.” In two issues they argue 
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together, the Greens contend the trial court erred in granting the City’s plea and argue 

Dallas, Garland was wrongly decided. We review the trial court’s ruling de novo. 

Paxton v. Simmons, 640 S.W.3d 588, 598 (Tex. App.—Dallas 2022, no pet.). 

 In Dallas, Garland, a Hunt County road-maintenance crew performed work 

on a county road one morning. 195 S.W.3d at 819.1

 The road intersected Dallas, 

Garland & Northeastern Railroad’s tracks. The crew used motorized equipment to 

fill in thinning areas of the road with surface rock and left four inches of road-base 

material on the Railroad’s tracks. Id. Later that day, the Railroad’s train derailed 

when it encountered the material. Id. The Railroad sued the County alleging a claim 

for negligence for damages arising from the use of a motor vehicle under the Act. 

Id. at 822. The trial court denied the County’s plea to the jurisdiction. On appeal, 

this Court determined that damages caused by the derailment were not within the 

Act’s waiver of immunity because motor-driven equipment did no more than furnish 

the condition that made the injury possible. Id. at 823. But because the Railroad’s 

pleadings were broad enough to include a claim for damages actually caused by the 

use of the motor-driven equipment, including damages to rails or the crossing, we 

affirmed the denial of the plea “insofar as the Railroad alleges property damage that 

arises from the County’s operation or use of a motor-driven vehicle or motor-driven 

1

 The 2006 Dallas, Garland decision was our second opinion in that case. A few factual details 

referenced here are from our first opinion. See Hunt Cnty. v. Dallas, Garland & Ne. R.R., No. 05-03-01587-

CV, 2004 WL 1178609 (Tex. App.—Dallas May 28, 2004, no pet.) (mem. op.). 
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equipment.” Id. at 819. On remand, the trial court granted summary judgment for 

Hunt County on the Railroad’s negligence claim. Id. at 820. 

On appeal a second time, the Railroad argued its damages included damages 

to its tracks that arose from the use of a motor vehicle. We reiterated our previous 

conclusion that the damages actually caused by the derailment were not within the 

Act’s waiver of immunity. Id. at 823. We upheld the summary judgment because 

the evidence showed the damage to the tracks was caused by the derailment, not 

directly by the vehicles while placing the road-base material on the tracks. Id. In 

reaching this decision, we relied on the following language from the Texas Supreme 

Court: 

We have consistently required a nexus between the operation or use of 

the motor-driven vehicle or equipment and a plaintiff’s injuries. This 

nexus requires more than mere involvement of property. Rather, “the 

[vehicle]’s use must have actually caused the injury.” Thus, as with the 

condition or use of property, the operation or use of a motor vehicle 

“does not cause injury if it does no more than furnish the condition that 

makes the injury possible.” 

Id. at 822–23 (citing Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 

(Tex. 2003) (internal citations omitted)). 

 This case is materially indistinguishable from Dallas, Garland, and the 

Greens do not argue otherwise. In Dallas, Garland, the motorized equipment 

created the condition, road-base material on railroad tracks, that led to the derailment 

and the Railroad’s damages. Id. Likewise, in this case, the Greens’ damages were 

not caused directly by the motorized equipment. The City’s equipment created the 
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condition, the dirt dam, that led to the flooding of the Greens’ property and the 

Greens’ damages. This is insufficient to create the required nexus between the City’s 

use of motor-driven equipment and the Greens’ damages. 

 The Greens argue Dallas, Garland was wrongly decided. They contend the 

decision engrafted extra-statutory requirements into the text of section 101.021. We, 

as a three-judge panel of this Court, are bound by the concept of horizontal stare

decisis to follow materially indistinguishable decisions of earlier panels of this Court 

unless a higher authority has superseded that prior decision. Mitschke v. Borromeo, 

645 S.W.3d 251, 256 (Tex. 2022); see Chase Home Fin., L.L.C. v. Cal W. 

Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, 

no pet.). Higher authority includes a decision from the United States Supreme Court, 

the Texas Supreme Court, the Texas Court of Criminal Appeals, an en banc decision 

of this Court, or an applicable legislative or constitutional provision. Mitschke, 645 

S.W.3d at 256–57. 

 The Greens make one argument that could be considered a claim that a higher 

authority has superseded our decision in Dallas, Garland. They assert the 2019 

Texas Supreme Court case of PHI, Inc. v. Texas Juvenile Justice Department, 593 

S.W.3d 296 (Tex. 2019), mandates a different result in this case. In PHI, an 

employee of the Texas Juvenile Justice Department, a State agency, drove a van 

owned by the State to a hospital. Id. at 300. After dropping off passengers, the 

employee parked the van on an incline and exited the vehicle without setting the 
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emergency brake. Id. As he walked away, the van began rolling and crashed into a 

medical transport helicopter owned by PHI that was on the ground preparing for 

takeoff. Id. PHI sued the Department, alleging the Department was negligent in 

failing to engage the emergency brake. The parties’ principal dispute was whether 

the damage to the helicopter arose from operation or use of the van. Id. at 302. The 

trial court denied the Department’s combined plea to the jurisdiction and motion for 

summary judgment, and the court of appeals agreed the Act’s waiver of immunity 

for operation or use of a motor vehicle did not apply because the vehicle was not in 

active operation or use at the time of the collision. Id. at 301. The supreme court 

reversed and remanded to the trial court because “ensuring that your car will not roll 

away after you leave it, including engagement of the emergency brake when 

necessary, is an integral part of the ‘operation or use’ of a vehicle.” Id. at 303–04. 

PHI’s allegation that the State employee negligently performed this essential and 

final aspect of driving the van fit within the parameters of section 101.021(1)(A). Id.

at 304. 

 The Greens argue that like the trial judge in PHI, the trial court mistakenly 

required active operation of the motor-driven equipment. They assert PHI 

demonstrates that “just because damage occurs after the City’s equipment is no 

longer in use does not mean that the damage didn’t arise from its use.” PHI is 

distinguishable and, if anything, supports the trial court’s ruling in this case. 

Significantly, in PHI, the government vehicle actually collided with the plaintiff’s 
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property. While the driver of the van was not in it when the collision occurred, he 

had just exited the vehicle and PHI alleged his use or operation of the van actually 

caused the injury. The PHI opinion reiterated that any purported statutory waiver of 

immunity should be strictly construed in favor of retention of immunity. Id. at 303. 

Nothing in PHI changes the fact that in this case the City’s use of motorized 

equipment did no more than furnish the condition that led to the Greens’ damages. 

The Greens have not demonstrated a waiver of governmental immunity. We 

overrule their two issues in this appeal. 

 We affirm the trial court’s order granting the plea to the jurisdiction. 

230740F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CARLOS GREEN AND PAMELA 

GREEN, Appellants 

No. 05-23-00740-CV V. 

CITY OF DESOTO, Appellee 

 On Appeal from the 162nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-16541. 

Opinion delivered by Justice 

Reichek. Justices Carlyle and Miskel 

participating. 

 In accordance with this Court’s opinion of this date, the trial court’s order 

granting the City of DeSoto’s plea to the jurisdiction is AFFIRMED. 

 It is ORDERED that appellee the City of DeSoto recover its costs of this 

appeal from appellants Carlos Green and Pamela Green. 

Judgment entered this 9th day of July 2024.