Affirmed and Majority and Concurring Opinions filed June 27, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00220-CV

CITY OF HOUSTON, Appellant

V.

DELISA BOODOOSINGH, Appellee

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2023-02403

MAJORITY OPINION

Appellant the City of Houston brings this interlocutory appeal from the trial 

court’s denial of its Rule 91a motion to dismiss. Tex. Civ. Prac. & Rem. Code § 

51.014(a)(8) (authorizing interlocutory appeal from order that grants or denies a 

plea to the jurisdiction by a governmental); see Tex. R. Civ. P. 91a (authorizing 

dismissal of a cause of action that has no basis in law or fact). We affirm.
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Background

Appellee Delisa Boodoosingh alleged that she was sitting in her stopped 

vehicle when a Houston fire truck, driven by Houston employee Kevin Lamont 

Goodie, struck the driver’s side of her vehicle. Boodoosingh alleged that the crash 

was caused by Goodie’s failure to maintain the speed and direction of the cityowned vehicle. Boodoosingh further alleged that she suffered personal injuries 

and property damage in the crash. She filed suit against the city. In her original 

petition, Boodoosingh alleged that all conditions precedent to her “claims for relief 

have been performed or have occurred.” 

Houston filed an answer in which it asserted that Boodoosingh’s claims were 

barred due to a lack of the notice required by the Texas Tort Claims Act. See Tex. 

Civ. Prac. & Rem. Code § 101.101 (establishing notice requirement); Tex. Gov’t 

Code § 311.034 (providing that notice requirements are jurisdictional). Houston 

also asserted that the “emergency exception” affirmative defense found in Sections 

101.055 and 101.062 of the Civil Practices and Remedies Code applied to preserve 

Houston’s governmental immunity. See Tex. Civ. Prac. & Rem. Code §§ 101.055, 

101.062. Houston also filed a Rule 91a motion to dismiss Boodoosingh’s lawsuit

asserting the same grounds. 

Subsequently Boodoosingh filed a response to Houston’s 91a motion as well 

as an amended petition. In her amended petition, Boodoosingh stated that 

“defendant, City of Houston, alleges that Kevin Goodie was operating a vehicle 

while responding to an emergency, and that as such, the City of Houston and 

Kevin Goodie are exempt from liability.” Finally, Boodoosingh alleged that 

Houston had actual and/or constructive notice of her claims. 

The trial court denied Houston’s Rule 91a motion to dismiss and this 

interlocutory appeal followed. 
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ANALYSIS

In two issues Houston argues that the trial court erred when it denied its 

Rule 91a motion.1 We address these issues together.

I. Standard of review and applicable law

If a cause of action has no basis in law or fact, a party may move for 

dismissal under Rule 91a. Tex. R. Civ. P. 91a; see also In re Farmers Tex. Cnty. 

Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021). “A motion to dismiss . . . must 

state specifically the reasons the cause of action has no basis in law, no basis in 

fact, or both.” Tex. R. Civ. P. 91a.2. “A cause of action 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. A cause of 

action has no basis in fact if no reasonable person could believe the facts pleaded. 

Id. We review whether a cause of action has any basis in law de novo. San 

Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021). We accept as 

true the factual allegations in the pleadings and liberally construe the pleadings in 

favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 

799, 808 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If needed, the trial 

court may draw reasonable inferences from the factual allegations to determine if 

the cause of action has any basis in law or fact. Vasquez v. Legend Nat. Gas, LP, 

1 We have jurisdiction over this interlocutory appeal because Rule 91a is an appropriate

procedural vehicle to assert that a trial court does not have subject-matter jurisdiction because the 

defendant is a governmental unit that has not waived its governmental immunity. See City of 

Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016) (per curiam) (“To determine whether 

dismissal under Rule 91a is required in this case, we thus consider whether the pleadings, 

liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under 

the Tort Claims Act.”); see also San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 621, 628–

29 (Tex. 2021(addressing merits of appeal from trial court’s denial of governmental entity’s Rule 

91a motion asserting governmental immunity). The motion must be based solely on the pleaded 

facts. See Sanchez, 494 S.W.3d at 725.
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492 S.W.3d 448, 450 (Tex. App.—San Antonio 2016, pet. denied). A court may 

not consider evidence and must decide the motion “based solely on the pleading of 

the cause of action.” Tex. R. Civ. P. 91a.6; Sanchez, 494 S.W.3d at 724. 

Additionally, in deciding a Rule 91a motion to dismiss, “a court may 

consider the defendant’s pleadings if doing so is necessary to make the legal 

determination of whether an affirmative defense is properly before the court.” 

Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 

656 (Tex. 2020). “Rule 91a permits motions to dismiss based on affirmative 

defenses “if the [claimant’s] allegations, taken as true, together with inferences 

reasonably drawn from them, do not entitle the claimant to the relief sought.’” Id.

(quoting Tex. R. Civ. P. 91a.6). “Of course, some affirmative defenses will not be 

conclusively established by the facts in a plaintiff’s petition. Because Rule 91a 

does not allow consideration of evidence, such defenses are not a proper basis for a 

motion to dismiss.” Id.

Governmental units are immune from suit unless immunity is waived by 

state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). If a 

governmental unit has immunity from suit, a trial court lacks subject matter 

jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). Houston, 

as a municipality and political subdivision of the State, cannot be vicariously liable 

for an employee’s acts unless its governmental immunity has been waived. City of 

Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.). Under the facts of this case, possible waiver of the City’s immunity from 

suit and liability is found in section 101.021 of the Texas Tort Claims Act (the 

Act), which provides in relevant part:

A governmental unit in the state is liable for ... 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 
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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

(B) the employee would be personally liable to the claimant according 

to Texas law[.]

Tex. Civ. Prac. & Rem. Code § 101.021(1).

II. The trial court did not err when it denied Houston’s Rule 91a motion.

We turn first to Houston’s contention that Boodoosingh did not provide 

notice of her claim to Houston. Houston misapprehends the standard of review. 

Houston relies on evidence, specifically the accident report, to argue that it did not 

have actual notice of Boodoosingh’s claim. For example, Houston concludes its 

first issue by asserting that Boodoosingh “provided no evidence of Houston’s 

actual notice of her claims.” Evidence, however, may not be used to resolve a 

Rule 91a motion. Tex. R. Civ. P. 91a.6; Sanchez, 494 S.W.3d at 724. Instead, we 

look only to the plaintiff’s pleadings. Here, Boodoosingh alleged that Houston had 

actual notice of her claim. At this stage, we must accept the truth of this factual 

assertion. HMT Tank Serv., 565 S.W.3d at 808. We therefore hold that the trial 

court did not err when it denied Houston’s Rule 91a motion based on a lack of 

notice.

In its second issue, Houston argues that the trial court erred when it denied 

its Rule 91a motion to dismiss because the emergency-exception affirmative 

defense applies. Once again, Houston misapprehends the standard of review 

because Houston asserts that Boodoosingh “failed to satisfy her burden to plead, 

present evidence, and cite authority showing that the emergency exception clearly 

and unequivocally does not apply.” In support of its argument, Houston cites City 

of Houston v. Maspero, a plea to the jurisdiction case. 640 S.W.3d 523, 529 (Tex. 
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2022). Because Maspero arises from the denial of a plea to the jurisdiction, in 

which evidence may be considered, it does not control the outcome here. See Tex. 

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (stating 

that a defendant’s plea to the jurisdiction may challenge either the plaintiff’s 

pleadings or the existence of jurisdictional facts). While a Rule 91a motion to 

dismiss may be based on the assertion of an affirmative defense, such motion may 

only be granted if the plaintiff’s pleadings conclusively establish the affirmative 

defense. See Bethel, 595 S.W.3d at 656 (“Of course, some affirmative defenses 

will not be conclusively established by the facts in a plaintiff’s petition. Because 

Rule 91a does not allow consideration of evidence, such defenses are not a proper 

basis for a motion to dismiss.”). Having reviewed Boodoosingh’s pleadings, 

summarized above, we conclude that they do not conclusively establish the 

emergency-exception affirmative defense. Therefore, the trial court did not err 

when it denied Houston’s Rule 91a motion to dismiss based on the emergencyexception affirmative defense.

Having rejected both arguments Houston raised on appeal, we overrule its 

issues on appeal.

CONCLUSION

Having overruled Houston’s issues on appeal, we affirm the trial court’s 

order.

/s/ Jerry Zimmerer

Justice 

 

Panel consists of Justices Bourliot, Zimmerer, and Spain (Spain, J., concurring).