Opinion issued April 24, 2014

In The

Court of Appeals 

For The

First District of Texas 

NO. 01-13-00600-CV

THE CITY OF HOUSTON, Appellant

V.

STEPHON LAMAR DAVIS, Appellee

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 45977

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court’s denial of the City of 

Houston’s plea to the jurisdiction. Appellee Stephon Lamar Davis was bitten by

Houston Police Department Officer R.J. Briones’s K-9 police dog after Briones
2

pulled over a car that had repeatedly tried to run Davis’s SUV off the road. The 

City argues that the trial court erred in denying the plea because Briones and the 

City are immune and because the “emergency exception” to the Texas Tort Claims 

Act applies. We agree, and we therefore reverse and render judgment dismissing 

the suit for lack of jurisdiction.

Background

Officer Briones pulled over a red car after Davis’s wife told him that the car 

was trying to run Davis’s SUV off the road. After Briones stopped the red car, 

Davis parked his SUV nearby and got out of it. He was bitten by Briones’s K-9 

police dog, Berro, who exited Briones’s patrol car through the open driver’s side 

door. 

Davis sued the City, claiming that Briones negligently left open the door to 

the patrol car. He alleged that he would not have been injured had the patrol car 

been equipped with a fence between the front and back seats, and that Officer 

Briones negligently failed to secure Berro so that he would not escape the car. 

The City’s first plea to the jurisdiction

The City filed a plea to the jurisdiction, arguing that Davis’s pleadings did 

not allege an injury for which its immunity was waived. Davis responded that the 

City’s immunity was waived, among other reasons, because Officer Briones 

negligently allowed a City of Houston dog to attack him. The City introduced no 
3

evidence in support of the plea to the jurisdiction, and the trial court denied the 

plea. We affirmed because the pleadings alleged the negligent use of a dog, which 

is personal property, bringing it within the scope of the Texas Tort Claims Act. 

See City of Houston v. Davis, 294 S.W.3d 609, 613 (Tex. App.—Houston [1st 

Dist.] 2009, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) 

(West 2011) (governmental unit is liable for “personal injury and death so caused 

by a condition or use of tangible personal or real property if the governmental unit 

would, were it a private person, be liable to the claimant according to Texas law”). 

The City’s second plea to the jurisdiction

The City filed a second plea to the jurisdiction which it supported with 

evidence. The City argued that the Texas Tort Claims Act did not waive the City’s 

immunity because the “emergency exception” applies. The “emergency 

exception” provides that there is no waiver of immunity when a governmental 

employee is responding to an emergency call or reacting to an emergency situation. 

TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) (West 2011). The City 

contended that the evidence conclusively demonstrated that Briones was reacting 

to an emergency situation. Further, the City argued that even if the “emergency 

exception” did not apply, the Act waives immunity for tort suits only where the 

governmental employee would not be protected by official immunity, and the 
4

evidence conclusively proved that Briones would be protected by official 

immunity. 

The evidence submitted with the second plea to the jurisdiction 

demonstrated that on the night of the incident, at about 9:30 p.m., Officer Briones 

was driving his marked HPD K-9 patrol car from his home in Alvin to his assigned 

office in Houston. His canine partner, Berro, was also in the car because Berro 

lived at Briones’s home as required by HPD policy. While traveling westbound on 

Highway 6 through the City of Manvel in Brazoria County, a speeding red car with 

its high beams on approached and passed Briones. Soon after, Davis pulled his 

white SUV up next to Officer Briones, and Davis’s wife, who was in the passenger 

seat, motioned for Briones to roll down his window. When he did so, she told him 

that the red car had tried to run them off the road several times.

In response, Officer Briones activated his car’s emergency lights and siren 

and pursued the red car. The red car pulled over and stopped in the center turning 

lane of the highway. Davis also pulled over and stopped. Briones contacted 

dispatch to report his location and the situation. 

According to Officer Briones’s deposition testimony, he was still in his car 

when he noticed a tall man approaching, yelling, and waving his arms. Briones did 

not know which car the man had come from, and he testified that he repeatedly 

told the man to “get back,” but the man continued to approach. Because the man 
5

was not complying with his commands, Briones exited his car and again told the 

man to “get back.” When he exited his car, Briones left the door open. When the 

man continued to move closer, still yelling, Berro exited the car and bit the man on 

his left side. Briones called Berro off and then learned that the man was Davis, the 

driver of the white SUV.

In an affidavit filed in support of his response to the second plea to the 

jurisdiction, Davis acknowledged that the red car was trying to run his SUV off the 

road, and that his wife flagged down Officer Briones and told him that the red car 

was intentionally trying to run them off the road. However, Davis averred in the 

affidavit that Briones exited his car before Davis exited his SUV, and that while he 

walked towards the red car to talk to Officer Briones, Berro jumped out of the 

patrol car and bit him twice. Davis did not deny that Briones told him to get back 

or that he was yelling as he approached Briones. Davis also contended that he 

needed only to allege the use of a government motor vehicle in order for immunity 

to be waived. He further argued that the emergency exception did not apply 

because there was a genuine issue of material fact regarding whether the situation 

was an emergency. Finally, Davis argued that, because the dog bite resulted from 

Officer Briones’s ministerial actions, Briones was not protected by official 

immunity.
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The trial court denied the City’s second plea to the jurisdiction, and this 

appeal followed.

Discussion

The City contends that the trial court erred in denying its plea to the 

jurisdiction because (1) the “emergency exception” to the Texas Tort Claims Act 

applies and, (2) even if the “emergency exception” does not apply, the City retains 

its immunity under sections 101.021(1)(B) and 101.021(2) of the Act because 

Officer Briones is protected by official immunity. 

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter 

jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 

(Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). The existence of subject-matter 

jurisdiction is a question of law that we review de novo. State Dep’t of Hwys. & 

Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 

681. 

When, as here, a plea to the jurisdiction “challenges the existence of 

jurisdictional facts, we consider relevant evidence submitted by the parties when 

necessary to resolve the jurisdictional issues raised, even where those facts may 

implicate the merits of the cause of action.” City of Waco v. Kirwan, 298 S.W.3d
7

618, 622 (Tex. 2009) (internal quotation omitted). The plea to the jurisdiction 

standard mirrors that of a traditional motion for summary judgment. See Tex. 

Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When 

reviewing the evidence, we must take as true all evidence in favor of the 

nonmovant and “indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor.” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d. 

at 228). If the evidence creates a fact question regarding jurisdiction, the trial court 

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the 

fact finder; however, if the relevant evidence is undisputed or fails to raise a fact 

question on the jurisdictional issue, the trial court rules on the plea as a matter of 

law. Kamel, 333 S.W.3d at 681; Miranda, 133 S.W.3d at 227–28. 
8

B. Applicable Law

Under the doctrine of governmental immunity, political subdivisions of the 

State, including municipalities, cannot be held liable for the actions of their 

employees unless a constitutional provision or statute waives that immunity. See, 

e.g., City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); City of 

Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The Texas Tort Claims 

Act waives governmental immunity in limited circumstances. See Tex. Dep’t of 

Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Section 101.021 of 

the Act 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

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

according to Texas law; and

(2) personal injury and death so caused by a condition or use of 

tangible personal or real property if the governmental unit would, 

were it a private person, be liable to the claimant according to Texas 

law.

TEX. CIV. PRAC. & REM. CODE ANN. §101.021. 
9

The Act also enumerates exceptions to the waiver of immunity, including 

the “emergency exception” in section 101.055(2), which provides that the Act 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 ANN. § 101.055(2). “When the exception applies, 

the [Act] is unavailable as a waiver of immunity even if the facts otherwise fall 

within a waiver found in section 101.021.” Kaufman Cnty. v. Leggett, 396 S.W.3d. 

24, 29 (Tex. App.—Dallas 2012, pet. denied) (citing City of San Antonio v. 

Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006)). The Act does not define the 

terms “emergency call” or “emergency situation,” but the Texas Supreme Court 

has interpreted the term “emergency” broadly. See Hartman, 201 S.W.3d at 673

(“[B]ecause the Act creates governmental liability where it would not otherwise 

exist, we cannot construe section 101.055(2) to exclude emergencies the 

Legislature might have intended to include.”).
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C. Did the City conclusively prove that the “emergency exception” to the 

Texas Tort Claims Act applies?

1. Was Officer Briones responding to an emergency call or reacting to 

an emergency situation?

In its plea to the jurisdiction, the City contended that Officer Briones was 

responding to an emergency call or reacting to an emergency situation when he 

pulled over the red car after being told that it had tried to run Davis’s car off of the 

road several times. In his affidavit, Officer Briones averred that when Davis’s wife

told him that the red car had tried to run them off the road several times, he 

determined that an emergency situation existed and that he should pull over the red 

car. Davis acknowledges that Briones pulled over the red car because his wife told 

Briones that the red car tried to run them off the road.

We agree that the City conclusively proved that Officer Briones was reacting 

to an emergency situation when he stopped the red car. Although the statute does 

not define what constitutes an “emergency,” the Texas Supreme Court has said that 

“we cannot construe section 101.055(2) to exclude emergencies the Legislature 

might have intended to include.” Id. at 672–73 (rejecting appellate court’s holding 

that “emergency” does not include “what might be colloquially referred to as an 

‘emergency’”); see Tooke v. City of Mexia, 197 S.W.3d 325, 333 (Tex. 2006)

(waiver of immunity must be clear and unambiguous); Wichita Falls State Hosp. v. 

Taylor, 106 S.W.3d 692, 697 (Tex. 2003) (generally, ambiguity must be resolved 
11

in favor of retaining immunity). Thus, the term “emergency” has been construed 

broadly. See, e.g., Hartman, 201 S.W.3d at 672 (city was reacting to an 

emergency where, among other things, there was imminent threat of severe injury, 

loss of life or property due to city-wide flooding); Pakdimounivong v. City of 

Arlington, 219 S.W.3d 401, 410–11 (Tex. App.—Fort Worth 2006, pet. denied) 

(officers were reacting to emergency situation where suspect in back of patrol car 

tried to escape through window while being transported to jail); see also Jefferson 

Cnty. v. Hudson, No. 09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—

Beaumont Aug. 25, 2011, no pet.) (mem. op.) (“emergency” refers to unforeseen 

circumstances requiring immediate action); City of El Paso v. Segura, No. 08-02-

00240-CV, 2003 WL 1090661, at *3 (Tex. App.—El Paso March 13, 2003, pet. 

denied) (mem. op.) (plaintiff conceded that traffic accident in construction area, to 

which officers were responding when they moved large construction sign later 

struck by plaintiff, was emergency situation). 

Here, it is undisputed that Davis’s wife flagged down Officer Briones to tell 

him that the red car had tried to run Davis’s SUV off of the road. Thus, Davis’s 

own behavior regarding the red car indicated that it was a dangerous situation 

“requiring immediate action.” See Hudson, 2011 WL 3925724, at *3. Officer 

Briones averred, and Davis does not dispute, that Briones would not have pulled 

over the red car “except for Ms. Davis asking [him] for help stating that the red car 
12

had tried to run them off the road,” and that he would not have pulled the red car 

over unless he thought that an “immediate response” was required. The 

information given to Officer Briones by Davis’s wife indicated that an immediate 

response was necessary, because the red car was endangering the Davis SUV and 

could also pose an immediate danger to other drivers. 

Davis contends that there is a genuine issue of material fact regarding 

whether an emergency situation existed for two reasons: (1) Briones did not use the 

term “emergency” during his deposition, but instead waited five years to mention it 

for the first time in his affidavit that supported the City’s second plea to the 

jurisdiction, and (2) Briones’s report following the incident stated that the offense 

was a “Traffic Violations/Moving (Class C).” Davis argues that because the 

“traffic stop in this case ended with the officer issuing traffic citations and no 

arrests were made,” it was not an emergency situation. 

However, regardless of whether Officer Briones used the term “emergency,” 

or whether the situation ultimately led to the arrest of any person, Davis does not 

dispute that Briones pulled over the red car because his wife told Briones that the 

red car was trying to run them off the road. The Act refers to the “action of an 

employee while . . . reacting to an emergency situation.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2). Davis agrees that Briones was reacting to his 

wife’s report that the red car had intentionally tried to run the Davis SUV off of the 
13

road, and that this was the only reason that Briones conducted the stop. The fact 

that no one was arrested, or that Briones did not specifically use the term 

“emergency” during his deposition, does not alter the undisputed facts regarding 

the reason Briones stopped the red car and the information to which he was 

reacting. See, e.g., Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex. 

App.—Houston [14th Dist.] 2008, no pet.) (where officer did not learn that 

emergency situation did not exist until later, but was responding to mis-coded 

emergency call, no fact issue was raised regarding whether emergency exception 

applied). Accordingly, we conclude that Briones was reacting to an emergency 

situation and that Davis has not raised a fact issue regarding whether Briones was 

reacting to an emergency situation. See id. (burden is on the plaintiff to produce 

sufficient evidence to raise a fact issue concerning whether government employee 

was responding to an emergency); see also Kamel, 333 S.W.3d at 681 (if relevant 

evidence is undisputed or fails to raise a fact question on jurisdictional issue, the 

trial court rules on the plea as a matter of law). 

2. Did Officer Briones comply with the laws and ordinances applicable 

to emergency action, or, if no such laws existed, not act with 

conscious indifference or reckless disregard for the safety of others?

The emergency exception applies only if the employee’s 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 
14

indifference or reckless disregard for the safety of others.” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2). In its plea to the jurisdiction, the City contended 

Officer Briones complied with the applicable law in this circumstance, and that the 

evidence shows that he did not act with conscious indifference or reckless 

disregard for the safety of others. 

The City contended that the “applicable law” here was Texas Transportation 

Code section 546.005, which provides the duty of care for an operator of an 

authorized emergency vehicle. See TEX. TRANSP. CODE ANN. § 546.005 (West 

2011). That section provides that the operator of an authorized emergency vehicle 

is not relieved from (1) the duty to operate the vehicle with appropriate regard for 

the safety of all persons; or (2) the consequences of reckless disregard for the 

safety of others. Id. The City noted that the Texas Supreme Court has held that 

“although this provision imposes a duty to drive with due regard for others by 

avoiding negligent behavior, it only imposes liability for reckless conduct.” Garza 

v. City of Houston, 2007 WL 2089287, at *2 n.4 (Tex. App.—Houston [14th Dist.] 

July 24, 2007, no pet.) (mem. op.) (citing City of Amarillo v. Martin, 971 S.W.2d 

426, 431 (Tex. 1998)). The “reckless disregard” test “requires a showing of more 

than a momentary judgment lapse.” City of Pasadena v. Kuhn, 260 S.W.3d 93, 99

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (quoting Martin, 971 S.W.2d at

429–30). To establish recklessness in this context, the employee must have 
15

committed an act that he knew or should have known posed a high degree of risk 

of serious injury. Id.; Green v. Alford, 274 S.W.3d 5, 22–23 (Tex. App.—Houston 

[14th Dist.] 2008, pet. denied).

Here, the parties dispute whether Officer Briones’s decision to leave the 

door to his patrol car open was an intentional decision, and whether Berro’s actions 

were intended by Officer Briones or were an accident. However, even if leaving 

the car door open falls within the scope of “operation” of a vehicle, indulging 

every reasonable inference in Davis’s favor, the evidence at most demonstrates that 

Officer Briones had a “momentary judgment lapse” in leaving the patrol car door 

open; it does not raise a fact issue regarding whether Briones, in leaving the car 

door open, committed an act that he knew or should have known posed a high 

degree of risk of serious injury. See Kuhn, 260 S.W.3d at 99. Officer Briones 

testified that, after completing his training, Berro had never bitten anyone other 

than in an appropriate situation where he was performing as trained. There was no 

controverting evidence showing that Officer Briones knew or should have known 

that leaving his patrol car door open posed a high degree of risk of serious injury 

from Berro.

Likewise, even in the absence of an applicable law or ordinance, the 

evidence fails to raise a fact issue regarding whether Briones acted with conscious 

indifference or reckless disregard in leaving the patrol car door open. The terms 
16

“conscious indifference” and “reckless disregard” are not defined, and therefore we 

give them their ordinary meaning. TEX. GOV’T CODE ANN. § 312.002 (West

2013); Hartman, 201 S.W.3d at 672 n.19; Kuhn, 260 S.W.3d at 99; 

Pakdimounivong, 219 S.W.3d at 410–11. The Texas Supreme Court has said that 

these terms “require proof that a party knew the relevant facts but did not care 

about the result.” Kuhn, 260 S.W.3d at 99 (quoting Hartman, 201 S.W.3d at 672 

n.19). Here, indulging every reasonable inference in Davis’s favor, no evidence 

shows that Officer Briones did not care what happened to Davis. See 

Pakdimounivong, 219 S.W.3d at 410–12 (holding that officers’ actions were not 

taken with conscious indifference or reckless disregard for safety of deceased when 

no evidence showed that officers did not care what happened to deceased).

Davis contends that the “applicable law” in this circumstance is article 14.03 

of the Code of Criminal Procedure and that Briones failed to comply with it. 

Article 14.03(g)(2) provides:

A peace officer listed in Subdivision (3), Article 2.12, who is licensed 

under Chapter 1701, Occupations Code, and is outside of the officer’s 

jurisdiction may arrest without a warrant a person who commits any 

offense within the officer’s presence or view, except that an officer 

described in this subdivision who is outside of that officer’s 

jurisdiction may arrest a person for a violation of Subtitle C, Title 7, 

Transportation Code, only if the offense is committed in the county or 

counties in which the municipality employing the peace officer is 

located.
17

TEX. CODE CRIM. PROC. ANN. art. 14.03(g)(2) (West Supp. 2013). Davis contends 

that this case involved a mere traffic stop involving a violation of Subtitle C, Title 

7, Transportation Code. Accordingly, he argues that Briones violated applicable 

laws because he stopped the red car outside of his jurisdiction, Harris County. We 

disagree. 

Davis admits that no arrest was made as a result of the incident, and he does 

not dispute that Officer Briones stopped the red car because Davis’s wife told him 

that the red car was intentionally trying to run their SUV off of the road. Article 

14.03(g), by its terms, does not prevent an officer from investigating or rendering 

aid when alerted to a dangerous situation by a member of the public. Thus, Davis

has not raised a fact issue regarding whether Officer Briones failed to comply with 

the law applicable to reacting to a report that a car has attempted to run a motorist 

off of the road.

1

We sustain the City’s second issue. Because we hold that the trial court 

erred in denying the City’s plea to the jurisdiction on this basis, we need not reach 

the City’s first issue.

 1 Davis also contends that subsection (g)(1), a provision similar to subsection (g)(2), 

but applicable to sheriffs, constables, their deputies, and investigators of district 

and county attorneys’ offices, applies here. See TEX. CODE CRIM. PROC. ANN.

arts. 2.12(1), (2), (5) (West Supp. 2013), 14.03(g)(1) (West Supp. 2013). 

Assuming that is true, Davis’s argument that Briones violated (g)(1) would fail for 

the reasons discussed above.
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Conclusion

We reverse the trial court’s order denying the City’s plea to the jurisdiction 

and render judgment granting the City’s plea to the jurisdiction and dismissing 

Davis’s claims against the City with prejudice.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.