Opinion issued July 30, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-23-00794-CV

———————————

CITY OF HOUSTON, Appellant

V.

CYNTHIA RIOS, INDIVIDUALLY AND A/N/F OF A.R., V.R., AND R.R., 

MINORS, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Case No. 2023-05981

MEMORANDUM OPINION

In this interlocutory appeal,1appellant, City of Houston (the “City”), 

challenges the trial court’s order denying its summary-judgment motion filed in the 

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8); see also Thomas v. Long, 

207 S.W.3d 334, 338–40 (Tex. 2006) (summary-judgment motion challenging trial 
2

suit of appellee, Cynthia Rios, individually and as next friend of A.R., V.R., and 

R.R., minors, against the City for negligence. In its sole issue, the City contends that 

the trial court lacks subject-matter jurisdiction over Rios’s suit.

We affirm.

Background

In her petition, Rios alleged that on August 24, 2022, she was involved in a

car collision near the 5000 block of Telephone Road in Harris County, Texas. 

According to Rios, she was driving her sports utility vehicle (“SUV”), in which her 

three minor children, A.R., V.R., and R.R., were passengers, when “[s]uddenly and 

without warning,” Anita George, an employee of the City, “failed to yield the right 

of way while exiting a private driveway,” striking Rios’s SUV. At the time of the 

collision, George was “operating a motor vehicle []in the general course and scope 

of [her] employment for [the City].” As a result of the collision, Rios sustained 

personal injuries.

Rios brought a claim against the City for negligence, alleging that George, a 

City employee, operated the City’s truck in a negligent manner by:

court’s subject-matter jurisdiction is subsumed under Texas Civil Practice and 

Remedies Code section 54.014(a)(8)); City of Houston v. Garza, No. 

01-18-01069-CV, 2019 WL 2932851, at *3 (Tex. App.—Houston [1st Dist.] July 9, 

2019, no pet.) (mem. op.) (“When a governmental unit asserts immunity in a motion 

for summary judgment, a court of appeals has jurisdiction to review an interlocutory 

order denying summary judgment.”).
3

• “Failing to maintain a proper lookout”;

• “Failing to control the distance between her [truck] and surrounding 

vehicles”;

• “Failing to maintain attention”;

• “Failing to timely apply brakes”;

• “Failing to yield the right-of-way”;

• “Failing to control the speed of her [truck]”; and

• “Failing to maneuver [her truck] so as to avoid a collision.”

(Emphasis omitted.) Rios alleged that George was negligent in the general course 

and scope of her duties as an employee of the City and George’s negligence was the 

proximate cause of Rios’s injuries. Rios sought damages.

The City answered, generally denying the allegations in Rios’s petition, and 

asserting, among other things, that it was entitled to governmental immunity and the 

Texas Tort Claims Act (“TTCA”) did not waive immunity for Rios’s claim against 

it.

2

The City then moved for summary judgment on Rios’s negligence claim, 

arguing that it was entitled to judgment as a matter of law because the trial court 

lacked subject-matter jurisdiction over Rios’s suit. The City asserted that it was 

entitled to governmental immunity and Rios could not show that her suit against the 

2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109.
4

City fell under the limited waiver of governmental immunity provided by the 

TTCA.3 According to the City, the TTCA only waived governmental immunity for 

personal injuries proximately caused by the negligence of a City employee, if the 

personal injuries arose from the operation or use of a motor vehicle and the City 

employee was acting in the scope of her employment.4 And in this case, George was 

not acting in the scope of her employment with the City when the collision with 

Rios’s SUV occurred.

5

The City attached to its summary-judgment motion the affidavit of George. 

In her affidavit, George testified that she was previously employed by the City and 

worked as a Field Technician with Transportation & Drainage Operation, a 

department within Houston Public Works. George was employed by the City for six 

years, and her employment ended in October 2022. As to her job duties as a Field 

Technician, George stated that she “operated overlay/paving machines, inputted 

information into a work order, led the work crew, drove vehicles to and from various 

work sites,” and performed “other duties as assigned.” She would “clock[]-in” at 

6:00 a.m. at the Houston Public Works headquarters at 5500 McCarty Road, and 

after clocking-in, she would go to her work site.

3 See id. § 101.021(1).

4 See id.

5 The City also asserted that Rios could not establish that her injuries arose from 

George’s operation or use of a motor vehicle.
5

George further testified that on August 24, 2022, she was driving a City truck, 

and another City employee, George Washington, was a passenger in her truck. She 

and Washington “normally did work projects together[,] and [they] traveled together 

to those work sites.” On the morning of August 24, 2022, George was “on the way 

to a work [site] off of Telephone Road, near Bellfort Street” with Washington. They 

had not yet been to the work site that morning and were on the way to the work site 

when George “stop[ped] for [a] personal break.” According to George, she and 

Washington could not begin work at the work site until “the remainder of the crew 

was present” and asphalt was delivered to the site; she and Washington could not do 

any “work” by themselves at the work site, and they could not “perform job duties 

related to the [work] at [the] Telephone Road/Bellfort” work site while driving there.

As to her “personal break,” George testified that while driving to the work 

site, she told Washington that she needed “to make a personal stop to use the 

restroom.”6 So, “[b]efore 7:00 a.m.,” they stopped at Frank’s Grill restaurant, 

located at 5100 Telephone Road, “to use the restroom.” The stop lasted about ten 

minutes. After getting back in the truck, George exited the parking lot “to try to 

return to [her] route to the work site.”

6 George explained that while working, the City permitted George to take a break at 

9:15 a.m. and 2:15 p.m. But George could also take breaks at any time for personal 

reasons at her discretion. The stop at Frank’s Grill was “not [at] one of the 

City[’s] . . . designated times for a break.”
6

Upon exiting the restaurant’s parking lot, George pulled her truck “into the 

[]/center turn[ing] lane” on Telephone Road and stopped. While stopped, she looked 

“to make sure [that the] southbound Telephone Road traffic was clear.” In the 

meantime, Rios “drove [her SUV] onto Telephone Road,” toward “the []/center 

[turning] lane where [George’s truck] was located” and approached the truck from 

the left. Washington saw Rios and told George that Rios “was not looking in [their] 

direction” and to “watch out.” George’s truck, which was still stopped, was then 

struck by Rios’s SUV.

The City also attached to its summary-judgment motion the affidavit of 

Washington. In his affidavit, Washington testified that he had been an employee of 

the City for twenty years. He was a Semi-Skilled Laborer with 

Transportation & Drainage Operation, a department within Houston Public Works. 

As to his job duties, Washington stated that he “la[id] asphalt in neighborhoods.” 

While asphalt was being poured, Washington controlled traffic, raked and spread 

asphalt, and alerted “people in the neighborhoods what [the workers] were doing and 

how long [they] w[ould] be there pouring asphalt.” Washington would “clock-in” 

at 6:00 a.m. at the Houston Public Works headquarters at 5500 McCarty Road and 

then would leave to go to his work site.

Washington further testified that on August 24, 2022, he was a passenger in a 

City truck driven by George. He and George normally did work projects together,
7

and they traveled together to work sites. That day, he and George were heading to 

a work site located off Telephone Road, near Bellfort Street. They had not been to 

the work site yet that morning, and they were driving to the work site before they 

made a stop for George. Washington explained that work could not begin at the 

work site that day until asphalt was delivered and all the crew was present, including 

him and George. The crew was made up of about twelve to fifteen people. Neither 

he nor George could perform any work at the work site alone. While driving to the 

work site, he and George were unable to perform any job duties related to their 

project at the work site.

According to Washington, while driving to the work site, George told 

Washington that she “needed to make a personal stop to use the restroom.”7 Before 

7:00 a.m., they stopped at Frank’s Grill, located at 5100 Telephone Road, to use the 

restroom. Washington and George were stopped at Frank’s Grill for about ten 

minutes. When they got back in the truck, George exited the parking lot “to try to 

return to [their] route to the work site.”

Washington further explained that when George pulled out of the parking lot, 

she turned into the center turning lane of Telephone Road and stopped “to make sure 

the rest of traffic was clear.” Rios then turned onto Telephone Road and drove 

7 Washington testified that while working, the City permitted George and Washington 

to take breaks at 9:15 a.m. and 2:15 p.m. But Washington and George could also 

take a break at any time for personal reasons at their discretion.
8

“toward the [center turning lane] where [George’s truck] was located,” approaching 

George’s truck from the left side. Washington saw that Rios was not looking in the 

direction of George’s truck, and he told George to “watch out for her.” Rios then 

struck the front bumper of George’s truck, which was still completely stopped.

In her response to the City’s summary-judgment motion, Rios argued that the 

City did not establish that it was entitled to judgment as a matter of law on her 

negligence claim because the TTCA waived the City’s governmental immunity, and 

the trial court did not lack subject-matter jurisdiction. Rios noted that the City, in 

its summary-judgment motion, did not dispute that George was a City employee and 

that George was involved in a collision wherein Rios was injured. Further, the 

undisputed evidence showed that, at the time of the collision, George was driving a 

City-owned truck and performing her work duties during work hours. Rios argued

that “[t]he fact that [George had] purportedly . . . stopped to use the restroom prior 

to the collision [was] of no import” because George was “on the job at the time,” 

“was in the middle of the street,” and was “on her route to” her work site when the 

collision occurred. (Internal quotations omitted.)

Rios attached to her response to the summary-judgment motion a copy of a 

Texas Peace Officer’s Crash Report (the “Crash Report”) related to the collision. It 

stated that George’s truck emerged from a driveway at a business strip center on 

Telephone Road. The truck “cleared” oncoming traffic traveling northbound on 
9

Telephone Road and stopped in the center turning lane on Telephone Road to make 

a left turn. Rios’s SUV was at a stop sign at 7200 Winfree Street. The SUV 

“cleared” southbound traffic on Telephone Road and stopped in the center turning

lane on Telephone Road. George’s truck and Rios’s SUV “met in” the center turning

lane and struck each other. No one was injured. The Crash Report noted that Rios 

had “fail[ed] to yield [the right of way] making a left turn at an intersection” and that 

George had “fail[ed] to yield [the right of way] emerging from a driveway[].” Rios 

also attached copies of four photographs of her SUV and George’s truck after the 

collision. The photographs show both the truck and the SUV with front-end damage.

In its reply to Rios’s response, the City asserted that the TTCA only waived 

the City’s governmental immunity if, at the time of the collision, George was acting 

in the scope of her employment, and in this case, George had “stray[ed] from [her] 

path of duty to perform a personal errand”—taking a restroom break. The City also 

noted that generally, an employee is not considered to be acting in the scope of her 

employment if she is driving to and from work, even if she is driving her employer’s 

car and is on-call. According to the City, George’s duties as a Field Technician for 

the City included “operating the overlay/paving machines, inputting information 

into a work order, leading the work crew, and driving vehicles to and from various 

work sites.” And George was not performing her duties “when she stopped at 

Frank’s Grill to use the restroom.” Further, even though she was “on [her] way to 
10

[the] work site” after using the restroom, her “diversion” from her “duties to use the 

restroom remove[d] [her] from th[e] scope of employment.”8

The trial court denied the City’s summary-judgment motion.

Standard of Review

Subject-matter jurisdiction is essential to a court’s power to decide a case. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Several 

different procedural vehicles may be used to challenge a trial court’s subject-matter 

jurisdiction. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 

(Tex. 2018); Amboree v. Bonton, 575 S.W.3d 38, 42–43 (Tex. App.—Houston [1st 

Dist.] 2019, no pet.). A governmental unit may raise the affirmative defense of 

governmental immunity and challenge the trial court’s jurisdiction through a 

summary-judgment motion. Clark, 544 S.W.3d at 770. We review a trial court’s 

ruling on a summary-judgment motion de novo. See Tex. Mun. Power Agency v. 

Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007); Ben Bolt-Palito 

Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self-Ins. 

Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Jersey Village v. Killough, No. 

01-20-00823-CV, 2021 WL 5903988, at *3 (Tex. App.—Houston [1st Dist.] Dec. 

14, 2021, no pet.) (mem. op.).

8 The City also asserted that Rios had failed to establish that her injuries arose from 

George’s operation and use of a motor vehicle because George’s truck was 

“stopped” in the center turning lane on Telephone Road at the time of the collision.
11

To prevail on a summary-judgment motion, the movant has the burden of 

establishing that it is entitled to judgment as a matter of law and there is no genuine 

issue of material fact. See TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 

339, 341 (Tex. 1995). When a governmental unit, as the movant, raises the 

affirmative defense of governmental immunity and challenges the trial court’s 

subject-matter jurisdiction in a summary-judgment motion, it must establish that it 

is entitled to governmental immunity as a matter of law. See TEX.R.CIV. P. 166a(c);

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) (mem. op.); Oakbend Med. 

Ctr. v. Martinez, 515 S.W.3d 536, 542 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.). Once the governmental unit conclusively establishes its entitlement to 

governmental immunity, the burden shifts to the non-movant to present evidence 

sufficient to create a fact issue on at least one element of either the affirmative 

defense or an exception to that defense. Oakbend, 515 S.W.3d at 542; Zeifman v. 

Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.). If the non-movant 

cannot meet her burden, the suit is barred because of governmental immunity, and 

summary judgment is proper. Oakbend, 515 S.W.3d at 542; see also Shives v. State, 

743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for 

summary judgment may be based on a showing that the cause of action is barred as 

a matter of law by the affirmative defense of governmental immunity.”).
12

Governmental Immunity

In its sole issue, the City argues that the trial court erred in denying its

summary-judgment motion because the trial court lacks subject-matter jurisdiction 

over Rios’s suit. The City asserts that it is entitled to governmental immunity, and 

the TTCA only waives its immunity for personal injuries proximately caused by the 

negligence of a governmental employee acting in the scope of her employment, if 

the injuries arise from the operation or use of a motor-driven vehicle. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021(1). And according to the City, George, the 

governmental employee here, was not acting in the scope of her employment at the 

time of the car collision.

Sovereign immunity and its counterpart, governmental immunity, exist to 

protect the State and its political subdivisions from lawsuits and liability for money 

damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 

2008); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist., 212 S.W.3d at

323–24. Although the terms “sovereign immunity” and “governmental immunity” 

are often used interchangeably, sovereign immunity “extends to various divisions of 

state government, including agencies, boards, hospitals, and universities,” while 

governmental immunity “protects political subdivisions of the State, including 

counties, cities, and school districts.” See Ben Bolt-Palito Blanco Consol. Indep. 

Sch. Dist., 212 S.W.3d at 323–24; see also Odutayo v. City of Houston, No. 
13

01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.] 

Apr. 18, 2013, no pet.) (mem. op.). We interpret statutory waivers of sovereign 

immunity and governmental immunity narrowly, as the Texas Legislature’s intent 

to waive immunity must be clear and unambiguous. See LMV-AL Ventures, LLC v. 

Tex. Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 120 (Tex. App.—Austin 

2017, pet. denied); see also TEX. GOV’T CODE ANN. § 311.034. Without an express 

waiver of sovereign immunity or governmental immunity, courts do not have 

subject-matter jurisdiction over suits against the State or its political subdivisions. 

State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 224–25 (Tex. 2004); see also Harris Cnty. v. S. Cnty. 

Mut. Ins. Co., No. 01-13-00870-CV, 2014 WL 4219472, at *2 (Tex. App.—Houston 

[1st Dist.] Aug. 26, 2014, no pet.) (mem. op.) (“Governmental immunity from suit 

deprives a trial court of subject-matter jurisdiction.”).

The TTCA provides a limited waiver of immunity for certain suits against 

governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109; 

Garcia, 253 S.W.3d at 655; City of Dallas v. Hillis, 308 S.W.3d 526, 530 (Tex. 

App.—Dallas 2010, pet. denied). The City is a governmental unit protected by 

governmental immunity, absent waiver. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.001(3)(A); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 

6788079, at *6 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem. 
14

op.). Relevant here, the TTCA waives a governmental unit’s immunity for personal 

injuries proximately caused by the negligence of a governmental unit’s employee, 

acting in the scope of her employment, if the injuries arise from the operation or use 

of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1);

City of San Antonio v. Riojas, 640 S.W.3d 534, 536 (Tex. 2022); Hinojosa v. Metro. 

Transit Auth. of Harris Cnty., No. 01-17-00824-CV, 2018 WL 4131890, at *2 (Tex. 

App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.); Tex. Dep’t of Pub. 

Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App.—Houston [1st Dist.] 2011, no 

pet.).

Rios has alleged that she sustained personal injuries as a result of the 

negligence of George—a governmental employee acting in the scope of her 

employment with the City—and Rios’s injuries arose from the operation or use of a 

motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The 

City, on the other hand, asserts that George was not acting in the scope of her 

employment at the time Rios was injured.

For purposes of the TTCA, an “[e]mployee” is

a person, including an officer or agent, who is in the paid service of a 

governmental unit by competent authority, but does not include an 

independent contractor, an agent or employee of an independent 

contractor, or a person who performs tasks the details of which the 

governmental unit does not have the legal right to control.
15

See id. § 101.001(2) (internal quotations omitted). And an employee’s “[s]cope of 

employment” means “the performance for a governmental unit of the duties of an 

employee’s office or employment and includes being in or about the performance of 

a task lawfully assigned to an employee by competent authority.” Id. § 101.001(5) 

(internal quotations omitted). “In general, whether a person is acting within the 

scope of h[er] employment depends on whether the general act from which an injury 

arose was in furtherance of the employer’s business and for the accomplishment of 

the objective for which the employee was employed.” Lara v. City of Hempstead, 

No. 01-15-00987-CV, 2016 WL 3964794, at *3 (Tex. App.—Houston [1st Dist.] 

July 21, 2016, pet. denied) (internal quotations omitted).

In car-collision cases, when a vehicle involved in a collision is owned by the 

driver’s employer, a presumption arises that the driver was acting in the course and 

scope of her employment when the collision occurred. Robertson Tank Lines, Inc. 

v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); Carrizales, 2021 WL 3556216, at 

*4; 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.) (mem. op.). But if there 

is evidence that the driver was on a personal errand, or otherwise not in the 

furtherance of her employer’s business, the presumption vanishes. See Carrizales, 

2021 WL 3556216, at *4; Mejia-Rosa v. John Moore Servs., No. 01-17-00955-CV, 

2019 WL 3330972, at *7 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) 
16

(mem. op.); see also Molina, 2018 WL 3977945, at *5; Lara, 2016 WL 3964794, at 

*4 (explaining presumption is only procedural tool and once rebutted, it disappears 

from case). If the employer proffers evidence rebutting the presumption, the burden 

shifts back to the plaintiff to produce other evidence that the driver was acting in the 

scope of her employment at the time of the collision. Robertson Tank Lines, 468 

S.W.2d at 358; Carrizales, 2021 WL 3556216, at *4; Molina, 2018 WL 3977945, at 

*4.

Here, it is undisputed that George, a City employee, was driving a City-owned 

truck when the collision with Rio’s SUV occurred. That evidence raised the 

presumption that George was acting in the scope of her employment at the time of 

the collision. The City, however, asserts that it offered evidence rebutting the 

presumption through the affidavits of George and Washington.

In her affidavit, George testified that on August 24, 2022, she was employed 

as a Field Technician with Transportation & Drainage Operation, a department 

within Houston Public Works. Her job duties as a Field Technician included 

“operat[ing] overlay/paving machines, input[ting] information into a work order, 

le[ading] the work crew, dr[iving] vehicles to and from various work sites,” and

performing “other duties as assigned.” Each day George would “clock[]-in” at 6:00 

a.m. at Houston Public Work headquarters at 5500 McCarty Road and then leave to 

go to her work site.
17

On the morning of August 24, 2022, George was driving a City-owned truck 

to a work site, which was off Telephone Road, near Bellfort Street. Washington was 

a passenger in the truck. George and Washington “normally did work projects 

together[,] and [they] traveled together to those work sites.” They had not been to 

the work site that morning but were on their way to the work site when George 

stopped at Frank’s Grill, located at 5100 Telephone Road, to use the restroom. 

George and Washington were stopped for about ten minutes before they returned to 

the truck. After getting back in the truck, George exited the parking lot “to try to 

return to [her] route to the work site.”

Upon exiting the restaurant’s parking lot, George pulled the truck into the 

center turning lane on Telephone Road and stopped. While stopped, she looked “to 

make sure [that the] southbound Telephone Road traffic was clear.” In the 

meantime, Rios “drove [her SUV] onto Telephone Road” toward the center turning 

lane where George’s truck was stopped. George’s truck was then struck by Rios’s 

SUV.

Washington, in his affidavit, testified that on August 24, 2022, he was 

employed as a Semi-Skilled Laborer with Transportation & Drainage Operation, a 

department within Houston Public Works. Like George, Washington would 

“clock-in” at 6:00 a.m. at Houston Public Works headquarters at 5500 McCarty 

Road before leaving to go to his work site.
18

According to Washington, on the morning of August 24, 2022, he was a 

passenger in a City-owned truck driven by George. He and George did work projects 

together, and they traveled together to work sites. On that day, he and George were 

heading to a work site located off Telephone Road, near Bellfort Street. They had 

not been to the work site yet that morning, and they were driving to the work site 

before they made a stop.

Washington explained that while driving to the work site, George told him 

that she needed to “stop to use the restroom.” So, they stopped at Frank’s Grill, 

located at 5100 Telephone Road, to use the restroom. The stop lasted about ten 

minutes, and when they got back in the truck, George exited the restaurant’s parking 

lot onto Telephone Road.

According to Washington, when George pulled out of the parking lot, she 

turned her truck into the center turning lane and stopped “to make sure the rest of 

traffic was clear.” Rios turned her SUV onto Telephone Road and drove “toward 

the [center turning lane] where [George’s truck] was located.” Rios then struck the 

front bumper of George’s truck, which was completely stopped on Telephone Road.

The City asserts that the above testimony demonstrated that George was on a 

“personal errand” at the time of the collision with Rios’s SUV and this rebutted the 

presumption that George was acting in the scope of her employment at the time of 

the collision. In doing so, the City relies on several cases which have held that 
19

governmental employees are not acting in the scope of their employment when using 

employer-owned vehicles to travel to or from work, lunch, or on a personal errand. 

See, e.g., Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755–57 (Tex. 

2007); Robertson Tank Lines, 468 S.W.2d at 356–61; Carrizales, 2021 WL 

3556216, at *4–6; Molina, 2018 WL 3977945, at *4–6 (City produced evidence 

showing City employee “was in the process of returning to work” and “had not 

resumed [his] duties” when he struck plaintiff while driving City-owned truck; 

evidence showed City employee was merely “in the process of returning to work”).

9

For instance, in Carrizales, a case previously before this Court, it was 

undisputed that a City employee was driving a City-owned sewer jet truck when a 

collision with the plaintiff’s car occurred. See Carrizales, 2021 WL 3556216, at *5. 

As we explained in our opinion, in that case, the plaintiff brought a negligence claim 

against the City after the car collision.10 See id. at *1. The evidence raised a

presumption that the City employee was acting in the course and scope of her 

9 We note that the City cited additional cases in its briefing.

10 In City of Houston v. Carrizales, the City moved for summary judgment on the 

plaintiff’s negligence claim, arguing that it was entitled to judgment as a matter of 

law because the trial court lacked subject-matter jurisdiction over the plaintiff’s suit. 

No. 01-20-00699-CV, 2021 WL 3556216, at *1–2 (Tex. App.—Houston [1st Dist.] 

Aug. 12, 2021, pet. denied) (mem. op.). The City asserted that it was entitled to 

governmental immunity and the plaintiff could not show that his suit against the 

City fell under the limited waiver of governmental immunity provided by the TTCA. 

Id. at *2. According to the City, this was because at the time of collision, the City 

employee was acting outside of her scope of employment. Id.
20

employment at the time of the collision because the employee was driving a City 

truck. See id. at *5. However, the City, in moving for summary judgment on the 

plaintiff’s negligence claim, adduced testimony from the City employee which 

rebutted the presumption that the employee was acting in the scope of her 

employment. See id.

More specifically, the City attached portions of the City employee’s 

deposition testimony to its summary-judgment motion, in which the employee 

testified that she was a utility worker, with job duties involving “investigat[ing] 

stoppages,” “investigat[ing] and inspect[ing] sewer complaints,” and otherwise 

responding to public requests for service. Id. at *2 (alterations in original). She had

to perform all her job duties with another employee present because it “t[ook] two 

people to perform the job.” Id. The City employee also testified that when the 

collision with the plaintiff’s car occurred, she was alone in the City-owned sewer jet 

truck and driving back to her place of work after stopping by her home for lunch. 

Id.; see also City of Houston v. Flores-Garcia, No. 14-21-00680-CV, 2023 WL 

4196541, at *3 (Tex. App.—Houston [14th Dist.] June 27, 2023, no pet.) (mem. op.) 

(explaining evidence rebutting presumption in Carrizales showed: (1) City 

employee was driving jet sewer truck back to work after going to her home for lunch 

and (2) her work with truck required two people and she was alone in truck at time 

of collision).
21

Notably, the plaintiff in Carrizales did not controvert the testimony of the City 

employee and did not produce other evidence that the City employee was acting in 

the course and scope of her employment at the time of the collision. Carrizales, 

2021 WL 3556216, at *5–6. Thus, because the uncontroverted evidence established 

that the City employee was not acting in the scope of her employment with the City 

at the time the collision with the plaintiff’s car occurred, we held that the City’s 

governmental immunity was not waived under the TTCA. Id. at *4–6.

Unlike the cases cited by the City in its briefing, however, here, the City’s 

evidence showed that George’s regular work duties included “dr[iving] vehicles to 

and from various work sites” and she normally performed her work duties with 

Washington, who was present in the truck at the time of the collision with Rios’s 

SUV. George also testified that she was driving to a work site near Telephone Road, 

after clocking-in that morning, and her truck was on Telephone Road when the 

collision with Rios’s SUV occurred.

We find this case resembles a case recently decided by the Fourteenth Court 

of Appeals. In Flores-Garcia, a City employee was driving a City-owned vehicle 

when he “ran a stop sign at an intersection” and struck the plaintiff’s car. 2023 WL 

4196541, at *1. The plaintiff then sued the City for negligence, and the City moved 

for summary judgment, asserting that the trial court lacked subject-matter 

jurisdiction because the City’s governmental immunity could not be waived under 
22

the TTCA. Id. Specifically, the City asserted that its employee was not acting in 

the scope of his employment at the time of the collision. Id. The trial court denied 

the City’s motion, and the City appealed. Id.

On appeal, our sister appellate court similarly noted that when a vehicle 

involved in a collision is owned by the driver’s employer, a presumption arises that 

the driver was acting in the scope of employment at the time the collision occurred. 

Id. at *2. But when a driver is on a personal errand at the time of the collision that 

presumption is rebutted. Id. (citing Carrizales, 2021 WL 355216, at *4).

To rebut the presumption that the City employee was acting in the scope of 

his employment at the time of the collision with the plaintiff’s car, the City offered 

the employee’s affidavit, in which the employee testified that he had just left a 

convenience store located next to the intersection where the collision occurred. Id.

at *3. The employee stated that he did not remember why he had stopped at the 

convenience store, but it was not to complete any of his job duties. Id. The employee 

also testified that he did not know where he was going at the time of the collision, 

but his primary workplace, a small office, was very close to the intersection where 

the collision occurred. Id. According to the City, that evidence demonstrated that 

its employee had deviated from the City’s business and thus was not acting in the 

scope of his employment at the time of the collision with the plaintiff’s car. Id.
23

Although the City, in its briefing, directed the Fourteenth Court of Appeals to 

Texas cases determining that a City employee was not acting in the scope of his 

employment when he was traveling to or from work, lunch, or on a personal errand, 

our sister appellate court noted that in the case before it, the City employee’s regular 

work duties included “driving to investigate water complaints in a City-owned 

vehicle” and that the City was essentially asking the court of appeals to “infer,”

without evidence, that the City employee’s “deviation from his duties was on-going 

after he left the convenience store.” Id. at *3–4. Ultimately, the court of appeals

held that the City’s summary-judgment evidence did not conclusively establish that 

at the time of the collision with the plaintiff’s car, the City employee was on a 

personal errand and had not resumed his job duties. Id. at *4. Thus, the City had 

not rebutted the presumption that the City employee, driving a City-owned truck, 

was acting in the scope of his employment.

As in Flores-Garcia, we note that George and Washington both testified in 

their affidavits that while on the way to the work site, George stopped at Frank’s 

Grill to use the restroom. However, the collision occurred after George’s restroom 

break was complete and her truck was back on the road and proceeding to the work 

site. Notably, “dr[iving] vehicles to and from various work sites” was part of 

George’s work duties, which she normally performed with Washington, who was 

present in the City-owned truck at the time of the collision with Rios’s SUV. Cf. 
24

City of Houston v. Fisher, No. 14-21-00573-CV, 2023 WL 2322971, at *5 (Tex. 

App.—Houston [14th Dist.] Mar. 2, 2023, pet. denied) (mem. op.) (City did not

provide evidence its employee had not resumed work duties, where employee had 

left restaurant after lunch, was driving City-owned car, and his “regular duties 

involv[ed] [the] operation of” City-owned car (second alteration in original) (internal 

quotations omitted)); see also Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 

135–38 (Tex. 2018) (explaining employee acting in scope of employment when 

driving to bunkhouse when his work duties included “provid[ing] crew 

transportation to and from drilling site”). Here, the City’s summary-judgment 

evidence did not establish that George’s restroom-break deviation was on-going 

after she left Frank’s Grill. 

Accordingly, we conclude that the City failed to overcome the presumption 

that George, a City employee, driving a City-owned truck, was acting in the scope 

of her employment at the time the collision with Rios’s SUV occurred. Cf. 

Flores-Garcia, 2023 WL 4196541, at *3–4; Fisher, 2023 WL 2322971, at *5; see 

also City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex. App.—Houston [14th 

Dist.] 2022, pet. denied) (“The presumption prevails when it is unrefuted.”). And 

because the City did not conclusively establish that George was not acting in the 

scope of her employment at the time of the collision with Rios’s SUV, we hold that 

the trial court did not err in denying the City’s summary-judgment motion.
25

We overrule the City’s sole issue.

Conclusion

We affirm the order of the trial court.

Julie Countiss

Justice

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.