Motion for Rehearing Gran ted ; Memorandum Opinion filed February 28 , 2023 Withdrawn ; Judgment f iled February 28, 2023 Vacated; and Opinion on Rehearing fil ed January 18 , 202 4.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00482

- CV

CITY OF HOUSTON , Ap pellant
V.
JONATHAN GONZALES , Appellee
On Appeal from the 125th District Court Harris County, Texas Tria l Court Cause No. 2016

- 423 78

OPINION ON REHEARING

W e issued our original opinion in this case on February 28, 2023

. Appellee J onathan Gonzale s fi le d a motion for rehearing. We grant his motion for rehearing, withdraw our previous opinion, vacate our previous judgment and issue this opinion and judgment

. After a bench trial, the trial court awarded appellee Jonathan Gonzales2 damages on hi s ne gligence c l aim against app ellant City of Ho usto n ar isin g out of a traffic accident between Gonz ales and a pe ace offic er emplo yed by the City. On appeal, the City argues the trial court erred by not dismissing Gonzales ’ s claims for want of jurisdiction be ca use the pea ce officer was responding t o an emergenc y ca ll or emergency situation , and the officer did not ex hib i t con s c i ous indifference or

re c kless disregard for the safety of others

. See Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.0 55 (2 )

. We con c lude that the trial court d id no t err in den ying the City ’ s plea to the jurisdiction because Gonzale s met his burden to produce evidence negating the applicability of the emergency exc eption of the Texas Tort Claims Act . However,

we a gree with t he City t ha t the trial co urt erred by awar ding Gonzale s rel ief in excess of the aggregate relief permitted by Texas Rule of Civil Procedure 169. Ther efore, we affirm the jud gment of the trial court in part, reverse in part, and

ren der judgment a warding Go n za le s the s um of $100,000 as p e rmitted by Texas Rule of Civ il Procedure 169

. I. B AC KGROUND Houston Police Department (HPD) probation ary peace officer Daniel I wai was driving south o n the feeder road of Beltway 8 in the far

- right lane one J anuary night in 20 1 6. 1 He was driving a n HPD veh icle with his trai ning offi cer, Kam e sha Ba ker, i n the p a ss enger sea t when he received a priorit y - two call for assista nce with a suspi cious vehicle . Iwai began heading towards the loca tion of the call although he did not a ctivat e h is light or sirens. Testimon y at trial e stab lished th at
t he H PD standard p rocedure for response to a priority

- two call is without

1 The te rm pro ba tionary offic e r re fers to a peace officer still unde rgo i n g field train i ng. Iwai has since suc cess fully co mpleted his train ing and was employed wi th the City of Houst on at the time of trial.3 emergency equip ment , i.e. , no lights or siren s , although the of ficer has discretion to employ emergency equ ipment if warran te d b y the s ituation and after notifying thei r di spatch

. 2
Wh il e th ey were in tr ansit , I wai and Baker testified that another vehicle pull ed into their lane of travel leaving Iwai with little time to avoid a collision

. Iwai applied hi s brakes and swerved his v e hi cle to th e right into the driveway of a shop ping cent er

. A t t he time Iwai swerved into the drivew ay, Go nzales was in his vehicle in the same driv eway waiting to exit the drivewa y onto the feeder road. The vehi cle d riven by Iwai str uck t he rear bu m per of Go nzale s ’ s vehicle on the dri ver ’ s side

. T he of f

ic er who invest igated the accident de termin ed the collisi on was caused by a third veh icle making a n unsafe lane change. The record does not reflect that Iw ai was cited or disciplined for the acc ident o r hi s r es ponse

. To recover for injuries Gonzales alleg e s h e r ec eived in th e collision , Gonzales filed suit against the City in 2016. The case wa s tried to the bench in June 2021

. T h e City argued at tr ial that the emergency exc eption appli ed to preclude th e wai ver o f gove rnment i mm unity provided by th e Te xas T o r t C laims Ac t (TTCA)

. 3 The trial c ourt asked for briefing on the sudden

- emergency exception , and the City file d a plea to the jurisdiction with re sponsive briefing after

2 Evide nce at tr i a l established H PD has a response

- ti me go al o f five minutes fo r pri ority

- two calls. Hou ston Police De partm ent G eneral Order 600

- 01 provid es “ [ p] riority two cal ls for servi ce r epresent in

- progress property crimes an d/o r a potentia l threat to human welfare , a nd assume that if not in

- progress, th e e vent recently occurre d o r res ponse to t he scene is
ur gent. ” Altho ugh t he Transporta tion Code generall y requires audibl e or visual sign a ls

— lights and sirens

— to be used in res pon ding to an em ergency call, pe ace offic e r s may operate an authorized emergency ve hicle without audible or v isual signal s if “ complyin g wi th a writ ten regulation re lati ng to the use o f aud ible or vis ible signals adop ted by the local government that employ s t he officer or by the departme nt

. ” Tex. T ransp. Code Ann. § 54 6.004(c)(2); see al so Tex. Transp. Code A nn. § 546.0 03 ( audible or visual s igna ls r e quired “ at t he discretion of the ope rator in accordance with poli cies of the department or the local governm ent that employs the operator ” )

. 3 The Ci t y first asserte d its plea to the jur is d ic tion at trial

.4 t rial

. In Jul y 2 021, the t rial cour t r en d ered a final j udgment in favor of Go n za les

a n d aw arded da mages of $250,000. The City now appeals

. II. A NALYSIS
In issue 1, the City argues the t ria l court abused its discretion by not dismiss i ng Gonzales ’ s claims for want o f jurisdiction b ecause the City me t its bu rden o f establ ishing the applicati on of the TTCA ’ s emerge ncy exception

. A lternatively, the City ar gues in issue 2 that the sud d en - emergency defense bars a finding of liability against the City , a n d i n issue 3 that the trial court erred in

a l lowi ng Go n zales to am end his pleadings on the eve of t r ial and inc rease his damages w ithout following Texas Rule o f Civil Procedure 169. We be gin with the jurisdictional question and con sider whether governmental immunity was wa ived for Gonzales ’ s claim.
A. St an dar d of rev iew Subject

- matter jurisd iction is necessary to a court ’ s a u thority to decide a

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

. 1993)

. A plaintiff must allege facts a ffirmatively showing the trial court has

su bj ec t

- mat te r juri sdiction. Id . at 446

. Sover eign im munity from sui t defeats a trial

co urt ’ s subject

- matter jurisdiction

. Tex as Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3 d 217, 22 4

– 2 5 (Tex. 2004)

. Whether a court has subject

- matter jurisdiction is a ques t io n o f l aw. T e

x as Nat

. Res. Conservat ion Co mm ’ n v. IT

– Davy , 74 S.W.3d 849 , 855 (Tex. 2002).
B. Governmental i mmunity Sovereign a nd go ve rnmental immu n it y are common - la w conc ep t s t h at generally protect the St ate and its political subdivisions fr om th e b u rde ns of li t ig ati on
. Har ris C n ty

. v. Annab , 547 S. W.3d 609, 612 (Tex. 2018)

. “ S o verei g n5 immu ni ty pro tect s the s tate a nd i ts various d iv i sio ns, such as ag e nc ies and board s, from su i t an d liability, whereas gover n men tal immunity provides similar prot ect i on to t he p o l i ti ca l su b d ivisi ons of the state, such as cou nties, cities, and school distr i cts.” Tr avis C ent. Apprai sal Di st. v. Norman , 3 42 S.W .3d 54, 57

– 58 ( Te x. 2011) (cit in g Wich it a F a l ls State Hosp. v. Taylor , 1 06 S.W.3d 692, 694 n.3 (Tex. 2003 ) )

. Gov e rn mental i mm u n it y has t w o com ponents: “i mmunity from l ia bi lity, which bar s en fo rce m e nt o f a jud gment aga in s t a gover nmen tal entity, and imm unit y from suit, wh ic h bars suit a ga inst t he e n t i ty altogether.” Tooke v. C i ty of Mexia , 197 S.W.3d 325, 332 (Te x. 2 0 06 )

. Whe n a g ove rn ment al defendant challenges jur i sd i c tio n o n gr ound s of im munity from suit , the plaint iff has the bu rden to “affirmatively demons trate th e c ourt ’ s jur isdic tion b y a l leging a v ali d

wa iver of immunity.” Dal las Area R apid Tr ansit v. W h i t ley , 104 S.W.3d 54 0, 542 ( T ex

. 200 3)

. Immunity is waived only by cl ear and u na mb ig uous lang uage

. See C ode Construction Act , Tex. G o v’t Co d e Ann. § 311.034 (“ [A] statute sha ll not be

con strued a s a waiver of [] immuni ty u nless the waiver is ef f

ec ted by c l e a r a nd

u n ambiguous language

. ”)

. 4
C. Te xa s Tort Claims Act
T he TTCA provide s a li mi te d waiver of immunity for tort suits agains t

4 The r e is a long

- standi ng princip le in Texa s l a w tha t a dist i nction exist s between
m uni cipa lities and ot her gover nmen tal un its for go ver nmen tal

- immun i ty pur p os es

. See City of G alves ton v

. Posnainsk y , 62 Tex. 118, 126 (1884) ( “ Co unt ie s
. . . are created by t he l eg is l ature by g ene ral laws withou t ref er e n c e to the wis h of the ir in h abitants, and thu s for esse nt ial ly p ubl ic p ur p oses ” w herea s cities are i ncorp o rat e d t hrough speci al charters and a re “ enact e d at the request of those who are t o b e m ost directly ben ef ite d b y t hem and wi th a view to this end. ” )

. M u nicipalities are an excep t ion to the ge nera l rule of go ver nmen tal imm un i ty beca use a municipa lity is no t im m une for its pro p rietary functi on s. See To o k e , 197 S.W.3d at 343. There is
no dis p ut e between the parties that the operative facts of this lawsu it a r ise f rom the per formance of a govern men tal fu nction. T T C A , Tex. C iv. Prac. & Rem. Code Ann. § 101.0215 (a)( 1) ; s ee Tex. Const

. , art

. X 1 1, § 1 3( a ) ( cla s s ification of municipa l fun ctions )

.6 governmental units. TTCA, Tex. C iv. Prac. & Rem. Code § 101.021; see Tex as Dep ’ t of Transp

. v. Able , 35 S.W.3d 608, 611 (Tex. 2000 ). Under the section of the T TC A rel ev ant here, a governmental entity may be l iabl e fo r the t or ts of i t s employee “acting within his sc ope of employment” aris ing from the opera tion or use of motor

- driven vehicles or equipment if, among other things, the “e mployee would be per sonally l ia b l e t o the claimant according to Texas law [

. ] ” TTCA, Te x. C iv. Prac. & R em. Code § 101.021(1)

. The parti es do no t dispute that Gonz ales ’ s claim s arise from I wai ’ s use of a motor vehicle and that Iwai acted within the scope of his employment w ith the City a t t he t ime of the collision . Instead, the parti es dis ag ree whe ther t he e mergency exception to the waiver of gove rnmental immuni ty a pplies

. The TTCA includes a subchapter entitled “ Exceptions and Exclusions” that lists circum stan c es under which the waiv er o f i mm unity does not apply. T TCA, Tex. Civ . Pr ac. & Rem. Code Ann. § § 1 01.05 1

– .067 ; see City of San Antonio v. Hartman , 201 S. W.3d 667, 671

– 72 (Tex. 2006) . One of the exceptions addresses actions undertaken as part of an eme rgen cy response . Und er this e xc ep tio n to immu nity , the TTCA d oes not ap ply to a claim based o n a gover n mental employee ’ s con duct if that employee, while respo ndin g to an emergency call or reacting to an emergency situation, acts in compliance with laws or ordi nances applicabl e to the em er gen cy action s or, absent s uc h laws or ord inan ces, the employ ee ’ s acti o ns are not taken with conscio us indifference to or reck less disregard for the safety of others. See TTCA, Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2 )

. D. Applicability of the TTCA ’ s eme rg enc y exception
Gonzal es had the burden of neg ating the a ppli cabili ty of the e mergency exception and affirmatively showing a waiver of immunity

. City of San Antonio v.7 Ma spero , 6 40 S.W.3d 523, 529 (Tex. 2022)

. He had to present e vide nce establ ishing at le as t o ne of the following: (1) I wai was not resp o nding to a n

em ergency call or reactin g to an emergenc y situation ; (2) Iwai ’s actions were not in compliance with the laws a nd ordin ances applicable to emergency action ; or (3) Iwai ’s act ions refle cted conscio us in di ffe rence or reck less dis regard for the safe ty of ot hers

. See TTCA, Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2 ) ; Maspero , 6 40 S.W.3d at 529

. Gonzales argues he pre sented ev idence that Iwai was not responding to an emer gency ca ll and tha t Iwai ’ s act ions re flected reckless dis regard for the safet y of others

. 1. Re s ponding to an e mergency call or situation
The TTCA doe s not define the ter ms “emerg ency call” or “emergency situation,” but T exas courts have interpreted the term “emergency” broadly. City o f H ousto n v. Sau ls , 654 S.W.3d 772, 786 (Tex. App.

— Houston [1 4th Dist.] 2022, pet. filed) ; City of Houston v . Hus sein , No. 01

- 18

- 00683

- CV, 2020 WL 6788079, at *8 (Tex . App.

— Houston [1st Dist.] Nov. 19, 202 0, pet. denied) (mem. op.); see als o Hartman , 201 S .W. 3d at 6 72

– 73 ( city ’ s reaction to wides pread roa dway floodi ng c onstituted reaction to “a n emergency si tu ati on”) ; Quested v. City of Houston , 440 S.W.3d 27 5, 284

– 85 (Tex. App .— Houston [14th Dist.] 20 14, no pet.) ( officer not in uniform, d riving personal vehi cl e w as responding to emergency call of host age situation ) ; J efferson C n ty. v. Hu dson , No. 09

- 11 -0 0168

- CV , 2011 WL 3925724, a t *3 (Tex. App.

— Beaumont Aug. 25, 2011, no pet.) (m em. op) ( r esponding or reacting to “ unforeseen ci rcumstances that call for imme di ate

a ction ”)

. The word “emergency” is d ef ined as “ an unf ores een combination of circumstances or t he r esu lting state that cal ls for immediate action .” Emergency , Merriam- Webster .com, h ttps://w ww. merriam- webster .c om/dictionary /emergenc y (last visited Janua ry 4, 202 4) ; see also Code Constru ction Act, Tex . Gov’t Code8 Ann. § 311.011 (words and p hr ases co nst rue d according to common usage). The City argues the evidence at trial conclusively established that Iwai was

r es pondin g to an emergency call or an em erge ncy situation. The City presented evidence via I wai ’s and Baker ’ s testimony that Iwai and Ba ker were responding to

a “ priority two call for service ,” which is an emergency call based on HPD protocol , when Iwai was cut off by anoth er v eh icle that move d into his lane of travel. Iwai t est i fied that the actions of the t hird v ehi cle presented the po s sibility of

an imminent multi

- vehicle collision

. HPD ’s crash questionnaire form , filled out by Iwai, also indicated that Iwai was responding t o an emergency call for a suspicious vehic le. Howeve r , th e Texas Peace Officer ’ s Crash Report, filled out by an investigati ng officer not involved in the collision , do es not reflect that Iwai ’s police vehicle was responding to an
emergency . The cras h repor t fo rm has a speci fic bo x that can be chec ked to ref l ect whether one or more of the v ehicles were police, fire , or EMS on emergency. In his trial testimony, the inves tigating officer explained that he did not indicate that Iwai and B aker were responding to an emergency call becau se the ir vehicle did not hav e its li ghts and siren s activated. The narrative section of the report does not reference t hat Iwai wa s resp onding to a n emergency call.
T he City argues that the mere fact the cra sh report did not indicat e th at Iwai

was respon ding to an emergency does not crea te an issue of fact. First, the City refers to testimony from the investigating officer, who said that the lack of lights and sirens did not determine whether Iwai was respo nd ing to an emergency. T he in vestigating o ff i cer als o tes tified that HPD f il ls out the crash report differently from the Texas Department of Transportation ( DPS), even though the crash report

was a DPS form and that DPS promulgates the instructions to the fo rm. Nevertheless, the crash report is o n e of tw o c on tem poraneous documents that9 addressed whether Iwai was responding to an emer gency , and as this court is not the fact

- finder, we cannot simply disregard evidence that the trial court could have credited, b ased on testimony given fiv e years after the do cum e nt w as created.
The evidence here do es not conclusive ly est ablish one way or another whether Iwai was responding to an emergency c all or situation at the ti me o f the accident. G iv en the conflicting evidence , i t was the role of the f act

- finder to det erm ine whe t her Gonzale s met his burden to produce evidence that Iwai was not responding to an eme rgency call or situation 5 at the time of the accident. After receiving all the evidence and brie fing fr om both partie s, the trial court render ed judgment for G onz ales , im plie dly fi nding that Iwai was not responding to an
emerge ncy call . T he evidence is legally and not factually in suffic ient to support that implied finding.
2. Reacting to an emergency situatio n The City ’ s ar gu ments also raise the qu estion o f whether Iw ai ’ s re a ction to an impending car accident was an alternate justification for the applica t ion of the
emergency exc eption

. In our original opinion , we concluded that Iwai ’ s response to an impending tra ffic accide nt constituted a response to a n emergency s it u ation. How e ver, w e are p ersuaded by Gonzale s’ s arg uments on rehearing and conclude that traffic accidents that do not involve a vehicle op er ating as an authorized emergency vehic le pu rsuant to T ransporta tion Co de section 541 cannot con stitute
an emergency situation a s contemplated by the TTCA

. See Tex. Transp. Code Ann. § 541.201 (defines “ authorized emergency veh icle); see als o Tex. Transp. Code

5 To the extent the City argues that the call for assistance with a su spicious vehicle, that ultimat ely escalated into a potential aggravated assa ult with a deadly weapon , to wh ich Iwai was enroute to assist wi th was an emergency situation , the analysis is the same

. The DPS cr ash report, discussed above, provi des eviden ce that refutes the applicability of the emerg e ncy exception.10 Ann. § § 546.001

– .052.
Other Te xas courts have considered the scope o f “ emergency situatio ns ” under the TTCA . Mo s t often th e emergency exception is applied to traffic accidents involving emergency vehicles but is not limite d to only thos e circumstances

. See , e.g., Hartman , 201 S .W. 3d at 672

– 73 ( applying emergency excepti on to wides pread roadway f looding ) ; P akdimouni vong v. Ci t y of Arlington , 219 S.W.3d 401, 410

– 11 (Tex. App.

— Fort Worth 2006, pet . denied) ( emergency situation arose when s uspect in back of patrol car tried to escape through car window ); C ity of Arlington v. W hitaker , 977 S.W.2d 742, 745 (Tex. App.

— Fort Worth 199 8 , pet. denied) (fir e chief parked vehicle in roadway to protect other veh icles from flooded roadway) ; see also Ha rris C n ty. v. Spears , No. 14

- 17

- 0066 2

- CV, 2018 WL 4571841, at *4 (Tex. App.

— Houston [1 4t h Dist.] Sept. 25, 2018, no pet.) (mem. op.) (holding t hat claims “arising from the operation of a patrol vehicle in response to an emergency fall within t he scope of s ection 101.055(2)” and that evidence officer was responding to “a Medical Emergency [o r] possible suicide” call that required office r ’ s “immed i ate presence” and that he “reach the scene as quickly as he could” was sufficient to show he was res ponding
to em ergency). But we have found no other Texas court that has h eld a traffic accident with a government vehicle, not acting as an author i z ed emerge n cy vehicle, was encompassed within the meaning of the sta tute. Given that the TTCA

s peci fically waiv es i mmunity for traffic accid ent s with government v ehicles , 6 interpretating th e phra se “ reacting to an emergency situation ” would seemingly all o w the excep t ion to s wallow the waiver.

6 “ A governmental unit in the state is liable for . . . personal inju ry . . . proxima t ely caused by . . . the neg l ig ence of an employee acting with in hi s sco pe of employment if . . . [the] pe rsonal injury . . . arises fr om the operation or use of a motor

- drive v ehicle [.] ” TTCA, Tex. Civ. Prac. & Rem. C ode Ann. § 101.021(a)(A).11 W e conclude that Gonzale s met his burden of presentin g ev idence that Iwai was not responding to an eme r gency ca ll or situation. Therefore, we hold the trial court did not e rr in relying on such evi dence to deny the C ity’ s claim o f immuni ty. Given this conclusion, we need not address whether Iwai ’ s action s reflecte d reckless disr egard for the safety of other s
. We overrule issue 1.
E. Sudden

- emergency defense In addition to argu in g that governmental imm unity barred Gonzal es ’s claim , t he City also argued that the “sudden emergen cy ” defense relieved Iwai of liability. The City asserts that if the sudden

- emergency defense was con clusively proved then Iwai would not be personally lia bl e to Gonzale s ; and immu nity would not be

w aived

. See TTCA, Tex. C iv. Prac. & Rem. Code Ann. § 101 .021(1); see DeLeon v. Pickens , 933 S.W.2d 286, 293 (Tex. App.

— Corpu s Christi

– Edinburg 1996, writ denied) (“[T]he only purpose of the sudden emergency defense doctrine i s to relieve a party fr om the co nsequences o f his cond u ct which might otherwise be considered negligent

. ”) ; see also Benham v. Lynch , No. 04

- 09

- 00606

- CV, 2 011 WL 381665, at *6 (Tex. Ap p.

— San Antonio Feb. 2, 2011, no pet.) (mem. op.) (defendant not liable t o plaintiff for neglige nce if fa ct

- finder fo und that su dden
emergency resulted in defendant rear

- ending plaintiff ’ s c ar).
A “ sudden emergency ” exists when (1 ) an emergency situation ar ises suddenly and unexpectedly, (2) the emergency situation was not pr oximately caused by the n egligent act or omiss ion of the person whose conduct is under inquiry, and (3) after an emerge ncy situation arose that to a reasonab le person would have required immediate action without time for deliberation, t he person acted as a p erson of ordinary prude nce would have acted under the s ame or similar circumstances. See Dillard v. Tex as Elec. Coop. , 157 S.W.3d 429, 432 n.4 (Tex.12 2005); Jo rdan v. Sava , Inc. , 222 S.W .3d 840, 847 (Tex. App.

— Houston [1st Dist.] 2007, no pet.). The “s udd en emergency” defense is an infere ntial rebutt al

. See Di l lard , 157 S.W.3d at 433

– 34. Inferential rebuttals are defensive theories that operate to rebut an ess ential element of a plaintiff ’ s case by proof of other facts. See Select Ins. Co. v. Boucher , 561 S. W.2d 474, 477 (Tex. 197 8) (“The ba sic charac teristic o f an inferential rebuttal is that it presents a contrary or inconsistent theory from the claim relied upon for recov ery.”); Gómez v. Cooke , No. 14

- 15

- 00010

- CV, 2016 WL 836781, at *2 ( Tex. App.

— Houston [ 14th Dist.] Mar. 3, 201 6, no pet .) (mem. op. ).
The Cit y , as the party seeking application of the “ sudden emergency” defense , bore the burden of producing su fficien t evidence to prove its inferential

- rebuttal defense

. See City of Houston v. McGriff , No. 01- 21

- 00487 -CV , 2022 WL 17684046, a t *11 (Tex. App.

— Houst o n [1st Dist.] Dec. 15, 2022, n o pet.) (summary- judgment context)

. A t trial , the DPS crash report reflects a contributi ng factor to the accident was the unsafe la ne ch ange of the unidentified , third vehicle t hat cut of f I wai. Nothing in the report refl ected a de t ermination that Iwai was “ at fault ” for the accident. Iwai and Baker both testified that the uni denti fied vehi cle cut off their police vehicle forcing Iwai to take evasive action to avoid a more des t ructive acci de nt. However , t o the c ontrary, th ere was al s o testimony from Gonzale s that Iwai simply could have b raked to avoid a collision with the ve hicle in front of him. Th erefore, the trial court received conflicting evidence about Iwai ’ s fault in

c ausin g the collision and cou ld have credited Gonz ale s’ s tes t imony. Given this conflicting evidenc e , we cann ot conclude that the trial court ’ s re je ction of the “s udden emergency ” defense was in error

. We overrule issue 2.13 F

. Viola tion of Rule 169
In its thi rd issue , t he City argues t hat the trial court erred by g ranting leave for Gonzales to amend his pleadings on the eve of trial and increase his requested da ma ges from $100,000 to $250,000. 7
Texas Rule of Civil Procedure 169 establishes an “expedited actio ns process” that allows c iv il claimants to fas t- track th e ir claims

. See Tex. R. Civ. P. 169 ; Cross v. Wagner , 497 S.W.3d 611, 612 (Tex. App.

— El Paso 2016, no pet.). A claim ant can invok e this process by affirmatively pleading that he seeks monetary relief a ggre gating $ 250 ,000 or l es s. Tex. R. Civ. P. 169(a)(1)

. Under this expedited
process, limits are applied to discovery, continuances, challenges to exp erts, and time for presentation of evidence and argument at trial. Tex. R. Civ. P. 169(d) ; Cross , 497 S. W. 3d at 612.
The discover y limitations are id entified i n Rule 190.2, and include a discovery period that begins when suit is filed and ends 180 days af ter th e first request for discovery is served on a party ; a total of six hours of oral depositions for e ac h party; and no more tha n fifteen interrogatories, req u ests for production, and requests for admis sions. Tex. R. Civ. P. 190.2(b); see Tex. R. Civ. P. 169(d )(1) (“Discovery is governed by Rule 190.2”). A court must remove a suit from the expedited

- action s proc ess on a motion and a showing of good ca use by any party. Tex. R. Civ. P. 169(c)(1)(A).
Rul e 169 , at the time Gonzale s filed suit, only allowed cl aimant s to use the expedited procedure if they sought relief aggregating $100,000 or less

. See Final App ro val of Rules For Di smiss al s and Expedited Ac tions , Mis c . Docket No. 13

- 9022 , 76 Tex. B.J. 221 , 223 (Tex. Feb

. 12 , 2013 ) (Former Rule 169)

. Although

7 The TTCA also c ontains a statutory cap on r e co verable damages. See TTCA, Tex. Civ

. Prac. & Rem. Code Ann. § 101.023.14 the rule was amended during the pendency of Gonzale s’ s suit, the am ended provision s increa sing th e amount in controversy limit in Ru le 169 became effect ive for th o se cases filed on or after January 1 , 2021. See Final Approval of Amendments to Texas Rules of Civil Procedure 47, 99, 169 , 190, 192, 193, 194, 195, 196, 197, and 198 , Misc. Docket No. 20

- 9153 , 84 Te x. B.J. 14 8 , 148 (Tex. Dec

. 23, 2020).
To reso lve th e is s ue presented by the City, we must construe Rule 169 . The interpretation of a procedural rule is a question of law that we determine de no vo by applying the same canons of construction applicable to s ta tutes. Cross , 497 S.W.3d a t 613 (citing Zorrilla v. Ay p co Constr. II, LLC , 469 S.W.3d 143, 155 (Tex. 2015 )) ; see also Code Constru ction Act, Tex. Gov ’ t Ann. §§ 311.002(4) (Act applies to each rule adopte d und er code) ; 22.004 (authorizing supreme court to p romulgate rules of civil p rocedure)

. We appl y the plai n meaning to a rule ’ s unambiguous language in a manner that is consist ent with other provisions in the rule. Cross , 497 S.W.3d at 613 (citing Assignees of Best Buy v. Combs , 395 S.W.3d 847, 864 (Tex. A pp.

— Austin 2013, pet

. denie d) ).
The expedited

- actions process “ is mandatory ; any suit that falls within the definition of 169(a)(1) is subject to the pr ovision s of the rule. ” Tex. R. Civ. P. 169 , cmt. 2 (2013). Although R ule 169 does offer a procedure for r emoving a case from
t he ex pedited

- actions process, Gonzale s did not seek to r e move his case from the expedite d- actions process. He sought to increase his requested relief by ame nding his li ve pleadings with the trial court ’ s approval. However, Gon zale s bas ed the increase in hi s req ue sted relief on a version of the rule th at did not apply to the case and only argued that the City would not be prejudiced bec ause it had notice of his damages in disc o very

. Although the trial court gra nte d Gonzale s leave to a me nd , the provisions of Rule 169 were mandatory, and the t ria l court did not have15 discretio n to alter them

. Rule 169 , at the time Gon zale s filed suit, specifically provided that “ [i]n no event may a party who prosecutes a suit under this rule

recover a judg me nt in excess of $ 100,000, excluding post

- jud gment inte r est .” Former Tex. R. Civ. P. 169(b). Given the language of the rule , the tr ial court should have either denied Gonzale s’s req uest to a mend or removed the case from the expedited

- actions process using t he procedures in the rule.
We conclude the trial cour t er red in disregarding the mandatory language of Rule 169 by a warding “ damages of any kind, penalties, costs, expense s , pre judg ment interest and a tt orney fees ” in excess of $100,000 . Former Tex. R. Ci v. P. 169( a), ( b) The refor e, we su s tain is sue 3

. 8

III. C ONCLUSION

Havi ng overrule d issue s 1 and 2 and sustained issue 3, we r everse the judgment of the trial court , in part , and render the j udgment the trial co urt should have rendered by awarding Gonzale s th e s um of $100,000 , exclu ding post

- judgment interest

. Tex. R. App. P. 43. 2(c) ; see Former Tex. R. Civ. P. 169(b)

.

/ s/ Charl es A. Spain Ju stic e

Pan el con sists of Justi ces Zi mmerer, Spai n , an d Poissan t.

8 Although the trial court ’ s final judgment includes an award to Gonzales of t axable court costs, the City did not challenge the award of costs on appeal.