Supreme Court of Texas

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No. 22-0295

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City of Houston,

Petitioner,

v.

Crystal Green, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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PER CURIAM

This case arises from a motor-vehicle accident involving a 

municipal police officer who was responding to an emergency call. The 

primary issue is whether the record contains evidence that the officer 

was driving “with reckless disregard for the safety of others” at the time 

of the accident. We conclude it does not. Because the officer was 

responding to an emergency and was not driving with reckless 

disregard, the Texas Tort Claims Act does not waive the City’s 

governmental immunity. We therefore reverse the court of appeals’ 

judgment and render judgment dismissing the claims against the City.
2

Samuel Omesa is a City of Houston police officer. Around 3:00 

a.m. on March 18, 2017, he received a “priority two”1 service call 

regarding a suspect armed with a handgun and a screwdriver. Omesa 

had assisted another unit at the same location with the same suspect 

earlier in his shift. Omesa testified that, after receiving the second call, 

he activated his emergency overhead lights and drove northbound on 

Hillcroft Avenue, averaging 35 to 40 miles per hour, “intermittently” 

activating his audible siren. He claimed that he came to a complete stop 

and looked both ways before proceeding at each intersection he crossed. 

As Omesa approached the intersection at Richmond Avenue, the 

traffic light was red. He claims that he came to a complete stop and 

observed all traffic also completely stop before proceeding through the 

red light into the intersection. After safely crossing the first few lanes 

of the intersection, and while traveling around 10 to 20 miles per hour, 

Omesa collided with a vehicle driven by Crystal Green, in which 

Michelle Cummings was a passenger. Omesa stated that even though 

he forcefully applied his brakes, he was unable to avoid the collision. 

Omesa claimed that Green’s car was traveling very fast, appeared from 

behind other vehicles that had stopped, and did not have its headlights 

on. While Omesa is certain his emergency lights were turned on at the 

1 A priority-two call is considered an emergency call. Omesa testified 

that it represents “in-progress property crimes and/or potential threat to 

human welfare[] and assume[s] that if not in progress, the event recently 

occurred, or response to the scene is urgent.” The standard response is without 

emergency equipment, but officers have discretion to use emergency 

equipment if the situation warrants it. 
3

time of the accident, he could not specifically remember if he activated 

his siren before proceeding through the intersection.

Contradicting Omesa’s testimony, Green and Cummings testified 

that Omesa was “traveling at a high rate of speed” and “very fast” as he 

went through the intersection. Green testified that Omesa’s audible 

siren was not on. Green’s expert witness testified that Omesa caused 

the accident by failing to use due care, driving negligently, and failing 

to take evasive action.

Green sued the City of Houston, seeking to hold it vicariously 

liable for Omesa’s negligence and independently liable for negligently 

hiring, training, and supervising Omesa. The City moved for summary 

judgment, arguing that the Texas Tort Claims Act does not waive the 

City’s governmental immunity because the Act’s emergency exception 

applies. The trial court denied the motion, and the court of appeals 

affirmed, holding that the evidence creates a fact issue as to whether 

Omesa was driving with reckless disregard for the safety of others. ___ 

S.W.3d ___, 2022 WL 97334, at *9 (Tex. App.—Houston [14th Dist.] Jan. 

11, 2022). We disagree.

Governmental immunity generally bars tort claims against 

municipalities when the claim arises from the city’s governmental 

functions. See City of League City v. Jimmy Changas, Inc., No. 21-0307, 

2023 WL 3909986, at *2 (Tex. June 9, 2023). The Tort Claims Act, 

however, waives immunity for claims arising from a city employee’s 

operation or use of a motor-driven vehicle if the “employee would be 

personally liable to the claimant according to Texas law.” TEX. CIV.
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PRAC. & REM. CODE § 101.021(1).2 But this waiver does not apply if the 

employee was responding to an emergency, complied with applicable 

laws, and—in the absence of applicable laws—did not act with conscious 

indifference or reckless disregard for the safety of others:

This chapter 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.

Id. § 101.055(2); see also City of San Antonio v. Maspero, 640 S.W.3d 

523, 529 (Tex. 2022).

Green does not dispute that Omesa was responding to an 

emergency when this accident occurred, but she contends he violated 

Section 546.005 of the Texas Transportation Code and acted with 

reckless disregard for the safety of others. Because Section 546.005 

requires “appropriate regard”—and prohibits “reckless disregard”—for 

the safety of others,3 Green’s argument “largely collapses” into a single 

2 As an alternative to its reliance on the Act’s emergency exception, the 

City also argued that the motor-driven vehicle waiver does not apply here 

because official immunity prevents Omesa from being personally liable to 

Green. The court of appeals concluded that fact issues preclude summary 

judgment on that issue as well. Because we conclude the emergency exception 

applies and prevents the waiver, we need not address the official-immunity 

issue.

3 Chapter 546 generally authorizes operators of emergency vehicles to 

disregard traffic laws, including traffic lights and speed limits, when 

responding to an emergency call. See TEX. TRANSP. CODE §§ 546.001, .002. 

Under Section 546.005, however, they must still “operate the vehicle with 

appropriate regard for the safety of all persons” and may not operate it with 

“reckless disregard for the safety of others.” Id. § 546.005.
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inquiry of whether Omesa acted recklessly. See Maspero, 640 S.W.3d at 

529.

As we explained last term in Maspero, driving with “reckless 

disregard” involves more than a “momentary judgment lapse.” Id. at 

531. It requires a “willful or wanton disregard for the safety of persons 

or property,” exhibiting “conscious indifference” while having 

“subjective awareness of an extreme risk.” Id. (first quoting TEX.

TRANSP. CODE § 545.401(a); and then quoting Tarrant County v. Bonner, 

574 S.W.3d 893, 902 (Tex. 2019)). In other words, to drive with reckless 

disregard, the driver must commit “an act he knew or should have 

known posed a high degree of risk of serious injury” to others. Id. 

(quoting Perez v. Webb County, 511 S.W.3d 233, 236 (Tex. App.—San 

Antonio 2015, pet. denied)).

The court of appeals issued its decision in this case about a month 

before we decided Maspero. Relying on earlier decisions, however, it 

similarly described that Omesa drove with reckless disregard if he 

“knew the relevant facts” but “did not care what happened to [other] 

motorists.” ___ S.W.3d ___, 2022 WL 97334, at *4 (quoting Quested v. 

City of Houston, 440 S.W.3d 275, 285 (Tex. App.—Houston [14th Dist.] 

2014, no pet.) (in turn quoting City of San Antonio v. Hartman, 201 

S.W.3d 667, 672 & n.19 (Tex. 2006))). The court concluded that a fact 

issue exists as to recklessness “because the evidence supports an 

inference that Omesa entered the intersection without stopping[4] and 

4 In the court’s view, Cummings’s testimony that Omesa was “traveling 

at a high rate of speed” supports an inference that he did not come to a stop 

before entering the intersection. ___ S.W.3d ___, 2022 WL 97334, at *5-6.
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without his sirens on, despite knowing that he had a red light, it was 

dark, that his view of the traffic was partially obstructed, and that a 

collision with another vehicle that could cause serious injury was 

possible.” Id. at *6.

Considering all the uncontroverted evidence while accepting all 

disputed facts in Green’s favor, this record cannot support a finding that 

Omesa acted with reckless disregard for the safety of others. Green 

provided no evidence to contradict that Omesa was responding to a 

priority-two emergency call involving an armed suspect, that he 

activated his overhead emergency lights, that he averaged 35 to 40 miles 

per hour, that he at least slowed his speed (if not stopped) before 

proceeding through each intersection, that he intermittently activated 

his audible siren, that other vehicles noticed him and stopped as he 

proceeded across Richmond Avenue, that those vehicles blocked his view 

of the lane Green was in, and that Green was traveling in the dark 

without her headlights on.

Although Green and Cummings testified that Omesa was 

traveling “very fast” or at “a high rate of speed,” those descriptions lack 

specificity and no evidence establishes the type of high-speed travel that, 

by itself, could support a finding of reckless disregard. Nor does the fact 

that Omesa proceeded against a red light, which Texas law expressly 

permitted him to do “after slowing as necessary for safe operation.” TEX.

TRANSP. CODE § 546.001(2). And assuming as we must that he failed to 

activate his siren before entering the intersection, department policy 

placed that decision within his discretion.
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Certainly, Green’s evidence could support a finding that Omesa 

suffered a momentary lapse of judgment when he failed to activate his 

siren and proceeded across Richmond Avenue without coming to a 

complete stop. Indeed, Omesa himself conceded in his deposition that 

he failed to exercise due care at that point. But establishing a failure to 

exercise due care does not establish a reckless disregard for the safety 

of others. Nothing in this record could support a finding that Omesa 

knew he was creating a risk of serious injury and did not care what 

might happen to other motorists.

Because Green concedes that Omesa was responding to an 

emergency and because no evidence could support a finding that he 

acted with reckless disregard for the safety of others, the emergency 

exception applies, and the Tort Claims Act does not waive the City’s 

governmental immunity. We grant the City’s petition for review and, 

without hearing oral argument pursuant to Texas Rule of Appellate 

Procedure 59.1, reverse the court of appeals’ judgment and render 

judgment dismissing Green’s claims against the City.

OPINION DELIVERED: June 30, 2023