NUMBER 13-20-00267-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

TEXAS DEPARTMENT OF

PUBLIC SAFETY, Appellant,

v.

CHRISTOPHER ESCOBAR,

ALISA COLCHADO,

AND ALISA N. ESCOBAR, Appellees.

 

On appeal from the 206th District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Hinojosa, Tijerina, and Silva

Memorandum Opinion by Justice Tijerina

Appellant Texas Department of Public Safety (DPS) appeals from the trial court’s 

denial of its plea to the jurisdiction and motion for summary judgment. Appellees 

Christopher Escobar, Alisa Colchado, and Alisa N. Escobar sued DPS under the Texas 
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Tort Claims Act (TTCA) for damages due to a vehicular accident caused by a DPS 

employee. By two issues, DPS contends that the trial court should have granted its plea 

to the jurisdiction and its motion for summary. We reverse and render.

I. PERTINENT FACTS

On March 22, 2018, DPS officers Angel Hernandez and his partner, Corporal Julio 

Alaniz, observed a vehicle run a red light at an intersection in Edinburg, Texas. The 

officers pursued the vehicle to initiate a traffic stop. Trooper Hernandez then drove his 

vehicle against the red light and across the same intersection to make a left turn. 

According to both officers, Trooper Hernandez slowed down and checked for cross traffic. 

Corporal Alaniz, who sat in the passenger seat of the vehicle, stated that he initiated the 

overhead lights and siren. The dashcam video of the incident was attached to DPS’s plea 

to the jurisdiction. As Trooper Hernandez drove his DPS vehicle across the intersection, 

his vehicle collided with Escobar’s vehicle.

Appellees filed suit against the DPS. DPS filed a plea to the jurisdiction denying 

that it had waived sovereign immunity, and it filed a motion for summary judgment

claiming that Trooper Hernandez acted in good faith. The trial court denied the DPS’s 

plea and motion for summary judgment. This appeal ensued.

II. PLEA TO THE JURISDICTION

By its first issue, DPS contends that the trial court should have granted its plea to 

the jurisdiction because Trooper Hernandez “conducted an emergency pursuit in 

compliance with the law and with due regard for the safety of others, as required by the 

Emergency Exception to the waiver of the State’s sovereign immunity.” Appellees 
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respond that “the emergency exception to the [TTCA] does not apply because Trooper 

Hernandez acted with conscious indifference and/or reckless disregard when he entered 

the intersection . . . against the red light without continuously operating his siren when his 

vision was obscured.”

A. Standard of Review

We review a plea to the jurisdiction under a de novo standard of review. Westbrook 

v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss a 

case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

226–27 (Tex. 2004).

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat 

a cause of action without regard to whether the claims asserted have merit. 

The claims may form the context in which a dilatory plea is raised, but the 

plea should be decided without delving into the merits of the case. The 

purpose of a dilatory plea is not to force the plaintiffs to preview their case 

on the merits but to establish a reason why the merits of the plaintiffs’ claims 

should never be reached.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (internal citations 

omitted).

When, a party challenges the existence of jurisdictional facts in its plea to the 

jurisdiction, we review the evidence in the light most favorable to the plaintiff to determine 

whether a genuine issue of material fact exists. Town of Shady Shores v. Swanson, 590 

S.W.3d 544, 550 (Tex. 2019). It is the plaintiff’s burden to affirmatively demonstrate the 

trial court’s jurisdiction; thus, the plaintiff has the burden to present sufficient evidence to 

create a genuine issue of material fact regarding the jurisdictional issue. Id. at 552. The 

trial court should not grant the plea if the evidence raises a fact issue regarding 
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jurisdiction. Miranda, 133 S.W.3d. at 227–28. However, if the evidence is undisputed or 

fails to raise a fact issue, the plea must be determined as a matter of law. Mission Consol. 

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133 S.W.3d at 

228.

B. Immunity

Local governmental entities have absolute immunity from suit unless immunity has 

been expressly waived by the Legislature. Miranda, 133 S.W.3d at 224. Immunity 

deprives a trial court of subject matter jurisdiction. Id. The TTCA provides a limited waiver 

of sovereign immunity in certain situations. See generally, TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021(1)(A). The TTCA waives a governmental unit’s immunity for injury or 

property damage which is proximately caused by the wrongful act or omission or the 

negligence of an employee acting within his scope of employment when the injury or 

property damage arose from the operation or use of a motor-driven vehicle, and “the 

employee would be personally liable to the claimant according to Texas law.” Id.; City of 

Dallas v. Hillis, 308 S.W.3d 526, 530 (Tex. App.—Dallas 2010, pet. denied).

However, immunity is not waived under the well-known emergency exception to 

the TTCA. TEX. CIV. PRAC. & REM. CODE ANN. § 101.055. Section 101.055 provides that 

the TTCA’s waiver of immunity is inapplicable when a claim arises from a State 

employee’s action “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.; Quested v. 
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City of Houston, 440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

C. Conscious Indifference or Reckless Disregard

The Texas Transportation Code sets out the laws on operating an emergency 

vehicle. See TEX. TRANSP. CODE ANN. §§ 546.001–.006; Perez v. Webb County, 511 

S.W.3d 233, 236 (Tex. App.—San Antonio 2015, pet. denied). Section 546.005 provides 

that an emergency vehicle operator must drive “with appropriate regard for the safety of 

all persons” and is not relieved of the “consequences of reckless disregard for the safety 

of others.” TEX. TRANSP. CODE ANN. § 546.005. A person commits the offense of reckless 

driving if “the person drives a vehicle in willful or wanton disregard for the safety of 

persons or property.” Id. § 545.401(a).

The Texas Supreme Court held that the uncodified predecessor of § 546.005 

imposed “a duty [for the emergency vehicle operator] to drive with due regard for others 

by avoiding negligent behavior”; however, the supreme court emphasized that liability 

only arises due to reckless conduct. Perez, 511 S.W.3d at 236 (quoting City of Amarillo 

v. Martin, 971 S.W.2d 426, 431 (Tex. 1998)). Recklessness in the TTCA context “requires 

more than a momentary judgment lapse—it requires a showing that the driver committed 

an act he knew or should have known posed a high degree of risk of serious injury.” Id. 

The court stated, “[w]ere we to . . . impose liability generally on emergency vehicle 

operators for mere negligence, we would render meaningless the portion of [§] 101.055 

that specifically excludes emergency vehicle operators from the waiver of immunity for 

negligence.” Id. (quoting Martin, 971 S.W.2d at 430). Accordingly, a violation of § 546.005

requires a showing that the driver committed an act he knew or should have known posed 
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a high degree of risk of serious injury. City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. 

App.—Houston [1st Dist.] 2008, no pet.); Perez, 511 S.W.3d at 236. This recklessness 

standard requires “proof that a party knew the relevant facts but did not care about the 

result.” See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006).

When faced with “an official traffic-control device,” a motorist is required to stop 

and “may proceed when the intersection can be safely entered without interference or 

collision with traffic using a different street or roadway.” TEX. TRANSP. CODE ANN. 

§ 545.151(a)(2). Under certain circumstances, police officers are authorized to violate 

traffic laws so long as it is safe to do so. See id. § 546.001(2). For example, § 546.001(2) 

authorizes a police officer to “proceed past a red or stop signal or stop sign, after slowing 

as necessary for safe operation.” Id. § 546.001(2); Perez, 511 S.W.3d at 236. “The

operator must use, at his discretion and in compliance with local government or 

department policy, appropriate audible or visual signals.” Tex. Dep’t of Pub. Safety v. 

Sparks, 347 S.W.3d 834, 838 (Tex. App.—Corpus Christi–Edinburg 2011, no pet.) (citing 

TEX. TRANSP. CODE ANN. § 546.003). Moreover, an operator of a motor vehicle, “on the 

immediate approach of a police vehicle using an audible signal . . . unless otherwise 

directed by a police officer, shall yield the right-of-way, immediately pull over to the righthand curb of the roadway clear of any intersection, and stop until the emergency or police 

vehicle has passed.” Id. (citing TEX. TRANSP. CODE ANN. § 545.156).

D. Analysis

It is undisputed that Trooper Hernandez ran a red light while making a left turn 

pursuant to § 546.001(2) due to an emergency. Thus, the issue here is whether Trooper 
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Hernandez knew the relevant facts but did not care about the result. See City of San 

Antonio, 201 S.W.3d at 672 n.19.

Trooper Hernandez stated in his affidavit attached to the DPS’s plea to the 

jurisdiction that he looked left and right prior to and while crossing the intersection. He 

averred that he was unable to see the third lane of traffic where Escobar was driving as 

his view was blocked by the traffic that had yielded to Trooper Hernandez’s vehicle.

The dash cam video shows that while Trooper Hernandez turned his vehicle left 

against the red light to pass through the intersection, the overhead lights were activated. 

In addition, in the video, the siren can be heard for approximately two seconds. After a

short pause of approximately one second, the siren can again be heard for approximately 

two seconds followed by a second pause. The collision then occurred almost immediately 

after the second pause. The video shows that the oncoming traffic in the first two lanes 

stopped for Trooper Hernandez’s vehicle, and some of the vehicles stopped in the middle 

of the intersection. In the video, Trooper Hernandez appears to be traveling at a slow 

speed, and he stated in his affidavit that he was traveling below the thirty mile per hour 

speed limit. A diagram of the collision was attached to DPS’s plea to the jurisdiction as 

shown below.
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The dash camera shows the following view from Trooper Hernandez’s perspective 

approximately four seconds prior to the collision. In the video, at this point, traffic began 

to yield the right of way to Trooper Hernandez’s vehicle.

The view from Trooper Hernandez’s dash camera approximately two seconds before the 

collision is shown below.
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The image above shows that the oncoming traffic had stopped for Trooper Hernandez’s 

vehicle.

Finally, this is what Trooper Hernandez’s dash camera view was approximately 

one second prior to the collision.

Appellees replied to DPS’s plea to the jurisdiction arguing that the evidence 

supported a finding that “Trooper Hernandez acted with conscious indifference and/or 
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reckless disregard for the safety of others.” Namely, appellees asserted: (1) Trooper 

Hernandez’s “vision was obstructed as to the outside lane of travel,” (2) Trooper 

Hernandez “failed to continuously operate his siren while proceeding through the 

intersection where the accident occurred, which would have alerted those whose vision 

was obstructed to his presence”; (3) “Trooper Hernandez proceeded into the intersection 

against the red light.” Citing Green v. Alford, appellees argued in the trial court and on 

appeal that it has been “established that the failure to use a siren while proceeding into a 

busy intersection against a red light is [a] fact supporting a conclusion that the officer 

behaved recklessly.” See 274 S.W.3d 5, 29 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied) (en banc).

In Green, some witnesses testified that the emergency vehicle’s siren was off while 

others testified that it was on. Id. at 11. In addition, evidence was presented that the 

defendant, Christopher Green, a firefighter, did not brake or slow down his 39,500-pound 

firetruck prior to entering the intersection and running the red light. Id. Although many of 

the witnesses testified that Green was driving his vehicle at or below thirty miles per hour, 

another witness stated that Green had been going forty to fifty miles per hour when he 

ran the red light. Id. Another witness stated that the fire truck, “approached ‘very fast’ and 

did not slow or stop before entering the intersection.” Id. A fellow firefighter and passenger 

of the fire truck stated, “Green should have known there was ‘a substantial certainty’ that 

if a smaller vehicle collided with [the fire truck], there was ‘a high degree of risk of serious 

injury.’” Id.

Furthermore, there was evidence that Green had a progressive eye condition, 
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which caused him to have decreased distant vision, blurring, and could “affect a person’s 

ability to drive” without corrective lenses. Id. The fire chief testified that “it would be a 

violation of state law, city ordinance, and department policy to drive a fire truck through a 

red light without the sirens activated,” that doing so would be reckless, and that “[a]lthough 

there are recordings of radio transmissions from” the emergency vehicle driven by Green, 

“no siren can be heard on these recordings.” Id. at 12. “As the trier of fact, the trial court

[in Green] resolved the conflicting accounts of the accident” finding, 

inter alia, that (1) Green was not wearing corrective lenses as required at 

the time of the accident; (2) he entered the intersection against the traffic 

light; (3) due to traffic in the southernmost and middle lanes of westbound 

Fairmont Parkway, Green’s view of the northernmost lane was impaired; 

(4) at the time of impact, the fire truck was traveling at 23 miles per hour;

(5) the fire truck entered the intersection at a speed too fast to stop for 

westbound traffic that might be entering the intersection; (6) at the time of 

the collision, Green was not using the fire truck’s siren or other audible 

warning signal; (7) Green did not act in good faith, and (8) Green’s conduct 

was reckless.

Id. at 14.

The Green court concluded that the evidence supported a finding that Green did 

not act in good faith because “even the ‘conduct at issue’ is a matter of dispute.” Id. The 

court explained:

Green contends that he wore his glasses, used the fire truck’s horn and 

siren, checked all three lanes on westbound Fairmont, and proceeded at no 

more than 10 miles per hour. But there is conflicting evidence that Green 

did not wear his glasses, did not use the fire truck’s horn or siren, did not 

see the northernmost lane of westbound Fairmont, and entered that lane 

blindly traveling at 23 miles per hour.

Id. at 20. The plaintiff’s expert witness testified that Green’s speed was unsafe because 

he was driving a firetruck, which required more time to stop the heavy oversized vehicle. 
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Id. “The trial court found the latter evidence more credible, and Green presented no 

evidence that a reasonable firefighter could have believed such conduct was justified.” Id.

The Green court acknowledged that an emergency vehicle operator may lawfully run a 

red light in response to an emergency “after slowing for safe operation with audible or 

visual signals activated.” Id. at 28. The court stated, “[h]ere, however, the factfinder 

concluded that Green did not slow as necessary for safe operation before entering the 

intersection.” Id.

However, those are not the facts here. The undisputed evidence establishes that 

Trooper Hernandez and Corporal Alaniz utilized the sirens and the overhead lights.

1

It is 

undisputed that (1) Trooper Hernandez slowed his vehicle prior to entering the 

intersection, (2) he stopped his vehicle just before turning against the red light, and (3) he 

looked right and left prior to driving his vehicle against the red light. Moreover, there is no 

evidence that Trooper Hernandez was traveling at an unsafe speed, operating an 

oversized heavy vehicle requiring a slower speed to stop, or suffering from any 

impairment to his vision like the defendant in Green. Cf. id.

In Sparks, we found that similar facts did not raise a fact issue as to whether the 

emergency vehicle operator was reckless. Sparks, 347 S.W.3d at 841. We cited 

(1) “DPS’s undisputed evidence . . . that [the DPS employee] was responding to an 

emergency call with his emergency lights and siren activated. . .,” (2) “[t]he video 

recording and the testimony of [the DPS employee and other troopers] . . . that [the DPS 

1 Appellees did not provide any evidence challenging these facts.
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employee driving the emergency vehicle] slowed or stopped as he reached the 

intersection, (3) [the employee’s] statement “that he slowed almost to a stop and looked 

‘left, right, and across’ before entering the intersection,” (4) a statement from another 

trooper “that [the DPS employee] stopped at the intersection and looked to the left before 

entering the intersection with ‘due caution,’” and (5) witness testimony that [the DPS 

employee] ‘slowed at the intersection’ and entered ‘cautiously.’” Id.

Here, as the DPS employee in Sparks, Trooper Hernandez slowed as he reached 

the intersection, the overhead lights were activated, and the siren was utilized. In addition, 

DPS presented evidence that Trooper Hernandez looked left and looked right and 

observed that vehicles in the oncoming lane were either stopped or otherwise yielding the 

right of way before entering the intersection. Accordingly, we conclude under these 

circumstances that DPS alleged and introduced evidence that the trial court lacked 

subject matter jurisdiction. See id. at 842. Therefore, the burden shifted to appellees to 

raise a genuine issue of material fact on whether Trooper Hernandez acted with 

conscious indifference to or reckless disregard for the safety of others. See id. Appellees 

sole argument rested on a finding that 

Trooper Hernandez acted with conscious indifference and/or reckless 

disregard for the safety of others because (1) his vision was obstructed as 

to the outside lane of travel, and (2) he failed to continuously operate his 

siren while proceeding through the intersection where the accident 

occurred, which would have alerted those whose vision was obstructed to 

his presence.

However, given that neither even a momentary lapse in judgment nor negligent 

conduct supports a conclusion that the emergency vehicle operator acted recklessly, we 
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cannot conclude that Trooper Hernandez’s act amounted to recklessness under these 

circumstances. See City of San Antonio, 201 S.W.3d at 672 n.19 (“[C]onscious

indifference” and “reckless disregard” “require proof that a party knew the relevant facts 

but did not care about the result.”). Appellees cite no authority, and we find none,

supporting the conclusion that an emergency vehicle operator acts recklessly solely 

because his vision is obstructed, or he fails to continuously operate his siren. See Sparks, 

347 S.W.3d at 842; see also City of San Antonio, 201 S.W.3d at 672 n.19.

2 Trooper 

Hernandez approached the intersection slowly, he looked left and right, the overhead 

lights were activated, the siren was activated two times prior to the collision, and he 

observed the traffic yielding to his emergency vehicle. Furthermore, there is no evidence 

that when Trooper Hernandez decided to continue through the intersection against the 

red light while his view was obscured, he knew the relevant facts but did not care about 

the result. See City of San Antonio, 201 S.W.3d at 672 n.19. Accordingly, we cannot 

conclude that appellees raised a question of fact regarding whether Trooper Hernandez 

acted recklessly. Therefore, we sustain DPS’s first issue, and we conclude that the trial 

court should have granted DPS’s plea to the jurisdiction.

3

2

In Zapata, a majority of this Court concluded that there was a fact issue regarding whether the 

police officer ran a red light. Zapata v. City of Gonzales, No. 13-18-00065-CV, 2020 WL 486489, at *5 (Tex. 

App.—Corpus Christi–Edinburg Jan. 30, 2020, no pet.) (mem. op.). It was undisputed that the officer did 

not slow down as he believed he had the green light. Id. We held that if the fact finder believed that the 

officer “drove through the intersection on a red light without slowing his vehicle or waiting for the crosstraffic to yield,” then the fact finder could have found the officer’s conduct reckless. Id. Here, there is no 

dispute regarding whether Trooper Hernandez slowed down prior to entering the intersection. Thus, Zapata

is not applicable here. See id.

3 Having sustained DPS’s first issue, we need not address its second issue as it is not dispositive. 

See TEX. R. APP. P. 47.1.
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III. CONCLUSION

We reverse the trial court’s judgment denying DPS’s plea to the jurisdiction and 

render judgment dismissing appellees’ claims against DPS for lack of subject-matter 

jurisdiction.

JAIME TIJERINA

Justice

Delivered and filed on the

29th day of December, 2021.