COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CITY OF SAN ANTONIO,

 Appellant, 

v. 

JOEL GARCIA, Individually and 

as Next Friend of J.G. 

 Appellee. 

§

§ 

§ 

§ 

§ 

No. 08-23-00329-CV

Appeal from the 

166th Judicial District Court

of Bexar County, Texas 

(TC# 2022CI20560) 

MEMORANDUM OPINION

Joel Garcia and his minor son sued the City of San Antonio alleging one of its police 

officers negligently caused a vehicular collision. The City moved for summary judgment in a 

hybrid motion that asserted multiple grounds for governmental immunity. The trial court denied

the motion and this interlocutory appeal followed.1 The parties devote much of their briefing to 

whether the City proved through its traditional motion for summary judgment that the police 

officer enjoyed “official immunity” which in turn would protect the City. A recent case from the 

Texas Supreme Court clarifies the standard governing that question.2 But we resolve this appeal 

on a narrower ground: the Garcias failed to respond to the no-evidence portion of City’s motion 

1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code 

Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our 

own. See Tex. R. App. P. 41.3

2 City of Houston v. Sauls, No. 22-1074, 2024 WL 2096554, at *3 (Tex. May 10, 2024). 
2

for summary judgment on two other exceptions to the waiver of immunity under the Texas Tort 

Claims Act. Their arguments on appeal do not plug that hole. For that reason, we reverse and 

render judgment for the City.

FACTUAL AND PROCEDURAL BACKGROUND

The basic facts here are undisputed. On March 12, 2022 at 4:20 p.m. City of San Antonio 

Police Officer Kevin Wilkinson was assigned to respond to a 9-1-1 call for a burglary in progress. 

As Wilkinson travelled to the scene with his lights and siren activated, he went against a red light 

at an intersection, and struck Garcia’s vehicle. Garcia, individually and on behalf of his minor 

son, filed suit alleging that Officer Wilkinson was negligent and that the City liable for his 

negligence. Garcia pled that the City’s immunity was waived under the Texas Tort Claims Act 

and the trial court had jurisdiction because the claim arises from the use of a motor vehicle and 

because Wilkinson acted with “conscious indifference and reckless disregard for the safety of 

others.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021, 101.055(2). 

The City answered and affirmatively raised governmental immunity, including that 

afforded to it under § 101.062 (the 9-1-1 exception) and § 101.055 (the emergency response 

exception) of the Texas Tort Claims Act. Almost a year after the suit was filed, the City filed a 

no-evidence and a traditional motion for summary judgment asserting governmental immunity.

In support, it attached an affidavit by Officer Wilkinson in which he states that after receiving the 

dispatch, he activated his lights and sirens. He states that the weather was clear and dry and he 

“perceived no risk and certainly no extreme risk of proceeding through the intersection of 

Callaghan Road and Commerce Street.” As he approached the intersection going southbound, he 

“slowed [his] speed significantly, changed the tones of [his] sirens, and began blowing [his] police 

vehicle’s airhorn . . . .” Vehicles stopped and moved aside for him, and he came to a rolling stop 
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as he went through the intersection. When he was nearly through the intersection, Garcia, 

traveling eastbound, drove through the intersection. Officer Wilkinson was unable to stop his 

vehicle in time. A video from the dash camera, also submitted as summary judgment evidence, 

corroborates Officer Wilkinson’s affidavit.

The court denied summary judgment and the City filed this interlocutory appeal. Tex. Civ. 

Prac. And Rem. Code § 51.014(a)(8); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)

(“If the trial court denies the governmental entity’s claim of no jurisdiction, whether it has been 

asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the 

Legislature has provided that an interlocutory appeal may be brought.”). 

ANALYSIS

A. Immunity

“A city performing governmental functions may not be sued for its employees’ conduct 

unless a plaintiff demonstrates the Legislature waived the city’s governmental immunity.” City

of Houston v. Sauls, No. 22-1074, 2024 WL 2096554, at *3 (Tex. May 10, 2024); City of El Paso

v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). Governmental functions include the activities of 

police. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(1). The City is therefore immune from 

this suit unless the Legislature has clearly and unambiguously waived that immunity. DeWitt v.

Harris Cnty., 904 S.W.2d 650, 652 (Tex. 1995). 

The Texas Tort Claims Act (TTCA) waives immunity “in specific, narrow 

circumstances.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). Relevant to 

this case, a governmental agency’s immunity is waived for claims involving “property damage, 

personal injury, or death [which] arise[] from the operation or use of a motor-driven vehicle”

when “the employee would be personally liable to the claimant according to Texas law.” Tex. Civ. 

Prac. & Rem. Code Ann. § 101.021(1). 
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The City argues it retains immunity for three reasons: official immunity of the officer; the 

emergency exception, and the 9-1-1 exception. Before discussing the facts here, we outline the 

immunity concepts at play.

(1) Official immunity

A City’s immunity is waived only if the governmental employee “would be personally 

liable.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(B). Whether an employee can be held 

liable turns on a different kind of immunity, official immunity. “If the employee is protected from 

liability by official immunity, the employee is not personally liable to the claimant and the 

government retains its sovereign immunity.” DeWitt, 904 S.W.2d at 653; see also K.D.F. v. Rex, 

878 S.W.2d 589, 597 (Tex. 1994) (“Thus, Texas is vicariously liable for the acts of its employees 

only to the extent its employees are not entitled to official immunity.”).

Police officers have official immunity when they “perform discretionary duties in good 

faith while acting within the scope of their authority.” Sauls, 2024 WL 2096554, at *1. An officer 

acts in good faith if “a reasonably prudent officer, under the same or similar circumstances, could 

have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm 

to the public in continuing the pursuit.” City of Lancaster v. Chambers, 883 S.W.2d 650, 656 

(Tex. 1994); Sauls, 2024 WL 2096554, at *6. 

(2) Emergency exception

Even in circumstances where the governmental employee does not have official 

immunity, the Legislature recognized that the importance of immunity when a government 

employee responds to an emergency. “Imposing liability for a mere failure in judgment could 

deter emergency-assistance personnel from acting decisively and taking calculated risks in order 

to save life or property.” City of Houston v. Frazier, No. 01-21-00318-CV, 2022 WL 1216181, 

at *8 (Tex. App.—Houston [1st Dist.] Apr. 26, 2022, no pet.) (mem. op.) (citing City of Amarillo
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v. Martin, 971 S.W.2d 426, 429 (Tex. 1998). The TTCA therefore excepts from the general waiver 

of immunity claims related to “the action of an employee while responding to an emergency call 

or reacting to an emergency situation if the action is in compliance with the laws and ordinances 

applicable to emergency action, or in the absence of such a law or ordinance, if the action is not 

taken with conscious indifference or reckless disregard for the safety of others.” Tex. Civ. Prac. 

& Rem. Code Ann. § 101.055(2). The underlying policy of the emergency exception is “‘to 

balance the safety of the public with the need for prompt response’ from emergency-assistance 

personnel.” City of San Antonio v. Trevino, No. 04-22-00224-CV, 2022 WL 17480550, at *3 

(Tex. App.—San Antonio Dec. 7, 2022, no pet.) (mem.op.) (quoting Martin, 971 S.W.2d at 429). 

Without immunity, lawsuits would “‘allow for judicial second guessing of the split-second and 

time-pressured decisions’ emergency-assistance personnel are forced to make.” Trevino, 2022 

WL 17480550, at *3 (citing City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 699 (Tex. 

App.—Austin 2005, no pet.)). 

Significant to this appeal, “[t]he plaintiff bears the burden of negating Section 101.055’s 

applicability.” Maspero, 640 S.W.3d at 529, (citing City of San Antonio v. Hartman, 201 S.W.3d 

667, 672 (Tex. 2006)); City of San Antonio v. Rosenbaum, No. 04-11-00498-CV, 2011 WL 

6739583, at *2 (Tex. App.—San Antonio Dec. 21, 2011, no pet.) (mem. op.) (stating that once 

the City raised the issue, the plaintiffs “would be required to present some evidence showing that 

[the city actor] was not reacting to an emergency situation or responding to a 9–1–1 emergency 

call.”). 

(3) 9-1-1 exception 

Similar to the emergency exception, the TTCA excepts from its waiver of immunity “an 

action of an employee of [a] public agency . . . that involves providing 9-1-1 service or responding 

to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the 
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action.” Tex. Civ. Prac. & Rem. Code. Ann. § 101.062(b); Guillen v. City of San Antonio, 13 

S.W.3d 428, 432 (Tex. App.—San Antonio 2000, pet. denied). 

B. Summary judgment

(1) Burden of proof and standard of review

Both a traditional and a no-evidence motion for summary judgment can challenge 

jurisdiction based on immunity. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 

(Tex. 2019). With a traditional motion for summary judgment, the movant has the burden to show 

that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). With a no-evidence motion 

for summary judgment, on the other hand, the burden is on the nonmovant to produce summary 

judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i).The City 

filed a hybrid motion for summary judgment. It sought a traditional summary judgment on all 

three grounds for immunity and a no-evidence summary judgment on the emergency and 9-1-1 

exceptions from the waiver of immunity. “If a party moves for summary judgment on both 

traditional and no-evidence grounds, . . . we first consider the no-evidence motion.” Lightning Oil

Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). 

We review a no-evidence summary judgment for evidence that would enable reasonable 

and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 

827 (Tex. 2005). “A no-evidence challenge will be sustained when (a) there is a complete absence 

of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight 

to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is 

no more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A fact issue exists if there is 

more than a scintilla of probative evidence. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). 
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(2) No-evidence motion 

The City’s no evidence motion for summary judgment challenged the absence of evidence 

for each aspect of the emergency and 9-1-1 exceptions under the TTCA.

3 To avoid a no-evidence 

summary judgment on the emergency exception, the Garcias had to show that a genuine issue of 

material fact existed by presenting evidence of one of the following: “(1) [Wilkinson] was not 

responding to an emergency call or reacting to an emergency situation, (2) [Wilkinson]’s actions 

were not in compliance with the laws and ordinances applicable to emergency action, or (3) 

[Wilkinson]’s actions show that he acted with conscious indifference or reckless disregard for the 

safety of others.” Trevino, 2022 WL 17480550, at *3; Tex. Civ. Prac. & Rem. Code § 101.055(2). 

The Garcias response to the City’s motion argued only that “a fact question exists in 

determining whether Officer Wilkinson acted in good faith in undertaking his discretionary 

duties.” Good faith is a factor in the official immunity analysis which was not at issue in the noevidence motion for summary judgment. The Garcias did not discuss the emergency or 9-1-1 

exceptions, did not argue that they did not apply, and did not present evidence about the elements 

of those exceptions. And although they attached the Texas Peace Officer’s Crash report, they did 

not reference it as evidence for either immunity waiver exception. “When a summary judgment 

respondent fails to direct the [ ] court to specific summary judgment evidence, a fact issue cannot 

3 For the 9-1-1 exception under § 101.062, the City’s motion raised these challenges: 

As a result, the City asserts that Plaintiff has no evidence that the exception of section 101.062 does 

not apply because Plaintiff has no evidence that: (1) Officer Wilkinson was not providing 9-1-1 

service or responding to a 9-1-1 emergency call at the time of the incident made the basis of this suit; 

(2) Officer Wilkinson violated a statute or ordinance applicable to an emergency vehicle providing 

9-1-1 service or responding to a 9-1-1 emergency call; (3) Officer Wilkinson acted with conscious 

indifference or reckless disregard for the safety of others; (4) Officer Wilkinson committed an act he 

knew or should have known posed an extreme degree of risk of serious injury; and (5) Officer

Wilkinson did not care about the consequences of his actions.

The City challenged the same elements for the § 101.055(2) emergency response exception. 
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be raised sufficient to defeat summary judgment.” Leija v. Laredo Cmty. Coll., No 04-10-00140-

CV, 2011 WL 1499440, at *5 (Tex. App.—San Antonio Apr. 20, 2011, no pet.) (mem. op.). 

When the movant in a no evidence motion for summary judgment properly challenges an 

element of the nonmovants claim, the burden shifts to the nonmovant to present more than 

scintilla of competent evidence raising an issue of material fact as to the elements of its cause of 

action. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When the nonmovant 

fails that task, “[t]he court must grant the motion.” Tex. R. Civ. P. 166a(i) Helena Chem. Co. v.

Cox, 664 S.W.3d 66, 72–73 (Tex. 2023), reh’g denied (May 5, 2023), cert. denied, 144 S. Ct. 199, 

217 L. Ed. 2d 81 (2023); Bock v. State Farm Cnty. Mut. Ins. Co. of Tex., 675 S.W.3d 36, 41 

(Tex. App.—San Antonio 2023, no pet.). Because the Garcias did not respond to the no-evidence 

motion, the City was entitled to summary judgment. 

Even on appeal, the Garcias’ brief on the merits only acknowledges that the City filed a 

traditional motion for summary judgment and argues that the trial court properly denied the 

Garcias’ traditional motion for summary judgment. Under that argument, they claim that the City 

failed to meet its burden to prove the emergency exception. They make no specific argument that 

the no-evidence motion was properly denied based on the Garcias presenting evidence to defeat 

the exception. 

We acknowledge, however, that the Garcias make an alternative argument in their brief 

that even if the City met its initial burden to prove the emergency exception under the City’s 

affirmative motion, the record contains proof of a genuine issue of material fact for whether 

Officer Wilkinson acted recklessly. The evidence that they rely on for that argument could apply 

with equal force to the no evidence part of the hybrid motion. Given our preference for resolving 

disputes on the merits, rather than briefing waiver, we address the arguments the Garcias raise in 
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response to the affirmative motion on the emergency and 9-1-1 exceptions that would equally 

apply to the no-evidence motion on those same exceptions. 

The Garcias’ response attached as summary evidence the Texas Peace Officer’s Crash 

Report for this accident.

4 That report does not contradict the assertion that Officer Wilkinson was 

responding to a 9-1-1 emergency call about the burglary of a vehicle and the Garcias admitted 

that fact in their summary judgment response. See Holy Cross Church of God in Christ v. Wolf, 

44 S.W.3d 562, 568 (Tex. 2001) (finding that statements in non-movant’s summary judgment 

response were judicial admissions supporting summary judgment). Nor does the report provide 

evidence that Officer Wilkinson violated a law or ordinance. The only violation apparent from 

the summary judgment evidence is driving through a red light, but “Chapter 546 [of the 

Transportation Code] generally authorizes operators of emergency vehicles to disregard traffic 

laws, including traffic lights and speed limits, when responding to an emergency call.” City of 

Houston v. Green, 672 S.W.3d 27, 30 n.3(Tex. 2023); Tex. Transp. Code §§ 546.001, .002.5 

The Garcias also needed to raise a genuine issue of material fact for reckless. The Texas 

Supreme Court has recognized that the reckless standard in this context means more than just 

engaging in risky behavior. Disregarding traffic laws while responding to an emergency 

“involve[s] obvious risk of serious injury to bystanders” but so does allowing a suspect to escape 

or a crime to occur because of a slow response. Maspero, 640 S.W.3d at 531–32. Thus, showing 

4 The Garcias also attached their discovery disclosures. But a party cannot rely on his own discovery responses as 

summary judgment evidence. Edifika Investments, LLC v. Chain & Chain Constr., LLC, No. 04-21-00568-CV, 2023 

WL 3487027, at *5 (Tex. App.—San Antonio May 17, 2023, no pet.) (mem. op.). The trial court properly sustained 

the City’s objection to this evidence.

5 On appeal, the Garcias argue for the first time that the 9-1-1 call was downgraded from a Code 3 to Code 2 call 

after Office Wilkinson first responded to the call, but before the accident. Citing to a website that purports to have 

City of San Antonio standards for how to respond to Class 2 calls, the Garcias claim Officer Wilkinson should have 

come to a complete stop at the intersection. The standard that the Garcias point to was not presented below, and they 

offer no basis for this Court to consider it for the first time on appeal. 
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recklessness then means more than the fact that the officer engaged in risky behavior. A driver is 

reckless only if he has a “willful or wanton disregard for the safety of persons or property.” 

Tex. Transp. Code § 545.401(a); Maspero, 640 S.W.3d at 531. The evidence must show that the 

officer knew all the facts and that there was a high risk to other drivers, but that he did not care. 

Green, 672 S.W.3d at 30 (Tex. 2023); Hartman, 201 S.W.3d at 672 & n.19. 

For recklessness, the Garcias point to the crash report. It states that because of stopped 

vehicles, Officer Wilkinson and Garcias could not see each other.6 That Wilkinson continued 

through the intersection anyway, the Garcias contend, is some evidence that he was reckless. But 

lack of visibility alone is not evidence of recklessness. As explained by the Houston, First District 

Court of Appeals: 

Whether the intersection is blind does not create a material fact issue here in 

light of the undisputed testimony that Officer Matela had on his emergency 

lights and siren and that he slowed before entering the intersection. Any 

intersection that an officer attempts to traverse when responding to an 

emergency is potentially a “blind intersection.” That is why the statute provides 

that an emergency vehicle may proceed through a stop light after “slowing as 

necessary.” See Tex. Transp. Code Ann. § 546.001(2). 

City of Pasadena v. Kuhn, 260 S.W.3d 93, 100 (Tex. App.—Houston [1st Dist.] 2008, no pet.). 

Courts have found that obstructed visibility is evidence of recklessness only when it is combined 

with a failure of the officer to take other precautions. Compare Green, 672 S.W.3d 27 at 31 

(holding that the City was entitled to summary judgment because, even though the officer had an

obstructed view, there was no evidence to contradict that he slowed down before the intersection

and intermittently activated his sirens), and Tex. Dep’t of Pub. Safety v. Escobar, No. 13-20-

00267-CV, 2021 WL 6129135, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2021, pet. 

6 This is not in dispute. Officer Wilkinson’s affidavit states, “I did not see the vehicle driven by Joel Garcia until I 

was one lane away from being through the intersection.” 
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denied) (mem. op.) (“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.”), and Harris Cnty. v. Spears, No. 14-17-00662-CV, 2018 

WL 4571841, at *6 (Tex. App.—Houston [14th Dist.] Sept. 25, 2018, no pet.) (mem. op.) (“But 

this evidence [of obscured visibility], when combined with the other evidence showing the 

precautions Deputy Baskins took before entering the intersection, does not create an issue of fact 

with respect to recklessness.”), with Tex. Dep’t of Pub. Safety v. Zakir, 665 S.W.3d 884, 893–94 

(Tex. App.—Houston [14th Dist.] 2023, no pet.) (holding that there was evidence of recklessness 

when the officer accelerated into an intersection with limited visibility before traffic had stopped 

and after sounding the airhorn for only “a couple of blips”), and City of Killeen-Killeen Police

Dep’t v. Terry, No. 03-20-00071-CV, 2022 WL 221240, at *4 (Tex. App.—Austin Jan. 26, 2022, 

pet. filed) (mem. op.) (holding that a fact issue existed because of the officer’s rate of speed 

“coupled with” his obscured view and the fact that vehicles were continuing through the light), 

and Perez v. Webb Cnty., 511 S.W.3d 233, 238 (Tex. App.—San Antonio 2015, pet. denied)

(holding evidence raised a fact issue when the officer accelerated through the intersection despite 

having a blind spot).7 The Garcias did not produce any evidence, as was their burden, that Officer 

Wilkinson failed to take precautions due to his obstructed view. Because the Garcias did not raise 

a genuine issue of material fact even considering the evidence attached to their response, the trial 

court erred by denying summary judgment. 

7 The Garcias cite to Rivera v. City of Houston for the proposition that “merely slowing down before entering an 

intersection is not enough.” Rivera v. City of Houston, No. 01-19-00629-CV, 2022 WL 2163025 (Tex. App.—

Houston [1st Dist.] June 16, 2022, no pet.) (mem. op.). This is an oversimplification of Rivera. There, the court held

that even though the officer slowed down before entering the intersection, a fact issue about recklessness was raised 

because of evidence that the officer did not know if she had a red light and was looking at her mobile data terminal 

raised a fact issue about recklessness. Id. at *7. There was no such evidence in this case.
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Given our conclusion that the City was entitled to summary judgment based on its noevidence motion, we need not reach the issue of official immunity or whether the City met its 

burden for traditional summary judgment. Green, 672 S.W.3d 27 at 30 n.2 (“Because we conclude 

the emergency exception applies and prevents the waiver, we need not address the officialimmunity issue.”); Trevino, 2022 WL 17480550, at *11 n.1 (“Because Trevino did not negate one 

of the three independent grounds on which the City moved for summary judgment (the emergency

exception), we need not address whether he negated the other two grounds (the 9-1-1 exception 

and official immunity”).

CONCLUSION

Because the Garcias did not respond to the City’s motion for summary judgment with 

evidence raising a genuine issue of material fact, we reverse the trial court’s denial of the City’s 

motion for summary judgment and render judgment for the City.

 

JEFF ALLEY, Chief Justice

June 20, 2024 

Before Alley, C.J., Palafox, and Soto, JJ.