## In the Court of Appeals Second Appellate Distri ct of T exas at Fort Worth

___________________________ No. 02

- 23

- 00204

- CV

___________________________

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CV21

- 1205 Before Kerr, Birdwell, and Womack, JJ. Memorandum Opin ion by Justice Birdwell 

### T HE 

### C ITY OF 

### S PRINGTOWN 

### , Appellant
V


### . K ALIE 

### A SHENFELTER 

### , Appellee2 MEMO RANDUM OPINION Appellee Ka lie A shenfelter sued Appellant City of Springtown after she w a s in volved in an automobile collision with a City police officer

. The City appeals the trial court ’ s denial of its combined motion for no
- e vidence and tr aditional summary judgment , ass er t ing t hat it was entitled to immuni ty based on ( 1 ) the police officer ’ s official immunity and (2) the emergency exception to the Texas Tort Claims A c t ’ s (TTCA) waiver of immunity

. S ee Tex. Ci v . Prac. & Rem. Co de Ann. §§ 101 .021, 101.055

. Because we concl ud e that the City was not entitled to a no

- evidence summary judgment and that evidence attached to the C ity ’ s own tradi tional motion for sum mary judgment raised a fact issue as to whether govern me ntal i mmunity w as waived, we affirm the trial court ’ s o rder denying the City ’ s combined motion

. See Tex. R. A pp. P. 43. 2 ( a )

. I. Backgro und 1 Ashenfelter T

- boned on
- duty City p olice officer Sergeant Charles Cobb as he was driving through an intersection i n his police vehi cle. Sergean t Cob b entered the intersection against a red light with his emergency lights and siren on, and Ashenfelter entered the intersection with a green light. Ashenfelt er in itially sued Sergeant Cobb fo r negligen ce and the City under t he doc trine of respondeat superior. After filing a Notice of Nonsuit as to Sergeant Cobb, Ashen felter filed her amended petition asserting negligence against only the City. She alleged that thr ough the actions of

1 All facts are deriv ed f rom the p arties ’ summary judgment evidence.3 Sergeant Co bb, t he City had breached its du ty of care by f ailing to yield th e right

- of

way , failing to keep a safe distance, failing to control th e vehicle ’ s speed, failing to take proper evasive measure s to av oi d the collisi on , and driving in a reckle ss ma nner . She also alleged that Sergeant Co bb ’ s actions viola ted specific sections of Chapter 545 of the Transportation Code (Operation and Movement of Vehicles)

. See Tex. Transp. Code A nn. §§ 545.062, 5 45.151, 545.351, 545.401

. The City answered and filed a “ Traditional and No [

- ] Evidence Mo tion for Summary J u dgm e nt ” a sserting governmental immunity and challenging the trial

cou rt ’ s jurisdiction

. T he trial court de nied the C it y ’ s motion. The Cit y then filed this interlocutory ap peal. See Tex. Ci v. Prac. & Rem. Code Ann. § 51. 014(a)( 8 )

.

I I. Ap plicable Law A plaintiff bears the burden of affirm atively d emonstrating the trial court’s jurisdiction. Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019). This burden includes establishing a waiver of immunity in suits agai nst the gove rnmen t. Id

. Th e plaintiff mus t begin by alleging circumstances that fit within a provision of the a ct that authorizes a waiver, suc h as Sect ion 101.021(1)(A) of t he TTCA

. Rat tray v. City of Brownsville , 662 S.W.3d 860, 866 (Tex. 2023)

. The plaintiff must a lso “ negate [] any relevant ex pressed withdraw al of the waiver ” on whic h she r elies. Id. In TTCA cases , governmen tal imm unity is wai ve d for per sonal injury or prop erty damage caused by a city em ployee’s wrongful act or om ission or the negligence arising from that employe e ’ s opera tion o r use of a motor vehicle within the4 scope of employment if t he “employee would be personally liable t o t he claimant according to T exa s law.” Tex. Civ. Prac. & Re m. Code Ann. § 101.02 1(1) ( B)

. Here , f

or jurisdicti onal purposes, the C ity di sput es whet her S erg eant Cobb would be personally liab le to Ashenfelter an d contends that he would not be because he is

en ti tle d to th e affirmative defens e of official immunity. See City of San An tonio v. Rioja s , 640 S.W.3d 534, 537

– 38 (Tex. 20 22)

. Because offi cial im munity i s an affirmative defense, it is the defendant ’ s burden to establish all the required elements : (1) the p erf ormance of discretiona ry duti es ; (2) within the scope of the employee ’ s au thority; (3) provided the employee acts in good faith. Area Metro. Ambulanc e Auth. v. Reed , No. 02

- 22

- 00406

- CV , 2023 WL 3017936, at *4 (Tex. App.

–– Fort Worth Apr . 20, 2023, no p et . ) (mem. op. on reh ’ g ) ; see also Un iv. of Hous

. v . Clark , 3 8 S.W.3d 578, 580 (Tex. 2000) (listing elements) ; City of Lan caster v. Chamber s , 883 S.W.2d 6 50, 653 (Tex. 1994) (discussing burden)

. In addition to arg uing that it is entitled to the benefit of Se rge ant Cobb ’ s offi cial immunity t o defe at Section 101.021(1) ’ s waiver , the City ar gues that an exception to the general waiver applies

–– t he emergency ex ceptio n under Section 101.055

. Un der that e xception, the TT CA ’ s waiver provision s do not apply to clai ms

a ri sing

. . . fr om t he action o f an employee while respondi ng to an emergency ca ll or reacting to an emergency situation if the action is in complianc e with the laws and ordina nces a pplicable to emergency acti on, o r in the absence of such a law or or di na nce , if the action is not taken w

ith conscious indifference o r reckless disregard for the safet y of others

.5 Tex. Civ. Prac. & R em . Code Ann. § 101.055( 2) ; se e also City of Houston v. Green , 672 S.W. 3 d 27, 30 ( T ex. 2 023) (citing Section 101.055(2))

. Ashe nf elt er had the burden t o negate t he emergency exc eption by raising a fact issue on any one of its three elements: (1) whether Sergeant Cob b was res pondin g to an emergency when the

ac cident occurred; ( 2) whether S ergea nt Cobb ’ s actions were not in complian ce wi t h the law s and ordinances ap pl i c able to e mergency action ; a nd ( 3) whether Sergeant Cobb ’ s actions reflected conscious indifference or reckless disre gar d for the safety of others. See City of San Antonio v. Ma spero , 640 S.W.3d 523, 5 29 (Tex. 2022)

. If a fac t issue exists as to the emer gency exception, then the City had the burden to defeat Section 101.021(1) ’ s waiver by establish ing that Sergeant Cobb wa s (1) performing a discretionary duty (2) within the scope of his au thority (3) in good faith. See A re a Me tro. Ambulance Auth. , 2023 W L 3017936, at *4

. II I. St andard of Review G overnmental immunity may be raised by a ple a to the jurisdicti on or by a trad itional or n o
- evidence moti on for summ ary judgment , Town of Shady Shores , 590 S.W.3d at 550

– 52 , and w e r evie w the trial court ’ s ruling d e novo , Dillard ’ s, I nc. v . Newman , 299 S.W.3d 144, 147 (Tex. App.

— Amarillo 2008, pet. denied) (mem. o p. ) (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005))

. When, as here, the motion for summary jud gm ent challenges the exi stence of jurisdictio n al facts, we consid er re levant evidence submitted by t he parties as necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Tex. Dep ’ t of Parks &6 Wildlife v. Miranda , 133 S. W. 3d 217, 227 (Te x. 20 04). When consideration of a trial
court ’ s sub ject

- matter juri sdiction requi res the examination of evidence, the tria l court exercis es its discretion in deciding whether the jurisd ictional determination should be made at a preliminary h earing or await a fu ller development of the case. Id. In a ca se in which the juris dictional chal lenge implicates the merits of the plaint iff ’ s cause of action and the jurisdictional challenge includes evidence, the trial court reviews the relevant eviden ce to determine i f a f act issue exists. Id. “ I f the evidence cr eates a fact question regarding the jurisdictional issue, then the trial cou rt cannot grant the plea to the jurisdiction, and the fact issu e will be resolved by the fact finder.” Id. at 227

– 28 ; s ee Maspero , 640 S.W.3d at 5 29 . However, if t he relevant evide nce i s undisputed or fails to raise a fact question on the jurisdic tional is sue, the trial court rules on the jurisdictional challenge as a matter of law. Miranda , 133 S.W

. 3d at 228 ; Maspero , 6 40 S.W.3d at 5 29

. R equiring the governmenta l e n tity to meet the summa ry judgment standard of proof p rotects the plaintiff from having to “p ut on [her] cas e simply to e stablish jurisdiction.” Mir anda , 133 S.W.3d at 228 (quoting Bland Indep. Sch. Dist. v. Bl ue , 34 S.W.3d 547, 554 (Tex. 2000))

. Instead, a fter the governme n tal entity asserts and supports with evidence that the trial court lacks s ubject

- m atter j urisdiction, the plaintiff, when the facts underlying the merits and subject

- matter jurisdi ction are i nt ertwined, must s how there is a disputed mate r ial fact regardin g the jurisdictional issue. Id.7 I V . Disc ussion In the part of its motion la be led “ N o [

- ] Evi dence Motion for Sum mary Judgment , ” the City argued that there was “ a failure of ” certain elements under Sec tion s 101.021 and 101.055 of the TTCA , re s ul ting in Ashenfe lter ’ s failure to show

a waiver of the City ’ s immunity f rom suit

. As to Sec tion 101.05 5, the City argued, [T] here is no evidence of the two required elements [Ashenfelter] must estab lish under TTCA § 101.055 in order to invoke a waiver of the C ity ’ s sovereign immunity

. . . . : (1) That [ Sergeant ] Cobb ’ s actions did not comply wit h la w s and ord inances applicable to this emergency action[; and ] (2) In the absence of such a law or or dina nce, th ere is no ev idence [ Sergeant ] Cobb acted w i th consc ious indi ffere nce or reckless disregard f

or the safety of others. [Emphasis added.] And as to S ectio n 10 1.021, the City argued , (1) Th ere is no evidence of property damage or pers onal i njury from a City emp loyee ’ s wrongful act or om is s ion or negligence in t he operation or use of a motor

- driven vehicle or motor

- driven equ ipment

. (2) Ther e is n o evi dence tha t the City employee directly invo l ved in the p ursuit

– [ Sergeant ] Cobb

– wou ld be personally liable to [A shenfelter] according to Te x a s law. In its traditional motion, t he City argued that (1) A shenf elter “ cannot establish the elements for a waiver of imm unity under TTCA § 101.021 . . . because [ Sergeant ] Cobb would not be perso nally liable to [her] d u e to his official immunit y ” and (2) A s henfelt er “ c annot overcome TTCA § 101.055 [ , ] which establi shes an emergency exception to any waiver of th e City ’ s immun ity. ”8 The City ’ s argument s rest on its conclusory assert ion that Sergeant Cobb wa s responding to an emergency when he en tered t he intersection

. As evidence in support of its combined motion, the City filed the Springtown Police Department ( S PD ) dispatch c all

- sheet report s, Sergeant Cobb ’ s dash camera vid eo and still photographs taken from the video , and Sergeant Cobb ’ s a ffidavit

. In respons e to the City ’ s combined motion , Ashenfelter asserted that Sergeant Cobb had failed to yield the right

- of

- way to onc o ming cross
- traffic and had failed to
sto p at a red light. Relying on a Fourteenth Court of Appeal s case that has si nce been overturned by the Texas Supr eme Court, 2 As henfelter argued that a fact issue existed
as to w hether Sergeant Cobb acted wi th consciou s indifference and reckless di sregard for the sa fety of others

. In support of her respo n se , A shenfelter filed the Department of Public Sa fety (DPS) crash report

. 3 Although Ashe nf elter did not expressly cha llenge the City ’ s contention that Ser geant Cobb was respondin g to an emergency

2 Ci ty of Houston v. Green , No. 14

- 20

- 00190

- CV, 2022 WL 9 733 4 (Tex . App.

— Houston [ 1 4th Dist.] Jan. 11, 2022 ) (mem. op.) , r e v ’ d

, 672 S.W.3d 27 (Tex. 2023).

3 In the re port, the DPS investigator provided the fol lo win g narrat ive : Unit 1 (polic e veh i cl e) was trave l ing east on Pojo [Road] and unit 2 [Ashenfelter] was traveling north on FM 51 (N. Ma in Stree t). Uni t 1 entered the intersection from the wes t and unit 2 entered the same intersection at the s ame tim e fro m the s outh. The front left corner of u nit 2 hit the ri ght pass enge r compartment of unit 1 while both vehicles were in the intersection. This int ersecti on is controlled by a traffic light and it was reported to this officer the traffic light wa s “ GREEN ” fo r No rth and S outh bound traffic on FM 5 1 [ Main Stree t]. Unit 1 was responding to a [n] emergen cy call for service wi th emergency lights an d sir en “ ON. ”9 at the time o f the ac cident, 4 she argued that Serg e ant Cobb would be personally responsible for the accident be cause he ran the red ligh t and failed to yield t he right

of

- w ay, and that “ a fact issue exists as to ea ch element of [ her] clai ms. ” [E mpha sis added.] A. The Emergency Exception 1. No
- evidence motion Regardi ng the emergency excepti on, the City first claimed that there is no evidence of the following: “ (1) That [ Sergeant ] Cobb’ s actions did not comply with laws and ord in ances applicable to this emergency acti on [ , and] (2) [ i ] n the a bsenc e of such a law or ordinance, there i s no evidenc e [ Sergeant ] Cobb acted with conscious indifference or reckless disregard for the safety of others. ” The City ’ s motion is b as e d on it s conc lusory assertion

–– upon which a ll of its argumen ts are premi s ed

– – that Serg eant Cobb was responding to an emergen cy . But the City never expressly move d for summary judgmen t on the ground that A shenfelter could produce no eviden ce that Sergean t C obb was not r esponding to an emergency , one of the three element s on whi c h a fact issue c ould defeat the ap plicability o f Se ction 101.0 55

.

4 In its reply brief, the Ci ty argues tha t (1) because A shen felter ’s response to the City ’s motion did not expressly ch all enge whether Sergeant Cobb was respo nding to an emergency at the time of the a ccide nt , she cannot challen ge the “emergency ” issue for the first time on appeal , an d (2) Ashenfe lter ’s summary judgment evidence
“ admitted ” that Sergeant Cobb was responding to an emergency. For the reason s explai ned below, we re ject the City ’s argume nts .10 A no

- evidence m otion m ust specifically state the elements for which no evidence exists. Timpte Indus., Inc. v. Gis h , 286 S.W .3d 30 6, 310 (Tex. 2009). Because As henf elter had to raise a fact iss ue only on any one of the three elements of the emerg ency excep tion

–– and the City did not expressly identify that Sergeant Cobb was
not respon ding to an emergency as an element on which A shenfe lter could produce no evidence

–– the trial court did not err by denying the no
- evidence motion on this basis

. Se e Cmty. Health Sys. Pro f

’ l Serv s . Cor p. v. Hansen , 525 S.W.3d 671, 69 5 (Tex. 2017) (noting that the Texas Supreme Court has “ called f or str ict en forcement ” of Rule 166a(i) ’ s r equire ment that a no

- evidence mot ion specifically state the element or elements f or which there is no e viden ce) ; see a lso Town of Shady Shores , 590 S.W.3d at 552 ( “ The safeguards built into Rule 166a(i)

— a no
- evid e n ce mot ion ma y be filed only after an adequ ate time for discovery, the m o van t must specify the elements for which no evidenc e exists , the nonmovant need only pre sent more than a scint illa of evidence supporting the challenged element, and the evidence mus t be vie wed in the light most favorable
to t he nonmovant

— provide a suffic i ent degree of protection to plaintiffs

. . . . ” (em phasis added))

. 2. Traditional motion In its traditional motion, the City argu ed that the evidence shows Section 101.055 does not w a ive so ver eign immunity because it shows th at Sergeant Cobb did
not act w ith c onscious indifference or reckless disregard for the safety of others. The City also argue d that Sergeant Cobb established tha t SPD does not have w ritten11 policie s apply ing to emergency driving “ but that t he practice of SPD is to requ ire off ice rs in e mergency driving situations to respo nd to requirements of state law. ” Again, the City did not argue that the evidence con clusively proves that Sergeant C obb was respond ing to an emergency ; it mere ly based all of it s argumen ts on the pr esumption that Sergeant Cobb was respon ding to a n emergency . And , as w e explain below , t he evidence that the City attached to its motion raises a fact issue as to whether Ser geant C obb was respo nding to an emergency a t the time of the accident. A . Serge ant Cobb ’ s Affidavit Sergeant Cobb averred that at the time of the ac cident, he had been dis patched

to a “ criminal mischief incident ” involving actors who had possibly cut phone wires for the 9

- 1

- 1 phon e system. T he SPD di s patcher advised S ergeant Co bb th at the actors were on the scene of the in ci dent but were att empting to l eave. Sergeant Cobb attested that this had caused him concern because gener ally[,] crimina l misch ief is an int entional act. I f the ac tors . . . had in tentionally cut . . . the 9

- 1

- 1 p hone system lines,

. . . [they] might be potentially engag ed in additi onal serious criminal activity

. . . because disruption of the 9

- 1

- 1 emergency communication s ystem would make it more difficult for per sons or victims t o report cri minal a cti vity so that police officers could prom p tly res p ond [.] He also attested th at “ [d]amage to the phone system is a public safety emergency ” due to th e need to be able to report medical emerg encies, crimes, missing ch ildren, or releases an d sp ills of ha zardous substances

.12 At the time he purportedly receiv e d the call from disp atch

— approxi mate ly 3: 30 p.m. on a weekday

— Sergeant Cobb was driving a marked SPD vehicle trave ling east

o n Pojo Road toward t h e intersection of Pojo Road and Main St reet . The int ers ection sat in two school zones , which w ere in ef fect at the time of the c all ; driv er s trave ling on Pojo Road were limite d to a speed of twenty miles per hour, and drivers tr avel in g on Main Stree t were limited to a spe ed of thirty mi les per hour

. Another marked SPD vehicle was parked near th e intersection with its o verhead emer gency lights operating
to enforce the speed limit and to discourage driv ers from speedin g in t he school zone

. The traffic light facing Sergeant C obb ’ s direction on Po jo Road was red. As Sergeant Cobb approac hed the inte rsec tion , he moved into the ri ght

- hand lane and drove past a line of car s on Po jo Road wa i ting to turn left

. He slowed hi s

s peed to eight miles per hour and activated his o verhea d emergen cy lights and sir e n. Sergeant Cobb saw a white truck travel ing south on Main Street enter the inte rsec ti on ; the truck appeared to be slowing d own. He saw another vehicle trav e ling so uth on Main Street behind th at truck s top before e ntering the intersection. When he did not see any other vehicles entering or ap p roaching , Sergeant Cobb continued into the intersection

. H e a ttested that despite entering the i ntersection against a r ed lig ht, he b elieved that he could do so sa fely af ter considering (1) th e law enforc eme nt ne ed to respon d to the emergency, (2) the school zone requiring drivers on Main St reet to sl ow dow n , (3) th e other SPD vehicle ’ s presence at t he intersection to disc o ur age speeding, (4) the visibility of the intersec tion, (5) the moderate amount of traf fic t hat13 h e had o bserved, (6) his reduction in spee d to eight miles per hour before en te ring the inte rs ecti on, (7) his activation of lights and s iren as he approached the int ersection , and (8) his having seen one vehicle s low and ano ther st o p on southbound Main Stre et . Ashenfelter was trave ling no rth on Main Street and had a green light , and she proceeded into the int ers ection

. Af ter Sergeant Cobb had entered the intersection, he saw Ashenfelter ’ s ve hicl e “ out of th e corn er of [his] eye ” approaching him from his rig ht. He turne d his v ehicle to the left to try to avoid the colli sion, b ut Ashenfelter ’ s vehic le struck Sergeant Co bb ’ s veh icle on the passenger side in a “ T

- bo ne ” impact

. b . The SPD C a ll
- Sheet R eport s In addition to Se rgeant Cobb ’ s affid avit, t he City filed three SPD call

- sheet reports . One of the call

- sh eet report s shows that before the accident with Ashen felter, Sergeant Cobb ha d been assigned to an unrelate d , “ very high ” prio rity t raffic incident nearby , i n t he 400 bl ock of Pojo Road , at 15:2 4 :0 7 (military time)

. According to the call

- sheet report , Serge ant Cobb was then cleared from that call at 15:29:21

— ap parently before fire , EMS , and t he wrecker arrived on the scen e. The City di d not include the second page of that call

- sheet report . The cal l

- sheet report of the phone

- line

- cutting call reflec t s that the call came in
at 15:31:35 and that t he call was se nt to dispatch at 15:32:57

. SPD dispatch then assigned the call to an officer

— F. Marshall , not Sergean t Cobb

— at 1 5:34:27, and14 Offic er Marshall arrived on the scene at 15:37: 34. According to the call

- sheet report , Sergeant Cobb was not di spat ched or assigned t o the phone

- line

- cut ting c all

. The last call

- sheet report involve d the acc ident with Ashenfelter , an d both its pages are include d in the re cord. Th is call came into dispatch at 15:34:40, and Office r A. Motley was assign ed t o t he call at 15:35:35. Officer Motley ar riv ed on the s cene at 15:37:15.

c . Fact Issue The evidence that th e City attached to its motion raises a fact issue as to whether Sergeant Cobb was respo nding to an emergency at the time of the acc ide nt . According to Serg eant Cobb ’ s affidavit and t he still photographs taken from the das h

cam era video , the accident occu rr ed at 15:31 :03

. According to the call

- sheet report s, however, t he “ emergency ” ph one
- line

- cutting call came in at 15:31:35

— app ro x imately thir ty secon ds after the accident

. And Se rgeant Cobb was not actually assigned to that call. Thus, despite Sergea nt Co bb ’ s assertion that at t he time of the a ccident he was responding to the phone

- line

- c utting cal l, which he perce ive d as an emergency, the City ’ s other evidence ind ica tes that the “ emergency ” call did not come in unt il after the accident and that Serge a nt C obb could not have known about the “ emergency ” call until after t he accident

. The City ’ s own summary judgmen t ev ide nce therefore15 raise s a fact issue as to whether Ser geant Cobb was respo nding to an emergency at the time of the accident

. 5 We overrule the Ci ty ’ s first issue. B. Of ficial Immunity Affirmative Defen se

In it s second issue, the City contends that the tri al court erred by denying its combined motion for s umm ary judgment on the ground that Ashenfelter could not raise a fact issue that the Cit y ’ s im munity is wa ived under Section 101.021 of the TTCA bec ause the Ci ty is entitled to the benefit of Sergeant Co bb ’ s official immunity. Since of ficial immunity i s a n affi rmative defense, t he City had to conclusively prove all of its ele ment s . See Frost Nat’l Bank v. Fernandez , 315 S.W.3d 494, 508

– 09 (Tex. 2010 ); S willey v. Hughes , 488 S.W.2d 64 , 67 (Tex. 1972 ) ; Ar ea M etr o. Am bulance Auth

. , 2023 WL 3017936 , at *4; Cit y of Houston v. Manning , No. 14

- 20

- 00051

- CV, 2021

5 Based on it s summary judgment evidence, t he City substan tially relies upon Sergea nt Cobb ’ s a ffidavit to show that he was responding to an e mergency at the time o f t he accid ent . In the af fidavit, Se rgeant Cobb cl assifie s the phone

- line

- cutting call as an “ emergency ” and establishe s the City ’ s purported timeline

. To support summary judgm en t, the a ffidavit of Sergeant Cobb, an interest ed witness, must have b een “ clear , positive , and direct , otherwise c red ible and fr ee from contradictions and inconsistencies, and could have been readily controverted. ” Scott v. U.S. Bank, Na t ’ l Ass ’ n , No. 02

- 1 2

- 00230

- CV , 2014 WL 3535724, at *4 (Tex. App.

— Fort Worth July 17, 201 4, no pet.) (mem. op .) ( quoting Ru le 166a (c) ) ; s ee Trico Te ch. Corp. v . Montiel , 949 S.W.2d 308, 310 (Tex. 1997). But s elf

- serving statement s of an interested w itness , like Sergeant Cob b, of what he knew and intended are not competen t summary judgment evid ence. Rush v . Barrio s , 56 S.W.3d 8 8, 103 (Tex . A pp.
— Hous ton [1 4th Dist.] 2001, pet. denied ) ; Lukasik v. San An tonio B lue Haven P ools, Inc. , 21 S.W.3d 394 , 400 (Tex. Ap p.
— San Antonio 200 0 , no pet . ); O ’ Donnell v. Roge r Bullivant of Tex., Inc. , 940 S.W.2d 411 , 416 ( Tex. App.

— For t Worth 1997 , writ d enied ) (op. on reh ’ g) , overrule d on oth er grounds by Perry Homes v. Alwattari , 33 S.W.3d 376 (Tex. App.

— Fort Worth 2000 , pet. denie d )

.16 WL 1257295, at *5 (Tex. App.

— Houston [1 4th Di st.] Apr. 6, 2021, pet. denied) (mem. op.) . Th us, the City was no t entitled to a no

- evidence summary j udg me nt on
t his ground. See T ex. R. Civ . P. 166a(i) ( pro vid ing a party may file a no
- evidence motion only for “ a claim or defense on which an adverse party would have the burden of proof at trial ” ) ; see also Grant v. Wi nd Turbine & Energy Cables Corp. , No. 02

- 21

- 00036

- CV, 2 022 WL 2840142, at *2 n.9 (Tex. Ap p.
— Fort Worth Jul y 2 1, 2022, no pet.) (mem . op.) ( “ [ A] party may file a no
- evidence motion to challenge only a clai m or defense on which i t does not bear the burden of proof

. ” )

. And, as we have held, the City ’ s own evid en ce rais ed a f a ct issue as to wheth er Sergeant Cobb was responding to an emergency at the time of the accident

. One of the elements the City was requi red to prove is that Se rgeant Cobb was perfor ming a discretionary dut y at the ti me of the ac cident. See T el

tho rste r v. Tennell , 92 S.W.3d 457 , 461 (Tex. 2002)

. A lthough a n officer ’ s operation of a motor vehicle can sometimes be a discre tionary act

–– f or ins tance, during a high

- sp eed chase , an investigation , or a traffic stop

–– “ generally, non
- emergency driving is a mini sterial act that does not

e ntitle a go vernme nt employee who is involved in an accident to official immunity

. ” Area M etro. Am bulance Auth

. , 202 3 WL 3017936, at *4; se e City of Houston v. Hatton , No. 01

- 11

- 01068

- CV, 2012 WL 3528003, at *3 (Tex. App.

— H ous ton [1st Dist.] Aug. 16, 2012, pet. denied) (mem . o p.) ; City of Wichita Falls v. Norman , 963 S.W.2d 211, 216 (Tex. App.

— Fort Worth 1998, pet . dism ’d w.o.j.) ( “ The mere f act that Melvin was on patrol at the time he ran his motorcycle into the back of N or man ’ s c ar does not17 automatically a fford him the pro tec tion of official immunity

. ” ). Thus, the City did not conclusively prove its entitlement t o summ ary judgment on the aff irmative defense of official immunity. See Reed v. Villesca , No. 03

- 02

- 00769

- CV, 2 00 3 W L 21 401991, at *3 (T ex. App.

— Au stin June 19, 200 3, no pet.) (mem. op.). We overrule the City ’ s second issue. V. Conclusion Because t he City did no t show its entitle ment to either a no

- evidence or

tr aditional summary judgment , we overrule the City ’ s tw o iss ues and affirm the tri al
court ’ s interlocutory o rde r denyin g the City ’ s combined motion

. /s/ Wade Birdwell Wade Birdwell Justice Delivered: April 25, 2024