SANCHEZ v. CITY OF HOUSTON (2025)

OPINION

Appellant Melissa Sanchez (“Sanchez”) appeals a summary judgment in favor of appellee the City of Houston (“the City”) based on the City's assertion of immunity from Sanchez's lawsuit. In three issues we treat as two, Sanchez argues the trial court erred in (1) granting the City's combined motion for summary judgment and plea to the jurisdiction; and (2) failing to grant her motion for a continuance. We affirm.

I. Background

On Friday May 29, 2020, Sanchez attended a protest in downtown Houston, Texas, following the death of George Floyd in Minneapolis, Minnesota on May 25, 2020. Floyd's death while in police custody sparked protests across the United States.

At approximately 7:35 p.m., Sanchez was protesting in the 1300 block of Travis Street in downtown Houston when she was struck by a police horse ridden by officer Luis Gamez (“Gamez”) of the Houston Police Department (“HPD”). Sanchez filed a lawsuit against the City seeking to recover damages for injuries she alleged she suffered while at the protest in Houston. Sanchez alleged that Gamez “recklessly charged into” her with his horse and caused her injuries.

In her live pleading, Sanchez asserted claims for negligence, “malicious or reckless conduct,” and “failure to properly use ․ tangible property.” The City filed a “Motion for Summary Judgment on Immunity and Second Amended Plea to the Jurisdiction,” arguing that Sanchez could not establish a waiver of the City's governmental immunity. Specifically, the City argued that Sanchez's claims were excepted from the waiver of immunity codified in the Texas Tort Claims Act (“TTCA”) because her injuries arose out of or in connection with an act arising out of a riot or civil disobedience. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1) (“This chapter does not apply to a claim ․ based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion ․”). The City attached videos from that day of the events leading to the incident, portions of Sanchez's deposition, and newspaper articles.

Sanchez filed a response to the City's plea and attached excerpts of her deposition and Gamez's deposition. Sanchez argued only that the evidence raised a fact issue as to whether a riot occurred on the day she was injured, thereby preventing the City's assertion of immunity as a matter of law. In her deposition, Sanchez states that she saw people on the sidewalk and in the street when she arrived at Travis Street in downtown Houston on the day at issue, including a protester sitting on a police car with officers inside. Sanchez testified there were probably thirty or forty people present and that there was a white van in the street when the mounted officers arrived. Sanchez also testified there were three police vehicles on the scene.

Sanchez testified in her deposition that she attended the protest alone and “was marching on her own, but around me were about a hundred people.” At the time of the incident, protesters were in the street and in the sidewalk, and Sanchez stated: “I was on the – near the sidewalk, but I was on the street.” Sanchez stated that at the time of the incident there was a man on a bike trying to make their way through the street but was being prevented by officers and “the crowd was getting, you know, more close ․”

Gamez testified in his deposition that he arrived downtown in the late morning before the protest started, and that the incident with Sanchez occurred around 7:35 p.m. Leading up to the incident, Gamez and the other mounted officers were responding “[t]o a crowd with—being ruthless or throwing stuff at people or at officers, so we were meant to keep them on the sidewalk and not on the street.” Gamez testified that the protesters marched toward city hall, where he was, and that he was struck on the head by an object five minutes after the arrival of the protesters at city hall. Gamez said there were more than 5,000 people by city hall and explained that the throwing of projectiles and items at officers occurred that day all over downtown Houston.

The videos of the day at issue depict a chaotic scene in downtown Houston, with large numbers of civilians holding signs and large groups and crowds forming in multiple locations on both the sidewalk and the streets. A large police presence is also seen, with many police cars parked in the street and many police officers present on foot throughout downtown, in addition to the police officers mounted on horses.

At 7:30 p.m. a white police van enters Travis street and parks to the right of eight police vehicles parked in the street with their lights on. Officers exit the van and enter the street while protesters are walking peacefully on the sidewalk and in the street. After eight officers exit the van and walk away from it, a protester appears to look into the side door of the van that had been left open, and an officer pushes him out of the van. The other officers return to the van to assist with the same protester that is now attempting to push up against the officer that exited the van.

At 7:31:34 p.m. two individuals on bikes, one of whom is holding an American flag, attempt to go between the white police van and the row of police vehicles to the van's left parked in the middle two lanes of Travis street, instead of on the sidewalk and around the police force present in the street. Officers then enter into view as the two individuals on the bicycles turn around. This attracts the attention of protesters walking by, and some walk over to the area between the white van and the row of police vehicles that is now being blocked by a group of officers. The crowd around the officers grows in size and becomes agitated, with a large number of people in this crowd in the middle of the street. At this time, three officers mounted on horses make their way between the white van and the row of police vehicles towards the officers and the crowd.

The body cam of Jesus Pena, the mounted officer that led the first group of mounted officers, was submitted as an exhibit. As the mounted officers approach the officers on the ground, an officer near one of the police vehicles appears to strike a protester, and the protester falls backwards into the arms of the other protesters. At this point, the noise of the crowd increases as well as the noise of the mounted officers’ whistles. An object is also thrown at the mounted officers. The mounted officers then move towards the crowd as the crowd is pushed back. The attention of everyone visible on the sidewalk and the street is focused in the area between the van and the row of police vehicles.

At this point, a second group of mounted officers led by Gamez approaches the area from the right side of the van that faces the sidewalk and is opposite of the side with the row of police vehicles. As Gamez gets to the front of the van, Sanchez is facing away from him and towards the other group of mounted officers and the crowd. Sanchez then steps into the street and in front of Gamez's path, and Gamez's horse made contact with Sanchez. The videos show Gamez responding to an area where a group of officers were facing a large and increasingly agitated crowd, then taking a position between the crowd and the officers in an attempt to move the crowd onto the sidewalk.

On June 13, 2022, the trial court signed an order granting the City's motion for summary judgment and plea to the jurisdiction, dismissing Sanchez's claims with prejudice. On July 14, 2022, Sanchez filed a motion for new trial and a motion for continuance, arguing only that the evidence raised a fact issue as to whether a riot occurred on the day of her injuries. This appeal followed.

II. Discussion

In her first issue, Sanchez argues the trial court erred in granting the City's combined motion for summary judgment and plea to the jurisdiction.

A. Standard of Review

We review de novo a trial court's ruling on a motion for summary judgment. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). We also review de novo a motion or plea asserting governmental immunity because it involves a question of law. See Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).

When a governmental unit raises the affirmative defense of governmental immunity in a traditional summary judgment motion, it must establish the affirmative defense as a matter of law. See Tex. R. Civ. P. 166a(c); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019); City of Houston v. Mejia, 606 S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). If the movant conclusively establishes its entitlement to the affirmative defense of immunity, then the burden shifts to the nonmovant to present evidence sufficient to create a fact issue on at least one element of either the movant's affirmative defense or an exception to that affirmative defense. See Mejia, 606 S.W.3d at 904–05. We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the evidence creates a fact issue concerning the governmental unit's immunity, then the trial court should deny the motion for summary judgment. See Tex. R. Civ. P. 166a; see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004) (“If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder.”).

We review questions of statutory interpretation de novo. Pedernal Energy, LLC. v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017); Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Our primary objective in construing statutes is to give effect to the Legislature's intent. Molinet, 356 S.W.3d at 411. The plain meaning of the text is the best expression of legislative intent. Id. We read statutes contextually to give effect to every word, clause, and sentence because every word or phrase is presumed to have been intentionally used with a meaning and a purpose. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018); see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) (“We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.”).

B. Applicable Law

Governmental immunity defeats subject-matter jurisdiction in lawsuits against subdivisions of the State, such as the City, unless that immunity has been clearly and unambiguously waived by the Legislature. See Sykes, 136 S.W.3d at 638. Governmental immunity encompasses both immunity from liability and immunity from suit. Miranda, 133 S.W.3d at 224.

The TTCA waives governmental immunity for personal injury and death proximately caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); see Miranda, 133 S.W.3d at 224; Jefferson County v. Farris, 569 S.W.3d 814, 823 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (per curiam). Thus, to state a claim under the TTCA, a plaintiff must allege an injury resulting from the condition or use of tangible personal or real property. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).

The TTCA, however, does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion ․” Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1); see also Tex. Dep't of Crim. Justice v. Rangel, 595 S.W.3d 198, 209 (Tex. 2020) (“We have noted that the purpose of the riot exception is, in part, to exclude liability for any injuries occurring as a result of law enforcement efforts to control riots.” (citing State v. Terrell, 588 S.W.2d 784, 786–87 (Tex. 1979))).¹ The TTCA does not define civil disobedience or riot. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001.

The Supreme Court of Texas has held that a “riot” is “a disturbance of the peace by an assemblage of seven or more persons acting with a common purpose in a tumultuous manner that immediately threatens or terrorizes the public or an institution.” Rangel, 595 S.W.3d at 209. In determining whether a riot exists, courts examine the totality of the facts and circumstances. Id.

Two intermediary appellate courts have concluded that “civil disobedience” in a prior version of the TTCA was intended to include commotions involving a large number of persons acting unlawfully in concert. E.g., City of Amarillo v. Langley, 651 S.W.2d 906, 918 (Tex. App.—Amarillo 1983, no writ) (concluding that the civil disobedience exemption did not apply because “[t]wo motorcycle riding traffic scofflaws do not qualify as a matter of law as a commotion of a large number of persons acting unlawfully in concert”); Forbus v. City of Denton, 595 S.W.2d 621, 623 (Tex. App.—Fort Worth 1980, writ ref'd n.r.e.) (concluding that the civil disobedience exemption did not apply because “the act was that of a single individual”). However, the definition of “civil disobedience” under this exception to the waiver of immunity in the TTCA is a question of first impression for this Court.

On appeal, Sanchez challenges the application of the exception because she argues there was no riot on the day in question; however, as noted, the exception applies in other circumstances, including civil disobedience. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1).

1. Civil Disobedience

We interpret undefined terms in the TTCA according to their ordinary meaning. See Tex. Gov't Code Ann. § 312.002; Rangel, 595 S.W.3d at 208. We typically look to dictionary definitions to determine a term's common, ordinary meaning. Rangel, 595 S.W.3d at 208. Additionally, the meaning of individual words may be ascertained by reference to words associated with them in the statute. Jaster v. Comet II, Const., Inc., 438 S.W.3d 556, 566 (Tex. 2014) (plurality op.); Harris County v. Eaton, 573 S.W.2d 177, 181 (Tex. 1978).

At the time the Legislature enacted this version of the statute in 1985, Webster's dictionary defined civil disobedience as “refusal to obey governmental demands or commands esp. as a nonviolent and usu[ally] collective means of forcing concessions from the government.” Civil Disobedience, Webster's Dictionary (9th ed. 1984); see Chamul v. Amerisure Mut. Ins., 486 S.W.3d 116, 125 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (noting that “not all dictionaries are equal” and that “a dictionary published closed in time to the enactment of the legislation is a superior source for discerning the common, ordinary understanding of the term at the time it was incorporated”). Currently, Black's Law Dictionary defines civil disobedience as a deliberate but nonviolent act of lawbreaking to call attention to a particular law or set of laws believed by the actor to be of questionable legitimacy or morality. Civil Disobedience, Black's Law Dictionary (11th ed. 2019). Similarly, Merriam Webster's dictionary defines civil disobedience as “refusal to obey governmental demands or commands especially as a nonviolent and usually collective means of forcing concessions from the government.” Civil Disobedience, Merriam Webster's Dictionary, available at https://www.merriam-webster.com/dictionary/civil% 20disobedience#:~:text=% 3A% 20refusal% 20to% 20obey% 20governmental% 20demands,forcing% 20concessions% 20from% 20the% 20government.

Furthermore, civil disobedience is grouped along with riot, insurrection, or rebellion in the statute. All of these other terms require multiple individuals, instead of a single person. See Rangel, 595 S.W.3d at 208–09 (defining riot as “a disturbance of the peace by an assemblage of seven or more persons acting with common purpose in a tumultuous manner that immediately threatens or terrorizes the public or an institution”); see also Insurrection, Black's Law Dictionary (11th ed. 2019) (“A violent revolt against an oppressive authority, usu[ally] a government.”); Rebellion, Black's Law Dictionary (11th ed. 2019) (“Open, organized, and armed resistance to an established government or ruler; esp[ecially] an organized attempt to change the government or leader of a country, usu[ally] through violence.”).

Taking these definitions together, we conclude that civil disobedience in § 101.057(1) means a collective, public, nonviolent breach of the law done in the support of a cause against the government, including those that seek concessions or question a set of laws. See Civil Disobedience, Black's Law Dictionary; Civil Disobedience, Merriam Webster's Dictionary; see also Theory of Civil Disobedience, J. Rawls, U.S. Department of Justice (1989), available at https://www.ojp.gov/ncjrs/virtual-library/abstracts/theory-civil-disobedience-civil-disobedience-p-125-149-1989-paul (“Civil disobedience is a public, nonviolent, conscientious yet political act contrary to law, usually aimed at bringing about a change of the law or government policy.”).

Here, it is undisputed that at the time of Sanchez's injuries, the officers were acting in response to a protest taking place in the downtown area of Houston as a conscientious act aimed at bringing about a change against governmental policy as it relates to law enforcement's use of force. In particular, Gamez's actions that injured Sanchez were taken in response to an area and situation in the middle of Travis Street where a group of police officers and a group of agitated protestors were confronting each other.

The evidence before the trial court conclusively established that Gamez's actions leading to Sanchez's injuries were in response to a crowd of protestors that surrounded a group of officers standing between a police van and a police car parked in the middle of a street. In one of the videos, a protester appears to swing at one of the officers located in the middle of the street between a police van and a police car, before Gamez and other mounted officers respond.

In its motion for summary judgment and plea to the jurisdiction, the City argued that protestors that day were engaged in various acts of lawbreaking, including interference with public duties, obstructing a highway or other passageway, harassment, and disorderly conduct. See Tex. Penal Code Ann. §§ 38.15 (“Interference with Public Duties”), 42.01(a) (“Disorderly Conduct”), 42.03(a)–(b) (“Obstructing Highway or Other Passageway”), 42.07(a) (“Harassment”). Sanchez does not dispute that protestors that day engaged in these offenses, and the evidence undisputedly establishes that protestors engaged in these acts, including the group of protestors that Gamez was responding to when the incident with Sanchez occurred.²

In any event, the body camera videos of the officers undisputedly establish that Gamez's relevant action that day—his decision to direct his horse into the relevant area—was taken in response to large number of protesters that were engaged in a public, nonviolent (and sometimes violent) act of lawbreaking in advocacy of the reformation of the use of force by police. It further is undisputed that Sanchez's claims are based on injuries connected with HPD's actions that arose out of civil disobedience in downtown Houston. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1). We conclude that the City established that Gamez's actions were in response to civil disobedience, and thus the civil disobedience exception to the waiver of immunity in the TTCA applies. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1); Terrell, 588 S.W.2d at 787.

We note that Sanchez's implicitly contests that the exception does not apply because she herself was not engaged in civil disobedience. Contrary to Sanchez's implied argument, the exception in the statute does not hinge on an individual-by-individual inquiry of whether the individual was engaged in civil disobedience; rather, the statute applies based on whether the complained-of actions were in response to civil disobedience. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(1) (providing that the TTCA “does not apply to a claim” “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion”) (emphasis added); see also Delaney v. Univ. of Hous., 835 S.W.2d 56, 59 (Tex. 1992) (stating that “arising out of” requires a certain nexus for the provision to apply). Here, Sanchez's claim is for an injury she suffered connected with acts by an HPD officer that arose out of the civil disobedience occurring in downtown Houston and law enforcement's response to them. Thus, we reject this implicit contention by Sanchez.

The Legislature's apparent concern in enacting this provision [including riots, civil disobedience, insurrection, and rebellion] was, in part, the enormous liability that would fall on local governments as a result of allowing recovery for damages caused by rioting [and the like] and attempts to control it. Another apparent concern, however, was to prevent judicial review of governmental decisions on how to control these disturbances. Were judges and juries allowed to pass on the wisdom of a city's decision not to control a riot or prevent subsequent looting, the ultimate authority for making such decisions would no longer lie with the officials who, traditionally, are politically responsible for making such decisions. The Legislature has apparently chosen to let that ultimate authority remain with those government officials.

Terrell, 588 S.W.2d at 787; see also Doe v. McKesson, 947 F.3d 874, 878 (5th Cir. 2020) (“Civil disobedience enjoys a rich tradition in our nation's history. But there is a difference between civil disobedience—and civil disobedience without consequence. Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws the rest of us are required to follow.”).

Finally, Sanchez argues that a fact issue exists as to whether there was civil disobedience because the City's Mayor and Chief of Police marched peacefully with protestors. Sanchez omits from her argument that the City's Mayor and Chief of Police marched peacefully with protestors on Saturday May 22, the day after Sanchez attended the protest at which she was injured. There is no evidence in the record that the City's Mayor and Chief of Police were present at the protests on the day in which Sanchez was injured. Therefore, we conclude that this argument is meritless.

Because we conclude that the City retains its immunity from Sanchez's lawsuit, we overrule her first issue.

III. Motion for Continuance

In her second issue, Sanchez argues that the trial court erred when it did not grant her motion for a continuance.³

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Tex. R. Civ. P. 166a(g). A trial court's ruling on a request for a continuance to conduct additional discovery before a summary judgment hearing is reviewed for an abuse of discretion. Tenneco Inc. v. Enter. Prods., 925 S.W.2d 640, 647 (Tex. 1996). “When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” Id.

Here, Sanchez's request for a continuance was included in her response to the City's motion for summary judgment. She asked the court to delay ruling on the City's motion to take depositions of other police officers present at the scene on the day of Sanchez's injuries. However, Sanchez's response was not verified, and she did not submit an affidavit in support of her request for a continuance. We conclude that the trial court did not abuse its discretion when it denied Sanchez's request for a continuance.

We overrule Sanchez's second issue.

IV. Conclusion

We affirm the trial court's order.

FOOTNOTES

1.   In Terrell, the supreme court was interpreting the predecessor to present sections 101.055 (regarding claims based on responses to emergency calls or situations) and .057 (regarding claims based on injury or death arising from civil disobedience, riot, etc.). Todaro v. City of Houston, 135 S.W.3d 287, 293 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see State v. Terrell, 588 S.W.2d 784, 788–89 (Tex. 1979) (interpreting Act of May 14, 1969, 61st Leg., R.S., ch. 292 § 14(8), (9), 1969 Tex. Gen. Laws 874, 878 (subsequently repealed and recodified)) (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 101.055, 101.057). The relevant language in the predecessor statute provided that there was an exception from the waiver of immunity in the TTCA for “Any claim based on injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion ․” Terrell, 588 S.W.2d at 786.

2.   A news article that Sanchez submitted along with her motion for new trial notes that there were 102 arrests made from the protestors present downtown on the days of Sanchez's injury, most of which “were for obstructing a roadway, while a small number were charged with interference with public duties, resisting arrest, criminal mischief, and retaliation.”

3.   In the summary of her second issue, Sanchez states that the trial court erred when it denied her motion for new trial. Apart from this statement, Sanchez advances no argument and cites no applicable law substantively addressing why the trial court erred when it denied her motion for new trial. See Tex. R. App. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Thus, this argument is waived.

Brad Hart, Justice