CITY OF HOUSTON v. BUSBY (2025)

OPINION

In this interlocutory appeal, appellant City of Houston (the City) challenges the trial court's denial of one of its summary judgment motions and refusal to grant another. The City raises five issues concerning the application of the Heck doctrine ¹ and various exceptions to the City's governmental immunity under the Texas Tort Claims Act (TTCA). We reverse and render a judgment dismissing Busby's claims.

Background

This case arises from a collision between Busby's vehicle and a fire truck driven by Houston Fire Department Captain Shawn Jorgensen. Busby's original petition, filed on February 17, 2022, alleged that on Christmas Day 2020, he was traveling westbound on Langley Road in Houston, Texas, while Jorgensen was traveling southbound on Homestead Road. Busby claimed that as he entered the intersection between Langley and Homestead, “[s]uddenly and without warning,” Jorgensen “failed to control his speed, failed to adequately use his siren, failed to adequately use his emergency lights, failed to yield right of way, and collided with [Busby],” causing him injuries and damages.

The City filed its answer and special exceptions on March 25, 2022, asserting, among other things, a general denial and governmental immunity from suit and liability as to all of Busby's claims. In its special exceptions, the City claimed that Busby failed to plead facts to overcome certain exclusions and exceptions to the TTCA's waiver of the City's governmental immunity. The City later amended its answer to include additional affirmative defenses.

The City then filed two separate motions for summary judgment. In its first motion, filed on February 3, 2023, the City argued that it was immune from Busby's suit because Jorgensen was shielded by official immunity, or in the alternative, either the 9-1-1 or the emergency exception applied. In support of its motion, the City relied on an affidavit from Jorgensen, the crash report for the accident, and municipal court records establishing Busby's plea of no contest to the ticket he received for failing to yield the right of way to an emergency vehicle. On February 8, 2023, the City supplemented its immunity motion with the affidavit of Officer J. Leon, who investigated the subject accident. The City argued that because Officer Leon determined that Busby's failure to yield the right of way was the sole contributing factor to the accident, Busby could not establish a causal nexus between his claims and Jorgensen's actions.

The record does not reflect that the trial court ruled upon the City's special exceptions; nevertheless, Busby amended his petition on February 9, 2023, clarifying his allegation that Jorgensen “failed to use his emergency lights and siren.” The amended petition also removed the allegations of negligence per se and gross negligence complained of by the City in its special exceptions.

In its second summary judgment motion filed February 22, 2023, the City argued that pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), “an individual who is convicted of a crime cannot collaterally attack that conviction through a civil tort suit.” The City claimed that Busby's civil tort claims against the City were an impermissible attempt to relitigate his “conviction” for failure to yield the right of way to an emergency vehicle.

Busby responded to both summary judgment motions. In his response to the immunity motion, Busby argued that (1) Jorgensen was not shielded by official immunity because he failed to act in good faith when he crossed against a red light without his lights and sirens activated; (2) neither the emergency nor the 9-1-1 exception preserved the City's immunity because Jorgensen's failure to operate his lights and sirens constituted a violation of Texas Transportation Code section 546.003; and (3) Busby was not estopped from denying Jorgensen's use of lights and sirens by his no-contest plea because such a plea cannot be used against a defendant as an admission in a civil suit, per Texas Code of Criminal Procedure article 27.02(5). Busby supported his response with (1) a portion of the footage from Officer Leon's body camera produced by the City,² and (2) and an affidavit from Busby averring that he did not “hear emergency sirens ․ [or] see any emergency lights activated on the fire engine.” Busby's affidavit further stated that if he had seen lights or heard sirens, he “would not have proceeded into the intersection.”³

The City filed a combined reply to both of Busby's summary judgment responses. Concerning governmental immunity, the City first argued that Busby failed to plead facts that would overcome the presumption against a waiver of immunity. It also contended that Busby's statement that he did not see Jorgensen's lights or hear sirens did not support an inference that the lights and sirens were not on; thus, Busby failed to create a fact issue as to whether Jorgensen acted in good faith. The City further argued that use of lights and sirens was discretionary, not required, under the Transportation Code. Lastly, the City claimed that Busby was estopped from disputing Jorgensen's use of lights and sirens because of his criminal conviction for failure to yield and that Busby's failure to yield was the proximate cause of the accident.

The trial court held a hearing on both motions and signed an order summarily denying the Heck motion that same day. When the trial court did not similarly rule on its immunity motion, the City complained via letter to the trial court and filed a formal objection. Ultimately, the City filed a notice of interlocutory appeal challenging the trial court's ruling on the Heck motion and failure to rule on the immunity motion. As the basis for its interlocutory appeal, the City cited Texas Civil Practice and Remedies Code section 51.014(a)(8).⁴

Heck Doctrine

In its first issue, the City argues that the trial court erred in denying its motion for summary judgment based on the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), discussed further below. Specifically, the City contends that Busby's civil suit is barred by Heck because it “seeks to litigate some of the same facts that were essential to his criminal conviction,” particularly, “that [Busby] failed to yield the right of way to an emergency vehicle traveling with its lights and siren activated.”

A. Applicable Law

In Heck, an inmate plaintiff brought a section 1983 claim against officials involved in his criminal conviction. 512 U.S. at 479, 114 S.Ct. 2364. Heck contended that the prosecutors and a police investigator “engaged in an unlawful, unreasonable, and arbitrary investigation leading to [Heck's] arrest; knowingly destroyed evidence which was exculpatory in nature and could have proved [his] innocence; and caused an illegal and unlawful voice identification procedure to be used at [his] trial.” Id. (internal quotations omitted). Ultimately, the Supreme Court held that in order to recover money damages for harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that his conviction or sentence has been reversed on direct appeal, expunged, declared invalid by an authorized state tribunal, or called into question by a writ of habeas corpus. Id. at 486–87, 114 S.Ct. 2364. This doctrine is also known as the “favorable termination” rule. Conroy v. Wilkerson, 626 S.W.3d 24, 33 (Tex. App.—El Paso 2021, no pet.).

In summarizing the Heck doctrine, this court has stated that “[t]ort claims, the success of which would imply the invalidity of the plaintiff's conviction, are not cognizable and must be dismissed.” Cooper v. Trent, 551 S.W.3d 325, 332 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing Heck, 512 U.S. at 487, 114 S.Ct. 2364). To determine whether civil allegations, if true, would imply the invalidity of the plaintiff's earlier criminal conviction, we first consider the elements of the offense. Id. at 333.

Texas courts have applied Heck’s reasoning to a variety of state law tort claims, including allegations of prosecutorial misconduct, Cooper, 551 S.W.3d at 328; negligence claims against the State for sealing allegedly exculpatory evidence that the plaintiff claimed would prove his innocence in an earlier criminal conviction, Dove v. State, 560 S.W.3d 376, 378 (Tex. App.—Houston [14th Dist.] 2018, no pet.); claims that a trial judge and court reporter altered trial transcripts, Powell v. Wilson, No. 02-16-00023-CV, 2016 WL 3960590, at *1 (Tex. App.—Fort Worth July 21, 2016, pet. denied) (per curiam) (mem. op.); allegations of perjury, denial of equal protection, racial profiling, and entrapment (among others) against a police department and county officials, Gentry v. Houston Police Dep't, No. 14-08-01094-CV, 2009 WL 10453387, at *1 (Tex. App.—Houston [14th Dist.] July 16, 2009, no pet.) (mem. op.); and claims against the State Counsel for Offenders and Texas Department of Criminal Justice for their alleged failure to assist an inmate in appealing his parole revocation, Broussard v. Green, No. 01-00-01096-CV, 2001 WL 931606, at *1 (Tex. App.—Houston [1st Dist.] Aug. 16, 2001, no pet.) (not designated for publication).

B. Analysis

The City's Heck summary judgment motion, styled as a traditional and no-evidence motion, focused on Busby's failure to demonstrate that his “conviction” had been reversed, expunged, declared invalid, or called into question. In response, Busby argued that Heck was distinguishable and that under Texas Code of Criminal Procedure article 27.02(5), his no-contest plea could not be used against him as an admission in his civil case. See Tex. Code Crim. Proc. art. 27.02(5) (stating that plea of nolo contendere has the same the legal effect as plea of guilty “except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based”). Busby also argued that none of the cases cited by the City involved a plea of nolo contendere or no contest. In reply, the City claimed it was not using the no-contest plea as an admission against Busby but “as collateral estoppel for the essential elements of the charge for which [Busby] was adjudged guilty.” The City noted that the Fifth Circuit “has already determined that a conviction [arising] from a no-contest plea is irrelevant to the Heck bar,” seemingly referring to Hernandez v. Boles, No. 98-50950, 184 F.3d 819, 1999 WL 500687, at *1 (5th Cir. June 17, 1999) (per curiam) (not designated for publication). The parties’ arguments on appeal largely mirror those raised below.

First, we must determine whether the Heck doctrine applies to pleas of no contest or nolo contendere. The City does not cite, nor have we located, any Texas state court cases so holding. However, numerous federal courts within the Fifth Circuit have concluded that the doctrine applies equally to no-contest pleas and criminal convictions. For example, in Hernandez, the Fifth Circuit applied Heck and expressly rejected the plaintiff's argument that pursuant to Texas Code of Criminal Procedure article 27.02(5), his nolo contendere plea could not be used against him in his civil case as an admission. 1999 WL 500687, at *1. Rather, the court held that “[w]hether the conviction was obtained at trial, by a guilty plea, or by a nolo plea [was] irrelevant to [the Heck] inquiry” because “[a] court considering a defense under Heck has no need to consider the plea as evidence; the court instead looks merely to whether an implicated conviction has been overturned.” Id. (citing Heck, 512 U.S. at 486–87, 114 S.Ct. 2364). Relying on Hernandez, numerous other Texas federal cases have reached the same conclusion. See Davis v. Warren, No. 6:24-CV-00207, 2024 WL 3890185, at *2 (E.D. Tex. Aug. 21, 2024) (order); Phillips v. City of Baytown, No. 4:22-CV-2197, 2023 WL 4163062, at *10 n.11 (S.D. Tex. Mar. 3, 2023), report and recommendation adopted 2023 WL 4157630 (S.D.Tex. June 23, 2023); Stepp v. Boswell, No. 4:19-CV-03862, 2022 WL 1121039, at *1 (S.D. Tex. Apr. 14, 2022) (order).

Busby has not directed us to any cases holding that Heck does not apply to no-contest pleas; he points only to article 27.02(5). We agree with the court's reasoning in Hernandez and hold that the Heck doctrine applies to pleas of nolo contendere or no contest. Consideration of a prior no-contest plea for the express purpose of determining whether Heck bars a subsequent civil suit does not violate article 27.02(5). As the court in Hernandez explained, considering a no-contest plea in this manner does not require a court to use the plea as evidence. 1999 WL 500687, at *1.⁵ And the typical application of section 27.02(5)’s bar on the use of no-contest pleas occurs when the criminal defendant becomes the civil defendant, and the plaintiff attempts to use the defendant's past plea against him to prove his liability in the civil action. See Lynch v. Port of Hous. Auth., 671 S.W.2d 954, 959 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) (noting that in widow's civil suit against port authority based on her husband's death, widow could not use as an admission port authority's no-contest plea in earlier criminal proceeding arising out of incident resulting in husband/employee's death); Sanchez v. Tex. State Bd. of Med. Examiners, 229 S.W.3d 498, 510 (Tex. App.—Austin 2007, no pet.) (noting that doctor's nolo plea to solicitation of murder of patient could not be used as an admission against him in later disciplinary proceedings). Those are not our facts.

Likewise, Busby does not contend that Heck does not apply to traffic offenses; rather, he attempts to distinguish Heck on its facts as a section 1983 case. But as discussed above, our courts have applied Heck to a variety of state law tort claims. There is no reason why Heck does not work to bar civil claims that seek to invalidate convictions for or pleas to traffic offenses. At least one Texas federal court has applied Heck in that context. See Algoe v. State, No. 3:15-CV-1162-D, 2016 WL 6902154, at *9 (N.D. Tex. Sept. 29, 2016), report and recommendation adopted 2016 WL 6893682 (N.D.Tex. Nov. 21, 2016) (“Plaintiff's civil rights claims are all predicated on his traffic citations and the revocation of his driver's license, and he is expressly challenging the validity of his convictions․ [H]e has failed to show that they have been reversed, expunged, invalidated, or called into question. Accordingly, his civil rights claims [are] barred by the Heck doctrine.”). Traffic offenses are crimes that can be subject to Heck. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (describing, in Fourth Amendment case, driver's failure to wear seatbelt in violation of Tex. Transp. Code § 545.413 as “crime” committed in officer's presence, even if it was “a very minor criminal offense”); In re Windstar Trucking, 657 S.W.3d 474, 485–88 (Tex. App.—El Paso 2022, no pet.) (citing Atwater and concluding that violations of “Rules of the Road,” subtitle C of Transportation Code, are criminal acts); see also Tex. Transp. Code § 542.301 (“A person commits an offense if the person performs an act prohibited or fails to perform an act required by this subtitle ․ Except as otherwise provided, an offense under this subtitle is a misdemeanor.” (emphasis added)).

Next, we consider whether Busby's allegations, if true, would imply the invalidity of his no-contest plea to failure to yield the right of way to an emergency vehicle. Cooper, 551 S.W.3d at 333. Federal case law describes this inquiry as “analytical and fact-intensive,” requiring a reviewing court “to focus on whether success on the [civil] claim requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.” Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). Stated differently, we must determine whether the civil claim “could easily coexist with [the plaintiff's] [criminal] conviction ․ without calling into question any aspect of that conviction.” Id. (quoting Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006)).

The elements of failure to yield the right of way to an emergency vehicle are outlined in Transportation Code section 545.156, which provides as follows:

(a) This section applies only to:

(1) an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702;

(2) a medical examiner vehicle, as defined by Section 547.751, lawfully using a visual signal in accordance with that section;

(3) a vehicle operated by a justice of the peace for a purpose described by Section 547.752 and lawfully using a visual signal in accordance with that section; and

(4) a police vehicle lawfully using only an audible or visual signal.

(a-1) On the immediate approach of a vehicle described by Subsection

(a), an operator, unless otherwise directed by a police officer, shall:

(1) yield the right-of-way;

(2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection; and

(3) stop and remain standing until the authorized emergency vehicle has passed.

(b) This section does not exempt the operator of a vehicle described by Subsection (a) from the duty to drive with due regard for the safety of all persons using the highway.

Tex. Transp. Code § 545.156. Section 541.201 further defines an “authorized emergency vehicle” and lists a “fire department or police vehicle” as one example. See Tex. Transp. Code § 541.201(1)(A).

Turning to subsection (a) quoted above, Busby could only be guilty of failing to yield the right of way to an “authorized emergency vehicle” if Jorgensen's fire truck was using both “audible and visual signals.” See id. § 545.156(a)(1) (emphasis added). While the statute applies to a police vehicle using “only an audible or visual signal,” see section 545.156(a)(4) (emphasis added), it requires the use of both types of signals for other “authorized emergency vehicle[s]” like a fire truck.

In his civil suit for negligence, Busby alleges that Jorgensen was not using his lights or sirens at the time of their collision. But if Jorgensen was not using his lights and sirens at the time of the accident, Busby cannot be guilty of failure to yield to an emergency vehicle.⁶ See id. § 545.156(a)(1). As reasoned in Watkins v. Goolsby, 337 S.W.2d 363 (Tex. App.—Eastland 1960, no pet.), a case construing a prior version of section 545.156, “[i]n order to impress upon such a driver the duty of yielding the right-of-way [to emergency vehicles], he must know or in the exercise of ordinary prudence should have known that a public service vehicle was approaching in response to a call, and he must have a reasonable opportunity to yield the right of way.” Id. at 367 (internal quotations omitted). If not, the driver “may proceed in an otherwise lawful manner unless by the reasonable exercise of the senses of sight and hearing he should have noticed or heard warning to the contrary.” Id. (emphasis added). “[I]n the absence of [such a] warning ․ he has the right to assume that no vehicle would be operated against the traffic lights.” Id.

Busby also contends that it was Jorgensen who failed to yield the right of way to Busby. Proof of these facts would clearly be inconsistent with his plea of no contest to failure to yield the right of way to Jorgensen's emergency vehicle; these facts, if true, cannot coexist with his no-contest plea and would call his plea into question. See Cooper, 551 S.W.3d at 333; see also Bush, 513 F.3d at 497; Ballard, 444 F.3d at 401. We also note that Busby does not argue on appeal that the allegations raised in his civil suit do not undermine the validity of his no-contest plea or otherwise explain how the two could be viewed as factually distinct.

We conclude that the claims alleged by Busby, if true, would undermine the validity of his no-contest plea. Thus, until he demonstrates that his plea has been reversed, overturned, or invalidated in some manner, his claims are due to be dismissed. See Heck, 512 U.S. at 486–87, 114 S.Ct. 2364; Cooper, 551 S.W.3d at 337; Gentry, 2009 WL 10453387, at *3.⁷

We sustain the City's first issue.

Conclusion

We reverse the trial court's denial of the City's summary judgment motion based on the Heck doctrine and render judgment dismissing Busby's claims against the City. Due to our disposition, we do not reach the City's remaining issues concerning governmental immunity. See Tex. R. App. P. 47.1.

FOOTNOTES

1.   Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

2.   The record on appeal does not contain this footage. The City objected to the footage as hearsay and under the rule of optional completeness. The City argued that other portions of the video not included by Busby included “statements of an independent witness that he observed the fire truck's lights and siren.” The record does not reflect that the trial court ruled on the City's objections.

3.   The City objected to both of these averments in Busby's affidavit as speculative and conclusory and on the basis of the Heck doctrine. The record does not indicate that the trial court ruled on these objections.

4.   Section 51.014(a)(8) permits an appeal from an interlocutory order of a district court that “grants or denies a plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). The Texas supreme court has construed this provision to provide for an interlocutory appeal when a trial court denies a governmental challenge to subject matter jurisdiction, “irrespective of the procedural vehicle used.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). Reviewing the City's Heck summary judgment motion, we conclude that it asserts a jurisdictional challenge. See id. (“To be entitled to an interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional challenge.”). Thus, the trial court's denial of the City's Heck motion satisfies section 51.014(a)(8) and gives this court jurisdiction to consider the City's interlocutory appeal. See id. at 340.

5.   For this reason, we do not share Busby's concerns that applying Heck to no-contest pleas “ignore[s] decades of precedent in car wreck and personal injury jurisprudence” and would allow “all paid tickets [to] com[e] into evidence.”

6.   On appeal, Busby seems to acknowledge that this factual dispute is the crux of his case, stating: “The only fact dispute that exists is whether the emergency lights and siren were engaged.”

7.   Our holding today should not be interpreted to mean that an individual who is convicted of or pleads guilty or no contest to a traffic offense can never bring a civil suit arising from the incident giving rise to the ticket. We hold only that under the fact-intensive analysis required by Heck, as applied to the particular facts of this case, Busby's claims are barred until he demonstrates that his plea has been reversed, overturned, or invalidated in some manner.

Ken Wise, Justice