CITY OF HOUSTON v. MANNING (2025)

OPINION ON REMAND

This personal injury suit arising from a collision between a fire truck and appellees' vehicle is before us for a third time. In two prior interlocutory appeals, the City of Houston challenged the trial court's denial of its summary-judgment motions, which sought complete dismissal of appellees' claims on various governmental-immunity grounds and sought partial dismissal on other grounds. We largely affirmed those orders in both appeals.¹ The Supreme Court of Texas granted review of our judgment in the second appeal. The supreme court affirmed in part but also vacated our judgment in part and remanded for us to reconsider certain immunity arguments in light of intervening supreme court decisions. See City of Houston v. Manning, 714 S.W.3d 592, 597 (Tex. 2025) (per curiam) (“Manning”).

Having reconsidered, we conclude for a third time that genuine issues of material fact support the trial court's denial of the City's second amended summary-judgment motion. Accordingly, we affirm that part of the trial court's order.

Background

The relevant facts are familiar to both the parties and to this court, so we summarize them only briefly. A Houston Fire Department (“HFD”) truck driven by Engineer/Operator Wilhelm Schmidt responded to a dispatch for a dumpster fire at an apartment complex. En route, the fire truck collided with a car driven by Chelsea Manning at the intersection of Ludington Drive and Fondren Road. Also in Manning's car were three minor passengers.

Appellees sued the City under various negligence theories, including ordinary negligence and negligence per se. In their live pleading, appellees asserted that they had the green light and that the City was vicariously liable for Schmidt's negligence in proceeding through the intersection against a red light and striking Manning's vehicle. Appellees specifically alleged that the Texas Tort Claims Act (“TTCA”) waived the City's immunity. Tex. Civ. Prac. & Rem. Code § 101.021(1). Further, they alleged that the TTCA's emergency exception ² to the immunity wavier did not apply for three reasons: (1) Schmidt failed to comply with Transportation Code section 546.001(2) because he failed to slow the fire truck as necessary for safe operation; (2) Schmidt failed to comply with Transportation Code section 546.001(3) because he exceeded the applicable maximum speed limit, endangering life and property; and (3) Schmidt's actions were consciously indifferent to or recklessly disregarded the safety of others.

The City filed a motion for summary judgment based on various immunity grounds. The trial court denied that motion. On appeal, this court reversed and rendered judgment on appellees' claims of negligent training, retention, and supervision, but we also held that genuine and material fact questions defeated the City's other immunity arguments. Manning I, 2021 WL 1257295, at *8. We held the City had not conclusively established its official-immunity defense because the City assumed the truth of material, disputed facts—namely, whether Schmidt slowed the fire truck as necessary for safe operation when proceeding through a red traffic signal. See id. at *6-7. We noted summary-judgment evidence indicating that Schmidt was driving 45 miles per hour when the collision occurred—10 miles per hour over the speed limit—and the investigating officers commented at the scene that Schmidt should have slowed down. There was also evidence that Manning had the green light and that Schmidt did not know whether his traffic light was red. Because no witness testified that the standard for good faith was established assuming that Schmidt did not slow his vehicle before proceeding through the intersection against a red signal, we held the City had not proven entitlement to summary judgment. Id. at *7. The City appealed our decision to the supreme court, which denied review.

After the first appeal, the City moved for summary judgment a second time, relying on its earlier evidence but adding some new evidence and arguments. In its second summary-judgment motion, the City argued that: (1) Schmidt retained his official immunity and thus the City's governmental immunity was not waived; (2) the TTCA's emergency exception and 9-1-1 exception applied to preserve the City's governmental immunity; (3) the TTCA does not waive governmental immunity for negligence per se; and (4) two of the minor plaintiffs lacked standing to pursue claims for medical expenses incurred before they reached majority age. Appellees responded, again contending that genuine issues of material fact precluded summary judgment. The trial court denied the City's second motion, and the City appealed.

In the second appeal, we again affirmed insofar as the immunity arguments and negligence per se claims were concerned, but we reversed and rendered judgment against two minor plaintiffs' claims on standing and limitations grounds. See Manning II, 716 S.W.3d at 728-32. The supreme court granted the City's petition for review. The supreme court agreed with our holding that, under the present facts, Manning's negligence per se claims lie outside the scope of the TTCA's immunity waiver. See Manning, 714 S.W.3d at 597.³ But the court did not address the City's other arguments challenging our holdings on official immunity, the emergency exception, and the 9-1-1 exception. Rather, the court vacated this court's March 2024 judgment in part and remanded for us to reconsider the City's arguments in light of intervening supreme court decisions. Id.

Standard of Review

The City raised its governmental immunity in a traditional motion for summary judgment and attached evidence. Tex. R. Civ. P. 166a(c). We therefore apply standards applicable to traditional summary-judgment motion practice. See City of Houston v. Rodriguez, 704 S.W.3d 462, 469-70 (Tex. 2024). To obtain a traditional summary judgment based on lack of jurisdiction, a movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019) (citing Tex. R. Civ. P. 166a(c)). The nonmovant may raise a genuine issue of material fact by producing “ ‘more than a scintilla of evidence establishing the existence of the challenged element.’ ” Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). Our review is de novo, and we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts arising from such evidence in the nonmovant's favor. See Rodriguez, 704 S.W.3d at 470. But we do not disregard necessary contextual evidence or “ ‘evidence of inferences unfavorable to the [nonmovants] if reasonable jurors could not.’ ” Id. (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018)).

Analysis

A. Official Immunity

We first address the City's argument that it retains governmental immunity because Schmidt has official immunity.

1. Applicable principles

As a municipality and political subdivision of the State, the City cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Austin v. Powell, 704 S.W.3d 437, 448 (Tex. 2024); Rodriguez, 704 S.W.3d at 467. The TTCA waives immunity of governmental units like the City when the negligence of an employee acting within the scope of his employment proximately causes personal injury arising from operation or use of a motor-driven vehicle, and if the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code § 101.021(1). The issue in dispute is whether Schmidt would be personally liable to the claimants under Texas law.

The City contends that Schmidt cannot be personally liable because he is protected by official immunity. If Schmidt is not liable because he is immune, then the City's governmental immunity is not waived by section 101.021(1). Rodriguez, 704 S.W.3d at 468 & n.22. Official immunity is an affirmative defense, and the City must plead and prove all elements of the defense. Id. at 469. The City asserted official immunity in its answer and in its second summary-judgment motion. Under that defense, a government employee is immune from a lawsuit that arises from the employee's discretionary duties performed in good faith and within the scope of the employee's authority. City of Houston v. Sauls, 690 S.W.3d 60, 69-70 (Tex. 2024). Only the good-faith element is disputed.

Good faith in an emergency response context depends on how a reasonably prudent officer could have assessed both the need for and the risks of the officer's course of action, based on the officer's perception of the facts at the time of the event. See Sauls, 690 S.W.3d at 74; Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). The touchstone of this test is “what a reasonable officer could have believed under the circumstances”—an objective inquiry. Sauls, 690 S.W.3d at 74. To satisfy this test, the summary judgment proof must sufficiently assess the Wadewitz need/risk factors. Id. This particularized showing ensures that the objective facts provide a suitable basis for concluding that a reasonable officer in the same position could have believed that the actions at issue were justified. See id. But no magic words are required. Rodriguez, 704 S.W.3d at 472. The good-faith standard is analogous to an abuse-of-discretion standard that protects “ ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam) (quoting City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam)).

The “need” element involves the seriousness of the emergency to which the official responded, the need for immediate presence to prevent injury or loss of life, and any available alternative courses of action to achieve a comparable result. See Rodriguez, 704 S.W.3d at 472. The “risk” element concerns the nature, severity, and likelihood of any harm that the official's actions could cause, including injuries to bystanders and the possibility that an accident could prevent a timely response, and whether such risks would be clear to a reasonably prudent officer. See id.

Once the defendant presents evidence that a reasonably prudent officer, under the same or similar circumstances, could have believed the need for the officer's actions outweighed a clear risk of harm to the public from those actions, then the good faith element is established. See id.; Bonilla, 481 S.W.3d at 643; Gomez v. City of Houston, 587 S.W.3d 891, 898 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc). To controvert proof of good faith and prevent summary judgment, the plaintiff must show, with reference to each aspect of the need and risk balancing test, that no reasonably prudent person in the official's position could have thought the facts were such that they justified the particular conduct. See Sauls, 690 S.W.3d at 75-76.

2. Application

In support of its second summary-judgment motion, the City relied on affidavits from Schmidt, HFD District Chief Deena Elliott, and HFD Captain James Hill. Schmidt attested among other things that: the call to which he responded was dispatched as an emergency call; he activated the fire truck's overhead lights and siren; as he approached the intersection of Fondren and Ludington, he “slowed down to clear the intersection”; he saw no cars on either side of the fire truck, and the cars across the intersection heading north on Fondren slowed or stopped to yield to the fire truck; and as he entered the intersection, Manning's vehicle crossed in front of the fire truck, he attempted to brake, but he could not avoid the impact. In Schmidt's opinion, his actions were reasonable and proper under the circumstances. Schmidt stated that another firefighter under the same or similar circumstances could have believed that his actions were justified based on his perception of the facts at the time and that the need to immediately reach the scene outweighed any minimal risk of harm to others from his driving.

Chief Deanna Elliott, who investigated the incident for HFD, expounded on the nature of the emergency. She explained that the dumpster was near an apartment complex. Because the call was received at night when residents likely were sleeping, there was a significant risk that residents would not be alerted to the danger of the dumpster fire. She added that Schmidt followed department policy by activating the truck's emergency lights and siren, that he slowed significantly as he neared the intersection, and that he attempted to avoid the collision. In Chief Elliott's opinion, another reasonably prudent engineer/operator, including herself, under the same or similar circumstances, “could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all Engineer/Operator Schmidt's decisions and action before the incident were justified and reasonable based on his perception of the facts at the time.”

Captain Hill was another firefighter in the fire engine on the night of the incident. Captain Hill attested that: a fire at an apartment complex “could quickly turn into a mass casualty situation”; Schmidt activated the truck's lights and sirens; and the firefighters traveled “as fast as [they] could towards the location of the call.” He also said that Schmidt slowed to clear the intersection, while Hill sounded the truck's air horn as they approached the intersection. In Captain Hill's opinion, Schmidt's decisions and actions before the incident were justified and reasonable based on his perception of the facts at the time.

Captain Hill introduced a new fact with the City's second summary-judgment motion that was not presented in the first appeal. He explained that the fire truck was fitted with an “Opticom transmitter” that automatically activated when the emergency lights were turned on. An Opticom transmitter “grants the apparatus a temporary right of way by turning their traffic light green, and the others red.” Captain Hill could tell that the Opticom transmitter was working because traffic lights in their path changed to green as they drove to the scene. Based on the Opticom transmitter's operation, Captain Hill opined that, even if Schmidt did not slow down as he approached the intersection, he still acted in good faith because “the Opticom transmitter was operating and turned our light green as we approached, so we did not have to slow down for a red traffic signal.” Captain Hill added that the fire truck's emergency lights were activated the entire time, and they blew the airhorn as they approached each intersection, including the one at Fondren and Ludington.

Whether the fire truck proceeded into the intersection against a red light is a material fact. Neither Schmidt's nor Elliott's affidavit states whether the fire truck's traffic signal was red. Schmidt did not know whether the signal was red or green. Captain Hill said Schmidt had the green light due to the Opticom transmitter. However, both Manning and Mitchell testified in depositions that their traffic light was green when they drove into the intersection. According to Manning, they waited at a red light for about one minute, then their light turned green. The City attached relevant excerpts from Manning's and Mitchell's depositions to its second summary-judgment motion.

The City posits that Manning's testimony is immaterial, arguing, “[t]hat Manning testified she entered the intersection on a green light does not necessarily mean that Engine 82 had a red, because the Opticom transmitter cycled the lights as Engine 82 approached and Captain Hill confirmed that Engine 82's light was green at the intersection of Fondren and Ludington.” There is no evidence, however, that the traffic signals for Schmidt and Manning could have been green at the same time. Captain Hill testified that, when the Opticom transmitter activates a green signal for an approaching fire truck, the signals for other traffic are changed to red. Alternatively, if the City is suggesting that Manning's signal may have been green at the moment she entered the intersection but then changed to red while she was in the intersection, it presented no evidence to support that theory.

Another disputed material fact is whether Schmidt slowed down before proceeding through the intersection against a red light. The City's evidence of good faith is premised in part on the asserted fact that Schmidt significantly slowed the fire truck as he approached the intersection, but the record contains other evidence that he may not have done so. This evidence includes Schmidt's statement that he was travelling at 45 miles per hour at the time of the accident, which was ten miles per hour over the posted speed limit. Additionally, the HPD incident report states that Schmidt failed to proceed with “duty and care.” Viewing this evidence in the light most favorable to the non-moving appellees, a fact finder reasonably could infer that Schmidt did not slow down before proceeding through a red signal.

The key showing the City had to make is what a reasonable official could have believed based on the facts known or perceived by Schmidt. But when the material facts known or perceived by the official are disputed, as here, the City's showing must be based on the version of material facts most favorable to the summary-judgment nonmovant. An opinion that a reasonably prudent official could have believed that the employee's acts were justified given the need and the risks does not conclusively establish good faith when the opinion is reached by assuming the truth of disputed facts in a light favorable to the movant. See Manning I, 2021 WL 1257295, at *6-7; Gomez, 587 S.W.3d at 898 (concluding that governmental unit did not conclusively establish its employee acted in good faith when it assumed truth of disputed facts in light favorable to it); see also Tex. Dep't of Public Safety v Zakir, 665 S.W.3d 884, 902 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (Jewell, J., concurring) (fact questions precluded good faith when movant's evidence assumed officer slowed before entering intersection but evidence showed that fact was disputed).

The City did not present evidence showing that a reasonably prudent official could have believed Schmidt's actions were justified by driving 45 miles per hour through a red traffic signal without slowing the vehicle. Rather, the City's good-faith evidence assumes the truth of disputed material facts—that Schmidt slowed down significantly before proceeding through the intersection and that Schmidt had a green signal. Even Captain Hill's opinion that Schmidt did not have to slow down because the light was green is premised on disputed facts. Thus, even within the City's affirmative evidence, a dispute exists whether the signal was green and whether Schmidt slowed down, which forecloses a conclusive showing of good faith. See Gomez, 587 S.W.3d at 899-901. We conclude that the City did not meet its initial burden to prove conclusively Schmidt's good faith. Manning I, 2021 WL 1257295, at *6-7; Gomez, 587 S.W.3d at 898-99; Tex. Dep't of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 497 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (concluding officer's and lieutenant's affidavits did not establish good faith in driving through red light). Thus, the burden did not shift to appellees to present evidence raising a genuine issue of material fact on this issue. See Rodriguez, 704 S.W.3d at 472, 474. We therefore hold that the trial court did not err by denying summary judgment based on the City's assertion that it was immune from suit because Schmidt was entitled to official immunity. We overrule the City's first issue.

B. Emergency Exception

As an alternative to its official immunity argument, the City contends that the TTCA's waiver of immunity does not apply by operation of the Act's “emergency exception.”

1. Applicable principles

The TTCA includes a subchapter entitled “Exceptions and Exclusions” that lists circumstances under which the Act's waiver of immunity does not apply. One of the exceptions addresses emergencies. Under this exception, the Act “does not apply to a claim arising ․ from 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 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 § 101.055(2). Thus, if a fact question exists that either (1) the officer's response violated a law applicable to an emergency response, or (2) absent applicable laws, the officer acted recklessly, then the TTCA's waiver of immunity potentially will apply. See City of San Antonio v. Maspero, 640 S.W.3d 523, 529 (Tex. 2022).

The first step in analyzing whether the emergency exception applies is determining whether laws specifically “applicable to emergency action” are at issue. Powell, 704 S.W.3d at 449-50. When “applicable laws” other than the general notion of recklessness are at issue, then the first clause of section 101.055(2) applies. See id. at 449; Zakir, 665 S.W.3d at 899 (Jewell, J., concurring). Courts must then examine compliance with those laws to determine whether the emergency exception applies. Powell, 704 S.W.3d at 449 (citing City of Amarillo v. Martin, 971 S.W.2d 426, 428 (Tex. 1998)). When a governmental entity movant asserts and presents evidence showing conclusively that its employee's challenged conduct was in compliance with an applicable law, and assuming the non-movant presents no evidence in response, then the exemption under section 101.055(2) applies and immunity is not waived. Conversely, if the evidence presented fails to conclusively establish compliance and a fact question exists, then the factfinder should decide whether the operator complied. Zakir, 665 S.W.3d at 899 (Jewell, J., concurring).

If we determine that no laws specifically applicable to emergency action govern the conduct at issue or any part of it, then section 101.055(2)'s first clause is irrelevant and the second clause would apply, assuming it has been raised. See Powell, 704 S.W.3d at 451, 456; Zakir, 665 S.W.3d at 899-900 (Jewell, J., concurring). The second clause of section 101.055(2) turns on whether the operator acted with recklessness—the default standard in this context. See Powell, 704 S.W.3d at 449; City of Amarillo, 971 S.W.2d at 428 n.1.

Unlike the doctrine of official immunity, the statutory exceptions to the TTCA's waiver of immunity are not affirmative defenses. Rodriguez, 704 S.W.3d at 469 n.26. A plaintiff has the burden to affirmatively demonstrate the trial court's jurisdiction. Rattray v. City of Brownsville, 662 S.W.3d 860, 866-67 (Tex. 2023); Town of Shady Shores, 590 S.W.3d at 550. That burden consists of establishing a waiver of sovereign immunity in suits against the government. Rattray, 662 S.W.3d at 866-67.

2. Application

In its second issue, the City argues that the emergency exception applies because it established as a matter of law that Schmidt slowed before entering the intersection and did not speed. Thus, the City contends, Schmidt complied with Transportation Code sections 546.001(2) and (3). See Tex. Transp. Code § 546.001(2), (3).⁴ The parties do not dispute that the cited provisions apply to acts by emergency vehicle operators. Appellees also do not dispute that Schmidt was responding to an emergency call when the accident occurred.

Under section 546.001, the operator of an emergency vehicle may proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation. Id. § 546.001(2). Such an operator may also exceed a maximum speed limit, except as provided by an ordinance adopted under section 545.365, as long as the operator does not endanger life or property. Id. § 546.001(3).

Before addressing the City's arguments, we observe that appellees discharged their initial pleading burden to facially establish a waiver of immunity by invoking section 101.021(1)'s immunity waiver in their live petition, and by alleging facts that functionally negate the emergency exception. See Rattray, 662 S.W.3d at 866-69. Appellees affirmatively alleged, for example, that the “emergency exception to the TTCA does not apply because the actions complained of below were in violation with laws and ordinances applicable to emergency actions.” They specifically alleged that Schmidt failed to slow the fire truck as necessary for safe operation before proceeding through a red signal and that he exceeded the maximum speed limit, thus asserting violations of section 546.001. They also alleged that no other exceptions to the TTCA's immunity waiver applied.

The City raised the emergency exception by way of a traditional motion for summary judgment, arguing that Schmidt complied as a matter of law with section 546.001(2) and (3). Accordingly, we examine the record to determine whether the City conclusively demonstrated that Schmidt complied with those provisions.

As explained above, and viewing the summary-judgment evidence in the light most favorably to the nonmovants, material fact questions exist that preclude a conclusive showing that Schmidt complied with either provision. One material fact dispute is whether Schmidt's traffic signal was red, as Manning testified. If it was, other material fact issues are whether Schmidt slowed the fire engine “as necessary for safe operation” while proceeding through the red light and whether, while exceeding the maximum speed limit, Schmidt “endanger[ed] life or property.” See Tex. Transp. Code § 546.001(2), (3). Schmidt said he slowed to “clear the intersection,” but, as explained, other evidence in the record indicates that he was driving 45 miles per hour “on some of the straightaways” and remained driving at 45 miles per hour—10 miles per hour over the speed limit—at the “time of impact.” which is evidence from which a reasonable juror could infer that Schmidt either did not slow the vehicle at all or did not slow it as necessary for safe operation. It is also evidence from which a reasonable juror could infer that Schmidt's excessive speed endangered life or property. Based on this evidence, a factfinder could reasonably conclude that Schmidt (1) drove above the speed limit endangering life or property, (2) did not slow his speed as necessary for safe operation of the vehicle, and (3) proceeded against a red light.

Therefore, the trial court did not err in denying the City's second summary-judgment motion on the emergency exception ground. See Rivera v. City of Houston, No. 01-19-00629-CV, 2022 WL 2163025, at *7 (Tex. App.—Houston [1st Dist.] June 16, 2022, no pet.) (mem. op.) (city did not establish right to summary judgment on emergency exception when officer entered the intersection having failed to determine whether she had a red light); see also Zakir, 665 S.W.3d at 900 (Jewell, J., concurring); Gomez, 587 S.W.3d at 903 (fact issue existed as to emergency exception when officer did not slow his speed below the posted speed limit to compensate for the wet conditions, did not use his patrol car's emergency lights and siren, and did not maintain visual contact with the road as he approached the intersection).

3. The City's evidentiary objections

Appellees included the deposition of Officer Jarrett Glenn in their summary-judgment response. Officer Glenn investigated the crash for the Houston Police Department. During his deposition, he was asked, “Based on your investigation and your opinion and investigation into this crash, you found that the operator of the fire engine has a reckless disregard for the safety of others; is that right?” Officer Glenn responded, “According to [the TTCA's] definition, that is correct. It's documented in the crash report.”

The City objected to the accident report, including Schmidt's statement that he was traveling at 45 miles per hour, and Officer Glenn's deposition testimony. The trial court did not rule on the City's objections, which the City says is error. The City filed a timely written objection to the court's failure to rule, so the issue is preserved for appeal. See Tex. R. App. P. 33.1(a)(2)(B).

The City contends that the accident report generally was inadmissible because appellees failed to demonstrate that the investigating officers were trained in accident reconstruction. It is generally true that a person is not qualified to render an expert opinion regarding an accident simply by virtue of being a law enforcement officer. See Pyle v. S. Pac. Transp. Co., 774 S.W.2d 693, 695 (Tex. App.—Houston [1st Dist.] 1989, writ denied). But the relevant portions of the accident report ⁵ do not constitute the investigating officer's expert opinion as to causation; they instead collect the facts as related to the officer from witnesses, such as whether the signal light was red or green. See, e.g., Griffin v. Carson, No. 01-08-00340-CV, 2009 WL 1493467, at *4 (Tex. App.—Houston [1st Dist.] May 28, 2009, pet. denied) (mem. op.) (accident reports are generally admissible, but opinion testimony regarding causation may be deemed inadmissible); McRae v. Echols, 8 S.W.3d 797, 800 (Tex. App.—Waco 2000, pet. denied) (investigator's opinion based on factual observation may be deemed admissible).

The City objected to the inclusion of Schmidt's statement that he was traveling at 45 miles per hour at the time of the crash, which the City argues is inadmissible hearsay. An admission by a party-opponent is not hearsay. Tex. R. Evid. 801(e)(2). “[A]ny statement by a party-opponent is admissible against that party.” Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 858 (Tex. 2011) (emphasis in original). Likewise, an accident report setting forth the factual findings from an investigation in a civil case is admissible under Rule of Evidence 803(8) as an exception to the hearsay rule (absent circumstances indicating a lack of trustworthiness). See Tex. R. Evid. 803(8).

The City also objected to Officer Glenn's deposition testimony under the rule of optional completeness. See Tex. R. Evid. 107. This is not a rule of exclusion, but rather a rule of admissibility. See Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.—Texarkana 1991, writ denied). The trial court did not err in failing to exclude the deposition testimony on this ground.

The City's evidentiary complaints do not afford any relief. We overrule the City's second issue.

C. 9-1-1 Exception

In addition to the emergency exception in section 101.055, the City invoked the “9-1-1 exception.” The TTCA provides for an exception to the waiver of governmental immunity when a public employee is responding to a 9-1-1 call. That section, titled “9-1-1 Emergency Service,” states that the TTCA:

applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and 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 action.

Tex. Civ. Prac. & Rem. Code § 101.062(b).

Section 101.062(b)'s text differs from that of section 101.055 (the emergency exception) in several ways. City of Killeen-Killeen Police Dep't v. Terry, 712 S.W.3d 101, 102 (Tex. 2025). While the emergency exception speaks of “compliance with the laws and ordinances applicable to emergency action,” Tex. Civ. Prac. & Rem. Code § 101.055(2), the 9-1-1 exception asks whether an action “violates a statute or ordinance applicable to the action” and contains no recklessness prong, id. § 101.062(b). Sections 101.055 and 101.062 are separate exceptions; each may independently remove a plaintiff's claims from the immunity waiver. See Terry, 712 S.W.3d at 103.

Appellees' claims undisputedly arise from Schmidt's actions in responding to a 9-1-1 emergency call. The relevant laws regarding the operation of an emergency vehicle “responding to a 9-1-1 emergency call” are located in the Transportation Code, excerpted in Part B above. See Tex. Transp. Code § 546.001(2), (3); see also id. § 546.002(b)(1) (section 546.001(2) and (3) apply “only when the operator is ․ responding to an emergency call”).

In its third issue, the City contends that it retains its governmental immunity under the 9-1-1 exception for the same reasons it retains its immunity under the emergency exception. We have explained that material fact issues preclude a conclusive showing that Schmidt complied with these statutes. See supra Part B. Although the 9-1-1 exception's language is “phrased in the affirmative”—not forbidding any official action but instead permitting the enumerated actions under certain conditions, see Powell, 704 S.W.3d at 453—Schmidt could still “violate” the statute by not complying with it. Powell confirms that an employee who “accepts the authority” to engage in the permissible conduct “also accepts the responsibility” of compliance. See id. at 454. For the same reasons discussed above with respect to the emergency exception, appellees have raised a material fact issue regarding whether Schmidt violated a statute applicable to his 9-1-1 response.

The trial court did not err in denying the City's motion for summary judgment based on the 9-1-1 exception.

Conclusion

We previously rendered judgment that appellees Cierra Williams and Aaliyah Mitchell take nothing on their claims for their medical expenses incurred before they reached majority age. See Manning II, 716 S.W.3d at 736. We also held that the trial court erred in permitting Williams's and Mitchell's parents, Latishely Dewalt and Sherita Massie, to join the suit as plaintiffs. Id. at 737-38. We affirm the trial court's order denying the City's second summary-judgment motion with respect to the grounds of official immunity, the emergency exception, and the 9-1-1 exception.

FOOTNOTES

1.   See City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.) (“Manning I”); City of Houston v. Manning, 716 S.W.3d 719 (Tex. App.—Houston [14th Dist.] 2024) (“Manning II”), vacated by 714 S.W.3d 592 (Tex. 2025).

2.   See Tex. Civ. Prac. & Rem. Code § 101.055(2).

3.   The court also left undisturbed our judgment dismissing the two minor plaintiffs' claims for past medical expenses. See id.

4.   The parties also reference section 546.005, under which a driver of an emergency vehicle is not relieved of “the consequences of reckless disregard for the safety of others.” Tex. Transp. Code § 546.005. Section 546.005, however, “largely corresponds to the second prong in the Tort Claims Act's emergency exception”—i.e., whether the governmental employee acted recklessly. See Powell, 704 S.W.3d at 455; Zakir, 665 S.W.3d at 899 (Jewell, J., concurring). Because it is undisputed that sections 546.001(2) and (3) apply specifically to the challenged conduct at issue, we will not address recklessness under section 546.005. See Powell, 704 S.W.3d at 449.

5.   To the extent the City complains about Officer Glenn's testimony that Schmidt acted recklessly, any error is harmless because we do not reach the issue of recklessness.

Kevin Jewell, Justice