CITY OF HOUSTON v. HENDERSON (2026)

OPINION

Appellee Sheniqua Henderson filed suit against appellant City of Houston alleging injuries sustained as a result of an automobile accident with a firefighter employed by the City of Houston. Houston filed a hybrid traditional motion for summary judgment and plea to the jurisdiction. The trial court denied Houston's motion and Houston now appeals from that interlocutory ruling.

Houston presents a single issue on appeal arguing the trial court erred by denying its motion because it established as a matter of law that Houston's employee was not in the scope of his employment. Because Houston did not challenge all of the grounds supporting the trial court's ruling, which included Henderson's argument that there was insufficient discovery to proceed with a hearing on the motion for summary judgment, we affirm.

I. Background

On September 1, 2022, Henderson was driving on the service road of the North Sam Houston Parkway in Harris County. City of Houston employee and firefighter Carlos Manuel Pascualli was driving to work in a vehicle owned and provided to Pascualli by Houston in the lane next to Henderson, when Pascualli changed lanes and collided with Henderson's vehicle.

Henderson filed suit against Houston in November 2023.¹ In November 2024, Houston filed a hybrid motion for summary judgment and plea to the jurisdiction arguing that Pascualli was commuting to work at the time of the accident and was not within the scope of his employment with Houston. Pascualli provided a supporting affidavit establishing that he was off-duty, not on call, and driving to start his shift at 6:30 am.

In response, Henderson argued that Pascualli's affidavit was a sham affidavit. She further claimed that Pascualli was in the scope of his employment and that she was entitled to take his deposition.

The trial court denied Houston's motion and plea to the jurisdiction without a hearing in January 2025. Houston filed its notice of interlocutory appeal. See Tex. R. Civ. P. 51.014(a)(8).

II. Analysis

In a single issue, Houston argues the trial court erroneously denied its motion for summary judgment and plea to the jurisdiction on the issue of immunity because there was no genuine issue of material fact that, at the time of the accident, Pascualli was in the scope of his employment.

A. Governmental immunity

Governmental units are not subject to suit for the torts of their agents or officers unless a constitutional or statutory waiver of immunity applies. City of Houston v. Daniels, 66 S.W.3d 420, 424 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989)). As pertinent here, the Texas Tort Claims Act (the “TTCA”) waives a governmental unit's immunity from suit for personal injuries arising from the negligent use of a motor vehicle by an employee acting within the scope of his employment when the employee would be personally liable to the claimant under Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). Houston is a governmental unit for purposes of the TTCA. Id. § 101.001(3)(B); City of Houston v. Nicolai, 539 S.W.3d 378, 386 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

A governmental employee is discharging generally assigned job duties if the employee was doing his job at the time of the alleged tort. Garza v. Harrison, 574 S.W.3d 389, 401 (Tex. 2019). Under the TTCA, “scope of employment” means the performance of “the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5). Conduct falls outside the scope of employment when it occurs “within an independent course of conduct not intended by the employee to serve any purpose of the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (quoting Restatement (Third) of Agency § 7.07(2) (2006)). Whether an employee was on duty or off is not dispositive as to whether he was acting within his employment's scope. See Garza, 574 S.W.3d at 405. Nor is the employee's use of a government-owned vehicle dispositive. Id. Instead, we must examine the capacity in which the employee was acting at the time he committed the allegedly tortious act. Harris Cnty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In other words, we consider what the employee was doing and why he was doing it. See Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.).

B. Standard of review

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); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 542 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

If the movant conclusively establishes its entitlement to an affirmative defense of immunity, the burden of production 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 Oakbend Med. Ctr., 515 S.W.3d at 542 (citing “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1972)). Summary judgment is proper when a suit is barred as a matter of law because of a governmental unit's immunity. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004) (standard of review for a jurisdictional plea based on evidence generally mirrors the traditional summary judgment standard).

C. Houston's summary-judgment evidence

Pascualli's affidavit was the only evidence supporting Houston's summary-judgment motion and plea. In his affidavit, Pascualli states:

I am assigned a take-home vehicle that I was driving on September 1, 2022. My normal working hours at that time were 6:30 am to 6:30 am, a 24-hour shift.

On September 1, 2022, at approximately 6:19 am, I was traveling on North Sam Houston East Parkway Service Road, Harris County Texas, when my vehicle collided with Plaintiff's vehicle. I was traveling to Fire Station 99 located in 18580 Chanute Road, Houston, Texas 77032. At the time of the collision on September 1, 2022, I was off duty, not on call and driving to work. At the time of the collision, I was not being directed by the Houston Fire Department, or furthering Houston Fire Department business.

The facts of the accident are not disputed. Rather, the parties disagree over whether Pascualli was in the scope of his employment.

D. Henderson's inability to controvert the affidavit

In response to Houston's hybrid motion, Henderson argued that Pascualli's “self-serving sham affidavit” did not establish Houston's entitlement to summary judgment as a matter of law. Additionally, Henderson maintained both in the trial court and here that she was unable to develop any facts that would controvert Pascualli's affidavit. In the trial court, Henderson made her response to Houston's summary-judgment motion subject to a verified motion for continuance. Henderson explained that written discovery was “substantially incomplete” and that Houston had not produced certain requested employment records for Pascualli. Henderson's motion specifically invoked the provisions of Texas Rule of Civil Procedure 166a(g).²

A nonmovant who needs more time for discovery in the face of a summary-judgment motion must file either an affidavit or a verified motion for continuance explaining that need. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); see Tex. R. Civ. P. 166a(g). The trial court may order a continuance of a summary-judgment hearing “to permit affidavits to be obtained or depositions to be taken or discovery to be had” if it appears “from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition.” Tex. R. Civ. P. 166a(g); Rodriguez v. Acad., Ltd., 694 S.W.3d 780, 784 (Tex. App.—Houston [14th Dist.] 2024, pet. denied). The trial court may also refuse the application for judgment. Tex. R. Civ. P. 166a(g).

Henderson complied with Rule 166a(g) by filing a verified motion for continuance. Although her primary argument was that Houston had not met its summary-judgment burden, she made a second alternative argument that the trial court should grant an extension to complete written discovery and take depositions. She further expanded on her request for continuance stating Houston had not produced any of the requested employment records in discovery regarding “Pascualli's job status at the time of the collision, opting instead to only produce an affidavit claiming, without any factual basis, that Pascualli was not in the course and scope of his employment with Defendants at the time of the collision.” Her motion states that Houston had not made Pascualli available for deposition and that she had a motion to compel pending with the trial court. Henderson's motion established the materiality of the missing and requested discovery on her only viable theory of liability against Houston.³ Given the foregoing, Henderson met the requirements of Rule 166a(g).

Based on Rule 166a(g), the trial court had the discretion to “refuse the application for judgment” or “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had[.]” Tex. R. Civ. P. 166a(g). The trial court here denied Houston's hybrid motion and simultaneously granted Henderson's motion to compel the deposition of the “Defendant Houston Fire Department and City of Houston.”

An appellant must attack “all independent bases or grounds that fully support a complained-of ruling or judgment.” City of Mont Belvieu v. Enterprise Prods. Operating, LP, 222 S.W.3d 515, 519 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (quoting Britton v. Tex. Dep't of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.)) (appeal from jurisdictional plea); Am. Akaushi Ass'n, Inc. v. Twinwood Cattle Co., Inc., No. 14-21-00701-CV, ––– S.W.3d ––––, ––––, 2025 WL 450750, at *17 (Tex. App.—Houston [14th Dist.] Feb. 11, 2025, pet. filed) (appeal from judgment notwithstanding the verdict).

Houston has not challenged or addressed the trial court's ruling on the basis of Henderson's Rule 166a(g) request for continuance. Because Houston does not address or argue error with respect to one of the asserted grounds that may have supported the order, and we must affirm the denial of a summary judgment motion if it can be sustained on any ground relied on by the trial court, we overrule Houston's sole issue on appeal without reaching the merits of the parties’ dispute over whether Pascualli was in the scope of his employment. See Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 424 (Tex. App.—Dallas 2009, no pet.) (“If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground, and thus any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment.”); Estate of Purgason v. Good, No. 14-14-00334-CV, 2016 WL 552149, at *2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2016, pet. denied) (mem. op.).

III. Conclusion

We affirm the trial court's order as challenged on appeal.

FOOTNOTES

1.   Henderson initially included Pascualli as a defendant as well as Houston, but Henderson elected to proceed only against Houston in her First Amended Petition.

2.   Although Henderson never specifically cites Rule 166a(g) in her appellate briefing, she raises the issue on appeal that Houston's motion for summary judgment was premature, and that additional discovery was needed.

3.   Henderson argues that vicarious liability is not her only claim, as she also asserted a direct negligence claim against Houston. However, the TTCA provides limited waivers of immunity. Specifically, the statute provides that a governmental unit is liable for:1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and(B) the employee would be personally liable to the claimant according to Texas law; and(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.Tex. Civ. Prac. & Rem. Code Ann. § 101.021. A governmental unit is only liable for the negligence of its employee, if and when that employee is “acting within his scope of employment.” Id. Although Henderson argues that she also has a direct negligence claim against Houston, she cites no authority or statute, nor have we found any, other than Section 101.021 that waives Houston's immunity for injuries resulting from the use of a motor-driven vehicle. “Because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be “under [the Tort Claims Act].” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).

Tonya McLaughlin, Justice