JESUS DELGADO v. HARRIS COUNTY TEXAS (2026)

OPINION

Appellant Jesus Delgado appeals from the trial court's take-nothing judgment against him. After Delgado sued Harris County for damages resulting from a vehicular crash between Delgado and a County employee, the County filed a plea to the jurisdiction, arguing that it was immune from suit. Although the Texas Tort Claims Act (“TTCA”) waives the County's governmental immunity from suit in some instances, the County invoked the Act's emergency exception, which withdraws the waiver of immunity. Because we agree that the emergency exception applies in this case, we hold that the County retains its immunity and affirm the trial court's judgment.

Background

In January 2022, Delgado was traveling south on Mason Road in Katy, Texas. Harris County Sheriff's Office Deputy Alexander French-Michael was driving west on Franz Road, responding to a priority-one emergency call. It is disputed whether Deputy French-Michael had his lights and siren activated.

Approaching the intersection of Mason Road and Franz Road, Deputy French-Michael had a red signal and brought his car to a complete stop. He checked cross-traffic in all directions and proceeded into the intersection from a right-turn-only lane, where Delgado collided with his vehicle. As a result of this collision, Delgado was seriously injured.

Delgado sued the County for negligence. The County filed a combined plea to the jurisdiction based on the TTCA's emergency exception and a traditional motion for summary judgment based on official immunity. The trial court granted the plea to the jurisdiction and dismissed Delgado's claims with prejudice. Delgado appeals.

Analysis

In his first issue, Delgado argues that the trial court erred in granting the County's plea because a fact question exists regarding Deputy French-Michael's recklessness. In a related third issue, Delgado contends that there is a dispute as to whether the deputy activated his car's emergency equipment, which factors into the general inquiry of recklessness. In his second issue, Delgado argues that the County did not prove it was entitled to summary judgment on official-immunity grounds. Finally, Delgado challenges the timing of the trial court's judgment, arguing that the court reversibly erred in granting the County's plea prior to the submission date.

A. Emergency Exception

Governmental units like the County are immune from suit unless immunity is waived by state law. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). The TTCA waives the immunity of governmental units for certain torts, see Tex. Civ. Prac. & Rem. Code § 101.021, but it “withdraws” the waiver in various circumstances. Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023). 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).

As an initial matter, Delgado argues that the emergency exception does not apply because Deputy French-Michael was not responding to an actual “emergency.” According to Delgado, the call did not involve a “life-in-danger event” but rather “a four-year-old child who was lost at Memorial Hermann Hospital in Katy, Texas.” Regardless of Delgado's characterization, there is no dispute that the deputy was responding to a “priority-one” emergency call, which, as Deputy French-Michael testified, is dispatched for in-progress or life-in-danger events. We therefore reject Delgado's contention that the exception does not apply for this reason.

The issue thus reduces to whether Deputy French-Michael (1) “compli[ed] with the laws and ordinances applicable to emergency action,” or (2) “in the absence of such a law or ordinance,” acted “with conscious indifference or reckless disregard for the safety of others.” Id. When a plaintiff seeks to raise a fact issue as to official compliance with “laws and ordinances applicable to emergency action,” but points to no law or ordinance that specifically applies to that action, the first prong of section 101.055(2) has no role to play. City of Austin v. Powell, 704 S.W.3d 437, 451 (Tex. 2024). By the same token, generally applicable rules of the road that do not specifically address or reference emergencies are not applicable to emergency action for purposes of the emergency exception. Id. In the trial court, neither Delgado nor the County pointed to any law or ordinance that specifically applies to emergency action, so we will consider whether Deputy French-Michael's actions were reckless under the second prong of section 101.055(2). Delgado bore the burden to plead and produce some evidence raising a fact issue on recklessness. See City of Houston v. Rodriguez, 704 S.W.3d 462, 469 n.26 (Tex. 2024) (plaintiff bears the burden to negate application of emergency exception).

Delgado first argues that a fact issue on recklessness exists because it is disputed whether Deputy French-Michael's emergency lights and siren were activated at the time of the collision. Deputy French-Michael testified that he was supposed to activate emergency audio and visual signals when responding to a priority-one call and that they were activated at the time of the incident. The crash report also indicates that they were activated, and, according to the County, there is body-cam footage of Delgado allegedly admitting at the scene that they were activated. However, an official copy of the body-cam footage upon which the County relies has not been filed with this court. Contrary to the County's position, Delgado filed an affidavit stating that the lights and siren were not activated. We resolve the factual dispute regarding the use of lights and sirens in Delgado's favor. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

Activating emergency equipment is often evidence negating alleged recklessness, but it does not follow that an officer's failure to activate a vehicle's lights or siren when responding to an emergency call necessarily creates a fact question on recklessness. See City of San Antonio v. Maspero, 640 S.W.3d 523, 531 (Tex. 2022) (“[T]he evidence that Officer Kory failed to use her siren does not foreclose the Act's emergency exception.”); see also City of Houston v. Gomez, 716 S.W.3d 161, 166 (Tex. 2025) (holding no fact question on recklessness when officer had discretion whether to activate emergency signals in response to priority two emergency call). Delgado was required to present evidence showing “more than a momentary judgment lapse and instead that the driver committed an act he knew or should have known posed a high degree of risk of serious injury.” Maspero, 640 S.W.3d at 531 (internal quotations omitted).

Here, even crediting Delgado's testimony that Deputy French-Michael activated neither his lights nor siren, the evidence does not rise to the required level. There is no evidence that he was speeding, driving erratically, inattentive, or otherwise indifferent to risks posed to other drivers. It is undisputed that the deputy stopped at the intersection “to allow all traffic to come to a stop.” Only then did he enter the intersection, at which point the rear of his vehicle was struck by Delgado's car. There is no evidence contradicting Deputy French-Michael's version of these events.¹ The above actions affirmatively demonstrate Deputy French-Michael's “intent to minimize potential harm,” not an intent to ignore or exacerbate the possible risks posed by running a red light when responding to a priority-one call. Id.

Separately, Delgado contends that Deputy French-Michael acted recklessly by entering the intersection from a right-turn-only lane, against a red light, and failing to see Delgado's car. Officers “retain discretion” in responding to emergency situations and are expressly permitted to violate provisions of the Transportation Code, so driving in a turn-only lane and running a red light are not by themselves evidence of Deputy French-Michael's recklessness. See Powell, 704 S.W.3d at 460; Maspero, 640 S.W.3d at 532. Further, his failure to see Delgado's car is not indicative of recklessness when the evidence establishes that he looked before proceeding into the intersection. Though it may indicate Deputy French-Michael could have been more attentive, general inattentiveness sounds in negligence and is insufficient to create a fact issue as to recklessness. Powell, 704 S.W.3d at 460.

During oral argument, Delgado's counsel asserted that Deputy French-Michael conceded that he did not properly “clear” the intersection before proceeding, pointing to the following testimony from Deputy French-Michael's deposition:

Q. So this is where I'm confused. I'm confused because if you would have checked that intersection properly, you would have seen that my client was coming. You agree that cars don't just appear. Correct?

A. That's correct.

Q. So if Mr. Delgado did not just appear, you must have not checked that vicinity properly. Correct?

A. That's correct.

While Deputy French-Michael agreed with opposing counsel's hypothetical that he “must have not checked that vicinity properly,” there is no testimony or evidence that would qualify “properly.” Deputy French-Michael repeatedly and unequivocally testified that the intersection “appeared to be clear” and that he looked “both ways before entering that intersection.” There is no evidence that Deputy French-Michael's view was impeded or obstructed. Again, failing to see Delgado's car is, at most, negligence and cannot support a finding of recklessness. See id.

It is helpful to compare the instant facts with other cases that have held a fact question existed on whether an officer acted recklessly when responding to an emergency without activating emergency lights or sirens. See City of San Antonio v. Torres, No. 04-17-00309-CV, 2017 WL 5472537 (Tex. App.—San Antonio Nov. 15, 2017, no pet.) (mem. op.); City of Beaumont v. Brocato, No. 09-10-00473, 2011 WL 4716296 (Tex. App.—Beaumont Oct. 6, 2011, no pet.) (mem. op.); City of Missouri City v. Passante, No. 14-09-00634-CV, 2010 WL 2998777 (Tex. App.—Houston [14th Dist.] Aug. 3, 2010, no pet.) (mem. op.); City of Pasadena v. Belle, 297 S.W.3d 525 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Green v. Alford, 274 S.W.3d 5 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (en banc); Johnson v. Campbell, 142 S.W.3d 592 (Tex. App.—Texarkana 2004, pet. denied); Gwynn v. Tobin, No. 03-02-00759-CV, 2003 WL 21554331 (Tex. App.—Austin July 11, 2003, no pet.) (mem. op.). In all of these cases, it was assumed or established that emergency lights and sirens were not activated at the time of the respective incidents. But in each case, additional facts supported an inference of recklessness, such as evidence of speeding,² a failure to stop or slow or show caution before proceeding through a red signal,³ visual obstructions,⁴ the officer looking at his computer and not the road,⁵ and the officer not wearing required corrective lenses.⁶ Although Delgado cites some of these cases, he has cited no authority supporting a fact question on recklessness based solely on evidence that an emergency vehicle operator failed to use audible or visual signals while responding to an emergency. See Tex. Dep't of Public Safety v. Escobar, No. 13-20-00267-CV, 2021 WL 6129135, at *5 (Tex. App.—Corpus Christi-Edinburg Dec. 29, 2021, pet. denied) (mem. op.) (finding no authority supporting the conclusion that an emergency vehicle operator acts recklessly solely because his vision is obstructed or he fails to continuously operate his siren).

We conclude that when an officer proceeds through a red traffic signal in response to a priority-one call and is involved in a collision, evidence that the officer did not activate audible and visual signals will not, without more, support a fact question on recklessness. This is particularly so when, as here, the evidence is otherwise undisputed that the officer was not speeding, he came to a complete stop to look for cross-traffic before proceeding, and his line of sight was unobstructed. These circumstances do not raise a fact issue regarding whether the officer knew or should have known that failing to activate emergency audible and visual signals posed a “high degree of risk of serious injury.” See Maspero, 640 S.W.3d at 531.

Thus, assuming as we must that the patrol car's lights and siren were not activated, Delgado nevertheless failed to raise a fact issue as to whether Deputy French-Michael acted recklessly. See Gomez, 761 S.W.3d at 166; Powell, 704 S.W.3d at 457-58 (officer's failure to control speed, inattentiveness, failure to maintain a safe following distance, and the seriousness of the accident raised fact issue on negligence, not recklessness); Maspero, 640 S.W.3d at 532 (no fact issue on recklessness when officer did not activate siren and was speeding at times, but also slowed down at intersections and followed all instructions from command). Delgado did not negate the emergency exception's applicability, and the County retained its immunity.

We overrule Delgado's first issue. We need not reach Delgado's second issue, in which he argues that the County failed to conclusively prove its official-immunity defense, nor his third issue, in which he argues that there is a fact question as to Deputy French-Michael's use of his lights and siren. See Tex. R. App. P. 47.1.

B. Procedural Complaint

In his fourth issue, Delgado argues that the trial court erred in granting the County's plea a week before it was set for submission.

We briefly summarize the pertinent timeline. The County filed its plea on August 9, 2024 and set it for submission on September 9, 2024. Delgado filed a response on September 3, 2024. The trial court granted an agreed motion for continuance to allow the parties to conduct depositions. The County filed a reply on September 6, 2024 and re-set the date for submission of the plea without an oral hearing for November 18, 2024. Under the rules of procedure, Delgado could file an amended or supplemental response one week before the submission date, November 11. See Tex. R. Civ. P. 166a(c). On Sunday, November 10, one day before any supplemental or amended response by Delgado was due, the trial court granted the County's plea. Even though Delgado had already filed a response two months earlier, Delgado argues that the trial court's actions precluded him from filing an amended or supplemental response.

At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. See Campbell v. Stucki, 220 S.W.3d 562, 570 (Tex. App.—Tyler 2007, no pet.). When a hearing (either in person or by submission) has been scheduled on a motion and the trial court grants that motion before the scheduled hearing date, the trial court violates the non-moving party's procedural due process right to be heard. See id. (trial court violated due process when hearing scheduled regarding motion and notice provided, but trial court granted motion before scheduled hearing date).

Yet, to complain on appeal, Delgado was required to raise this argument in a motion for new trial or otherwise alert the trial court to his complaint. See Tex. R. App. P. 33.1(a); Stallworth v. Stallworth, 201 S.W.3d 338, 346 (Tex. App.—Dallas 2006, no pet.) (“[T]o preserve a complaint on appeal, the party must present a timely request, objection, or motion, state the specific grounds for the ruling, and obtain a ruling or object to the refusal to make such a ruling.”); Gillham v. Sanchez, No. 05-17-01449-CV, 2019 WL 2082466, at *4 (Tex. App.—Dallas May 13, 2019, pet. denied) (mem. op.) (where appellant failed to object to the trial court's changing of the trial date, no error was preserved for appellate review). “Even constitutional claims are waived by failure to raise the complaint at trial.” Matter of Marriage of Tyeskie, 558 S.W.3d 719, 725-26 (Tex. App.—Texarkana 2018, pet. denied) (citing Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001)); see also Lynch v. Port of Hous. Auth., 671 S.W.2d 954, 957 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) (holding that a party's failure to raise due process argument in “written motion, answer or other response to a motion for summary judgment” resulted in waiver). Delgado never apprised the trial court that he objected to the dismissal order—or sought to set it aside—on the ground that his due process right was violated. Accordingly, he has waived this argument on appeal, and we overrule his fourth and final issue.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   In our evaluation of the evidence, we must consider uncontroverted evidence suggesting that Deputy French-Michael was not reckless. Maspero, 640 S.W.3d at 532 (in context of jurisdictional plea, discussing evidence showing that the officer “engaged in some degree of risk assessment” and thus there was not a fact question on recklessness).

2.   Brocato, 2011 WL 4716296, at *4; Belle, 297 S.W.3d at 529, 535; Green, 274 S.W.3d at 26; Johnson, 142 S.W.3d at 595-96.

3.   Torres, 2017 WL 5472537, at *5; Green, 274 S.W.3d at 11; Gwynn, 2003 WL 21554331, at *4; Johnson, 142 S.W.3d at 595-96.

4.   Passante, 2010 WL 2998777, at *7-8; Green, 274 S.W.3d at 14; Gwynn, 2003 WL 21554331, at *4.

5.   Torres, 2017 WL 5472537, at *5.

6.   Green, 274 S.W.3d at 11.

Kevin Jewell Justice