CITY OF HOUSTON v. ANTONIO (2026)

OPINION

The City of Houston appeals the trial court's order denying its rule 91a motion to dismiss Jose Brigido Sanchez Antonio's negligence claim based on his allegation that a marked police vehicle driven by a Houston Police Department (“HPD”) officer rear-ended his vehicle. The City asserts that Antonio's claim has no basis in law because he failed to plead sufficient facts to establish that the officer was within the scope of his employment when the accident occurred.

We conclude that Antonio pleaded sufficient facts to overcome the City's rule 91a motion to dismiss, and we affirm the trial court's order.

Background

Antonio sued the City and Phuong Kim Ngo for injuries he sustained in a car accident. The City answered and asserted governmental immunity as a bar to his claims. The City filed a rule 91a motion to dismiss, asserting that Antonio alleged insufficient facts to support his assertions that Ngo was in the scope of his employment as a City employee and performing a governmental function for the City at the time of the alleged collision.

Antonio filed a response to the motion to dismiss and an amended petition. In his amended petition, he alleged:

• The City's employee, Ngo, was working in the course and scope of his employment and was performing a governmental function for City of Houston at all times relevant to this lawsuit;

• Ngo was employed as a Sergeant for the Houston Police Department at the time of the accident;

• The lawsuit arose from an automobile collision that occurred on August 11, 2024. At that time, Antonio was traveling northbound at the 10800 block of North Freeway. Sergeant Ngo was driving a marked Houston Police Department vehicle for the City with no other passengers, was traveling behind Antonio's vehicle and struck his vehicle from behind. As a result of the crash, Antonio suffered bodily injuries; and

• Sergeant Ngo was not responding to an emergency call or reacting to an emergency situation at the time of the accident.

The City filed a reply, arguing that Antonio's assertions that Sergeant Ngo was in the course and scope of his employment with HPD at the time of the accident are conclusory and unsupported by facts. The trial court denied the City's motion to dismiss, and the City timely appealed.

Analysis

The City challenges the denial of its rule 91a motion. If a cause of action has no basis in law or fact, a party may move for dismissal under rule 91a. Tex. R. Civ. P. 91a; see also In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021). The motion “must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.” Tex. R. Civ. P. 91a.2.

We review de novo whether a cause of action has any basis in law. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021). We accept as true the factual allegations in the pleadings and liberally construe the pleadings in favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 808 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If needed, the trial court may draw reasonable inferences from the factual allegations to determine if the cause of action has any basis in law or fact. City of Houston v. Boodoosingh, 693 S.W.3d 894, 896-97 (Tex. App.—Houston [14th Dist.] 2024, no pet.). In deciding a rule 91a motion to dismiss, a court may not consider evidence and must decide the motion “based solely on the pleading of the cause of action.” Tex. R. Civ. P. 91a.6; see City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).

“A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Tex. R. Civ. P. 91a. This provision may arise in two circumstances: (1) the petition alleges too few facts to demonstrate a viable, legally cognizable right to relief; or (2) the petition alleges additional facts that, if true, bar recovery. Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The City claims Antonio's petition alleges too few facts to demonstrate a viable, legally cognizable right to relief.

Governmental units are immune from suit unless immunity is waived by state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). The City, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The Tort Claims Act (“TTCA”) waives immunity of governmental units like the City when the negligence of an employee acting within the scope of employment proximately causes personal injury arising from the 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). If immunity applies, the trial court lacks subject matter jurisdiction over Antonio's negligence claim against the City. See City of Houston v. State Farm Mutual Auto. Ins. Co., 712 S.W.3d 707, 713 (Tex. App.—Houston [14th Dist.] 2025, no pet.). Subject matter jurisdiction is a question of law we review de novo. Sanchez, 494 S.W.3d at 725.

The TTCA's motor vehicle waiver of immunity applies only if the plaintiff's injuries were proximately caused by the negligence of an employee acting in the scope of employment. See Tex. Civ. Prac. & Rem. Code § 101.021(1). As relevant here, the City argues that Antonio's negligence claim against it has no basis in law because Antonio's assertion that Sergeant Ngo was in the scope of employment with the City at the time of the accident is conclusory and not supported by factual allegations.

When a vehicle involved in an accident is owned by the defendant and the driver is an employee of the defendant, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); Martin v. Vill. of Surfside Beach, No. 14-22-00085-CV, 2023 WL 3476939, at *3 (Tex. App.—Houston [14th Dist.] May 16, 2023, no pet.) (mem. op.); City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex. App.—Houston [14th Dist.] 2022, pet. denied).

Antonio alleged in his first amended petition that Sergeant Ngo was a City employee and operating a City police vehicle at the time of the accident. At this stage of the litigation, we construe Antonio's pleading liberally, look to his intent, and accept his factual allegations as true to determine whether the cause of action has a basis in law. E.g., Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Based on his factual allegations, Antonio has raised the presumption that Sergeant Ngo was acting within the scope of employment when the incident occurred. See Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.). “The presumption prevails when it is unrefuted.” Id.; see also City of Houston v. Fonteneaux, No. 14-25-00153-CV, 2026 WL 1691386, at *3-4 (Tex. App.—Houston [14th Dist.] June 11, 2026, no pet. h.) (subst. mem. op.). The City has not attempted to rebut this presumption with evidence that Sergeant Ngo was on a personal errand or otherwise not within the scope of his employment. See Martin, 2023 WL 3476939, at *3; Molina, 2018 WL 3977945, at *4. Rather, the City sought to dismiss Antonio's lawsuit based on rule 91a, under which the court may not consider evidence. Because we are restricted to the pleadings, the scope of employment presumption prevails on Antonio's alleged facts.

In support of its argument that Antonio's course and scope allegations are conclusory and therefore insufficient to state a viable legal claim, the City emphasizes City of Houston v. Warren, No. 14-23-00756-CV, 2024 WL 5132252, at *3-4 (Tex. App.—Houston [14th Dist.] Dec. 17, 2024, no pet.) (mem. op.), and City of Houston v. Hernandez, No. 14-23-00916-CV, 2024 WL 3867828, at *2 (Tex. App.—Houston [14th Dist.] Aug. 20, 2024, no pet.) (mem. op.). In these cases, our court addressed whether the respective claimants sufficiently alleged facts negating the emergency exceptions to the TTCA's waiver of governmental immunity. In Warren, we held that the claimant's assertion that “[n]o exceptions or exclusions to the Texas Tort Claims Act apply in this suit, thus waiver is not withdrawn” was conclusory and therefore insufficient. Warren, 2024 WL 5132252, at *3. In Hernandez, we held to be conclusory an allegation that a government official drove with “conscious indifference or reckless disregard for the safety of others.” Hernandez, 2024 WL 3867828, at *3.

The City seeks to apply the holdings of Warren and Hernandez to Antonio's course and scope allegations. But Warren and Hernandez do not support the City's position. Antonio's course and scope assertions are supported by the alleged facts that Sergeant Ngo was a City employee and driving a City police vehicle at all relevant times. These are not conclusory assertions, and they raise the presumption that Sergeant Ngo was in the scope of his employment with the City when the accident occurred. And because the City seeks dismissal under rule 91a, the court could not consider any evidence purporting to rebut the presumption even if the City has presented some.

For these reasons, the trial court did not err by denying the City's 91a motion to dismiss. We overrule the City's issue.

Conclusion

Having overruled the City's sole issue, we affirm the trial court's order denying the City's 91a motion to dismiss.

Kevin Jewell, Justice