CITY OF HOUSTON v. MIGUEL PEREZ (2026)

MAJORITY OPINION

In two issues appellant, the City of Houston, appeals the trial court's denial of its summary-judgment motion based on governmental immunity against claims alleged to arise under the Texas Tort Claims Act. Specifically, the City contends the trial court erred because in its view it presented uncontested summary-judgment evidence establishing that its employee—Sean Ellis, the driver of the City's vehicle—was outside the scope of his employment at the time of the alleged accident, so as to bar the plaintiff-appellee's essential theory of vicarious liability. The City alternatively contends that the trial court erred in failing to grant summary judgment on the City's challenge to appellee's negligent entrustment claims against the City, which it contends fall outside the motor-driven vehicle provision of the Act upon which appellee's claims are based. We affirm in part and reverse and remand in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellee Miguel Perez sued the City of Houston and Sean Ellis after a multi-vehicle rear-end collision on October 7, 2019, on the 610 North Loop East in Houston.

According to the peace officer's crash report, Perez was driving a 2014 white Honda Accord in lane 3 of 5 between Irvington and IH-45; Ellis, a Houston Public Works Wastewater Operations Inspector, was driving a 2016 white Chevrolet Silverado owned by the City westbound in the same lane. The crash report describes a multiple rear-end sequence in which Ellis's City truck (Unit 1)

Tabular or graphical material not displayable at this time. sustained front-end damage from striking Perez's Accord (Unit 2) from the rear, and Unit 2 incurred front-end damage from striking a third vehicle that left the scene; the report lists fault as undetermined due to conflicting statements.

Perez's petition invoked the Texas Tort Claims Act (“TTCA”) motor-vehicle waiver based on negligent operation by a City employee acting within the course and scope of employment, and additionally asserted negligent entrustment and vicarious liability against the City. The City's answer pleaded governmental immunity, which it re-urged in an amended answer. The City framed immunity as turning on whether Ellis acted within the scope of employment, asserting he was on a personal lunch break, so no TTCA waiver applied.

On March 25, 2024, Ellis filed a Motion to Dismiss arguing that Perez, by filing suit against both himself and the City, had elected his remedies and, pursuant to Section 101.106(a) of the TTCA, the suit against him should be dismissed. Two months later, on June 20, 2024, the City filed a no-evidence and traditional motion for summary judgment on governmental immunity, arguing Ellis was outside the scope of his employment at the time of the crash because he was going to lunch. In his summary-judgment response, Perez objected to Ellis's affidavit as hearsay and as testimony from an interested witness; he argued the City's own Daily Activity Sheet shows Ellis did not take lunch until approximately 3:54 p.m., creating a fact question whether Ellis was truly at lunch (or going to lunch) at the time of the 1:56 p.m. crash, and alternatively sought a continuance to complete discovery.

On Aug. 31, 2024, the trial court granted Ellis' motion to dismiss. On October 3, 2024, the trial court denied the City's motion for summary judgment, prompting the City to initiate this appeal challenging that interlocutory order. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019).

II. ISSUES AND ANALYSIS

A. Scope of Employment

In its first issue, the City complains that the trial court reversibly erred in denying its governmental-immunity summary-judgment motion because it contends the court was presented with “unrefuted evidence” that its public works employee “was driving to lunch and, therefore, outside his scope of employment such that vicarious liability cannot be fixed on his employer.” In his response, Perez mistakenly argues that the City conceded the issue of scope-of-employment when its counsel moved to dismiss the employee under section 101.106(e) of the Texas Civil Practice and Remedies Code. However, the motion to dismiss was filed by the employee, Ellis, and not by the City, notwithstanding the fact that both Ellis and the City were represented by the City of Houston Legal Department.

1. Applicable Law

The City raised its governmental immunity in a combined no-evidence and traditional motion for summary judgment and attached evidence. Tex. R. Civ. P. 166a(c). 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 Shady Shores, 590 S.W.3d at 551 (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 City of Houston v. Rodriguez, 704 S.W.3d 462, 470 (Tex. 2024). 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)).

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 a genuine issue of material fact exits that Ellis was acting within the scope of his employment at the time of the accident.

When a vehicle involved in a collision is owned by the driver's employer, a presumption arises that the driver was acting in the course and scope of employment when the collision occurred. See Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex. App.—Houston [14th Dist.] 2022, pet. denied). But if there is evidence that the driver was not in furtherance of his employer's business, the presumption is rebutted. See City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL 3556216, at *4 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.). Conduct falls outside the scope of employment when it occurs “within an independent course of conduct not intended by the employee to serve any purposes of the employer.” Garza v. Harrison, 574 S.W.3d 389, 400 (Tex. 2019). If the employer's evidence rebuts the presumption, then the burden shifts back to the plaintiff to produce other evidence that the driver was in the course and scope of his employment at the time of the collision. Robertson Tank Lines, 468 S.W.2d at 358; see Arellano, 654 S.W.3d at 486–87.

2. The Summary-Judgment Evidence

The City filed its City's No-Evidence and Traditional Motion for Summary Judgment on Immunity on June 20, 2024, which included four exhibits as support: Exhibit A, the Affidavit of Sean Ellis (“Ellis Affidavit”); Exhibit B, the HPD Texas Peace Officer's Crash Report for the October 7 collision (“Crash Report”); Exhibit C, a preformatted chart with handwritten notations bearing the title, “Houston Public Works – Houston Water, Waste Water Operation Branch - Daily Activity Sheet (“Daily Activity Sheet”); and Exhibit D, Houston Water INFOR service ticket for an overflow at 7108 Avenue J (“Service Ticket”). In his response Perez also attached supporting exhibits, which included Exhibit A, Ellis's Motion to Dismiss, Exhibit B, the Crash Report; Exhibit C, City of Houston Supervisor Investigation Report of Vehicle Accident (“Supervisor's Report”);¹ and Exhibit D, Houston Public Works Case Report (“Case Report”).

The Ellis Affidavit confirms Ellis's position as a Houston Public Works wastewater operations inspector, explains his use of the INFOR system and the self-assignment practice and such job duties as “investigating inquiries concerning wastewater issues” and “search for reported issues to investigate.” In his affidavit Ellis explains that on slow days Ellis parked and reviewed tickets. He explains that on October 7, 2019, he clocked-in at 9:53 am, responded to one call at 7108 Avenue J, then parked on a more secluded location at Banyan Street. The “Service Ticket” confirms Ellis's morning whereabouts but provides no other significant information pertinent to subject matter jurisdiction. The Affidavit states at approximately 4 hours after beginning, Ellis left his parked location and drove onto 610. The affidavit states: “Although this was nearly 5 years ago, it is likely based on my normal routine that I was headed to lunch based on my paperwork and the timing of the incident.” Ellis attributes this reasoning in part to the fact that he had a routine of writing the address to his next call location on his Daily Activity Sheet and had no address on the sheet after his entry for “Checking email, receiving calls”. Conversely, as Perez notes, the Daily Activity Sheet does not indicate appellant was headed to lunch immediately after “Checking email, receiving calls.” Rather, that entry was not made until after “Traffic Accident.”

The Case Report, the City's internal record, describes the incident as “Preventable.”

3. Analysis

On appeal, Perez focuses on his incorrect procedural argument that the City earlier moved to dismiss Ellis under section 101.106(f), which Perez frames as consistent with City acknowledging employment agency relationship. As noted above however, the motion to dismiss was filed by Ellis and not by the City. Perez largely relies on Ramos v. City of Laredo, 547 S.W.3d 651 (Tex. App.—San Antonio 2018, no pet.). The City disputes any “judicial admission” since the motion to dismiss was filed by Ellis rather than the City. Additionally, the City takes issue with Perez's application of Ramos, and relies on Rattray to argue that that jurisdiction cannot be created by waiver, estoppel or judicial admission. Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex. 2023). We are reluctant to determine if Ramos applies to these facts, or conclude today that Rattray, which makes no reference to the election of remedies section 101.106, was intended to affect applications under that provision. Rattray, 662 S.W.3d at 867; See City of Houston v. Tennon, No. 01-25-00391-CV, 2026 WL 168814, at *5 (Tex. App.—Houston [1st Dist.] Jan. 22, 2026, no pet.) (“Rattray is a TTCA plea to the jurisdiction case that has no bearing on the “scope-of-employment” analysis.”) Because we find other support in the summary judgment record for the trial court's interlocutory order, we need not address these arguments based on 101.106(e).

There is a disputed fact question presented in this case that precludes summary judgment. The evidence presented in the record that Ellis was going to lunch at the time of the accident—his affidavit statement–is, at best, a guess. Indulging every reasonable inference and resolving any doubts in the nonmovant's favor we cannot conclude that a course-and-scope presumption is rebutted as here, when based on equivocal statements and a clouded memory. See City of Houston v. Flores-Garcia, No. 14-21-00680-CV, 2023 WL 4196541, at *4 (Tex. App.—Houston [14th Dist.] June 27, 2023, no pet.)(affirming denial of summary judgment where driver did not specifically remember why he stopped at the convenience store, but it was not to complete any of his job duties). Whereas he reported the timing of other events with relative certainty, Ellis only states he was “likely” headed to lunch at the time of the accident. His Daily Activity Sheet, however, reports he actually had lunch at nearly 4:00 pm that day, roughly two and a half hours after the time of the accident. While that delay might be explained, Ellis, for his part, did not explain. To be sure, the summary judgment evidence here does not conclusively establish that, at the time of the accident, Ellis was en route to go to lunch. See Flores-Garcia, 2023 WL 4196541, at *4.

The table of cases the City relied upon in support of its summary judgment are unlike this case, distinguishably better supported by unequivocal proof that the governmental entities' employees were acting outside the scope of employment.²

In summary, the timing conflict on “lunch” (in the Ellis Affidavit versus Daily Activity Sheet), the affidavit's non-definitive language, and the absence of conclusive corroboration that he was not furthering City business at 1:56 pm collectively prevent treating City's scope-of-employment facts as undisputed on this record.

The City's first issue is overruled.

B. Negligent Entrustment

In the alternative to a complete reversal, the City separately asks that we reverse the trial court's judgment as it pertains to Perez's negligent entrustment claim. Perez pleaded a direct negligent-entrustment claim against the City based on its alleged decision to allow Ellis to use a City vehicle. However, Perez did not respond to the City's argument on this issue on appeal. Last year, our sister court followed an observed trend among the Texas courts that treating negligent entrustment as “not actionable under the TTCA.” City of Houston v. Sandoval, No. 01-23-00806-CV, 2025 WL 863777, at *7 (Tex. App.—Houston [1st Dist.] Mar. 20, 2025, no pet.) citing Durbin v. City of Winnsboro, 135 S.W.3d 317, 325 (Tex. App.—Texarkana 2004, pet. denied). We agree the theory does not fit the Texas Tort Claims Act's limited waiver for claims “arising from the operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). The Act requires that the injury arise from a governmental employee's operation or use of the motor vehicle—not merely that a vehicle was involved in some way. Section 101.021(1)(A) requires a nexus between the injury and the governmental employee's operation or use of the vehicle; mere involvement of a vehicle is insufficient, and the employee's operation or use must have actually caused the injury. The “operation or use” inquiry thus focuses on the employee's vehicle conduct that caused the accident, not on separate, antecedent employer decisions. For these reasons (and the benefit of uniform law in our shared appellate district), we hold that the trial court erred by denying summary judgment on Perez's negligent entrustment claim. See City of Houston v. Sandoval, 2025 WL 863777, at *7.

We sustain the City's second issue.

III. CONCLUSION

We reverse the trial court's order denying the City's motion for summary judgment on Perez's claim for negligent entrustment for lack of subject-matter jurisdiction, and we render judgment dismissing these claims. We affirm the remainder of the trial court's order denying the City's motion.

CONCURRING OPINION

I agree not only with the majority's judgment, but also with its analysis. I write separately to point out that section 101.106 does not authorize the kind of gamesmanship attempted in this case.

In Franka v. Velasquez, 332 S.W.3d 367, 380 (2011), the seminal case on an employee's motion to dismiss under section 101.106, the Supreme Court of Texas stated, “Ordinarily, one would expect a government employee to support his employer's assertion of immunity. Only a perverse statute would incentivize conflict between the two, and there is nothing to indicate that the Legislature had any such intent.” But Ellis and the City, represented by the same attorney, have attempted to use the statute in just that way: Ellis moved for dismissal based on Perez's pleading that Ellis was acting within the course and scope of his employment, while at the same time, the City moved for summary judgment on the ground that its immunity from suit is intact because Perez's claims concern Ellis's actions when he was not acting within the course and scope of his employment. Both cannot be true.

Further still, Ellis stated in his motion to dismiss that he sought dismissal under section 101.106(e). Texas Civil Practice and Remedies Code section 101.106(e) states,

If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.1

The reader will notice that a motion under subsection (e) has only two requirements: (1) it is available only in a suit “ against both a governmental unit and any of its employees,”² and (2) it can be filed only by a “governmental unit.”³

Significantly, the language of subsection (e) does not require the movant to support the motion with evidence, which is instead supplied by the plaintiff's pleadings. A suit “under this chapter”—that is, a suit under the Texas Tort Claims Act (the TTCA)—is simply a tort suit against a governmental unit.⁴ And if the plaintiff has pleaded the tort claim not only against the governmental unit but also against one of its employees, the governmental unit's motion to dismiss the employee must be granted.

Why, then, do the parties focus on whether Perez was acting within the course and scope of his employment? That is because Perez claims that the City is liable under section 101.021 of the TTCA, which provides that a governmental unit is liable under certain conditions for personal injury and property damage if these harms were (1) caused by “the negligence of an employee acting within his scope of employment,” and (2) arise from the operation or use of a motor vehicle or motorized equipment. TEX. CIV. PRAC. & REM. CODE § 101.021(a). Moreover, the TTCA waives a governmental unit's immunity from suit only to the extent of this liability. Id. § 101.025. Thus, the City is immune from both liability and suit for the allegedly tortious conduct of its employee that lies outside the scope of the employee's employment. The City moved for summary judgment on precisely that basis.

But if a municipality's liability, and the waiver of its immunity, depend on whether the tortious conduct alleged was within the scope of the employee's employment, why, then, does section 101.106(e) not require the governmental unit to prove that contention before its employee can be dismissed from the suit?

This brings me to the crux of Perez's arguments: as the Supreme Court of Texas has explained, “By filing such a motion, the governmental unit effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.” Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 358 (2013). A governmental unit's motion under subsection (e) is itself, in effect, a judicial admission, and a judicial admission is not merely evidence; it is conclusive evidence against the party making the admission. See Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980) (“A judicial admission is conclusive upon the party making it, and it relieves the opposing party's burden of proving the admitted fact, and bars the admitting party from disputing it.”).

This explains why only a governmental unit can move for the employee's dismissal under subsection (e): a judicial admission binds only the admitting party. See Tex. Supply Ctr., Inc. v. Daon Corp., 641 S.W.2d 335, 338 (Tex. App.—Dallas 1982, writ ref'd n.r.e.) (explaining that “the statements of one defendant cannot be considered as judicial admissions of a co-defendant”); Prewitt v. First Nat'l Bank of Waco, 491 S.W.2d 950, 953 (Tex. App.—Waco 1973, no writ) (“The admissions of a party to the record are always receivable against that party. But the statements of one co-plaintiff or co-defendant are not usable against another merely because they happen to be joined as parties to the action.”). If the City had moved for dismissal under subsection (e), it would be admitting that, at the time of the accident, Ellis was acting within the scope of his employment. Admission of that fact would not itself be sufficient to establish that all of the statutory requirements for waiver of immunity have been met, but it would eliminate the very ground on which the City moved for summary judgment.

Perez was understandably confused by Ellis's motion: the motion states that Ellis individually moves for dismissal under subsection (e), but only the City can file such a motion. Perez accordingly filed a motion for clarification, stating that he would rely on the motion to dismiss as a judicial admission. Perez pointed out that the City can move for dismissal under subsection (e), but is not required to do so. And because the motion was not actually filed by the City, Perez stated, “Plaintiff will conditionally agree that Ellis be dismissed from this suit but respectfully requests that the COH [City of Houston] acknowledge and admit, that Ellis is being dismissed because he was in the course and scope of his employment with the COH at the time of this incident.”

The City did not accept this offer. As for Ellis, he responded, “Defendant Ellis has chosen to enforce the immunity conferred in an individual capacity,” and he emphasized that the City had not moved for his dismissal, stating, “In this case, as Defendant Ellis was on his way to lunch and would be outside the scope of employment, if the City of Houston chose to move to dismiss under § 101.106(e) it would require an effective admission, however, this result would be unreasonable as it would be in opposition to the actual facts of the case.”

In effect, the defendants, represented by the same attorney, sought to obtain the benefits of a governmental motion to dismiss under subsection (e) while avoiding its consequences.

But the argument inherent in Ellis's motion to dismiss and the argument in the City's motion for summary judgment are irreconcilable: proof of one defeats the other. This is seen when one compares subsection (e) to subsection (f). And one must look at subsection (f): Ellis's motion to dismiss cannot be a motion under subsection (e), because a motion's nature is determined by its substance,⁵ and subsection (e) does not authorize dismissal of a governmental employee on the employee's own motion. Such a motion is instead governed by subsection (f), which provides as follows:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

To be entitled to dismissal under subsection (f), the movant must show that the suit is (1) “based on conduct within the general scope of that employee's employment,” and (2) “could have been brought under this chapter against the governmental unit.” See Phillips v. Dafonte, 187 S.W.3d 669, 675–76 (Tex. App.—Houston [14th Dist.] 2006, no pet.), disapproved on other grounds by Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).

The second requirement is not at issue here. Courts formerly held that to satisfy the second requirement, the employee must show that the governmental employer's immunity from suit was waived; however, the Supreme Court of Texas explained in Franka v. Velasquez that a tort claim against the government is “under” the TTCA even when the TTCA does not waive immunity from the suit. Franka, 332 S.W.3d at 376. Moreover, in this case, the suit not only “could have been” brought against the governmental unit; it was brought against the governmental unit, which was named as a defendant “on or before the 30th day after the date the motion is filed.”

This leaves only the first requirement, that is, Ellis was required to show that the suit was “based on conduct within the general scope” of his employment. Of course, Perez already pleaded that Ellis was acting within the course and scope of his employment, which was a judicial admission by Perez.

I believe that by relying on that admission and moving for dismissal “to enforce the immunity conferred in an individual capacity,” Ellis is deemed to have adopted Perez's judicial admission as his own. This treats subsections (e) and (f) alike in that each is a judicial admission by the movant. To treat them differently would only incentivize the governmental entity and its employee to take conflicting positions.

Of course, even when the individual employee adopts the plaintiff's judicial admission that the employee was acting within the course and scope of his employment, that admission is not binding on the governmental employer. Nevertheless, treating the employee's motion to dismiss as an admission by the employee still has consequences for the governmental employer. Because the employee is bound by his own admission, the plaintiff can object to any controverting evidence from the employee on that issue.⁶ The employer can offer evidence to support its position that the employee was not going about his employer's business when the accident occurred, but the employer will need to rely on evidence from a source other than the employee himself.⁷

In sum, when a plaintiff simultaneously sues both the governmental unit and the governmental employee and there has been no judgment or settlement of the claims against either defendant, section 101.106 authorizes the dismissal of the employee only upon proof that the employee was sued for conduct within the scope of his governmental employment. The employer can prove this with a judicial admission by filing a motion under subsection (e), or the employee can prove it with a judicial admission by filing a motion under subsection (f) relying on the plaintiff's pleading. But in both situations, the motion to dismiss can be used to prevent the admission of controverting evidence from the movant.

Again, I agree with the majority that the conflicting evidence precluded summary judgment for the City. I also agree that the Court need go no further to affirm the trial court's denial of the motion. Still, an appellate court can make alternative holdings supporting the same judgment, and on remand it may be helpful to the parties to know that the motion to dismiss was independently sufficient to prevent the City from conclusively proving that Ellis was on his way to lunch when the accident occurred.

It is simply not possible for both the employee and the employer to prevail when the two seek dismissal on mutually exclusive grounds. Because the attempt to do so has consequences, I have written separately to point out this alternative basis for affirming the trial court's denial of the City's summary-judgment motion.

Thus, I respectfully concur, even as I fully join in the majority's opinion.

FOOTNOTES

1.   The Supervisor's Report does not generally provide information relevant to the course-and-scope issue, but indicates “3 or more accidents within that year,” ostensibly relevant to Perez's negligent entrustment claim.

2.   See Martin v. Vill. of Surfside Beach, No. 14-22-00085-CV, 2023 WL 3476939 (Tex. App.—Houston [14th Dist.] May 16, 2023, no pet.)(unrefuted sworn declaration and crash report showing the employee was on a personal errand and then headed home, conclusively outside course-and-scope); Alief Indep. Sch. Dist. v. Velazquez, No. 01-22-00444-CV, 2023 WL 3555495 (Tex. App.—Houston [1st Dist.] May 18, 2023, no pet.)(evidence established that AISD cafeteria worker driving personal vehicle to visit administrative building concerning personal insurance benefits was not in the course and scope of her duties); Garcia v. City of Houston, 799 S.W.2d 496 (Tex. App.—El Paso 1990, writ denied)(undisputed evidence that the employee had finished work and was merely commuting, nullified the presumption and supported the jury's finding of no scope); Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.)(sworn affidavits from the Assistant Chief and the Police Chief established Assistant Chief-driver had no regular duties involving operation of a police vehicle, was off-duty, unpaid, commuting to work, had no official duties at the time, and would only be on-duty upon arrival); Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.)(clear, undisputed facts and testimony identifying a personal lunch errand and return therefrom, which the court held took the driver outside the scope); City of Fort Worth v. Hart as Next Friend of K.H., No. 10-17-00258-CV, 2019 WL 91676 (Tex. App.—Waco Jan. 2, 2019, pet. denied) (mem. op.) (deposition and policy affidavit established officer was off-duty, on unpaid commute in a city vehicle, merely going to work); Valdez v. City of Houston, No. 01-21-00070-CV, 2022 WL 3970066 (Tex. App. – Houston [1st Dist.] Sept. 1, 2022, no pet.)(affidavit, which detailed Martinez's assignment, shift hours, restrictions on patrol/traffic enforcement, and purpose of travel backed summary judgment showed officer was off-shift special-assignment, not performing patrol or traffic duties, and thus outside scope); Mejia-Rosa v. John Moore Services, Inc., No. 01-17-00955-CV, 2019 WL 3330972 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.)(employee affidavit and deposition showed a homeward commute and non-work purpose).

1.   Emphasis added.

2.   An “employee” is a person in the paid service of a governmental unit. TEX. CIV. PRAC. & REM. CODE § 101.001(2).

3.   A “governmental unit” includes the state and its agencies, political subdivisions of the state (such as cities, counties, and school districts), emergency service organizations, and other governmental institutions. Id. § 101.001(3).

4.   Franka, 332 S.W.3d at 376.

5.   In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding).

6.   See Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983) (“The party relying on his opponent's pleadings as judicial admissions of fact, however, must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted.”).

7.   This is assuming, of course, that the plaintiff has not waived reliance on the employee's admission by failing to object to controverting evidence from that employee, and that the employee has not retracted the admission by withdrawing the motion. In this case, and at this stage, I could not say that either possibility has been foreclosed. The trial court granted Ellis's motion to dismiss, but that ruling is interlocutory and is not part of this appeal. I discuss it in this appeal from the denial of the City's summary-judgment motion because Perez relied on the motion to dismiss as evidence of a judicial admission. And Perez is partially right; the motion is an admission, but it is an admission by Ellis under subsection (f), with all that such an admission entails.

Randy Wilson Justice