NUMBER 13-21-00090-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
COUNTY OF HIDALGO, TEXAS, Appellant,
v.
MARIA TAYLOR, Appellee.
On appeal from the 332nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Benavides
In this interlocutory appeal from the denial of a plea to the jurisdiction, appellant
Hidalgo County (County) contends that it conclusively established that its employee was
not in the scope of her employment when she struck appellee Maria Taylor in a County-
owned vehicle. We affirm.
I. BACKGROUND
Taylor alleges that she was traveling on East Business 83 when Marlene Vasquez,
driving a County-owned vehicle, failed to control her speed and collided with Taylor’s
vehicle, causing Taylor serious injuries. Taylor filed suit against both Vasquez and the
County, alleging that Vasquez was in the scope of her employment with the County at the
time of the accident, and therefore, the County’s immunity was waived under
§ 101.021(1)(A) of the Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(1)(A).
Approximately two weeks after being served with Taylor’s petition, the County filed
a motion under § 101.106(e) of the TTCA, seeking to compel Vasquez’s mandatory
dismissal from the suit. See id. § 101.106(e) (“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.”). Accordingly, that same
day, Taylor voluntarily amended her petition by omitting Vasquez.
The County subsequently filed a plea to the jurisdiction contesting Taylor’s
allegation that Vasquez was in the scope of her employment at the time of the accident.
The County primarily relied on the transcript of Vasquez’s deposition, where she testified
that she is employed as a fraud investigator for the County Tax Office, her work hours are
from 8:00 a.m. until 5:00 p.m., and she was driving home when the accident occurred
around 5:45 p.m. These facts, according to the County, rebutted the presumption that
Vasquez was in the scope of her employment when the accident occurred.
Vasquez also testified that she is not permitted to use the vehicle for personal use,
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she did not make any stops or detours before the accident, and the County pays for the
vehicle’s gas. According to Taylor, these facts raised a genuine issue of material fact as
to whether Vasquez was in the scope of her employment at the time of the accident.
The trial court denied the plea, and this interlocutory appeal followed. See id.
§ 51.014(a)(8).
II. STANDARD OF REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that
affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
Air Control Bd., 852 S.W.2d at 446).
Sovereign immunity protects the State and its agencies from lawsuits for money
damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s claims.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).
Governmental immunity offers the same protections for political subdivisions of the State.
Id. To prevail on a claim of immunity, the governmental defendant “may challenge the
pleadings, the existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist.
v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a defendant challenges the existence
of jurisdictional facts, the analysis “mirrors that of a traditional summary judgment.” Tex.
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Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep.
Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)). Accordingly, when a
governmental entity establishes the absence of a jurisdictional fact, the burden shifts to
the plaintiff to raise a genuine issue of material fact for the jury to resolve; otherwise, the
trial court should rule on the plea as a matter of law. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
“Hidalgo County, as a political subdivision of the State, generally enjoys sovereign
immunity from tort liability, unless immunity has been waived by the [TTCA].” Hidalgo
County v. Gonzalez, 128 S.W.3d 788, 796 (Tex. App.—Corpus Christi–Edinburg 2004,
no pet.) (citing County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002)). Under the
TTCA, the County is vicariously liable for automobile accidents caused by its employees
during the scope of their employment. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.021(1)(A). Conversely, the TTCA’s waiver of immunity is not triggered if the
employee was acting outside the scope of their employment at the time of the accident.
See id.
The TTCA defines “scope of employment” as “the performance for a governmental
unit 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.” Id.
§ 101.001(5). Stated in the negative, “an employee’s act is not within 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) (per curiam) (cleaned up) (quoting RESTATEMENT (THIRD) OF AGENCY
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§ 7.07(2) (2006)). The critical inquiry is whether “a connection exists between the
employee’s job duties and the alleged tortious conduct.” Garza v. Harrison, 574 S.W.3d
389, 401 (Tex. 2019) (cleaned up).
Generally, an employee is not in the scope of employment while traveling to and
from work. Tex. Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963). As is the
case here, there is a rebuttable presumption that an employee was in the scope of
employment if the employer owns the vehicle and regularly employs the driver. See
Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971). Once the
presumption is rebutted, though, the employer’s ownership of the vehicle and
employment of the driver are insufficient to raise the issue. Id. at 358. The presumption
is a rule of procedure that “vanishes” when contrary evidence is presented. Id. The burden
then shifts to the plaintiff to produce evidence that the driver was in the scope of
employment. Id.
III. ANALYSIS
The County contends that the trial court erred in denying its plea to the jurisdiction
because (1) the County successfully rebutted the presumption that Vasquez was in the
scope of employment when the accident occurred, and (2) Taylor failed to respond with
evidence raising a fact issue. However, by previously filing a motion to dismiss Vasquez
under § 101.106(e), the County confirmed that Vasquez was acting within the scope of
employment and that the County, not Vasquez, was the proper party. See Tex. Adjutant
Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013).
The election-of-remedies provisions of the TTCA are generally designed to funnel
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claims away from government employees and towards their government employers.
Garcia, 253 S.W.3d at 657 (“It is true, as Garcia claims, that the [TTCA’s] election scheme
is intended to protect governmental employees by favoring their early dismissal when a
claim regarding the same subject matter is also made against the governmental
employer.” (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e), (f))). As previously
mentioned, under § 101.106(e), “[i]f a suit is filed under [the TTCA] 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.” TEX. CIV. PRAC. & REM. CODE
ANN. § 101.106(e). Filing a motion under § 101.106(e) is a discretionary decision by the
governmental unit. Ledesma v. City of Houston, 623 S.W.3d 840, 847 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (first citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.106(e); and then citing Univ. of Tex. Health Sci. Ctr. at Hous. v. Rios, 542 S.W.3d
530, 538 (Tex. 2017)). When 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.” Ngakoue, 408 S.W.3d at 358.
“The governmental unit is in the best position to know whether its employee acted
in the course and scope of employment.” Ledesma, 623 S.W.3d at 847 (citing Ngakoue,
408 S.W.3d at 359); e.g., Ramos v. City of Laredo, 547 S.W.3d 651, 656 (Tex. App.—
San Antonio 2018, no pet.) (“The City was in the best position to know whether Guerra
was acting in the scope of employment at the time of the accident.”). If the employee was
not acting in the scope of employment, as the County now contends, then the
governmental unit can move to dismiss the claims against it for want of jurisdiction.
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Ledesma, 623 S.W.3d at 848 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)).
“However, by moving to dismiss claims against its employee under subsection (e), the
governmental unit judicially admits that the employee was acting in the scope of
employment and agrees to vicariously defend its employee.” Id. (citing Ngakoue, 408
S.W.3d at 358); Ramos, 547 S.W.3d at 655–56 (concluding city’s motion under
§ 101.106(e) “amounted to a judicial admission that [its employee] was acting in the scope
of employment”). This judicial admission bars the governmental unit from subsequently
contesting the scope-of-employment issue. Ledesma, 623 S.W.3d at 848; Ramos, 547
S.W.3d at 656.
Here, Taylor filed suit with the information she had available to her: Vasquez was
driving a County-owned vehicle when the accident occurred, raising a presumption that
she was in the scope of employment. See Robertson, 468 S.W.2d at 357. Conversely,
the County was in the best position to know that Vasquez, as she would later testify,
worked from 8:00 a.m. until 5:00 p.m. that day and was driving home when the accident
occurred. See Ledesma, 623 S.W.3d at 847; Ramos, 547 S.W.3d at 656. Yet, instead of
asking the trial court to dismiss the claims against it, the County elected to immediately
file a motion to have Vasquez dismissed from the suit. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 101.021(1), 101.106(e). In doing so, the County judicially admitted that Vasquez
was in the scope of employment when the accident occurred. See Ledesma, 623 S.W.3d
at 848; Ramos, 547 S.W.3d at 655–56. Because the County was barred from
subsequently taking a contrary position, the trial court did not err in denying the County’s
plea to the jurisdiction. See Ledesma, 623 S.W.3d at 848; Ramos, 547 S.W.3d at 656.
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The County’s issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
21st day of July, 2022.
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County of Hidalgo, Texas v. Maria Taylor
Combined Opinion