Wesley Rattray, Marco Nunez, Martha Saavedra, Antonio Vindell, Carmen Pashos, Steve Tullos, Cesario Pedraza, Minerva Pedraza, Roger Luly, Nora Gonzalez, and Rosalinda Castillo v. City of Brownsville, Texas

Supreme Court of Texas
══════════
No. 20-0975
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Wesley Rattray, Marco Nunez, Martha Saavedra, Antonio
Vindell, Carmen Pashos, Steve Tullos, Cesario Pedraza, Minerva
Pedraza, Roger Luly, Nora Gonzalez, and Rosalinda Castillo,
Petitioners,

v.

City of Brownsville, Texas,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════

Argued October 27, 2022

JUSTICE YOUNG delivered the opinion of the Court.

The Texas Tort Claims Act waives governmental immunity for
“property damage” that “arises from the operation or use of . . . motor-
driven equipment.” Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). We
must decide whether a city’s closure of a stormwater gate during a
rainstorm, which immediately preceded the flooding of a neighborhood,
falls under this waiver of immunity. We hold that petitioners have

1
successfully invoked the statutory waiver, at least at this stage of the
case. We accordingly reverse the judgment of the court of appeals and
remand to the trial court for further proceedings.

I

The plaintiffs below, and petitioners in this Court, are eleven
homeowners who live in the Quail Hollow subdivision of Brownsville.
The homeowners allege that the overflow of a nearby resaca 1 flooded
their homes and caused extensive property damage. According to their
seventh amended petition, the accumulation of water in the resaca—and
its resulting overflow—would not have occurred but for the City’s decision
to close a stormwater gate during a severe rainstorm.
The rainstorm rolled into the City around noon on a warm day in
late August 2015. Jose Figueroa, the City’s stormwater manager, was
enjoying lunch at a local Chick-fil-A at the time. When Figueroa noticed
the rain’s intensity, he left the restaurant and directed his crew to report
to their assigned posts and monitor the situation. He also instructed
Leo Saldivar, the City’s raw-water technician, to meet him near the
Quail Hollow subdivision. Figueroa wanted to keep an eye on the
stormwater flowing from the Resaca de la Guerra—a resaca running
through Quail Hollow that serves as part of the City’s water-drainage
system and which the homeowners describe as a “large waterway.”
As in other neighborhoods in the City, Quail Hollow’s stormwater

1A “resaca” is a “former course or channel of a stream.” Webster’s New
International Dictionary 2117 (2d ed. 1934). As the court of appeals noted, the
resacas here are “former channels of the Rio Grande found in the southern half
of Cameron County.” 647 S.W.3d 710, 714 n.2 (Tex. App.—Corpus Christi–
Edinburg 2020) (internal quotations omitted).

2
drains into that resaca, which generally flows from west (upstream) to
east (downstream). To control the flow of water, the resaca has five
sluice gates that open and close. One of those gates—the North Laredo
Gate—is immediately downstream of Quail Hollow. The North Laredo
Gate typically is kept open. According to the homeowners, motor-driven
actuators installed sometime before the rainstorm can remotely open
and close the North Laredo Gate.

Petitioners’ Oral Argument Exhibit

When Figueroa and Saldivar arrived in Quail Hollow, they
observed that the North Laredo Gate was open, as usual; that water in
the resaca was flowing normally, from upstream to downstream; and
that the resaca’s water was at a normal level, about thirty feet above sea
level. After making these assessments, Figueroa and Saldivar proceeded
to check other locations in the City. Except for “high water” in some

3
areas, they observed similar conditions. The South Laredo Gate, for
instance, was also open and had normal waterflow.
Figueroa and Saldivar returned to the North Laredo Gate about
an hour later. Conditions had changed. They noticed that the resaca’s
waterflow had reversed course and was now flowing from downstream
to upstream (what the parties refer to as “negative waterflow”). In
response, Figueroa closed the North Laredo Gate. He did that, he says,
to prevent the resaca’s water from overflowing into Quail Hollow.
After Figueroa closed the gate, he and Saldivar continued their
watch in the unrelenting rain. They returned to various areas in the
western part of the City and decided to place portable water pumps near
some of the other gates to push water downstream and away from Quail
Hollow. They also observed, again, that the water near the South Laredo
Gate had normal waterflow. But because of high water levels in other
areas, they carried on with the task of pumping water out of the resaca.
After Figueroa and Saldivar began pumping water out of various
parts of the resaca, they returned to the North Laredo Gate, which was
still closed. Once again, conditions had worsened. Amidst the heavy
rainfall and negative waterflow, the water had risen to about knee-deep
over Laredo Road and begun spilling over into Quail Hollow. Both
Figueroa and Saldivar witnessed the water flow over Laredo Road; there
was nothing they could do to stop it, they said. All told, the severe
“supercell” rainstorm dropped about four to six inches of water onto the
City within approximately three hours.
The homeowners allege that about two feet of water from the
resaca spilled over its banks and into their homes. To recover for their

4
property damage, the homeowners sued the City for negligence under
the Tort Claims Act. They alleged that the City and its employees
should have known that abnormal waterflow at the North Laredo Gate
was only “temporary,” that closing the gate would trap the water, and
that its resulting accumulation would cause the resaca to overflow and
flood their neighborhood. Based on those allegations, the homeowners
invoked § 101.021(1)(A) of the Act,2 which waives immunity for
“property damage” that “arises from the operation or use of . . . motor-
driven equipment.”3 In response, the City filed a plea to the jurisdiction.
It asserted, among other things, that the homeowners’ allegations
concerned the nonuse, rather than the use, of motor-driven equipment,
and that there was no evidence that the North Laredo Gate’s closure
caused the homeowners’ property damage.
The trial court denied the City’s plea. A divided court of appeals
reversed. 647 S.W.3d 710 (Tex. App.—Corpus Christi–Edinburg 2020).
The majority sided with the City on both points. As for the first, it held
that “the gravamen of the [homeowners’] complaint is based on the
City’s nonuse of the North Laredo Gate,” id. at 718, underscoring the
homeowners’ various allegations about how the gates were not opened
and how the pumps were not activated, which allegedly led to the
overflow, id. at 718–19. As for the second, the majority held that “the

2 Unless otherwise stated, references to and citations of statutory
provisions are to the Texas Tort Claims Act as codified in the Texas Civil
Practice and Remedies Code.
3 In addition to alleging misuse of the North Laredo Gate, the
homeowners also pleaded that their damages arose from misuse of the motor-
driven water pumps. Whether those pumps would also qualify under the statute
is not before us and we express no opinion on it.

5
mere act of closing or failing to open a gate does not cause flooding,”
because “[i]f no rainstorm had occurred . . . and the City closed the North
Laredo Gate, the homeowners would not have suffered property damage.”
Id. at 720. Accordingly, the court of appeals directed the trial court to
dismiss the homeowners’ suit for lack of jurisdiction. Id. at 722. The
homeowners then filed a petition for review, which we granted.

II

We begin our review of the court of appeals’ judgment by addressing
the jurisdictional nature of the homeowners’ suit.

A

The homeowners assert tort claims against the City, a subdivision
of the State of Texas. They therefore must overcome the City’s
governmental immunity. Travis Cent. Appraisal Dist. v. Norman, 342
S.W.3d 54, 57–58 (Tex. 2011). They can do so only by demonstrating
that the legislature, as the branch of government constitutionally
empowered to manage the State’s financial affairs, has waived
immunity by statute. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405
(Tex. 1997). Without such a waiver, the court would lack jurisdiction to
proceed. Accordingly, if a Tort Claims Act plaintiff cannot satisfy “the
burden to affirmatively demonstrate the trial court’s jurisdiction” by
showing that the claim falls within a statutory waiver of immunity, the
court must dismiss the suit. Town of Shady Shores v. Swanson, 590
S.W.3d 544, 550 (Tex. 2019); see also Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The requirement to show that a claim falls within a statutory

6
waiver of immunity sounds simple enough, but the volume of our Tort
Claims Act cases illustrates how complex it often turns out to be. That
complexity is at least mitigated by focusing on the foundational principle
that the Act’s text and structure guide every determination of whether
a plaintiff has met the burden to show a waiver. The starting point is
always the status quo: a presumption against any waiver until the
plaintiff establishes otherwise. To do so, a plaintiff may invoke various
provisions in Subchapter B of the Act that affirmatively describe when
immunity is waived. Without such a provision, no court is empowered
to hear tort cases against and impose liability on “governmental unit[s].”
The Act’s detailed descriptions of the contours of the waiver of immunity
delineate the extent of the judicial authority. A plaintiff must begin,
therefore, by alleging circumstances that fit within a provision of the Act
that authorizes a waiver, such as the homeowners’ assertion here that
the flooding of their homes followed from circumstances described in
§ 101.021(1)(A).
But a plaintiff cannot stop there. The Act also provides various
exceptions or caveats that function as a withdrawal of the waiver, and
thus of the court’s jurisdiction to proceed, under certain conditions.
Some exceptions turn on the kind of defendant who is named. Even
when allegations would otherwise describe circumstances within the
Act’s waiver, for example, the Act withdraws that waiver for any “claim
arising from the activities of the state military forces when on active
duty under the lawful orders of competent authority.” § 101.054; see
also, e.g., §§ 101.052–.053 (similar limitation for suits against legislators
and judges). Other exceptions to the waiver may turn on the legal theory

7
that a plaintiff deploys. If, for example, a claim against certain
governmental defendants depends on “[t]he common law doctrine of
vicarious liability because of participation in a joint enterprise,”
§ 101.0211, then any waiver of immunity is withdrawn as to that claim
even if the claim otherwise would be within the waiver. A third type of
exception eliminates the waiver for certain kinds of actions. For example,
the waiver of immunity 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” either complied with laws
governing emergency situations or, “in the absence of such a law . . . , if
the action is not taken with conscious indifference or reckless disregard
for the safety of others.” § 101.055(2). Nor is immunity waived for
claims challenging the failure to undertake a discretionary act.
§ 101.056 (titled “Discretionary Powers”).4
Finally, assuming that a plaintiff successfully establishes a waiver
and negates any relevant expressed withdrawal of the waiver, the Act
also contains some provisions that operate to limit recovery. For
example, § 101.024 eliminates the availability of punitive damages and
§ 101.023 “limits the amount of the government’s liability . . .
depend[ing] on the type of governmental unit being sued[.]” Gulf Coast
Ctr. v. Curry, 658 S.W.3d 281, 285 (Tex. 2022). As we recently said in
Curry, “a trial court must ascertain, as part of determining its

4 “This chapter does not apply to a claim based on: (1) the failure of a
governmental unit to perform an act that the unit is not required by law to
perform; or (2) a governmental unit’s decision not to perform an act or on its
failure to make a decision on the performance or nonperformance of an act if
the law leaves the performance or nonperformance of the act to the discretion
of the governmental unit.”

8
jurisdiction, whether and to what extent the Tort Claims Act waives
immunity from suit.” Id. at 286.

B

Consideration of each of those defining features of immunity is
essential to the jurisdictional inquiry that lies at the heart of litigation
under the Texas Tort Claims Act. Taken together, these features
implicate the judicial branch’s very authority to act—a limitation on
jurisdiction that protects the separation of powers inherent in our
constitutional order. In private litigation, parties risk no larger
constitutional values if they waive or forfeit claims and defenses that
are personal to themselves; such matters lack jurisdictional significance
in any sense. The Tort Claims Act, though, represents a delicate balance
that the legislature alone can strike. Even if a governmental unit would
be happy to waive “its” immunity, it is not the governmental unit’s
immunity to waive. More to the point, the courts cannot be part of any
such transaction. One key reason that we use the “jurisdictional” label
is because it reflects the judicial obligation to adjudicate only those
claims that are authorized without trespassing on the authority of the
political branches.
This concern for ensuring the integrity of the judicial process—and
the entirety of the separation of powers—is why courts that detect a non-
waivable jurisdictional problem may at any time demand that the parties
resolve the resulting doubts about whether the case may proceed. A court
that raises a jurisdictional issue does not aim to serve the interests of
one side or the other. Instead, such a court discharges its duty to ensure
that the court itself is functioning in an authorized and properly judicial

9
capacity. For the same reason, the parties likewise remain duty-bound
for as long as they invoke or submit to a court’s authority to confirm the
presence of jurisdiction and to raise jurisdictional defects.
As a general matter, a plaintiff initially discharges this burden by
alleging facts that bring a claim within the waiver. But being “within”
the waiver entails both key parts described above: satisfying the
provisions that clearly and affirmatively waive immunity and negating
any provisions that create exceptions to, and thus withdraw, that
waiver. The Act may waive immunity in one breath and in the next take
back part of the waiver. Both parts of the analysis are needed to answer
the common issue that underlies every Tort Claims Act case: whether
immunity is waived. Imagine a building with this sign: NO VISITORS
WELCOME (akin to the default status of “no suits permitted” because of
immunity), followed by EXCEPT IN THE SUMMER (like the affirmative
statutory waivers of immunity). A visitor on the first Saturday in
August, though, would still be a trespasser if the sign continued BUT
NEVER ON WEEKENDS (playing the role of the Act’s various withdrawals
of parts of the waiver of immunity). The sign could have said VISITORS
WELCOME ON SUMMER WEEKDAYS ONLY. And the Act could have
phrased its own waivers in highly detailed terms that do not rely on
separate exceptions. The consequence of how the legislature actually
framed the Act, however, is that plaintiffs can affirmatively establish
jurisdiction only if they show that their claims are not within the
withdrawn part of the waiver.
To be sure, no great effort is needed to negate many or indeed
most statutory exceptions to the general waiver of immunity. A plaintiff

10
has never had to march through the Act provision by provision. Pleadings
whose affirmative allegations functionally exclude the exceptions are
typically sufficient. Plaintiffs thus need only expressly negate those
exceptions that their allegations plausibly implicate, which will depend
on the nature of the dispute. It will be readily apparent in most cases,
for example, that the defendant is not a state legislator and is not being
sued for an “act or omission . . . in his official capacity” as a legislator,
§ 101.052, so plaintiffs will not need to affirmatively or explicitly negate
that exception (or any other plainly inapplicable one) in their pleadings.
A governmental defendant, in turn, plays its role by identifying
where jurisdiction might be lacking and raising any such deficiencies,
most commonly in a plea to the jurisdiction, as the City deployed below.
If a plaintiff has not shown that a claim affirmatively falls within a
statutory waiver, the defendant should say so. Likewise, if the plaintiff
omits or otherwise fails to negate a relevant exception to the waiver, the
defendant should speak up. Both sides may develop and introduce
evidence to support their contentions. This iterative process will ensure
that both sides present their jurisdictional arguments to the court, which
can play its continuing role of assessing its own jurisdiction.
The rigor of proof required to satisfy a court that jurisdiction is
present increases at each stage of litigation, as with disputes over
traditional subject-matter jurisdiction. See, e.g., Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (noting that jurisdictional “facts (if
controverted) must be supported adequately by the evidence adduced at
trial” (internal quotations omitted)). And as our decision in Curry
reflects, this jurisdictional analysis continues all the way past a verdict:

11
“When . . . the plaintiff establishes that the Act applies but fails to
establish which cap applies, the plaintiff has failed to demonstrate that
the trial court has jurisdiction to render a judgment exceeding the
minimum statutory cap.” 658 S.W.3d at 283.
Just one valid jurisdictional obstacle is enough for the court to halt
further proceedings. The fundamental rule is that the court may not
reach the merits if it finds a single valid basis to defeat jurisdiction. When
one such ground exists, it is not necessary that every other potential
jurisdictional defect be raised, fleshed out, or resolved at the outset.
When defendants challenge jurisdiction on multiple grounds,5 courts are
therefore not duty-bound to address them all if any one of them warrants
dismissal (although addressing multiple grounds, as the court of appeals
helpfully did in this case,6 may be more efficient and may prevent further
proceedings after an appeal). See, e.g., Sinochem Int’l Co. v. Malaysia
Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (describing courts’ “leeway
to choose among threshold grounds for denying audience to a case on the

5Raising all reasonably available objections early is best practice and
most efficient even if it is not absolutely required. A defendant that sports
with the court by making seriatim, piecemeal objections to jurisdiction that
could have been raised up front may lose credibility, of course. Plaintiffs bear
the burden to establish jurisdiction, so they subject themselves to some risk by
waiting for a plea to the jurisdiction (or other appropriate vehicle) to establish
a waiver of immunity or to attempt to negate clearly relevant exceptions to the
waiver rather than doing so from the start. But we recognize that, in some
challenging cases, the parties may not anticipate their opponents’ positions,
which is why our process permits the development of the argument through
discovery and competing motions.
6 See 647 S.W.3d at 719 (observing, after rejecting jurisdiction on one
dispositive ground, that “even if the homeowners’ complaint stemmed from the
use of equipment, their damages did not arise from that use” and proceeding
to resolve the other issue presented, thus facilitating our review).

12
merits” (internal quotations omitted)). As a corollary, the court may not
move to the merits if even one jurisdictional argument remains unresolved.
The statement that courts have the authority and indeed the duty
to resolve any jurisdictional doubts that arise before proceeding to the
merits does not mean that we expect courts to become Inspector Javert,
hunting for defects that the parties do not see or raise. Courts are
empowered to note potential jurisdictional defects sua sponte, but the
adversary process remains the touchstone of litigation even in this
context. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 102 (Tex. 2012)
(Hecht, J., concurring). True, we have often said that sovereign immunity
“implicates” a court’s subject-matter jurisdiction, e.g., Hous. Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016),
such that an opinion in the face of a valid assertion of immunity may
correctly be called “advisory,” Rusk, 392 S.W.3d at 95 (maj. op.). But, by
the same token, we have also said that immunity does not equate to
subject-matter jurisdiction. Engelman Irrigation Dist. v. Shields Bros.,
514 S.W.3d 746, 755 (Tex. 2017). So while the “implication” of jurisdiction
may allow a governmental entity to raise immunity arguments later
than at the outset of litigation—even for the first time on appeal, Rusk,
392 S.W.3d at 94–96—such issues do not allow that entity, for instance,
to collaterally attack a final judgment, Engelman, 514 S.W.3d at 751.
In summary, no court should proceed to the merits of a case
brought under the Act if that requires turning a blind eye to jurisdictional
concerns that the court itself perceives or that the parties have raised.
And in the event a court does perceive a potential problem that counsel
have not raised, the court retains discretion to reserve that issue if it is

13
already prepared to grant a plea to the jurisdiction for a different reason
or to otherwise dismiss a case.

C

As this case comes to us, the parties essentially dispute the
applicability of only one provision in the Tort Claims Act—§ 101.021(1)(A),
which waives immunity for property damage arising from the “operation
or use” of “motor-driven equipment.” We have just described the
plaintiff’s obligation to negate any potentially relevant exception at the
outset by, at a minimum, filing pleadings containing allegations that, if
true, would displace the applicability of such exceptions. In their briefing
to us, the parties have not disputed whether the City would otherwise
retain immunity even if the two grounds presented for our review do not
justify dismissal. Given that the court of appeals believed that it could
resolve the case on those two jurisdictional grounds (and either one would
suffice), that court had no obligation to consider or raise any further
jurisdictional issues, either.7
Regardless of whether one or more exceptions to the waiver of
immunity may be relevant, none is before us now. We could direct
supplemental briefing on any other jurisdictional question and proceed to
resolve that question ourselves in the first instance, but as a prudential
matter, the law is typically better served when the lower courts review

7 Cases involving statutory exceptions to the waiver of immunity in the
context of floods are legion. See, e.g., City of San Antonio v. Hartman, 201
S.W.3d 667, 671–73 (Tex. 2006) (considering the applicability of the emergency-
situation exception to a flood case); see also id. at 673 n.23 (noting other flood
cases). Our decision today should not be read to express any view regarding
whether those exceptions would apply here.

14
a legal issue before this Court does. “Ours is a court of final review and
not first view. Ordinarily, we do not decide in the first instance issues
not decided below.” Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012)
(internal quotations omitted). Nor is there any need for us to do so. Our
decision today only reverses the court of appeals’ judgment on the
grounds considered by that court. We do not affirmatively declare that
there is jurisdiction. We instead remand for further proceedings, during
which the parties and lower courts may determine how best to comply
with the Act’s jurisdictional requirements.

III

We accordingly turn to the applicability of § 101.021(1)(A), which
provides as follows:
A governmental unit in the state 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.

The parties do not dispute that the North Laredo Gate has a motor.
Nor do they dispute that Figueroa, a City employee, closed it.8 They

8 The parties submitted conflicting evidence, however, as to whether
Figueroa closed the gate manually or by motor. For whatever reason, that
distinction is important to the waiver of immunity in the context of
§ 101.021(1)(A). Like the court of appeals, we view the evidence in the light
most favorable to the homeowners and presume, for the purpose of answering
the questions presented, that Figueroa closed the gate with its motor-driven
actuators. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex.

15
instead disagree as to whether the statutory phrase “operation or use”
encompasses the allegations and record facts established here and, if so,
whether the homeowners’ property damages “arose from” that operation
or use.9

A

We turn first to whether the City’s “operation or use” of the
equipment is even at issue here. The homeowners argue that the City
operated or used the gate by closing it to block water, which is the gate’s
intended purpose. This “use,” they claim, caused the flooding because
closing the gate allowed the water to accumulate and overflow into their

2019).
9The parties dispute, and the court of appeals addressed, only the
“arises from” standard in § 101.021(1)(A), and not the “proximately caused by”
standard in § 101.021(1). As shown by the statutory text, and as we have
previously noted, these are two “separate and independent requirements,” so
“[s]atisfying the ‘arises from’ requirement does not excuse a plaintiff from
demonstrating proximate cause.” City of San Antonio v. Riojas, 640 S.W.3d
534, 537 n.13 (Tex. 2022). On the other hand, while both requirements achieve
distinct goals, they do so in a related way. The “proximately caused”
requirement of § 101.021(1) simply ensures that the familiar and ordinary
proximate-cause standard in tort litigation (and not some lesser standard) be
the outer bound of liability here, too, and that it be tethered to a governmental
employee acting within the course and scope of his job. The “arises from”
requirement in § 101.021(1)(A), in turn, narrows the universe of actions that
fall within the statutory waiver—here, by including only certain actions with
a link (or “nexus”) to a motor-driven vehicle or equipment within the relevant
waiver. As we discuss below, see infra Part III.B, this “arises from” requirement
mandates an additional showing, but it is not a different kind of causation—it
is still a proximate-cause requirement, just one that focuses on motor-driven
equipment. In any event, like the applicability of certain exceptions to the Tort
Claims Act’s waiver of immunity addressed in Part II, we leave it to the parties
and lower courts on remand to address § 101.021(1)’s separate causation
requirement in the first instance, if need be.

16
homes. The City, on the other hand, argues that what the homeowners
truly allege is nonuse: the City’s failure to later open the floodgate and
thus relieve the accumulated overflow. We think that, however one
examines the essentially undisputed facts on the day in question, “the
operation or use” of the gate is inseparable from the homeowners’ tort
allegations and the resulting property damage that they claim.
Decades ago, we expounded on the meaning of “operation or use”
in the Tort Claims Act. We defined “use” as “to put or bring into action
or service; to employ for or apply to a given purpose,” Mount Pleasant
Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989),
and “operation” as “a doing or performing of a practical work,” id.
(internal quotations and citations omitted). These definitions,
admittedly, are “not particularly enlightening,” PHI, Inc. v. Tex. Juv.
Just. Dep’t, 593 S.W.3d 296, 303 (Tex. 2019), but they reflect our effort
to apply them in a way that conforms to common sense.
To that end, our cases require more than merely stating that
government property plays a role in an alleged injury. Instead, they
have been careful to distinguish between genuine use and nonuse. In
LeLeaux v. Hamshire-Fannett Independent School District, for example,
the plaintiff sued a school district for injuries she sustained when she
hit her head on the rear door of a school bus. 835 S.W.2d 49, 50–51 (Tex.
1992). We held that because the bus was “parked, empty, with the motor
off,” the plaintiff was unable to show “operation or use” of a motor-driven
vehicle and was thus unable to invoke the statutory waiver in § 101.021.
Id. at 51–52. Similarly, in Texas Natural Resource Conservation
Commission v. White, the plaintiff alleged that her store was destroyed

17
by fire after the Commission removed a motor-driven pump on her
property that dissipated gas fumes from a nearby gasoline tank. 46
S.W.3d 864, 866 (Tex. 2001). We held that those allegations did not
concern the “pump’s operation or use” because the pump was not even
“on [the plaintiff’s] property when the fire began.” Id. at 870 (internal
quotations omitted). In so holding, we declined to equate “use” with
“failure to use,” for doing so “would be tantamount to abolishing
governmental immunity” altogether. Id. at 870–71 (quoting Kerrville
State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996)). Hence our
admonition in City of North Richland Hills v. Friend: that plaintiffs
cannot “enlarge the scope of the waiver” by conflating use and nonuse
through “artful pleading.” 370 S.W.3d 369, 373 (Tex. 2012).
We remain heedful of this difference because, as we have often
noted and reiterate above in Part II, § 101.021 is “a limited waiver of
governmental immunity,” Alexander v. Walker, 435 S.W.3d 789, 790
(Tex. 2014), and its precise scope must be clearly expressed. At the same
time, however, we aim not to be unduly restrictive or to engage in
sophistry in our understanding of “operation or use.” They are, after all,
“nothing if not common, everyday words” that “should be given their
everyday meaning.” PHI, 593 S.W.3d at 303. We have therefore
declined to read the words of § 101.021 as “terms of art intelligible only
to experts in the case law,” id., or as language burdened by “nit-picking
technicalities” that do not “accompany other causes of action,” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
285 (2012). As always, we construe the statutory text reasonably—and
this approach, happily and perhaps unsurprisingly, often yields

18
reasonable answers.
The Southwestern Reporter has no shortage of examples. Our
decisions in PHI and Ryder Integrated Logistics, Inc. v. Fayette County,
453 S.W.3d 922 (Tex. 2015), are two among many others. In Ryder, a
deputy sheriff pulled off on the side of a road and positioned his cruiser
to face oncoming traffic—in the middle of the night with his headlights on.
Id. at 926. The lights blinded a driver and a deadly car collision resulted.
Id. We held that these allegations involved the “operation or use” of a
“motor-driven vehicle” because the deputy was “not just operating the
headlights—he was driving the car” at the time of the accident. Id. at
928. Our most recent § 101.021(1)(A) decision, PHI, also involved the
disputed use of a vehicle. There, a state employee parked a van on an
incline near a helipad, failed to engage the emergency brake, walked
away, and allowed the van to roll down the incline and into a helicopter.
PHI, 593 S.W.3d at 300. True, the employee was not in the van at the
time it crashed, but these allegations still successfully invoked the
statutory waiver because engaging the emergency brake was “an integral
part of the ‘operation or use’ of a vehicle.” Id. at 303–04. That the employee
was not “actively operating” the van “at the time of the incident,” as the
officer was in Ryder, did not change our analysis. Id. at 305. “The
statute,” we noted, “does not explicitly require that the operation or use
be ‘active’ or that it be ongoing ‘at the time of the incident.’ ” Id.
Many of these cases, of course, have fact patterns that differ in
various ways from the one now before us. Taken together, though, they
illustrate how we have come to understand the scope of § 101.021(1)(A)’s
potentially confusing “operation or use” requirement. As we observed in

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PHI, “the multiplicity of possible fact-patterns and the vagaries of
litigation can create complexity,” which is precisely why we strive for “a
simple construction” that will usefully guide the resolution of most cases
without requiring expensive and time-consuming litigation. Id. at 303.
Applying that guidance to the facts here requires us to respectfully
disagree with the conclusion reached by the court of appeals. The North
Laredo Gate has a motor; city employees closed the gate during a
rainstorm; and the flooding of the homeowners’ properties happened soon
after—within about an hour of—the closure. We think this is enough to
conclude that the North Laredo Gate was put to “operation or use” as we
have come to understand that phrase in § 101.021(1)(A). Closing the gate
put it to its intended purpose: blocking water. And the act of closing the
gate, along with the homeowners’ property damage and the rainstorm
itself, all occurred together as part of a single episode, giving them the
“close temporal proximity” we spoke of in PHI, 593 S.W.3d at 305.
The City’s response—that the homeowners actually complain
about negligent failure to open the North Laredo Gate and thus the
nonactionable nonuse of motor-driven equipment—proves too much.
The only reason that the North Laredo Gate would have had to be opened
was because, during the same storm, the City closed it. What matters
here is that, as all parties agree, the North Laredo Gate is used to control
waterflow in the resaca, the City closed the gate, and it was that use of
the gate (the attempt to control waterflow) that immediately preceded
and allegedly caused the flooding of the homeowners’ neighborhood.
These events, as alleged, fit comfortably within the scope of the
statutory waiver and our precedent interpreting that waiver. Counsel

20
for the homeowners properly acknowledged that the analysis would be
quite different if the gate had been closed long before—even a day
before—the storm. Then the failure to open the gate would have been a
matter of nonuse. But here, all the operative facts were part of the same
larger narrative without any logical disconnect that could justify the
City’s theory.
Under this record, therefore, we see no meaningful way to separate
the alleged “nonuse” (the failure to close the gate) from the immediately
preceding “use” (the opening of the gate). In short, we conclude that, at
least at this stage, the homeowners’ allegations concern the “operation
or use” of “motor-driven equipment” under § 101.021(1)(A) of the Texas
Tort Claims Act.

B

Our inquiry into the applicability of § 101.021 does not end there,
however. The City also challenges the homeowners’ tort claims under
what we have called the statute’s nexus requirement, which allows us
to determine if the property damage has “arise[n] from” the operation or
use of the North Laredo Gate. § 101.021(1)(A). The City argues, and a
majority of the court of appeals agreed, that it did not. We hold that at
this stage of the proceedings, the homeowners’ allegations are sufficient
to meet this causation requirement.
Much like “operation or use,” the statutory phrase “arises from”
does not explain itself, so in prior cases we have attempted to provide
more guidance. In LeLeaux, we explained that it “requires a nexus
between the injury negligently caused . . . and the operation or use of a
motor-driven vehicle or piece of equipment.” 835 S.W.2d at 51. “This

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nexus,” we have added, “requires more than mere involvement of
property,” and the property must do more than merely “furnish the
condition that makes the injury possible.” Dall. Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 543 (Tex. 2003). Rather, as we have stated
before, “the equipment’s use must have actually caused the injury.”
White, 46 S.W.3d at 869 (emphasis added).
We are aware, however, that we have not always been so plain in
our descriptions of the “arises from” standard. The largest source of
confusion in this area seems to derive from dicta in Ryder, in which we
cited an insurance-policy dispute for the proposition that the statutory
phrase “arises from” meant “something more than actual cause but less
than proximate cause.” 453 S.W.3d at 929 (citing Utica Nat’l Ins. Co. of
Tex. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004)). In some
contexts, that in-between articulation of “arises from” can be accurate
and helpful, but in this context it is not. See PHI, 593 S.W.3d at 302
(describing Ryder as “perhaps unhelpfully” articulating the standard);
see also Riojas, 640 S.W.3d at 537 n.13 (rejecting the idea that claims
under § 101.021(1)(A) require something less than proximate cause).
That formulation is not susceptible to definite or useful guidance.
Indeed, in Ryder itself, we quickly walked back this in-between standard,
turning to the traditional proximate-cause standard in the very next
sentence: “Accordingly, a plaintiff can satisfy the ‘arising from’ standard
by demonstrating proximate cause.” 453 S.W.3d at 929.10

10 We held in Ryder that the defendant’s conduct proximately caused
the plaintiff’s injuries and accordingly had no occasion to apply, much less
further opine on, any other causation standard. Thus, we may depart from the
in-between standard without being bound by the ordinary concerns of stare

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 Accordingly, we return, as we did in Ryder, to the familiar tort-
law standard of proximate cause. Notably, this is also the very standard
that § 101.021(1) announces in its text. To satisfy § 101.021(1)(A)’s
nexus requirement, therefore, plaintiffs must show that the
governmental employee’s use or operation of the vehicle or equipment
proximately caused the relevant injury.
“Proximate cause has two elements: cause in fact and
foreseeability.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).
Cause in fact is established when “the act or omission was a substantial
factor in bringing about the injury” and, without it, the harm would not
have occurred. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.
1985). Foreseeability, on the other hand, requires “the actor [to] have
reasonably anticipated the dangers that his negligent conduct created
for others.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578
S.W.3d 506, 519 (Tex. 2019). The danger that must be reasonably
anticipated is only the “general danger, not the exact sequence of events
that produced the harm[.]” Id. In making this causal assessment,
particularly in the Tort Claims Act context, we look to the record and
pleadings to determine if the alleged cause is too geographically or
temporally attenuated from the alleged effect. Ryder, 453 S.W.3d at
929–30.
Based on this standard, we hold that the homeowners, at least at

decisis. See, e.g., Bryan A. Garner, et al., The Law of Judicial Precedent 44–45
(2016). Because it falls to us and not the lower courts to determine when
statements in our decisions warrant revision, and because the consequences of
the in-between standard are visited primarily upon the lower courts, we think
it particularly important that we expressly disclaim that standard now.

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this stage, have met their burden to create a fact issue on whether their
property damage arose from the closure of the North Laredo Gate. After
all, the temporal and geographic links are both tight. As we have
concluded already, a close temporal proximity existed between the
closing of the gate and the flooding of the homeowners’ properties. The
rainstorm, the gate’s closure, and the flooding all happened within the
same episode of events—one closely following the occurrence of the
other. Likewise, the City does not suggest that there is any significant
geographical attenuation between the gate and the homeowners’
properties. Indeed, according to one of the homeowners’ unrebutted
allegations, the North Laredo Gate is the closest of the five gates in the
resaca and is “immediately downstream” of Quail Hollow.11 In this sense,
the use/nonuse analysis and the nexus requirement understandably
inform each other. Vast time gaps or vast distances could defeat either
showing under these circumstances. But the existence of a logically
defined single episode within a small spatial area, where the challenged
governmental actions were undertaken both soon after and because of
the downpour, makes it more likely (but certainly not guaranteed) that
both the temporal and geographic showings can be made.
Despite these close geographical and temporal proximities, the
City contends that the homeowners’ property damage cannot be traced
to the gate’s closure. We agree with the City that it is the homeowners’

11We can also make a rough approximation of the physical distance
between the North Laredo Gate and the homeowners’ properties based on the
deposition of Figueroa’s supervisor, Santana Torres, who said that the distance
between the North Laredo Gate and the South Laredo Gate is about five
hundred yards.

24
burden to establish causation, not the City’s burden to disprove it, and
we subject the homeowners to the proper level of scrutiny. The City
urges us to do that by viewing the homeowners’ evidence and allegations
as insufficient for two reasons. First, according to the City, it was the
rainstorm, not the mere act of opening and closing the gate, that caused
the damage. Second, the City argues, the flooding of Quail Hollow would
have occurred regardless of whether the North Laredo Gate had been
closed. The first argument presents primarily a legal question about the
nature of the homeowners’ claim; the second challenges the adequacy of
the record to survive an attack on causation.
The City’s first argument—that the rainstorm was the only but-
for cause of the property damage—would render the homeowners’
evidence essentially useless, for it rejects the idea that two events can
work together to bring about a consequence. As the dissent below
explained, the City’s position is essentially predicated on a sole-factor-
causation standard that our Tort Claims Act cases have not embraced.
647 S.W.3d at 724–25 (Hinojosa, J., dissenting) (citing cases). And as we
have stated multiple times before, the tortious act can be a substantial
factor in causing the injury, even if it is not the sole factor. E.g., City of
Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016); Ryder, 453 S.W.3d
at 929. The homeowners can still establish causation if the rainstorm
was necessary but not sufficient for the flooding of Quail Hollow. Put
another way, if the same storm could have happened without Quail
Hollow flooding, and it was the use of the gate that made the difference,
the homeowners would satisfy a minimal requirement of causation.
The City’s second argument—that the rainstorm made the

25
property damage inevitable regardless of the use of the North Laredo
Gate—would defeat the homeowners’ claim if the homeowners could not
produce evidence that shows otherwise. But we think that they have
met their burden of putting forth sufficient evidence to show that the
closure of the gate proximately caused their property damage. For
example, the homeowners allege, and the City does not dispute, that the
water at the South Laredo Gate, in contrast to the water at the North
Laredo Gate, had maintained a positive waterflow throughout the day.
This discrepancy, the homeowners submit, indicated that the negative
waterflow at the North Laredo Gate was only temporary. The
homeowners also cite testimony from the City’s Public Works Director,
Santana Torres, and their expert witness, Lawrence Dunbar, who both
opined that closing the North Laredo Gate had the effect of trapping
water, which is what allowed the water to accumulate and overflow into
the homeowners’ properties. According to Dunbar, closing the gate
“effectively prevent[ed] any water from flowing . . . in the Resaca.”
Torres similarly agreed that closing the gate meant that the water
pouring into the resaca “just built up” and “had no place to go.”
This evidence is far from dispositive, but it is enough for the
homeowners to meet their burden of showing that the City’s theory of
causation (or the lack thereof ) cannot yet be deemed established as a
matter of law. Accordingly, “[w]e conclude that a fact issue remains as
to whether the [property damage] ‘arose from’ the [City’s operation of
the gate]. At this stage of the proceedings, no more is required to satisfy
section 101.021(1)(A)’s ‘arises from’ requirement.” PHI, 593 S.W.3d at
303. And while we agree that the resolution of this issue implicates

26
jurisdiction, we have observed before that, “in some cases, disputed
evidence of jurisdictional facts that also implicate the merits of the case
may require resolution by the finder of fact.” Miranda, 133 S.W.3d at
226. So too here.

IV

The homeowners’ allegations concern the “operation or use” of the
North Laredo Gate and there is sufficient evidence at this stage for a
factfinder to infer that the property damage arose from the gate’s
closure. The judgment of the court of appeals is therefore reversed and
the case is remanded to the trial court for further proceedings.

Evan A. Young
Justice

OPINION DELIVERED: March 10, 2023

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