Opinion issued January 30, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00255-CV
———————————
CITY OF HOUSTON, Appellant
V.
JOHN ANTHONY BRANCH, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2020-31674
OPINION ON EN BANC RECONSIDERATION
Appellee John Anthony Branch has filed a motion for en banc reconsideration
of our September 1, 2022 opinion and judgment. See TEX. R. APP. P. 49.5. A majority
of the Court has voted to grant en banc reconsideration. We withdraw our opinion
of September 1, 2022, vacate our judgment of the same date, and issue this opinion
and judgment in their stead.
Branch sued the City of Houston for negligence, alleging that he was injured
when a Houston city councilmember hit the gas pedal of a golf cart with his foot,
causing the golf cart to strike Branch. The City moved for summary judgment,
arguing that Branch could not establish that the Texas Tort Claims Act (“Tort Claims
Act” or “the Act”) waived its governmental immunity. The trial court denied the
City’s summary judgment motion.
The City appeals, arguing that the Tort Claims Act does not waive immunity
because Branch’s injury did not arise from the “operation or use of a motor-driven
vehicle.” See TEX. CIV. PRAC. & REM. CODE § 101.021(1). Rather, the City argues
that the golf cart was being used as a “waiting area or holding cell” when Branch
was injured. The City also argues that the Tort Claims Act only waives governmental
immunity when the motor vehicle in question is a government-owned vehicle, and
the golf cart here was privately owned. The City further argues that Branch filed an
untimely amendment to his petition to assert the Tort Claims Act’s personal property
waiver, which also does not apply to waive the City’s immunity in this case.
We hold that Branch has raised a fact issue precluding summary judgment for
the City. Giving the statutory terms their everyday meaning, we hold that hitting the
gas pedal—even inadvertently—constitutes the “operation or use of a motor-driven
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vehicle.” Branch has presented some evidence that his injuries arose from the city
councilmember’s accidental engagement of the golf cart’s gas pedal, causing the
golf cart to roll forward and injure Branch. We further hold that nothing in the Tort
Claims Act restricts the motor-vehicle waiver of governmental immunity to
government-owned vehicles. Accordingly, we affirm the judgment of the trial court.
Background
On October 13, 2018, the Booker T. Washington High School Alumni
Association held a parade in Houston to celebrate the school’s 125th anniversary.
John Gibbs was the president-elect of the Alumni Association and served as a co-
Chair of the parade. At that time, Gibbs was also the community outreach liaison for
City of Houston Councilmember Michael Kubosh.
Although the parade was not sponsored by the City of Houston, several city
leaders and elected officials attended the parade, including Councilmember Kubosh.
Gibbs’s role was to drive Councilmember Kubosh along the parade route in
Kubosh’s privately owned golf cart. According to Gibbs, before the parade started,
he drove Councilmember Kubosh in the golf cart to the correct position in the parade
lineup. Gibbs stopped the golf cart and “applied the golf cart’s brake and emergency
brake.” Branch, another participant in the parade, walked over to the golf cart and
“leaned with his elbows on the windshield of the golf cart.” Branch’s feet “were
underneath the front of the golf cart.”
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Gibbs then got out of the golf cart from the driver’s side of the cart. According
to Gibbs, the golf cart’s emergency brake was still on. Councilmember Kubosh, who
had been sitting in the passenger seat of the golf cart, “started to slide towards the
driver’s side of the vehicle.” In his peripheral vision, Gibbs saw Councilmember
Kubosh’s left foot “pass over the gas pedal without touching it.” However, when
Councilmember Kubosh shifted his body weight within the golf cart, “the golf cart
shifted forward.” Gibbs did not see the golf cart strike Branch, but he heard other
people ask Branch if he was okay. Branch responded that he was.
Branch filed a personal injury lawsuit against the City. He alleged that “City
employee Michael Kubosh operated a golf cart which ran over” him, causing him
injury. Specifically, he alleged that Councilmember Kubosh failed to maintain a
proper lookout; failed to control the operation of the golf cart; failed to avoid the
incident in question; failed to pay attention to his surroundings; and failed to operate
the golf cart as a person of ordinary prudence would have in the same or similar
circumstance.
Branch further alleged that, at the time of the incident, Councilmember
Kubosh was a City of Houston employee and was acting in the course and scope of
his employment with the City. Branch also alleged that the Tort Claims Act waived
the City’s governmental immunity “from claims involving personal injury caused
by the negligent operation or use of a motor-driven vehicle by [the City’s] employee,
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if the employee would be liable to [Branch] according to Texas law.” See TEX. CIV.
PRAC. & REM. CODE § 101.021(1).
The City filed a traditional motion for summary judgment and argued that
Branch’s suit should be dismissed because the Tort Claims Act’s motor-vehicle
waiver did not apply to waive the City’s governmental immunity. The City argued
that the motor-vehicle waiver applied only to “publicly owned automobiles,” and the
City’s summary judgment evidence established that Councilmember Kubosh
personally owned the golf cart.
The City also argued that the Tort Claims Act did not waive governmental
immunity because Councilmember Kubosh was not operating the golf cart at the
time of the accident. According to the City, at the time the golf cart “lurch[ed]
forward,” the golf cart was being used “as nothing more than a waiting area for
Councilmember Kubosh while he waited for the parade to start.” The City argued
that Councilmember Kubosh did not touch the gas pedal, but the “weight shift within
the golf cart” caused it to move forward “without anyone operating it.” As summary
judgment evidence, the City attached a picture of the golf cart and an affidavit from
Gibbs.
Branch responded and argued that the City did not retain its immunity solely
because the golf cart was privately owned by Councilmember Kubosh instead of
owned by the City. Branch also argued that, beyond merely shifting his weight in
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the golf cart, Councilmember Kubosh touched the gas pedal with his foot. Branch
supported this assertion with his own affidavit. He averred:
At the parade City of Houston Councilmember Kubosh was sitting in
the passenger seat of a stopped golfcart. Councilmember Kubosh
leaned over to the driver’s side of the golf cart to speak to someone.
When Councilmember Kubosh did this, he reached out his hand and
leaned his body to the driver’s side of the golf cart. Then
Councilmember Kubosh’s foot hit the gas pedal and I heard the
golfcart’s engine rev. I then felt the golf cart hit me.
Branch also averred that Gibbs “was about 10 feet away, talking to someone else,
when the golfcart hit” Branch. Branch argued that this evidence created a fact issue
on whether Councilmember Kubosh was operating and using the golf cart at the time
of the accident.
Among other arguments made in its reply, the City argued that one of the
cases that Branch had relied upon to support his contention that privately owned
vehicles fall within the motor-vehicle waiver was inapposite because the case did
not address the motor-vehicle waiver but instead involved the Tort Claims Act’s
tangible personal property waiver. Branch, however, had only pleaded the motor-
vehicle waiver as the applicable waiver of immunity.
The day before the hearing on the City’s summary judgment motion, Branch
filed an amended petition. Branch asserted the tangible personal property waiver as
an additional basis for waiving the City’s governmental immunity. See TEX. CIV.
PRAC. & REM. CODE § 101.021(2) (waiving immunity for personal injury and death
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caused by “a condition or use of tangible personal or real property”). Branch
continued to assert the motor-vehicle waiver. He also amended the factual
allegations in this petition to state, “City employee Michael Kubosh was in the
passenger seat of a golf cart when he ran over Plaintiff.”
On May 4, 2021, the day of the summary judgment hearing, the trial court
denied the City’s motion for summary judgment. The order recited that the court
considered the motion, “the pleadings, the response, the reply (if any), the affidavits,
and other evidence on file.” Later that same day, Branch filed a motion for leave to
amend his petition. The trial court did not sign an order specifically granting or
denying Branch’s motion for leave to amend.
The City filed this interlocutory appeal of the trial court’s order denying the
summary judgment motion. See id. § 51.014(a)(8) (allowing interlocutory appeal
from order that grants or denies plea to jurisdiction by governmental unit); Town of
Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019) (stating that section
51.014(a)(8) “allows an interlocutory appeal to be taken when ‘the trial court denies
the governmental entity’s claim of no jurisdiction, whether it has been asserted by a
plea to the jurisdiction, a motion for summary judgment, or otherwise’”) (quoting
Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
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Texas Tort Claims Act Analysis
In its first issue, the City contends that the trial court erroneously denied its
summary judgment motion because the Tort Claims Act’s motor-vehicle waiver of
immunity did not apply under the facts of this case. Specifically, the City argues that
Branch could not rely on this waiver because (1) Councilmember Kubosh was not
operating or using the golf cart at the time of the accident because he was only using
the cart as a waiting area; and (2) the Act only waives immunity when a government-
owned vehicle causes the injury, and the golf cart in this case was privately owned.
We consider each argument in turn.
A. Standard of Review
Sovereign immunity protects the State of Texas against lawsuits for damages
unless the State consents to be sued. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 283
(Tex. 2022). Governmental immunity provides similar protection to political
subdivisions of the State, including counties, cities, and school districts. Travis Cent.
Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011); Sykes, 136 S.W.3d
at 638.
“[G]overnmental immunity has two components: immunity from liability,
which bars enforcement of a judgment against a governmental entity, and immunity
from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197
S.W.3d 325, 332 (Tex. 2006). Immunity from suit bars an action against the State
8
and its subdivisions unless the Legislature has expressly consented to the suit.
Sweeny Cmty. Hosp. v. Mendez, 226 S.W.3d 584, 589 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). “Immunity from suit thus presents a jurisdictional question of
whether the State has expressly consented to suit.” Curry, 658 S.W.3d at 284. Parties
may raise immunity from suit through several different procedural vehicles,
including a plea to the jurisdiction or a motion for summary judgment. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
A party challenging subject-matter jurisdiction may challenge the pleadings,
the existence of jurisdictional facts, or both. Id. When the challenge is to the
pleadings, we must determine whether the plaintiff has alleged facts affirmatively
demonstrating that the trial court has subject-matter jurisdiction. Id. If the party
challenges the existence of jurisdictional facts, we move beyond the pleadings “and
consider evidence when necessary to resolve the jurisdictional issues, even if the
evidence implicates both subject-matter jurisdiction and the merits of a claim.” Id.
at 770–71; Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.
2012).
We review de novo the question whether the trial court had subject-matter
jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228
(Tex. 2004). In some cases, “disputed evidence of jurisdictional facts that also
implicate the merits of the case may require resolution by the finder of fact.” Id. at
9
226. When the jurisdictional challenge implicates the merits of the plaintiff’s claim
and the challenge includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists. Id. at 227; see Swanson, 590 S.W.3d at 552 (stating
that when jurisdictional challenge implicates merits of case, “plaintiff will be
required to present sufficient evidence on the merits of her claims to create a genuine
issue of material fact”). If the evidence raises a fact question regarding the
jurisdictional issue, then the trial court cannot grant the jurisdictional challenge and
the fact issue must be resolved by the factfinder. Miranda, 133 S.W.3d at 227–28;
see Garcia, 372 S.W.3d at 635 (“If a fact issue exists, the trial court should deny the
plea.”).
When evidence has been submitted that implicates the merits of the case, “we
take as true all evidence favorable to the nonmovant.” Miranda, 133 S.W.3d at 228;
see Swanson, 590 S.W.3d at 552. We indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Clark, 544 S.W.3d at 771; Miranda, 133
S.W.3d at 228. We cannot, however, “disregard evidence necessary to show context,
and we cannot disregard evidence and inferences unfavorable to the plaintiff if
reasonable jurors could not.” Clark, 544 S.W.3d at 771.
Statutory interpretation presents a question of law that we review de novo.
Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d
318, 325 (Tex. 2017). The goal of statutory interpretation is ascertaining and
10
effectuating the Legislature’s intent. Id. We give a statute’s words their plain
meaning unless a different meaning “is supplied, is apparent from the context, or the
plain meaning of the words leads to absurd or nonsensical results.” Id. We read
words and phrases in context, presuming that the Legislature chose the statute’s
words with care and for a purpose, while “purposefully omitting words not chosen.”
Id. at 325–26 (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
439 (Tex. 2011)). “[W]e take statutes as we find them and refrain from rewriting the
Legislature’s text.” Id. at 326.
B. Whether Branch’s Injury Arose From a City Employee’s Operation or Use
of a Motor Vehicle
The Texas Tort Claims Act waives the City’s governmental immunity for
certain kinds of tort claims. Curry, 658 S.W.3d at 284; City of Dallas v. Sanchez,
494 S.W.3d 722, 726 (Tex. 2016) (per curiam). Relevant here, Civil Practice and
Remedies Code section 101.021(1) provides that a governmental unit 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; and
(B) the employee would be personally liable to the claimant
according to Texas law[.]
TEX. CIV. PRAC. & REM. CODE § 101.021(1).
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The question here is whether the evidence, taken in Branch’s favor, creates a
fact issue on whether his injury arose from Councilmember Kubosh’s “operation or
use of a motor-driven vehicle.” See id. We do not draw upon a blank slate in
answering this question. The Texas Supreme Court has held that everyday terms like
“use” and “operation” should be given their ordinary, “everyday meaning.” PHI,
Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 303 (Tex. 2019). In common parlance,
“use” means “to put or bring into action or service; to employ for or apply to a given
purpose.” Id. (quoting Mount Pleasant Indep. Sch. Dist. v. Est. of Lindburg, 766
S.W.2d 208, 211 (Tex. 1989)); Tex. Nat. Res. Conservation Comm’n v. White, 46
S.W.3d 864, 869 (Tex. 2001). “Operation” means “a doing or performing of a
practical work.” PHI, 593 S.W.3d at 303 (quoting Mount Pleasant Indep. Sch. Dist.,
766 S.W.2d at 211).
Not every injury involving a motor vehicle will trigger the Act’s immunity
waiver, however. The Texas Supreme Court has held that immunity remains intact
when the vehicle is merely the “setting” for the plaintiff’s injury, such as when a
plaintiff happens to get hurt in a vehicle that is being used as a “waiting area or
holding cell.” Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922,
927–28 (Tex. 2015) (per curiam); see also City of Kemah v. Vela, 149 S.W.3d 199,
204 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (finding no “use” of
vehicle under Tort Claims Act where plaintiff was injured in car accident while
12
sitting in parked police cruiser). Instead, to trigger the immunity waiver, the
government employee’s “use or operation [of the vehicle] ‘must have actually
caused the injury.’” PHI, 593 S.W.3d at 302 (quoting White, 46 S.W.3d at 869).
Keeping this distinction in mind, we turn to the evidence that was before the
trial court. Branch averred that Councilmember Kubosh was sitting in the golf cart’s
passenger seat when he leaned over to speak to someone. At that point, according to
Branch, Councilmember Kubosh’s “foot hit the gas pedal,” and Branch heard the
golf cart’s engine engage. Branch then felt the golf cart hit him. The City
acknowledges that Branch was leaning over the front of the golf cart at the point that
the golf cart struck him. Branch argues that this evidence raised a fact issue on the
question whether his injury arose out of Councilmember Kubosh’s “operation or
use” of the golf cart. The City argues that on these facts, the City is entitled to
summary judgment because Councilmember Kubosh was not using the golf cart “as
a vehicle.” According to the City, Councilmember Kubosh was using the golf cart
as a “waiting area” or “holding cell.”
We hold that this evidence raised a fact issue that precluded the trial court
from granting the City’s summary judgment motion. The Texas Supreme Court’s
opinion in PHI is instructive on this point. In PHI, the court held that a government
employee’s failure to set an emergency brake on an unoccupied passenger van,
which subsequently rolled downhill and crashed into plaintiff PHI’s helicopter,
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qualified as the “operation or use” of a vehicle within the meaning of the Tort Claims
Act. Id. at 300, 303–04. The court did not recognize any requirement that the
government employee intentionally set the vehicle in motion to trigger the statute’s
immunity waiver.
In so holding, the Texas Supreme Court emphasized that courts must apply
the “plain meaning of statutory text ‘unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.’” Id. at 303
(quoting Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)). The words “use”
and “operation”—the court noted—are “nothing if not common, everyday words.”
Id. When the Texas Legislature opts for such “ordinary” language, “[o]rdinary
citizens should be able to rely on the plain language of a statute to mean what it
says.” Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 866 (Tex. 1999)). Applying a “simple construction” of the ordinary statutory
language to the facts of the case, the court concluded that the driver’s failure to
engage the emergency brake constituted the “operation or use” of a motor vehicle
even though the driver was not in the vehicle when it struck the helicopter. Id. at
303–04. The court noted that “[i]n terms of the everyday experience of driving, we
think it self-evident that ensuring your car will not roll away after you leave it,
including engagement of the emergency brake when necessary, is an integral part of
the ‘operation or use’ of a vehicle.” Id.
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The PHI court further emphasized that nothing in its opinion was inconsistent
with its prior statement in Ryder that “a government employee must have been
actively operating the vehicle at the time of the incident” to trigger the immunity
waiver.1 See id. at 304–06; Ryder Integrated Logistics, 453 S.W.3d at 927. The court
reasoned that securing a vehicle so that it will not roll away is the “final act of
driving,” so it was “no stretch” to consider the failure to set the emergency brake as
part of the “active operation or use” of the vehicle. PHI, 593 S.W.3d at 305. Section
101.021(1) “requires that the accident arise from the use or operation of the vehicle,”
and the statutory language “covers the allegations in question [in PHI] because
‘operation’ of a vehicle includes making sure it does not roll away after it is parked.”
Id. at 306.
Here, the case for waiver of immunity is at least as strong as it was in PHI.
Applying an ordinary construction of the plain statutory language, stepping on the
gas pedal of a motor vehicle is an “integral part of the ‘operation or use’ of a vehicle.”
See id. at 303–04. Whereas applying the emergency brake is the “final” act of
driving, applying the gas pedal initiates the act of driving. Indeed, the gas pedal is
1
The PHI court clarified that while “Ryder correctly suggests that whether a
government vehicle was in ‘active’ operation ‘at the time of the incident’ is an
important consideration in determining whether an alleged injury arises from the
operation or use of a vehicle,” “active” operation is not a requirement in the statutory
text. PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019). As such,
that “single sentence from [Ryder] is not itself the rule of decision.” Id.
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designed for the purpose of enabling the car to move. Consequently, stepping on the
gas pedal—even when done unintentionally—squarely fits within the definition of
“use” as meaning “to put or bring” the motor vehicle “into action or service.” See
Mount Pleasant Indep. Sch. Dist., 766 S.W.2d at 211.
The City makes four arguments for why it was entitled to summary judgment.
First, the City argues that it was entitled to summary judgment under the Texas
Supreme Court’s earlier decision in LeLeaux v. Hamshire-Fannett Independent
School District because Councilmember Kubosh was using the golf cart as a mere
“waiting area” and not “as a vehicle.” In LeLeaux, a high school student sued the
school district and a bus driver for injuries that she sustained when she hit her head
on the doorframe of a school bus following a band competition. See 835 S.W.2d 49,
50–51 (Tex. 1992).
The Texas Supreme Court concluded that section 101.021(1) did not waive
the school district’s governmental immunity because the bus was not in operation or
use at the time of the student’s injury. Id. at 51–52. The court explained:
The bus in this case was not in operation; it was parked, empty, with
the motor off. The driver was not aboard; there were no students aboard.
The bus was not “doing or performing a practical work”; it was not
being “put or [brought] into action or service”; it was not being
“employ[ed] or appl[ied] to a given purpose.” The bus was nothing
more than the place where [the student] happened to injure herself.
Id. at 51. In other words, the Tort Claims Act did not waive immunity because the
vehicle itself was “only the setting” for the plaintiff’s injury. Id. at 52; see Ryder
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Integrated Logistics, 453 S.W.3d at 927 (citing LeLeaux for proposition that, for
immunity waiver in section 101.021(1) to apply, “the vehicle must have been used
as a vehicle, and not, e.g., as a waiting area or holding cell”).
We disagree with the City’s argument that this case is analogous to LeLeaux.
Even if the golf cart initially was being used as a holding cell or waiting area for the
parade, the golf cart came into use or operation at the point that Councilmember
Kubosh’s foot struck the gas pedal. By pressing the gas pedal, Councilmember
Kubosh used the vehicle as a vehicle, even if he did not intend to do so. We therefore
distinguish LeLeaux for the same reason that the Texas Supreme Court distinguished
LeLeaux in PHI: “The bus driver in LeLeaux had nothing to do with the accident.”
See PHI, 593 S.W.3d at 304. Here, in contrast to LeLeaux, Branch’s allegation is
that Councilmember Kubosh injured him by “performing” an act that is “integral”
to driving. See id.
Next, the City argues that “the unrefuted evidence established that the actual
cause of the incident was not a government employee’s negligent operation of a
motor vehicle, but Branch’s decision to stand directly in front of the golf cart with
his elbows on the windshield and his feet under the wheels.” Adopting this argument
would require us to disregard Branch’s testimony that Councilmember Kubosh hit
the gas pedal and caused the golf cart to roll forward and strike Branch. In deciding
whether a genuine issue of material fact precludes summary judgment, we must
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consider all the evidence in the light most favorable to Branch, the nonmovant. See
Clark, 544 S.W.3d at 771; Miranda, 133 S.W.3d at 228. Although Gibbs provided
competing testimony that Councilmember Kubosh’s foot did not strike the gas pedal,
we are required to view the evidence in the light most favorable to Branch at this
juncture. See Miranda, 133 S.W.3d at 228 (stating that, in determining whether fact
issue on jurisdictional issue has been raised, we take as true all evidence favorable
to nonmovant).
Third, the City argues that “even if Kubosh’s foot hit the gas pedal,” the
statute’s immunity waiver is not triggered because Councilmember Kubosh was not
employing the golf cart “for the purpose of transportation; rather, Councilmember
Kubosh was employing the golf cart for the purpose of having a place to sit” and
converse “while waiting for the parade to start.”
This argument invites us to hold that the Tort Claims Act’s immunity waiver
turns on the government employee’s subjective purpose or intention. In other words,
triggering immunity would require the plaintiff to prove not merely that the
government employee operated or used the vehicle, but also that the government
employee intended to operate or use the vehicle.
We decline to read an intent requirement into the statute. We interpret the Tort
Claims Act by reading its words and phrases in context, presuming that the
Legislature chose the statute’s words with care and for a purpose, while
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“purposefully omitting words not chosen.” TGS-NOPEC Geophysical, 340 S.W.3d
at 439. The Tort Claims Act waives the City’s governmental immunity if the
plaintiff’s injury “arises from the operation or use of a motor-driven vehicle or
motor-driven equipment.” TEX. CIV. PRAC. & REM. CODE § 101.021(1). The statute
contains no intent requirement. We presume that this omission was intentional, and
we decline to rewrite the statute to require proof of intentional operation or use. See
Cadena Comercial USA, 518 S.W.3d at 325–26.
Because section 101.021(1) contains no intent requirement, immunity does
not turn on whether Councilmember Kubosh intended to strike the gas pedal or
merely intended to reposition himself to speak to someone on the driver’s side of the
cart. By striking the gas pedal, he actively operated the golf cart. See Ryder
Integrated Logistics, 453 S.W.3d at 927. At the moment that his foot contacted the
gas pedal, the golf cart no longer functioned as a mere waiting area. Consequently,
unlike in LeLeaux, the vehicle was not “merely the place where the injury occurred.”
See PHI, 593 S.W.3d at 304. Rather, taking the evidence in favor of Branch as we
must, there is some proof that the golf cart’s “operation and use are directly, causally
linked to the accident and the damages sustained.” See id.
Finally, the City argues that Councilmember Kubosh’s operation or use of the
vehicle was too “geographically, temporally, or causally attenuated” from Branch’s
injury to trigger the Tort Claims Act’s immunity waiver. For support, the City
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invokes a number of cases in which the government employee’s use or operation of
the vehicle “did no more than furnish the condition that made” the injury “possible.”
See, e.g., City of Dallas v. Hillis, 308 S.W.3d 526 (Tex. App.—Dallas 2010, pet.
denied); City of Sugarland v. Ballard, 174 S.W.3d 259 (Tex. App.—Houston [1st
Dist.] 2005, no pet.); City of Pharr v. Herrera, No. 13-15-00133-CV, 2017 WL
929483 (Tex. App.—Corpus Christi–Edinburg Mar. 9, 2017, no pet.) (mem. op.).
We disagree. The geographic proximity was, simply put, as close as it gets.
The City acknowledges that Branch was standing “directly in front of the golf cart
with his elbows on the windshield and his feet under the wheels” when he was
injured. The temporal proximity was immediate. Branch testified that he heard the
engine rev, and then he felt the golf cart hit him. The alleged causal connection was
direct, not attenuated. Branch presented evidence that he was leaning on the front of
the golf cart, Councilmember Kubosh’s foot hit the gas, the engine engaged, and
then the golf cart struck Branch.
The close temporal, geographic, and causal connection places this case on the
opposite end of the spectrum from those cases in which the courts have found no
waiver of governmental immunity. In Hillis, the Dallas Court of Appeals held that
immunity was not waived for wrongful death and survival claims when, while
evading a police car in pursuit, the decedent lost control of his motorcycle on a
freeway ramp and fell off of an overpass. See 308 S.W.3d at 529, 532–35. In that
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case, the actual cause of the accident was Hillis’s own decision to drive recklessly
on a freeway ramp, and the use of the police car merely furnished the condition that
made the accident possible. Id. at 534.
In Ballard, a panel of this Court held that the City of Sugar Land’s
governmental immunity was not waived for a wrongful death claim. See 174 S.W.3d
at 265–67. In that case, a city police officer was transporting a juvenile suspect in a
police vehicle on a freeway when the suspect opened a rear door of the patrol car.
Id. at 263. The juvenile suspect then jumped out of the vehicle and was fatally struck
by an oncoming car. Id. This Court concluded that the actual cause of the decedent’s
death was the decedent’s “deliberate decision to flee into freeway traffic and a
separate car’s hitting him there.” Id. at 266. The police officer’s alleged failure to
secure the decedent in the patrol car “merely furnished the condition that made it
possible for [the decedent] to escape and then run into oncoming traffic.” Id.
Similarly, in Herrera, the Corpus Christi—Edinburg Court of Appeals found
no waiver of immunity when, sometime after a city police-car pursuit was
commenced and disengaged, the pursued suspect fatally collided with the decedent’s
vehicle. See 2017 WL 929483, at *1. The court concluded that the there was no
causal nexus between the police officer’s use of a vehicle and the plaintiff’s injury,
and that the act of initiating the chase was too attenuated from the suspect’s conduct
to constitute a cause of the alleged injuries. Id. at *2–3.
21
Here, because a fact question exists on the jurisdictional issue—application of
the motor-vehicle waiver found in section 101.021(1)—the trial court could not grant
summary judgment in favor of the City based on no “operation or use” of a motor
vehicle. See Miranda, 133 S.W.3d at 227–28; Garcia, 372 S.W.3d at 635. We
therefore turn to the question whether the City was entitled to summary judgment on
the ground that the golf cart was privately owned.
C. Whether the Motor-Vehicle Waiver in Section 101.021(1) Applies Only to
Publicly Owned Vehicles.
The City contends that it was entitled to summary judgment because the
private ownership of the golf cart precluded Branch from raising a fact issue on
whether the Tort Claims Act’s motor-vehicle waiver applied. The City argues that it
is a “truth universally acknowledged” that the Tort Claims Act “only waives
governmental immunity for publicly owned vehicles.” Branch responds that the
City’s argument contravenes the plain text of the statute and multiple opinions from
Texas intermediate courts.
“[W]e take statutes as we find them and refrain from rewriting the
Legislature’s text.” Cadena Comercial USA, 518 S.W.3d at 326. When construing
or applying the Tort Claims Act, “[t]he statute itself—and only the statute—provides
the governing rule of decision.” PHI, 593 S.W.3d at 305. “[N]o court has the
authority, under the guise of interpreting a statute, to engraft extra-statutory
requirements not found in a statute’s text.” Id. We read words and phrases in context,
22
presuming that the Legislature chose the statute’s words with care and for a purpose,
while “purposefully omitting words not chosen.” TGS-NOPEC Geophysical, 340
S.W.3d at 439.
The City contends that section 101.021(1) requires that the motor-driven
vehicle must be owned by a governmental unit for the immunity waiver contained
in that section to apply. Turning to the statutory text, section 101.021(1) waives
governmental immunity for “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 . . . the property damage,
personal injury, or death arises from the operation or use of a motor-driven vehicle
or motor-driven equipment . . . .” TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A)
(emphasis added). If the Legislature had wanted to limit the immunity waiver to
injuries arising from the operation or use of a government-owned motor-driven
vehicle, then the Legislature could have added this limitation into the text. We
presume that the Legislature’s omission of any government-ownership requirement
was intentional. See TGS-NOPEC Geophysical, 340 S.W.3d at 439.
We are not alone in reaching this conclusion. Construing the same statute, the
Fourteenth Court of Appeals held that “[t]here is no requirement that the vehicle in
question be a county vehicle, only that a county employee ‘used’ or ‘operated’ the
vehicle.” Cnty. of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex. App.—Houston
23
[14th Dist.] 1994, writ denied). Other intermediate courts have reasoned similarly.
See Sem v. State, 821 S.W.2d 411, 415–16 (Tex. App.—Fort Worth 1991, no writ)
(construing both motor-vehicle waiver and personal-property waiver of immunity in
section 101.021 and stating that “[n]othing in this section requires that the State own
the tangible property in question, and we have found no case holding that the State
must own the property in order to be subjected to liability under the [Tort Claims
Act]”); City of Socorro v. Hernandez, 508 S.W.3d 1, 8–11 (Tex. App.—El Paso
2015, pet. denied) (concluding plaintiffs’ allegations that police officer ordered
drivers—who had been involved in two-car automobile accident—to push privately-
owned and disabled vehicle out of roadway sufficiently alleged that officer
negligently used or operated motor vehicle for purposes of waiving immunity);
Vidor Indep. Sch. Dist. v. Bentsen, No. 09-04-401-CV, 2005 WL 1653873, at *1, 2
(Tex. App.—Beaumont July 14, 2005, no pet.) (mem. op.) (finding immunity waived
under Tort Claims Act where plaintiff’s claims arose from government employee’s
operation or use of motor-driven vehicle that was not owned by school district); City
of El Campo v. Rubio, 980 S.W.2d 943, 945–47 (Tex. App.—Corpus Christi–
Edinburg 1998, pet. dism’d w.o.j.) (holding immunity was waived under motor-
vehicle waiver because officer “used” or “operated” vehicle by exercising control
over it, even though City did not own vehicle in question).
24
The City cites no controlling authority to the contrary. Rather, the City points
to dicta from Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976),
stating that “The [Texas Tort Claims Act] provide[s] for waiver of governmental
immunity in three general areas: use of publicly owned automobiles, premises
defects, and injuries arising out of conditions or use of property.” Lowe was a case
involving a football injury to a Texas Tech player, and it did not involve the motor-
vehicle immunity waiver. Id.
Nevertheless, Lowe’s dicta concerning “publicly owned automobiles” has
been cited repeatedly by the Texas Supreme Court, this Court, and our sister
intermediate appellate courts, but none of these cases held that a privately owned
vehicle could not trigger the waiver. See, e.g., Sampson v. Univ. of Tex. at Austin,
500 S.W.3d 380, 384 (Tex. 2016) (premises defect waiver case); Cnty. of Cameron
v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) (same); Tex. Dep’t of Transp. v. Tarver,
No. 01-17-00919-CV, 2018 WL 3468475, at *2 (Tex. App.—Houston [1st Dist.]
July 19, 2018, no pet.) (mem. op.) (concerning lack of proper pre-suit notice); Tex.
Dep’t of Transp. v. Ives, No. 05-18-01527-CV, 2020 WL 2715367, at *1 (Tex.
App.—Dallas May 26, 2020, pet. denied) (mem. op. on reh’g) (premises defect
waiver case); Univ. of Tex. Health Sci. Ctr. at Houston v. Garcia, 346 S.W.3d 220,
224 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (same).
25
It appears that this dicta was simply an underinclusive, shorthand way of
summarizing the general categories of claims available under the Tort Claims Act.
At the time the Texas Supreme Court issued Lowe, Article 6252–19—the statutory
predecessor to Civil Practice and Remedies Code Chapter 101—stated:
Each unit of government in the state shall be liable for money damages
for property damage or personal injuries or death when proximately
caused by the negligence or wrongful act or omission of any officer or
employee acting within the scope of his employment or office arising
from the operation or use of a motor-driven vehicle and motor-driven
equipment . . . .
Act of April 11, 1973, 63d Leg., R.S., ch. 50, § 1, sec. 3, 1973 Tex. Gen. Laws 77,
77 (repealed 1985); see Lowe, 540 S.W.2d at 298–99. The predecessor statute to
section 101.021(1) did not require the motor-driven vehicle to be publicly owned.
Section 101.021(1)’s language is similar to its statutory predecessor. It provides that
a governmental unit is liable for personal injury proximately caused by the wrongful
act or omission or the negligence of an employee acting within his scope of
employment if the injury “arises from the operation or use of a motor-driven vehicle
or motor-driven equipment.” TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). This
statutory language includes no requirement that the motor-driven vehicle at issue be
publicly owned. See PHI, 593 S.W.3d at 305 (“The statute itself—and only the
statute—provides the governing rule of decision.”); Cadena Comercial USA, 518
S.W.3d at 326 (“[W]e take statutes as we find them and refrain from rewriting the
Legislature’s text.”).
26
We conclude that section 101.021(1) does not require a plaintiff to establish
that the vehicle at issue was publicly owned by a governmental unit in order to rely
on the motor-vehicle immunity waiver. Consequently, Branch’s failure to provide
summary judgment evidence controverting Councilmember Kubosh’s private
ownership of the golf cart is not fatal to Branch’s attempt to avoid summary
judgment. We hold that the trial court did not err to the extent that it denied the City’s
summary judgment motion based on the motor-vehicle waiver.
We overrule the City’s first issue.2
2
Because we conclude that Branch raised a fact issue on the applicability of the
motor-vehicle waiver, and therefore the trial court did not err to the extent it denied
summary judgment on this basis, we need not address the City’s second issue—
whether Branch could rely upon his amendment to his petition raising the Tort
Claims Act’s personal property waiver, filed the day before the summary judgment
hearing. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written
opinion that is as brief as practicable but that addresses every issue raised and
necessary to final disposition of the appeal.”).
27
Conclusion
We affirm the order of the trial court.
April L. Farris
Justice
En Banc Court consists of Chief Justice Adams and Justices Kelly, Goodman,
Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Justice Rivas-Molloy, joined by Justice Goodman, dissenting.
Justice Landau, not participating.
28