The City of Austin, Petitioner, v. Noel Powell, Respondent
No. 22-0662
Supreme Court of Texas
Argued September 10, 2024
JUSTICE YOUNG delivered the opinion of the Court.
A fugitive led police officers on a high-speed chase through the streets of Austin. While in pursuit, an officer lost control of his vehicle and collided with a minivan stopped at an intersection. The collision injured Noel Powell, the minivan‘s driver. Powell, who was not at fault, sued the City of Austin to recover damages for his injuries.
We must decide whether his claim may proceed. The legislature has waived governmental immunity to suit for many torts, but it carved out an exception when a
We hold that the officer‘s conduct was not in violation of “a law or ordinance” that governed emergency action and that Powell has raised no fact question about whether the officer‘s conduct was reckless. The Tort Claims Act, therefore, does not waive the City‘s immunity. We reverse the court of appeals’ judgment and render judgment dismissing the case for lack of jurisdiction.
I
Officer Brandon Bender was responding to a check-welfare call when he heard “six or seven” gunshots ring out in the neighborhood. Four additional shots followed within about fifteen minutes, and they “sounded even closer than the first shots.” Three minutes after that, Officer Michael Bullock spotted a Toyota FJ Cruiser coming from the same direction as the gunshots. Officer Bullock told the vehicle‘s driver to stop. Instead of stopping, the car “took off.” Officer Bender received authorization to pursue the FJ Cruiser with his lights and siren on. Officer Bullock also received authorization to participate in the chase and was assigned to back up other officers.
During the chase, Officer Bender decided to make a right turn onto Brandt Road to “get in front of the pursuit . . . or to close the distance to enter the pursuit.” Officer Bullock was following Officer Bender. As Officer Bender slowed to make the turn, Officer Bullock hit the brakes. Unable to slow down in time, Officer Bullock struck the passenger side of Officer Bender‘s car, causing the two cars to be “semi-stuck together.” Both officers lost control of their vehicles. Officer Bender‘s vehicle slid through the intersection, running over a stop sign and coming to rest against a fence post. Officer Bullock‘s vehicle collided with Powell‘s minivan, which was stopped at the intersection. The impact caused Powell‘s vehicle to spin 180 degrees before coming to rest, while Officer Bullock‘s car came to rest against a tree. The post-crash report opined that Officer Bullock‘s inattention and failure to control his speed contributed to the accident.
Powell sued the City, seeking recovery for his damages. The City filed a plea to the jurisdiction based on the Tort Claims Act‘s emergency exception and Officer Bullock‘s official immunity. The trial court denied the City‘s plea without explanation. The City appealed, raising only the emergency exception. The court of appeals affirmed. 684 S.W.3d 455 (Tex. App.—Austin 2022). It held that there was a fact issue about whether Officer Bullock‘s actions were reckless, requiring further proceedings in the trial court. Id. at 465.
We granted the City‘s petition for review.
II
More than twenty years ago, we described the process for resolving a plea to the jurisdiction asserting immunity from suit as one that “generally mirrors that of a summary judgment.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We reaffirm this description but acknowledge that dispositive-pleading practice has evolved in the interim.
The foundational rule in all cases is that “[a] party suing the governmental unit bears the burden of affirmatively showing waiver of immunity.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022) (citing Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019)). There is “a presumption against any waiver until the plaintiff establishes otherwise.” Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023). The plaintiff—the nonmovant—survives the plea to the jurisdiction only by showing that the statute “clearly and affirmatively waive[s] immunity” and by also “negating any provisions that create exceptions to, and thus withdraw, that waiver.” Id. at 867. Though a plaintiff need not anticipate and defeat every defense the government could conceivably raise, see, e.g., id. at 867–68, a plea to the jurisdiction may obviously rely on the plaintiff‘s own pleadings in arguing that they fail to “affirmatively demonstrate the court‘s jurisdiction to hear the case.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Where those pleadings indicate, for example, that the emergency exception applies, the government need not produce additional affirmative evidence to invoke the exception.
Whether the plaintiff bears an evidentiary burden depends on how the government responds to the purported waiver. In Miranda, we divided pleas to the jurisdiction into two broad categories. First, the government may “challenge[] the pleadings.” Miranda, 133 S.W.3d at 226. In such a plea, the government does not dispute the plaintiff‘s factual allegations, and evidence is irrelevant. The question is whether the alleged facts “affirmatively demonstrate a trial court‘s subject matter jurisdiction.” Id. That is “a question of law reviewed de novo.” Id. If the plaintiff‘s allegations neither establish jurisdiction nor negate it, the plaintiff is given an opportunity to amend its pleadings, but if the allegations negate jurisdiction, the plaintiff as a matter of law cannot establish jurisdiction, so the court must grant the plea. Id. at 226–27. This type of plea is thus similar though not identical to a motion to dismiss under Rule 91a in that it asserts that the plaintiff‘s allegations, taken as true, do not show a waiver of immunity. See
Second, the government‘s plea to the jurisdiction may instead “challenge[] the existence of jurisdictional facts,” requiring the trial court to “consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.” Miranda, 133 S.W.3d at 227. The plea to the jurisdiction may, for example, be like a no-evidence motion for summary judgment by asserting that the plaintiff has produced no evidence of an element required for the immunity waiver to apply. See
Thus, when we stated in Mission Consolidated Independent School District v. Garcia that “[i]nitially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction,” 372 S.W.3d at 635, we were referring to cases in which the plea to the jurisdiction mirrors a traditional or hybrid motion for summary judgment. After all, if the government wants to truly negate the plaintiff‘s evidence, then it must present evidence of its own. See id. at 637 (“While a plaintiff must plead the elements of her statutory cause of action . . . she will only be required to submit evidence if the defendant presents evidence negating one of those basic facts.” (emphasis added)). We did not, of course, contradict the bedrock principle that the plaintiff bears the burden to establish a waiver of immunity. When there is a dispute over jurisdictional facts, the plaintiff must raise a genuine issue of material fact as to the immunity waiver‘s applicability. See Miranda, 133 S.W.3d at 227; see also Tex. Health & Hum. Servs. Comm‘n v. Pope, 674 S.W.3d 273, 281 (Tex. 2023). When that happens, “we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant‘s favor.” Maspero, 640 S.W.3d at 528–29. If the evidence raises a fact question as to the court‘s jurisdiction, then the trial court may not grant the plea. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). But the court must grant the plea if the evidence fails to raise a question as to the existence of a jurisdictional fact. Maspero, 640 S.W.3d at 529.
A party‘s characterization of its pleadings does not control how the courts review them. Whatever the government may call its jurisdictional challenge—a plea to the jurisdiction, a motion to dismiss, or a motion for summary judgment—we look to its substance. See, e.g., Oscar Renda Contracting, Inc. v. Bruce, 689 S.W.3d 305, 311 (Tex. 2024) (noting that “our Court has consistently held that we examine the substance of a motion or pleading rather than requiring the formality of a title“); Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (treating a summary-judgment motion as a plea to the jurisdiction for purposes of appellate jurisdiction).
Here, the City‘s plea to the jurisdiction most closely mirrors a no-evidence motion for summary judgment. It argues that Powell failed to establish jurisdictional facts after adequate time for discovery. We therefore review Powell‘s allegations and evidence (considering the City‘s undisputed evidence only for context), and we determine whether Powell has raised a fact issue regarding the Tort Claims Act‘s immunity waiver.
III
A
As a political subdivision of the state, the City is “immune from suit unless [its] immunity is waived by state law.” Maspero, 640 S.W.3d at 528. The Tort Claims Act waives immunity for certain torts, but it “withdraws” the waiver in
This case therefore turns on the applicability of the emergency exception. The issue reduces to whether Officer Bullock (1) “compli[ed] with the laws and ordinances applicable to emergency action,” or (2) “in the absence of such a law or ordinance,” acted “with conscious indifference or reckless disregard for the safety of others.”
The court of appeals, in reliance on Maspero, held that both components of the emergency exception‘s jurisdictional inquiry—the law-or-ordinance prong and the recklessness prong—“‘collapse[]’ into one inquiry concerning [Officer Bullock‘s] recklessness.” 684 S.W.3d at 463 n.3 (quoting Maspero, 640 S.W.3d at 529). Maspero did not hold that the two distinct inquiries are in fact only one. It said that “the distinction between these inquiries largely collapses in this case.” Maspero, 640 S.W.3d at 529 (emphasis added). Such a result may often occur, as in Maspero, and will depend on the content of an applicable statute or ordinance.
The plain language of the emergency exception, however, contemplates two distinct inquiries to be undertaken in a particular order. First, the court must assess whether any laws or ordinances apply to the emergency action at issue in the case. Such a law or ordinance may apply to some aspect of the emergency action (hypothetically, for example, by controlling maximum speed) or to the entire action. If there is an applicable law or ordinance that governs the emergency action or governs the only parts of that action that allegedly justify the imposition of liability, the jurisdictional inquiry turns on whether the officer‘s action complied with the relevant law or ordinance. See Martin, 971 S.W.2d at 428 (“Because [a statute] controls Clark‘s action as an emergency vehicle operator in an emergency situation, we look to see if Clark complied with that [statute].“). The second inquiry is triggered only if no law or ordinance governs the emergency action at issue or any part of it. The jurisdictional inquiry would then become whether there is a fact issue as to that officer‘s recklessness in undertaking the action that led to the injury; any conduct that complied with an applicable law or ordinance would not be subject to that analysis.
It was not always this way. The first version of the Tort Claims Act, enacted in 1969, contained an emergency exception that was nearly identical in wording to today‘s version except that it lacked the recklessness prong. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, § 14(8), 1969
In Black, a volunteer firefighter sued the department after he was struck by an engine reversing from the scene of a fire. Id. Because neither the plaintiff nor the government defendant pointed to any law or ordinance applicable to that particular action, we held that the exception did not apply, and immunity was therefore waived. Id. Importantly, Black treated the “laws and ordinances” prong of that version of the emergency exception as a potential shield for the government. That is, if the officer‘s allegedly tortious action was undertaken in compliance with an applicable law or ordinance, then his employer would enjoy governmental immunity. With this defensive view in mind, it made sense for the set of laws applicable to emergency action to be narrow. If the general rules of the road were the laws and ordinances applicable to emergency action, then the government could always show compliance with some law, and the emergency exception would swallow the Act‘s immunity waiver. Instead, the Court understood the statute to address only laws or ordinances that target emergency action.
But as Black construed it, the emergency exception generated less protection for emergency responders than the legislature may have anticipated. In the legislative session following our decision in Black, the legislature added the recklessness prong to the emergency exception. When no specific law or ordinance applied, therefore, the emergency exception could still cover the government defendant if its actions were not “taken with conscious indifference or reckless disregard for the safety of others.” Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.05, 1987 Tex. Gen. Laws 37, 49 (amending
Thus, where a case arises from “emergency calls or [a] react[ion] to emergency situations,” official “compliance with [] laws and ordinances” will be relevant only if the law or ordinance expressly “pertain[s] to th[e] emergency situation.” Black, 695 S.W.2d at 563. Both parties may find it useful to identify such a provision. If the plaintiff can point to a law or ordinance that directly and specifically governs emergency responses and can show that the government defendant did not comply, then immunity is waived. On the other hand, if the government defendant can point to an applicable law or ordinance, and can establish compliance, then at least that aspect of the claim is off the table. Imagine, for example, a hypothetical statute providing a safe harbor such that it is always acceptable to exceed the posted speed limit by twenty miles per hour during an authorized police pursuit. Under such a regime, speed would often be unavailable to a plaintiff seeking to negate the emergency exception, and if elevated speed was the only basis for the claim,
Where neither party can point to such a law, however, the first prong of
All of this is reflected in the approach we took in Maspero. True, in that case we framed the question as whether the plaintiff could prove the “pursuit violated the laws and ordinances applicable to emergency response,” rather than whether the government could prove compliance. Maspero, 640 S.W.3d at 529 (emphasis added). But that is really just another way of expressing the same idea: under the first prong of
We reaffirm this sound reasoning today. Where a plaintiff seeks to raise a fact issue as to official compliance with “laws and ordinances applicable to emergency action,” but points to no law or ordinance that specifically applies to that action, the first prong of
It is of course true that, under
In short, while statutes that specifically govern emergency action are relevant where a plaintiff attacks governmental immunity in the emergency context, generally applicable traffic rules are not.
B
Accordingly, we must first resolve whether Officer Bullock‘s actions were governed by any applicable law or ordinance. If so, the jurisdictional question is only whether there is a fact issue as to his compliance with those laws.
1
Powell first argues that Officer Bullock did not comply with laws governing emergency responses because he violated
The key legal question, then, is whether
Laws that specifically regulate emergency responses further indicate that generally applicable traffic laws are inapplicable to emergency responses. Our precedent, the statutory text, and longstanding principles of statutory interpretation make this plain. The Transportation Code provides that the generally applicable rules-of-the-road provisions (such as Chapter 545) apply “to the operator of a vehicle owned or operated by a political subdivision of this state, except as specifically provided otherwise by this subtitle for an authorized emergency vehicle.”
Chapter 545, moreover, confirms this reading because it contains two provisions that expressly apply to emergency-response situations. See
We thus conclude that
2
Powell next argues that Officer Bullock violated Chapter 546 of the Transportation Code because his actions did not fall within
We reject this argument. The expressio unius canon does not apply unless the statutory context makes it “fair to suppose that the legislature considered the unnamed possibility and meant to say no to it.” Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 429 (Tex. 2017) (brackets omitted) (quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013)). Nothing suggests that this condition is satisfied here.
For one thing, as we noted above, Chapter 545 refers several times to emergency conduct, which would be pointless if the standards for emergency driving and for ordinary driving were the same except for
This larger context is consistent with the very nature of emergency action, which calls for split-second, fact-specific decisions in unpredictable situations. The legislature‘s attention to emergency contexts without greater specificity reflects a recognition that it cannot—and, perhaps more to the point, that the police cannot—predict and plan in advance for every possible emergency. Likewise fruitless would be any attempt to delineate every way an officer might permissibly react in an emergency situation. The statute as a whole therefore confirms
We reject Powell‘s construction for a third reason, as well: it would require us, by invocation of a canon of construction that does not readily fit here, to ascribe to the legislature the intent to hamstring officers in the performance of especially dangerous duties. If Powell‘s construction were correct, officers would be severely limited in their ability to respond to emergencies—they would have discretion to disregard only four rules of the road. As we have acknowledged, the legislature has determined “that the public good will be better served by encouraging public employees to take immediate action in emergency situations.” City of San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006).
The facts here illustrate the point. If
3
We next address the invocation of
As we have explained, however, that does not mean that the inquiry will always be one into the officer‘s recklessness. Beyond
4
Finally, Powell argues that Officer Bullock did not comply with laws and ordinances applicable to emergency action because he violated Austin Police Department policy by (1) not using his best judgment in starting the chase, (2) not terminating the chase when the suspect vehicle‘s whereabouts were unknown, and (3) following Officer Bender‘s car too closely.
Solely for argument‘s sake, we will assume that these assertions reflect violations of departmental policy. But even indulging that assumption,
* * *
In short,
C
Because no other law or ordinance governed his emergency actions, the jurisdictional question instead becomes whether there is a fact issue as to Officer Bullock‘s recklessness. The Transportation Code defines “reckless driving” as driving “a vehicle in wilful or wanton disregard for the safety of persons or property.”
As we have noted, no party has contended that there is any distinction between this standard and simple “recklessness,” and we have previously assumed as much. See supra Part III.A. We accordingly assume as much again, reserving for a future case, if one ever comes, the possibility that the statutory standard is more nuanced. For present purposes, it is enough to apply our precedents concerning recklessness.
To do so in Maspero, we asked whether the officer “knew or should have known” that her act posed an unacceptable risk of injury, separating out subjective actual knowledge from imputed knowledge. 640 S.W.3d at 531. We also highlighted the officer‘s use of her lights and siren and communication with a commanding officer as evidence that she “engaged in some degree of risk assessment” and “intend[ed] to minimize potential harm.” Id. at 532. Likewise, in City of San Antonio v. Hartman, we said that conscious indifference or reckless disregard “require[s] proof that a party
At the same time, official immunity and the Act‘s emergency exception remain importantly distinct. Official immunity is a “common law defense,” the purpose of which is “to insulate the functioning of government from the harassment of litigation.” Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). But the emergency exception is a creature of statute, an exercise of the legislative prerogative “to determine how and when to allow tax resources to be shifted away from their intended purposes toward defending lawsuits and paying judgments.” Hughes v. Tom Green County, 573 S.W.3d 212, 218 (Tex. 2019) (quotation marks omitted). Additionally, the scope of official immunity, extending to all “discretionary functions ... within [an officer‘s] authority,” Riojas, 640 S.W.3d at 538, exceeds that of the emergency exception, which is expressly limited to “responding to an emergency call or reacting to an emergency situation,”
The official-immunity doctrine and the emergency exception accordingly have significant substantive and procedural differences. Both may apply in some cases; neither will apply in others; and in yet others one but not the other will apply. We have no occasion here to decide how these differences in purpose and scope may affect how each of the related inquiries is conducted. Rather, we merely note that deciding whether an officer‘s action implicates official immunity or the emergency exception will involve reasoned consideration of the action‘s context.
Considering the context of Officer Bullock‘s actions, it was Powell‘s burden to raise a fact issue as to Officer Bullock‘s recklessness as understood in our precedents. The facts advanced, moreover, must show “more than a ‘momentary judgment lapse’ and instead ‘[] that the driver committed an act he knew or should have known posed a high degree of risk of serious injury.‘” Maspero, 640 S.W.3d at 531 (quoting Perez v. Webb County, 511 S.W.3d 233, 236 (Tex. App.—San Antonio 2015, pet. denied)).
The court of appeals listed several considerations that, in its view, created a fact issue as to Officer Bullock‘s recklessness: Officer Bullock‘s failure to control his
Notably, Powell agrees in his brief that “speed is not the issue in this case.” And in the very next sentence, he argues that the main issue is Officer Bullock‘s failure to maintain a safe distance from Officer Bender‘s car. In other words, Powell does not meaningfully argue that Officer Bullock‘s failure to control speed was reckless. Instead, he focuses on Officer Bullock‘s failure to comply with
In any event, Officer Bullock‘s failure to control his speed does not create a fact issue as to recklessness. The accident report notes that Officer Bullock‘s failure to control his speed was a contributing factor to the accident. True, going more slowly may have prevented the accident, but vague descriptions of a high rate of speed “lack specificity” and by themselves do not “support a finding of reckless disregard.” City of Houston v. Green, 672 S.W.3d 27, 31 (Tex. 2023). Moreover, even if
We do not hold that excessive speed is categorically a matter of only negligence that never could be relevant to recklessness. Adverse weather conditions, roadworks, or the presence of pedestrians could make some speeds reasonable or negligent in one chase but inordinately risky and reckless in another. As Maspero observed, speeding is ordinarily “part and parcel of a police chase,” 640 S.W.3d at 532, so deeming speed in and of itself to raise a fact question about recklessness in such cases would be exceptional. Absent any evidence as to Officer Bullock‘s speed in the context of this chase, we decline to hold that this is one of the exceptional cases. At most, in the context of a pursuit, there could be a question only of negligence—a momentary lapse in judgment within a chase that inherently would involve high speed. Momentary lapses in judgment are not grounds for finding recklessness. Id. at 531; see also 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 911 (Tex. 2016) (stating that to establish recklessness, it was “not enough to show that 4Front knew or should have known that Reyes would have a momentary lapse in judgment or otherwise act negligently“). There is simply no evidence in the record that under any test for recklessness the alleged “failure to control speed” would qualify. Nothing, for example, raises a fact question that Officer Bullock
The City argues that this point is simply a restatement of the “failure to control speed” category. We disagree. The two are conceptually distinct; two cars traveling even at low rates of speed can still be too close, such that the second car cannot stop in time to avoid rear-ending the first. Rush-hour traffic jams on urban interstate highways supply ample evidence. More importantly, the Transportation Code itself distinguishes between the two concepts by imposing separate requirements for each.
But this point does not affect the outcome here. Either way, Officer Bullock‘s alleged failure to maintain a safe following distance does not create a fact issue as to his recklessness. Perhaps most important is the absence of evidence that would be essential to Powell‘s theory—in particular, some evidence of the actual distance between the two cruisers preceding the crash, which is not in the record. Rather than showing Bullock‘s supposedly reckless proximity to Bender, Powell relies on the very fact that Bullock hit Bender to reverse-engineer the conclusion that he must have been following too closely—and doing so recklessly.
This approach gets the matter backwards by supposing the cause based on the result, which is insufficient even to establish negligence: “[N]egligence is never presumed, and [] the mere happening of an accident is no evidence at all of negligence.” Wells v. Tex. Pac. Coal & Oil Co., 164 S.W.2d 660, 662 (Tex. 1942). Far less, then, can the “happening of an accident” supply any evidence of recklessness. And even assuming that the conduct was negligent, “[e]vidence of negligence does not establish recklessness.” 4Front Engineered Sols., 505 S.W.3d at 911. Said differently, we cannot accept as legally sufficient a rationale that starts with an accident, reasons that the accident‘s occurrence creates evidence of negligence, and then leaps to the conclusion that evidence of negligence must also entail evidence of recklessness.
Most significant is the leap from negligence to recklessness. Logically, failing to maintain a safe distance generally sounds in negligence. Absent some evidence of the actual proximity, proving that Officer Bullock was following too closely would
Spacing between vehicles obviously helps prevent collisions. Bullock‘s testimony that he tried but failed to slow in time to avoid hitting Bender allows an inference that, in the heat of the chase, he may not have complied with the general departmental policy that Powell invokes. But none of that provides any evidence that the officer was reckless—wholly indifferent to the risks to others (and to himself). Violating the policy in a chase would require
Holding otherwise would belie our law‘s mandate that officers “retain discretion” to balance needs and risks when responding to emergency situations. Maspero, 640 S.W.3d at 532. As part of this discretion, officers are expressly permitted to violate provisions of the Transportation Code when responding to emergency situations. See, e.g.,
Powell has not directed us to any evidence that Officer Bender “did not care about the result” that could be caused by his following too closely. Hartman, 201 S.W.3d at 672 n.19. Nor could he, without making a prerequisite showing of what the following distance was. We thus conclude that Officer Bullock‘s alleged failure to maintain a safe distance does not create a fact issue as to his recklessness.
The court of appeals also noted the seriousness of the accident and subsequent injuries when discussing the evidence that Officer Bullock recklessly caused it. 684 S.W.3d at 466. As we have explained, it is error to reason from result to cause in finding negligence. Wells, 164 S.W.2d at 662. Perhaps unsurprisingly, we appear never to have clarified that the same rule applies for the
As we did in Maspero, we also consider evidence suggesting that Officer Bullock was
To be clear, as we noted at the outset, the City was not required to affirmatively marshal evidence of Officer Bullock‘s non-recklessness. It was, and remains, Powell‘s burden to raise a fact issue. So long as the City did not “challenge the existence of [the] very [] facts” Powell relied on to do so (by alleging that a different entity‘s employee struck Powell, for instance), it was under no burden to provide evidence, including evidence of Officer Bullock‘s good behavior. Garcia, 372 S.W.3d at 635. Evidence of risk assessment is still relevant to the recklessness inquiry, however, as it undermines Powell‘s contention that Officer
The City then argues that the court of appeals erred in ignoring evidence that Powell did not move out of the way as the officers approached the intersection. We disagree with the City and conclude that the court of appeals correctly disregarded this contention. The Transportation Code provides that when the operator of a vehicle sees an emergency vehicle approaching, the operator must “stop and remain standing until the authorized emergency vehicle has passed.”
Powell complied with this law and, based on this record, is without fault. He “stopped at the stop sign” behind the intersection and did not move as the officers approached Brandt Road. To avoid a collision, particularly in light of fast-moving vehicles, it is often better to stay still rather than to try to move
Powell‘s lack of culpability illustrates the consequences of the law of immunity. The legislature has determined that under circumstances like those before us—where an officer was at most negligent but not reckless—the governmental unit must be immune because the law would otherwise unduly deter conduct that is necessary to protect the public as a whole. On the other hand, innocent individuals like Powell are left bearing the costs of actions that benefit us all. Any of us might find ourself in Powell‘s shoes; the very nature of emergency responses is that they are unpredictable. Perhaps the current rules best serve the interests of the State as a whole. Or perhaps some other system allowing recovery—even if only to a highly circumscribed degree—for those without fault who are injured as a result of emergency responses would be better. Such an inquiry and any resulting decision are proper undertakings for the legislature, not this Court.
IV
The City of Austin‘s immunity to suit is not waived. Its plea to the jurisdiction should have been granted. We reverse the judgment of the court of appeals and render judgment dismissing the case for lack of jurisdiction.
Evan A. Young
Justice
OPINION DELIVERED: December 31, 2024