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CAUSE NO. CL-23-0232-G
ANDREW OCHOA, IRIS OCHOA, § IN THE COUNTY COURT
INDIVIDUALLY, AND AS NEXT §
FRIEND OF J.O. AND M.O. MINORS §
Plaintiffs §
§ COUNTY COURT NO. 7
Vs §
§
DAVID GONZALEZ JR, and §
CITY OF PHARR §
Defendants § HIDALGO COUNTY, TEXAS
DEFENDANT CITY OF PHARR’S PLEA TO THE JURISDICTION
_______________________________________________________________
MAY IT PLEASE THE COURT:
COMES NOW DEFENDANT CITY OF PHARR TEXAS (hereinafter “City”), and file
this Plea to the Jurisdiction, requesting that the Court dismiss the claims against them for lack of
jurisdiction, in whole or in part, based on any one or more of the reasons set forth below.
I. NATURE OF THE CASE/FACTUAL BACKGROUND
This is a negligence action involving motor vehicles presently brought against the City of
Pharr, a municipality/governmental entity organized under the laws of the State of Texas.
Plaintiffs’ claims arise from personal injuries sustained by Plaintiffs when they were in involved
in a motor vehicle accident with one of the City of Pharr’s ambulances that was responding to an
emergency on September 12, 2021 at the intersection of East Main Avenue and North Alton
Boulevard. See Plaintiff’s First Amended Petition; Ex. A.
II. EXHIBITS IN SUPPORT OF PLEA TO THE JURISDICTION
Ex. A. Texas Peace Officer’s Crash Report.
Ex. B. Pharr EMS Call for Service Detail Report.
Ex. C. Deposition of Iris Ochoa.
Ex. D. Deposition of Andrew Ochoa.
Ex. E. Pharr EMS Standard Operating Procedures.
Defendant’s Plea to the Jurisdiction Page 1
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III. SUMMARY OF THE ARGUMENT
The court lacks jurisdiction over the claims against the Defendants because the Defendant
City is immune from the claims brought by Plaintiff and such immunity has not been waived
pursuant to the Texas Tort Claims Act (hereafter “TTCA” or “Tort Claims Act”). The exception
to waiver of immunity in a negligence claim is based on the emergency response under TTCA
101.055. Further, Plaintiffs cannot show that the Defendant has waived its governmental immunity
as to the claims of (1) negligent hiring, (2) negligent training, (3) negligent supervision, (4)
negligent retention, and (5) negligent entrustment as these claims are not encompassed in the
TTCA’s limited waiver of immunity.
IV. STATEMENT OF FACTS
On September 12, 2021, Plaintiffs were travelling westbound on East Main Avenue, where
they turned southbound on a greenlight at South Alton Boulevard at around 11:00 p.m. Ex. A. Ex.
C, p.9 , lns 4-14. Defendant’s ambulance was travelling southbound on North Alton Boulevard
running with lights and sirens. Ex. A. The emergency call originated from James Copeland and
began as priority-3, but after EMS arrived to where Mr. Copeland was, they began transporting
him Priority-1 to Mission Hospital as he was complaining of chest pains. Ex. B. Plaintiff Iris Ochoa
was the driver of the vehicle, Plaintiff Andrew Ochoa was in the front passenger seat, and was
travelling home from a relative’s house. Ex. C, p.9, lns 2-3; Id. at p. 8, lns 14-20. P. Iris Ochoa was
turning left on a protective green, when she felt something hit her vehicle. Id. at p. 11, lns 8-15.
There was little to no traffic at this time. Ex. D, p. 8, ln 7-8. Neither Iris Ochoa nor Andrew Ochoa
saw the ambulance approach the intersection nor did they notice the ambulance’s lights and sirens.
Id. at p.9, lns 10-12; Ex. C, p. 12, lns 1-6. After the accident, Iris Ochoa and her children were
taken in an ambulance to get checked out at the hospital, and Andrew Ochoa went shortly after
being transported by a relative. Ex. D, p. 16, ln 24 – p. 17, ln 16.
V. STANDARD OF REVIEW
Subject matter jurisdiction cannot be presumed and cannot be waived. See Continental
Coffee Prds. Co. v. Casarez, 937 S.W.2d 444, 448-49 n. 2 (Tex. 1996). A plea to the jurisdiction
is proper to challenge a suit brought against a governmental entity when it is apparent from the
pleadings on file that the claims asserted are not within any waiver of sovereign immunity. See
Tex. Dept. Of Transportation v. Jones, S.W.3d 636, 637-39 (Tex. 2000); see also Texas Parks &
Wildlife Dept. vs. Garrett Place Inc., 972 S.W.2d 140 (Tex. App. - Dallas 1998). Plaintiff bears
Defendant’s Plea to the Jurisdiction Page 2
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the burden of alleging facts affirmatively showing the trial court it has subject matter jurisdiction
over the Defendant(s). See Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440
(Tex. 1993).
For government entities, sovereign/governmental immunity has two component parts -
immunity from suit and immunity from liability. A party suing a governmental entity must allege
consent to suit either by reference to statute or express legislative permission. See Garrett Place,
Inc., 972 S.W.2d at 143 citing Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d
812, 813 (Tex. 1970). In the absence of a pleading or consent, the trial court has no jurisdiction to
hear the case. See Brownsville Navigation Dist., 453 S.W.2d at 814; see also Ntreh v. Univ. Of
Tex. at Dallas, 936 S.W.2d 649, 651 (Tex. 1997). If a governmental entity is sued without
legislative consent, the trial court should grant the governmental entity’s plea to the jurisdiction,
unless the Plaintiff can affirmatively demonstrate that its claim fits within one or more provisions
of the waiver of immunity provided for in the Texas Tort Claims Act. See Garrett Place Inc., 972
S.W.2d at 143.
A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but
may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.
Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Additionally, a court is
to look at the allegations in the petition and accept those allegations as true, unless the defendant
establishes that either: (1) that the plaintiff's pleadings, taken as true, affirmatively establish that
the trial court lacks subject matter jurisdiction over the suit; or, (2) that the plaintiff pled
fraudulently or in bad faith with the purpose of conferring jurisdiction, where under the true facts
of the case the trial court would not have jurisdiction. Denton County v. Howard, 22 S.W.3d 113,
117-18 (Tex. App.-Fort Worth 2000).
V. ARGUMENT AND AUTHORITIES
A. The Defendant is a Governmental Entity for Purposes of Immunity
The Defendant City of Pharr hereby requests that the Court take judicial notice that it is a
municipality organized under the laws of the State of Texas for purposes of immunity and the
application of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code §101.001. The City has properly
raised in its Answer, its entitlement to sovereign and governmental immunity through affirmative
defenses.
Defendant’s Plea to the Jurisdiction Page 3
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B. Plaintiff’s claims of negligent entrustment, negligent hiring, negligent supervision,
negligent supervision, and negligent retention claims are barred by immunity as they
do not fall under the TTCA’s limited waiver.
A party suing a governmental entity must allege consent to suit either by reference to statute
or express legislative permission. Texas Parks & Wildlife Dept. vs. Garrett Place Inc., 972 S.W.2d
140, 143 (Tex. App. - Dallas, 1998) citing Missouri Pac. R.R. v. Brownsville Navigation Dist., 453
S.W.2d 812, 813 (Tex. 1970). Immunity from suit completely bars an action against the
governmental entity unless the entity waives its immunity and consents to suit. Austin ISD v.
Gutierrez, 54 S.W.3d 860, 862 no.3 (Tex.App.-Austin 2001, no pet.). The waiver of governmental
immunity is a matter addressed to the Texas Legislature. Univ. of Tex. Med. Branch at Galveston
v. Hohman, 6 S.W.3d 767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (citing City
of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995)).
In the Tort Claims Act, the Legislature has laid out a scheme for a limited waiver of
governmental immunity. See Tex. Civ. Prac. & Rem. Code Ann. §101.001 et. seq. (Emphasis
Added.) In their Petition, the Plaintiffs fail to assert the basis on which the City’s immunity has
been waived. However, The Tort Claims Act Section 101.021 allows for a limited waiver of
immunity for negligence of a government employee from operation or use of a motor-driven
vehicle, or use of tangible personal property, and it appears Plaintiffs bring their claims under this
waiver. See Plaintiffs’ First Amended Petition.
Allegations of negligent hiring against a governmental unit are not actionable under the
TTCA, and the unit's immunity is not waived, because such allegations do not implicate or involve
the “use” of tangible personal property. City of Dayton v. Gates, 126 S.W.3d 288, 290–91 (Tex.
App.—Beaumont 2004, no pet.); Eastland Cnty. Co-op. Dispatch v. Poyner, 64 S.W.3d 182, 190–
91, 198 (Tex. App.—Eastland 2001, pet. denied); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 895–
96 (Tex. App.—Texarkana 2001, no pet.); McCord v. Mem'l Med. Ctr. Hosp., 750 S.W.2d 362,
363 (Tex. App.—Corpus Christi–Edinburg 1988, no writ).
Allegations that a governmental unit (1) failed to furnish proper training or instruction to
its employees or (2) negligently trained its employees are not actionable under the TTCA, and the
unit's immunity is not waived, because such allegations do not implicate or involve either the
“condition” or “use” of tangible personal property; such conduct constitutes only the use
of information which is not tangible property under the TTCA. Texas Dept. of Public Safety v.
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Petta, 44 S.W.3d 575, 580–81 (Tex. 2001); City of Waco v. Williams, 209 S.W.3d 216, 224–25
(Tex. App.—Waco 2006, pet. denied); Gates, 126 S.W.3d at 290–91; McClain v. Univ. of Tex.
Health Center at Tyler, 119 S.W.3d 4, 10 (Tex. App.—Tyler 2002, pet. denied); Poyner, 64
S.W.3d at 190.
A governmental unit's failure to supervise its employees or the negligent supervision of its
employees will not fall within the TTCA's waiver of immunity because these allegations do not
involve the “use” of tangible personal property. Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583
(Tex. 2005); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543–44 (Tex. 2003); Lopez
v. McMillion, 113 S.W.3d 447, 452 (Tex. App.—San Antonio 2003, no pet.); Poyner, 64 S.W.3d
at 190–91, 198; Gainesville Mem'l Hosp. v. Tomlinson, 48 S.W.3d 511, 514 (Tex. App.—Fort
Worth 2001, pet. denied); Brown v. Montgomery Cnty. Hosp. Dist., 905 S.W.2d 481, 484 (Tex.
App.—Beaumont 1995, no writ); Harris v. Galveston Cnty., 799 S.W.2d 766, 767–68 (Tex.
App.—Houston [14th Dist.] 1990, writ denied); McCord, 750 S.W.2d at 363.
Allegations of negligent entrustment by a governmental unit are not a cause of action
included in the TTCA's limited waiver of sovereign immunity. Waldon v. City of Longview, 855
S.W.2d 875, 880–81 (Tex. App. 1993); See Young v. Dimmitt, 787 S.W.2d 50, 51 (Tex.1990)
(affirming the trial court's refusal to allow negligent entrustment claim).
Negligent retention of employees does not constitute operation or use of a motor vehicle,
and therefore such a claim against governmental units are not cognizable under the
TTCA. Harlingen Consol. Indep. Sch. Dist. v. Miranda, No. 13-18-00391-CV, 2019 WL 1187151,
at *3 (Tex. App.—Corpus Christi Mar. 14, 2019, no pet.) (mem. op.); City of Houston v. Manning,
No. 14-20-00051-CV, 2021 WL 1257295, at *8 (Tex. App. Apr. 6, 2021), (review denied) (Aug.
20, 2021).
Plaintiffs allege that the City of Pharr was negligent in the following respects: (1) negligent
hiring of David Gonzalez Jr., (2) negligent training of David Gonzalez Jr., (3) negligent
supervision of David Gonzalez Jr., (4) negligent retention of David Gonzalez Jr., and (5) negligent
entrustment of a motor vehicle to David Gonzalez Jr. Plaintiffs’ First Amended Petition. These
claims have been consistently found to be outside the TTCA’s limited waiver of immunity and as
such should be dismissed against the City.
Defendant’s Plea to the Jurisdiction Page 5
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C. The City’s retains immunity from suit under the emergency exception of the TTCA
regardless of whether Plaintiffs’ claims would otherwise fall within the scope of the TTCA’s
waiver of immunity.
The TTCA waives a governmental unit's immunity for personal injuries proximately
caused by the negligence of a governmental employee, such as a law enforcement officer, acting
in the scope of his employment, if the injuries arise from the operation or use of a motor-driven
vehicle and the employee would be personally liable to the plaintiff under Texas law. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1); City of San Antonio v. Riojas, 640 S.W.3d 534, 536
(Tex. 2022); Hinojosa v. Metro. Transit Auth. of Harris Cty., No. 01-17-00824-CV, 2018 WL
4131890, at *2 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.); Tex. Dep't of
Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
But the TTCA also lists circumstances in which its waiver of immunity provisions do not apply.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.051–.067; City of San Antonio v. Hartman, 201
S.W.3d 667, 671–72 (Tex. 2006); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL
6788079, at *6 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem. op.).
Exempted from the TTCA's waiver of immunity are claims included in the TTCA's
“emergency exception.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2); City of San Antonio
v. Maspero, 640 S.W.3d 523, 525, 529 (Tex. 2022) (noting if plaintiff's claims fall within TTCA's
“emergency exception,” TTCA does not waive immunity for those claims “regardless of whether
they would otherwise fall within the scope of th[e] [TTCA's] waiver.”); Hussein, 2020 WL
6788079, at *6; Galveston Cty. Health Dist. v. Hanley, No. 01-14-00166-CV, 2014 WL 6853608,
at *2 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) (mem. op.); see also City of El Paso
v. Hernandez, 16 S.W.3d 409, 415 (Tex. App.—El Paso 2000, pet. denied) (Texas Civil Practice
and Remedies Code section 101.055(2) allows governmental unit to retain its immunity even
though waiver may exist under section 101.021). Under Texas Civil Practice and Remedies Code
section 101.055(2), a governmental unit's immunity is not waived in a case where a claim arises
“from the action of a[ ] [governmental] employee while responding to an emergency call or
reacting to an emergency situation if the [employee's] action is in compliance with the laws and
ordinances applicable to emergency action.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2);
see also Maspero, 640 S.W.3d at 529; Hussein, 2020 WL 6788079, at *6; Hanley, 2014 WL
6853608, at *2; City of Beaumont v. Brocato, No. 09-10-00473-CV, 2011 WL 4716296, at *3
Defendant’s Plea to the Jurisdiction Page 6
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(Tex. App.—Beaumont Oct. 6, 2011, no pet.) (mem. op.) (“[T]he [TTCA] does not waive
governmental immunity for claims asserting only negligence arising from the action of a
government employee who is responding to an emergency call or reacting to an emergency
situation.” (internal quotations omitted)). The underlying policy of the “emergency exception” to
the TTCA's limited waiver of immunity is “to balance the safety of the public with the need for
prompt response” from emergency-assistance personnel. City of Amarillo v. Martin, 971 S.W.2d
426, 429 (Tex. 1998); see also Hussein, 2020 WL 6788079, at *6 n.15; City of San Angelo Fire
Dep't v. Hudson, 179 S.W.3d 695, 699 (Tex. App.—Austin 2005, no pet.). Imposing liability for
a mere failure in judgment could deter emergency-assistance personnel from acting decisively and
taking calculated risks. See Martin, 971 S.W.2d at 430; Hussein, 2020 WL 6788079, at *6 n.15;
Hudson, 179 S.W.3d at 699. This would also “allow for judicial second guessing of the split-
second and time-pressured decisions” emergency-assistance personnel are forced to make.
Hudson, 179 S.W.3d at 699; see also Hussein, 2020 WL 6788079, at *6 n.15.
On the day of the accident, The City of Pharr’s ambulance driver David Gonzalez Jr. was
responding to an emergency call at approximately 10:30 p.m. initiated by James Copeland, 1 who
was complaining of chest pains. Ex. B. The emergency call from Mr. Copeland began as priority-
3, but after EMS arrived at where Mr. Copeland was, they began transporting him Priority-1 to
Mission Hospital. Id. A Priority-1 response is the highest level of response, that requires the closest
emergency vehicle to respond within less than one (1) minute and requires deployment not to take
more than two (2) minutes during the night-time. Ex. E. In contrast, Priority-3 requires only that
they be an appointment scheduled to be taken to the facility (hospital) within three (3) hours of the
pick-up time. Id. The fact that Mr. Copeland is complaining of chest pains and is being transported
under Priority-1 indicates this is the exact type of situation encompassed by the TTCA’s
emergency exception.
As this is an emergency exception case, we have to analyze the action of a governmental
employee while responding to an emergency call or reacting to an emergency situation if the
[employee's] action is in compliance with the laws and ordinances applicable to emergency action,
or in absence of such a law or ordinance, if the action is not taken with conscious indifference or
reckless disregard for the safety of others. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2);
1
James Copeland is the patient’s name as referenced in the crash report (Ex. A); however, he is referenced as James
Coplean in the Call for Service Detail Report (Ex. B).
Defendant’s Plea to the Jurisdiction Page 7
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see also Maspero, 640 S.W.3d at 529. Here, the question becomes whether David Gonzalez Jr.,
was acting with conscious indifference or reckless disregard for the Ochoa family when he entered
into the intersection under Priority-1, and to look whether Iris Ochoa failed to yield the right-of-
way pursuant to Tex. Transp. Code § 545.156, which requires an operator of a motor vehicle to
yield the right of way to an authorized emergency vehicle using audible and visual signals, and to
stop and remain standing until the authorized emergency vehicle has passed. See Tex. Transp.
Code § 545.156.
At the time of the accident there was little to no traffic. Ex. D, p. 8, ln 7-8. Iris Ochoa
testified that she was turning left on a protective green, when she felt something hit her vehicle.
Ex. C, at p. 11, lns 8-15. Neither Iris Ochoa nor Andrew Ochoa saw the ambulance approach the
intersection nor did they notice the ambulance’s lights and sirens. Ex. D, at p.9, lns 10-12; Ex. C,
p. 12, lns 1-6. Iris Ochoa could not recall if she looked at the other entrances of the intersection
before making her turn. Ex. C, p. 16. However, it is clear that the lights and sirens were activated
on the City of Pharr’s ambulance, as is reflected in the police report prepared by City of Alton
Police Department. Ex. A. As such, Iris Ochoa failed to keep an appropriate look-out and yield the
right-of-way for the City of Pharr’s ambulance when it approached the intersection with lights and
sirens pursuant to Tex. Transp. Code § 545.156. Although the police report found that the
ambulance driver failed to properly clear the intersection before advancing, this does not relieve
the duty owed operators of motor vehicles to yield the right-of-way to responding emergency
vehicles with lights and sirens activated. Id; Ex A.
Here, the purpose of the emergency exception is to allow for ambulance drivers like David
Gonzalez Jr. to respond to serious emergency situations, such as Mr. Copeland complaining of
chest pains, and make immediate and prompt response to transport him to the nearest hospital. The
City should not be liable for its ambulance driver’s response to this serious medical emergency
involving Mr. Copeland, that required David Gonzalez Jr.’s split-second and time pressured
decision to enter into the intersection to continue his transport of Mr. Copeland to Mission
Hospital. The ambulance’s failure to properly clear the intersection does not relieve Mrs. Ochoa’s
duty to keep a lookout and yield the right-of-way to an emergency vehicle with lights and sirens
activated, and as such the City should retain its immunity in this case.
Defendant’s Plea to the Jurisdiction Page 8
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CONCLUSION
Therefore, based on any one or more of the foregoing reasons, the City Defendants request
and pray that this Court find that the Plaintiff’s claims against the Defendants be DISMISSED as
a matter of law for lack of jurisdiction. The Defendants also pray for any relief to which it may
show itself justly entitled.
SIGNED this 8th day of DECEMBER 2023.
Respectfully Submitted,
DENTON NAVARRO ROCHA
BERNAL & ZECH
A Professional Corporation
701 E. Harrison, Ste. 100
Harlingen, Texas 78550
956/421-4904
956/421-3621 (Fax)
By: Joshua Duane H. Neece
RICARDO J. NAVARRO
State Bar No. 14829100
rjnavarro@rampagelaw.com
JOSHUA DUANE H. NEECE
State Bar No. 24116819
jdhneece@rampagelaw.com
COUNSEL FOR DEFENDANT
CITY OF PHARR
Defendant’s Plea to the Jurisdiction Page 9
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document has been served on the persons or
parties identified below in accordance with one or more of the recognized methods of service by
the Texas Rules of Civil Procedure on the 8th day of DECEMBER 2023.
Abiel Flores Via E-Filing Methods
Texas Bar No. 24049129
THE LAW OFFICES OF ABIEL FLORES, PLLC
2508 E. Griffin Parkway
Mission, Texas 78572
abiel@afloreslaw.com
Joshua Duane H. Neece
JOSHUA DUANE H. NEECE
RICARDO J. NAVARRO
Defendant’s Plea to the Jurisdiction Page 10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Aaron Gonzales on behalf of Joshua Neece
Bar No. 24116819
amgonzales@rampagelaw.com
Envelope ID: 82402102
Filing Code Description: Motion (No Fee)
Filing Description: Defendant City of Pharr's Plea to the Jurisdiction
Status as of 12/8/2023 3:58 PM CST
Associated Case Party: Andrew Ochoa
Name BarNumber Email TimestampSubmitted Status
ABIEL FLORES abiel@afloreslaw.com 12/8/2023 3:37:58 PM SENT
Margaret Flores margaret@afloreslaw.com 12/8/2023 3:37:58 PM SENT
Associated Case Party: City of Pharr
Name BarNumber Email TimestampSubmitted Status
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Veronica Duron vduron@rampagelaw.com 12/8/2023 3:37:58 PM SENT
John-Michael Hayward jmhayward@rampagelaw.com 12/8/2023 3:37:58 PM SENT
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Preview
Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra CAUSE NO. CL-23-0232-G ANDREW OCHOA, IRIS OCHOA, § IN THE COUNTY COURT INDIVIDUALLY, AND AS NEXT § FRIEND OF J.O. AND M.O. MINORS § Plaintiffs § § COUNTY COURT NO. 7 Vs § § DAVID GONZALEZ JR, and § CITY OF PHARR § Defendants § HIDALGO COUNTY, TEXAS DEFENDANT CITY OF PHARR’S PLEA TO THE JURISDICTION _______________________________________________________________ MAY IT PLEASE THE COURT: COMES NOW DEFENDANT CITY OF PHARR TEXAS (hereinafter “City”), and file this Plea to the Jurisdiction, requesting that the Court dismiss the claims against them for lack of jurisdiction, in whole or in part, based on any one or more of the reasons set forth below. I. NATURE OF THE CASE/FACTUAL BACKGROUND This is a negligence action involving motor vehicles presently brought against the City of Pharr, a municipality/governmental entity organized under the laws of the State of Texas. Plaintiffs’ claims arise from personal injuries sustained by Plaintiffs when they were in involved in a motor vehicle accident with one of the City of Pharr’s ambulances that was responding to an emergency on September 12, 2021 at the intersection of East Main Avenue and North Alton Boulevard. See Plaintiff’s First Amended Petition; Ex. A. II. EXHIBITS IN SUPPORT OF PLEA TO THE JURISDICTION Ex. A. Texas Peace Officer’s Crash Report. Ex. B. Pharr EMS Call for Service Detail Report. Ex. C. Deposition of Iris Ochoa. Ex. D. Deposition of Andrew Ochoa. Ex. E. Pharr EMS Standard Operating Procedures. Defendant’s Plea to the Jurisdiction Page 1 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra III. SUMMARY OF THE ARGUMENT The court lacks jurisdiction over the claims against the Defendants because the Defendant City is immune from the claims brought by Plaintiff and such immunity has not been waived pursuant to the Texas Tort Claims Act (hereafter “TTCA” or “Tort Claims Act”). The exception to waiver of immunity in a negligence claim is based on the emergency response under TTCA 101.055. Further, Plaintiffs cannot show that the Defendant has waived its governmental immunity as to the claims of (1) negligent hiring, (2) negligent training, (3) negligent supervision, (4) negligent retention, and (5) negligent entrustment as these claims are not encompassed in the TTCA’s limited waiver of immunity. IV. STATEMENT OF FACTS On September 12, 2021, Plaintiffs were travelling westbound on East Main Avenue, where they turned southbound on a greenlight at South Alton Boulevard at around 11:00 p.m. Ex. A. Ex. C, p.9 , lns 4-14. Defendant’s ambulance was travelling southbound on North Alton Boulevard running with lights and sirens. Ex. A. The emergency call originated from James Copeland and began as priority-3, but after EMS arrived to where Mr. Copeland was, they began transporting him Priority-1 to Mission Hospital as he was complaining of chest pains. Ex. B. Plaintiff Iris Ochoa was the driver of the vehicle, Plaintiff Andrew Ochoa was in the front passenger seat, and was travelling home from a relative’s house. Ex. C, p.9, lns 2-3; Id. at p. 8, lns 14-20. P. Iris Ochoa was turning left on a protective green, when she felt something hit her vehicle. Id. at p. 11, lns 8-15. There was little to no traffic at this time. Ex. D, p. 8, ln 7-8. Neither Iris Ochoa nor Andrew Ochoa saw the ambulance approach the intersection nor did they notice the ambulance’s lights and sirens. Id. at p.9, lns 10-12; Ex. C, p. 12, lns 1-6. After the accident, Iris Ochoa and her children were taken in an ambulance to get checked out at the hospital, and Andrew Ochoa went shortly after being transported by a relative. Ex. D, p. 16, ln 24 – p. 17, ln 16. V. STANDARD OF REVIEW Subject matter jurisdiction cannot be presumed and cannot be waived. See Continental Coffee Prds. Co. v. Casarez, 937 S.W.2d 444, 448-49 n. 2 (Tex. 1996). A plea to the jurisdiction is proper to challenge a suit brought against a governmental entity when it is apparent from the pleadings on file that the claims asserted are not within any waiver of sovereign immunity. See Tex. Dept. Of Transportation v. Jones, S.W.3d 636, 637-39 (Tex. 2000); see also Texas Parks & Wildlife Dept. vs. Garrett Place Inc., 972 S.W.2d 140 (Tex. App. - Dallas 1998). Plaintiff bears Defendant’s Plea to the Jurisdiction Page 2 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra the burden of alleging facts affirmatively showing the trial court it has subject matter jurisdiction over the Defendant(s). See Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993). For government entities, sovereign/governmental immunity has two component parts - immunity from suit and immunity from liability. A party suing a governmental entity must allege consent to suit either by reference to statute or express legislative permission. See Garrett Place, Inc., 972 S.W.2d at 143 citing Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). In the absence of a pleading or consent, the trial court has no jurisdiction to hear the case. See Brownsville Navigation Dist., 453 S.W.2d at 814; see also Ntreh v. Univ. Of Tex. at Dallas, 936 S.W.2d 649, 651 (Tex. 1997). If a governmental entity is sued without legislative consent, the trial court should grant the governmental entity’s plea to the jurisdiction, unless the Plaintiff can affirmatively demonstrate that its claim fits within one or more provisions of the waiver of immunity provided for in the Texas Tort Claims Act. See Garrett Place Inc., 972 S.W.2d at 143. A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Additionally, a court is to look at the allegations in the petition and accept those allegations as true, unless the defendant establishes that either: (1) that the plaintiff's pleadings, taken as true, affirmatively establish that the trial court lacks subject matter jurisdiction over the suit; or, (2) that the plaintiff pled fraudulently or in bad faith with the purpose of conferring jurisdiction, where under the true facts of the case the trial court would not have jurisdiction. Denton County v. Howard, 22 S.W.3d 113, 117-18 (Tex. App.-Fort Worth 2000). V. ARGUMENT AND AUTHORITIES A. The Defendant is a Governmental Entity for Purposes of Immunity The Defendant City of Pharr hereby requests that the Court take judicial notice that it is a municipality organized under the laws of the State of Texas for purposes of immunity and the application of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code §101.001. The City has properly raised in its Answer, its entitlement to sovereign and governmental immunity through affirmative defenses. Defendant’s Plea to the Jurisdiction Page 3 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra B. Plaintiff’s claims of negligent entrustment, negligent hiring, negligent supervision, negligent supervision, and negligent retention claims are barred by immunity as they do not fall under the TTCA’s limited waiver. A party suing a governmental entity must allege consent to suit either by reference to statute or express legislative permission. Texas Parks & Wildlife Dept. vs. Garrett Place Inc., 972 S.W.2d 140, 143 (Tex. App. - Dallas, 1998) citing Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). Immunity from suit completely bars an action against the governmental entity unless the entity waives its immunity and consents to suit. Austin ISD v. Gutierrez, 54 S.W.3d 860, 862 no.3 (Tex.App.-Austin 2001, no pet.). The waiver of governmental immunity is a matter addressed to the Texas Legislature. Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995)). In the Tort Claims Act, the Legislature has laid out a scheme for a limited waiver of governmental immunity. See Tex. Civ. Prac. & Rem. Code Ann. §101.001 et. seq. (Emphasis Added.) In their Petition, the Plaintiffs fail to assert the basis on which the City’s immunity has been waived. However, The Tort Claims Act Section 101.021 allows for a limited waiver of immunity for negligence of a government employee from operation or use of a motor-driven vehicle, or use of tangible personal property, and it appears Plaintiffs bring their claims under this waiver. See Plaintiffs’ First Amended Petition. Allegations of negligent hiring against a governmental unit are not actionable under the TTCA, and the unit's immunity is not waived, because such allegations do not implicate or involve the “use” of tangible personal property. City of Dayton v. Gates, 126 S.W.3d 288, 290–91 (Tex. App.—Beaumont 2004, no pet.); Eastland Cnty. Co-op. Dispatch v. Poyner, 64 S.W.3d 182, 190– 91, 198 (Tex. App.—Eastland 2001, pet. denied); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 895– 96 (Tex. App.—Texarkana 2001, no pet.); McCord v. Mem'l Med. Ctr. Hosp., 750 S.W.2d 362, 363 (Tex. App.—Corpus Christi–Edinburg 1988, no writ). Allegations that a governmental unit (1) failed to furnish proper training or instruction to its employees or (2) negligently trained its employees are not actionable under the TTCA, and the unit's immunity is not waived, because such allegations do not implicate or involve either the “condition” or “use” of tangible personal property; such conduct constitutes only the use of information which is not tangible property under the TTCA. Texas Dept. of Public Safety v. Defendant’s Plea to the Jurisdiction Page 4 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra Petta, 44 S.W.3d 575, 580–81 (Tex. 2001); City of Waco v. Williams, 209 S.W.3d 216, 224–25 (Tex. App.—Waco 2006, pet. denied); Gates, 126 S.W.3d at 290–91; McClain v. Univ. of Tex. Health Center at Tyler, 119 S.W.3d 4, 10 (Tex. App.—Tyler 2002, pet. denied); Poyner, 64 S.W.3d at 190. A governmental unit's failure to supervise its employees or the negligent supervision of its employees will not fall within the TTCA's waiver of immunity because these allegations do not involve the “use” of tangible personal property. Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543–44 (Tex. 2003); Lopez v. McMillion, 113 S.W.3d 447, 452 (Tex. App.—San Antonio 2003, no pet.); Poyner, 64 S.W.3d at 190–91, 198; Gainesville Mem'l Hosp. v. Tomlinson, 48 S.W.3d 511, 514 (Tex. App.—Fort Worth 2001, pet. denied); Brown v. Montgomery Cnty. Hosp. Dist., 905 S.W.2d 481, 484 (Tex. App.—Beaumont 1995, no writ); Harris v. Galveston Cnty., 799 S.W.2d 766, 767–68 (Tex. App.—Houston [14th Dist.] 1990, writ denied); McCord, 750 S.W.2d at 363. Allegations of negligent entrustment by a governmental unit are not a cause of action included in the TTCA's limited waiver of sovereign immunity. Waldon v. City of Longview, 855 S.W.2d 875, 880–81 (Tex. App. 1993); See Young v. Dimmitt, 787 S.W.2d 50, 51 (Tex.1990) (affirming the trial court's refusal to allow negligent entrustment claim). Negligent retention of employees does not constitute operation or use of a motor vehicle, and therefore such a claim against governmental units are not cognizable under the TTCA. Harlingen Consol. Indep. Sch. Dist. v. Miranda, No. 13-18-00391-CV, 2019 WL 1187151, at *3 (Tex. App.—Corpus Christi Mar. 14, 2019, no pet.) (mem. op.); City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *8 (Tex. App. Apr. 6, 2021), (review denied) (Aug. 20, 2021). Plaintiffs allege that the City of Pharr was negligent in the following respects: (1) negligent hiring of David Gonzalez Jr., (2) negligent training of David Gonzalez Jr., (3) negligent supervision of David Gonzalez Jr., (4) negligent retention of David Gonzalez Jr., and (5) negligent entrustment of a motor vehicle to David Gonzalez Jr. Plaintiffs’ First Amended Petition. These claims have been consistently found to be outside the TTCA’s limited waiver of immunity and as such should be dismissed against the City. Defendant’s Plea to the Jurisdiction Page 5 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra C. The City’s retains immunity from suit under the emergency exception of the TTCA regardless of whether Plaintiffs’ claims would otherwise fall within the scope of the TTCA’s waiver of immunity. The TTCA waives a governmental unit's immunity for personal injuries proximately caused by the negligence of a governmental employee, such as a law enforcement officer, acting in the scope of his employment, if the injuries arise from the operation or use of a motor-driven vehicle and the employee would be personally liable to the plaintiff under Texas law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1); City of San Antonio v. Riojas, 640 S.W.3d 534, 536 (Tex. 2022); Hinojosa v. Metro. Transit Auth. of Harris Cty., No. 01-17-00824-CV, 2018 WL 4131890, at *2 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.); Tex. Dep't of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App.—Houston [1st Dist.] 2011, no pet.). But the TTCA also lists circumstances in which its waiver of immunity provisions do not apply. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.051–.067; City of San Antonio v. Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *6 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem. op.). Exempted from the TTCA's waiver of immunity are claims included in the TTCA's “emergency exception.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2); City of San Antonio v. Maspero, 640 S.W.3d 523, 525, 529 (Tex. 2022) (noting if plaintiff's claims fall within TTCA's “emergency exception,” TTCA does not waive immunity for those claims “regardless of whether they would otherwise fall within the scope of th[e] [TTCA's] waiver.”); Hussein, 2020 WL 6788079, at *6; Galveston Cty. Health Dist. v. Hanley, No. 01-14-00166-CV, 2014 WL 6853608, at *2 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) (mem. op.); see also City of El Paso v. Hernandez, 16 S.W.3d 409, 415 (Tex. App.—El Paso 2000, pet. denied) (Texas Civil Practice and Remedies Code section 101.055(2) allows governmental unit to retain its immunity even though waiver may exist under section 101.021). Under Texas Civil Practice and Remedies Code section 101.055(2), a governmental unit's immunity is not waived in a case where a claim arises “from the action of a[ ] [governmental] employee while responding to an emergency call or reacting to an emergency situation if the [employee's] action is in compliance with the laws and ordinances applicable to emergency action.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2); see also Maspero, 640 S.W.3d at 529; Hussein, 2020 WL 6788079, at *6; Hanley, 2014 WL 6853608, at *2; City of Beaumont v. Brocato, No. 09-10-00473-CV, 2011 WL 4716296, at *3 Defendant’s Plea to the Jurisdiction Page 6 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra (Tex. App.—Beaumont Oct. 6, 2011, no pet.) (mem. op.) (“[T]he [TTCA] does not waive governmental immunity for claims asserting only negligence arising from the action of a government employee who is responding to an emergency call or reacting to an emergency situation.” (internal quotations omitted)). The underlying policy of the “emergency exception” to the TTCA's limited waiver of immunity is “to balance the safety of the public with the need for prompt response” from emergency-assistance personnel. City of Amarillo v. Martin, 971 S.W.2d 426, 429 (Tex. 1998); see also Hussein, 2020 WL 6788079, at *6 n.15; City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 699 (Tex. App.—Austin 2005, no pet.). Imposing liability for a mere failure in judgment could deter emergency-assistance personnel from acting decisively and taking calculated risks. See Martin, 971 S.W.2d at 430; Hussein, 2020 WL 6788079, at *6 n.15; Hudson, 179 S.W.3d at 699. This would also “allow for judicial second guessing of the split- second and time-pressured decisions” emergency-assistance personnel are forced to make. Hudson, 179 S.W.3d at 699; see also Hussein, 2020 WL 6788079, at *6 n.15. On the day of the accident, The City of Pharr’s ambulance driver David Gonzalez Jr. was responding to an emergency call at approximately 10:30 p.m. initiated by James Copeland, 1 who was complaining of chest pains. Ex. B. The emergency call from Mr. Copeland began as priority- 3, but after EMS arrived at where Mr. Copeland was, they began transporting him Priority-1 to Mission Hospital. Id. A Priority-1 response is the highest level of response, that requires the closest emergency vehicle to respond within less than one (1) minute and requires deployment not to take more than two (2) minutes during the night-time. Ex. E. In contrast, Priority-3 requires only that they be an appointment scheduled to be taken to the facility (hospital) within three (3) hours of the pick-up time. Id. The fact that Mr. Copeland is complaining of chest pains and is being transported under Priority-1 indicates this is the exact type of situation encompassed by the TTCA’s emergency exception. As this is an emergency exception case, we have to analyze the action of a governmental employee while responding to an emergency call or reacting to an emergency situation if the [employee's] action is in compliance with the laws and ordinances applicable to emergency action, or in absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2); 1 James Copeland is the patient’s name as referenced in the crash report (Ex. A); however, he is referenced as James Coplean in the Call for Service Detail Report (Ex. B). Defendant’s Plea to the Jurisdiction Page 7 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra see also Maspero, 640 S.W.3d at 529. Here, the question becomes whether David Gonzalez Jr., was acting with conscious indifference or reckless disregard for the Ochoa family when he entered into the intersection under Priority-1, and to look whether Iris Ochoa failed to yield the right-of- way pursuant to Tex. Transp. Code § 545.156, which requires an operator of a motor vehicle to yield the right of way to an authorized emergency vehicle using audible and visual signals, and to stop and remain standing until the authorized emergency vehicle has passed. See Tex. Transp. Code § 545.156. At the time of the accident there was little to no traffic. Ex. D, p. 8, ln 7-8. Iris Ochoa testified that she was turning left on a protective green, when she felt something hit her vehicle. Ex. C, at p. 11, lns 8-15. Neither Iris Ochoa nor Andrew Ochoa saw the ambulance approach the intersection nor did they notice the ambulance’s lights and sirens. Ex. D, at p.9, lns 10-12; Ex. C, p. 12, lns 1-6. Iris Ochoa could not recall if she looked at the other entrances of the intersection before making her turn. Ex. C, p. 16. However, it is clear that the lights and sirens were activated on the City of Pharr’s ambulance, as is reflected in the police report prepared by City of Alton Police Department. Ex. A. As such, Iris Ochoa failed to keep an appropriate look-out and yield the right-of-way for the City of Pharr’s ambulance when it approached the intersection with lights and sirens pursuant to Tex. Transp. Code § 545.156. Although the police report found that the ambulance driver failed to properly clear the intersection before advancing, this does not relieve the duty owed operators of motor vehicles to yield the right-of-way to responding emergency vehicles with lights and sirens activated. Id; Ex A. Here, the purpose of the emergency exception is to allow for ambulance drivers like David Gonzalez Jr. to respond to serious emergency situations, such as Mr. Copeland complaining of chest pains, and make immediate and prompt response to transport him to the nearest hospital. The City should not be liable for its ambulance driver’s response to this serious medical emergency involving Mr. Copeland, that required David Gonzalez Jr.’s split-second and time pressured decision to enter into the intersection to continue his transport of Mr. Copeland to Mission Hospital. The ambulance’s failure to properly clear the intersection does not relieve Mrs. Ochoa’s duty to keep a lookout and yield the right-of-way to an emergency vehicle with lights and sirens activated, and as such the City should retain its immunity in this case. Defendant’s Plea to the Jurisdiction Page 8 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra CONCLUSION Therefore, based on any one or more of the foregoing reasons, the City Defendants request and pray that this Court find that the Plaintiff’s claims against the Defendants be DISMISSED as a matter of law for lack of jurisdiction. The Defendants also pray for any relief to which it may show itself justly entitled. SIGNED this 8th day of DECEMBER 2023. Respectfully Submitted, DENTON NAVARRO ROCHA BERNAL & ZECH A Professional Corporation 701 E. Harrison, Ste. 100 Harlingen, Texas 78550 956/421-4904 956/421-3621 (Fax) By: Joshua Duane H. Neece RICARDO J. NAVARRO State Bar No. 14829100 rjnavarro@rampagelaw.com JOSHUA DUANE H. NEECE State Bar No. 24116819 jdhneece@rampagelaw.com COUNSEL FOR DEFENDANT CITY OF PHARR Defendant’s Plea to the Jurisdiction Page 9 Electronically Submitted 12/8/2023 3:37 PM Hidalgo County Clerk Accepted by: Carlos Guerra CERTIFICATE OF SERVICE I certify that a true and correct copy of this document has been served on the persons or parties identified below in accordance with one or more of the recognized methods of service by the Texas Rules of Civil Procedure on the 8th day of DECEMBER 2023. Abiel Flores Via E-Filing Methods Texas Bar No. 24049129 THE LAW OFFICES OF ABIEL FLORES, PLLC 2508 E. Griffin Parkway Mission, Texas 78572 abiel@afloreslaw.com Joshua Duane H. Neece JOSHUA DUANE H. NEECE RICARDO J. NAVARRO Defendant’s Plea to the Jurisdiction Page 10 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Aaron Gonzales on behalf of Joshua Neece Bar No. 24116819 amgonzales@rampagelaw.com Envelope ID: 82402102 Filing Code Description: Motion (No Fee) Filing Description: Defendant City of Pharr's Plea to the Jurisdiction Status as of 12/8/2023 3:58 PM CST Associated Case Party: Andrew Ochoa Name BarNumber Email TimestampSubmitted Status ABIEL FLORES abiel@afloreslaw.com 12/8/2023 3:37:58 PM SENT Margaret Flores margaret@afloreslaw.com 12/8/2023 3:37:58 PM SENT Associated Case Party: City of Pharr Name BarNumber Email TimestampSubmitted Status Ricardo JNavarro rjnavarro@rampagelaw.com 12/8/2023 3:37:58 PM SENT Veronica Duron vduron@rampagelaw.com 12/8/2023 3:37:58 PM SENT John-Michael Hayward jmhayward@rampagelaw.com 12/8/2023 3:37:58 PM SENT Aaron Gonzales amgonzales@rampagelaw.com 12/8/2023 3:37:58 PM SENT Joshua Duane H. Neece jdhneece@rampagelaw.com 12/8/2023 3:37:58 PM SENT Norma Delgado ngdelgado@rampagelaw.com 12/8/2023 3:37:58 PM SENT