On the morning of Christmas Eve 2011, Houston police officer Bobby Joe Simmons was on patrol when dispatch reported an armed robbery in progress, which was downgraded to a "Priority Two" call because of heavy rain, leaving it to the officer's discretion whether to use his emergency lights, siren, or both.¹ Simmons testified by affidavit that he turned on his lights, though there was some evidence to the contrary, and it is undisputed that he did not use his siren, that traffic was "moderate," and that the streets were wet.² He never exceeded the thirty-five mph limit; as he approached an intersection he reached down to raise the volume on his police radio, and when he looked up the light had turned yellow, he braked, and his car slid into the intersection on the wet road and collided with Maria Christina Gomez's car, whose light Gomez says was green.³ Simmons received a departmental reprimand for being "at fault," which he did not contest, but he was not cited for violating any traffic law.⁴

Gomez sued the City of Houston for negligence, and the City filed a plea to the jurisdiction based on the Tort Claims Act's emergency exception; the trial court granted it, and the Fourteenth Court of Appeals, after a panel opinion and en banc reconsideration, reversed, with a divided en banc majority finding a fact issue on whether Simmons acted recklessly (Gomez I).¹ On remand the City supplemented its plea with a new affidavit on official immunity; the trial court denied the plea, and the court of appeals affirmed, holding that Gomez I was the law of the case on the emergency exception and that Maspero, decided after Gomez I, was fact-bound.² The City's first petition for review, filed October 13, 2023, was struck for violating the appellate rules and was redrafted on October 23, 2023; the Court requested merits briefing on May 31, 2024, and decided the case per curiam on June 20, 2025, without oral argument, with Justice Busby not participating.³

Petition for review from the Fourteenth Court of Appeals in an interlocutory appeal from the denial of a plea to the jurisdiction; decided per curiam without oral argument under Rule of Appellate Procedure 59.1.⁴

The City presents whether a court of appeals may, under the law-of-the-case doctrine, decline to reconsider its prior opinion despite conflicting and superseding authority from this Court, and whether the opinion imposes greater obligations on police officers to show "good faith" for official immunity.¹ Gomez restates the issues to argue that the court of appeals' holding was correct, that Maspero, Green, and Bonilla are materially distinguishable and are not superseding authority, and that the City's supplemental testimony conflicted with the officer's earlier affidavit.² The Court decided whether a fact issue exists on the officer's recklessness.³

The Court reviews the denial of a plea to the jurisdiction de novo; if there is no disputed fact issue, the court must rule as a matter of law, crediting the nonmovant's evidence and drawing reasonable inferences in her favor.¹ The plaintiff bears the burden of affirmatively showing waiver of immunity and negating provisions that withdraw the waiver.²

Whether there is a fact issue on recklessness and whether law of the case controls.

Petitioner (City of Houston): The law-of-the-case doctrine does not apply when the court of appeals' earlier opinion conflicts with and has been superseded by this Court's later authority, so Gomez II was bound to reconsider Gomez I in light of Maspero and Green, and under their recklessness standard no recklessness can be inferred from the officer's conduct; alternatively, the City argues that official immunity applies because its good-faith evidence was sufficient under Sauls.¹

Respondent (Gomez): The court of appeals' holding was not erroneous because the facts of Maspero, Green, and Bonilla are materially distinguishable and do not supersede Gomez I, and the City's supplemental testimony by the investigating officer conflicted with his earlier affidavit and did not address the conscious indifference the officer showed when he took his eyes off the road and the traffic signal.²

The City argued that the court of appeals' use of the law-of-the-case doctrine to refuse reconsideration in the face of superseding authority and its approach to good faith conflict with the Court's decisions in Maspero, Green, and Sauls.¹ Gomez responded that those cases are distinguishable.²

None. The docket shows no amicus filings.

Holding

There is no disputed fact issue on whether Officer Simmons acted with conscious indifference or reckless disregard: the evidence shows at most a momentary lapse of judgment amounting to ordinary negligence, so the emergency exception preserves the City's immunity and its plea to the jurisdiction should have been granted.¹

Reasoning

The Tort Claims Act waives immunity for injuries from the operation of a motor vehicle, but the emergency exception withdraws the waiver unless the officer did not comply with the laws applicable to emergency action or, absent such laws, acted "with conscious indifference or reckless disregard for the safety of others".² Recklessness requires "willful or wanton disregard" and subjective awareness of an extreme risk, and, as the Court held in Maspero, Green, and Powell, more than a "momentary judgment lapse"; failure to pay attention is "a paradigmatic example of negligence".³ No party disputed that Simmons was responding to an emergency or argued that he violated an applicable law.⁴

Viewing the evidence in Gomez's favor, Simmons's reaching to adjust his radio suggests at most a momentary failure to exercise due care, and he did not speed and applied his brakes before the intersection; because he had discretion whether to use lights, any dispute about them cannot show recklessness.⁵ The court of appeals made two errors: it discarded Maspero by distinguishing it on its facts instead of applying its broader principles, as the Court did in Green, and it wrongly treated Gomez I as binding law of the case, though the doctrine is discretionary and does not apply when the original decision was clearly erroneous, and Maspero and Green should have guided it to conclude there was no fact issue.⁶ The Court did not reach the City's alternative official-immunity argument.⁷

Disposition

Without hearing oral argument, the Court granted the City's petition for review, reversed the court of appeals' judgment, and rendered judgment dismissing Gomez's claim against the City for lack of jurisdiction.⁸

Vote Breakdown

Per Curiam Opinion

Joined by Blacklock, C.J., and Bland, Boyd, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.

Did Not Participate

Busby, J.