On April 20, 2022, Houston Police Department Officer Fabian Garcia, driving a City vehicle, collided with a vehicle driven by Betram Polk.¹ Polk alleges Garcia was negligent in twelve respects, including failing to keep a proper lookout, control his speed, apply the brakes or turn to avoid the collision, maintain a single lane, pay attention or keep a reasonable distance, and changing lanes when unsafe.² The City says Garcia was en route to help apprehend a fleeing suspect in a stolen vehicle, using intermittent emergency lights, as it stated in its answer.³ Polk says he never alleged Garcia was responding to an emergency and that the City alone raised the point.⁴

Polk sued the City in the 61st District Court of Harris County on February 17, 2023 under the Texas Tort Claims Act. The City answered and moved to dismiss under Rule 91a, arguing lack of timely notice of claim, Garcia's official immunity and the emergency exception. Polk amended his petition to allege that the City had timely notice and that no exception applied, and Judge Fredericka Phillips denied the motion on May 15, 2023.¹ The City took an interlocutory appeal, and the Fourteenth Court of Appeals (Chief Justice Christopher and Justices Wise and Jewell) first affirmed on January 30, 2025, then withdrew that opinion on rehearing and issued a substitute memorandum opinion affirming on June 17, 2025, concluding that nothing in Polk's live pleading plausibly implicates the emergency exception, so Polk was not required to negate it. City of Houston v. Polk, No. 14-23-00360-CV, 2025 WL 1692588 (Tex. App.⁠—Houston [14th Dist.] June 17, 2025, pet. filed).² The City petitioned for review on December 8, 2025 and filed its merits brief on July 13, 2026. After clerk's-office follow-up on an overdue response, Polk filed his brief on September 15, 2026 and the City replied on September 30, 2026 (Docket).

Petition for review from the Fourteenth Court of Appeals, which affirmed the denial of the City's Rule 91a motion to dismiss in an interlocutory appeal under Civil Practice and Remedies Code section 51.014(a)(8). The Court requested and received full merits briefing, including a reply, but has not yet granted the petition.

1. Although the emergency exception is not an affirmative defense a governmental unit must plead, if the unit invokes it in its answer, is it "plausibly implicated" such that the plaintiff must plead facts to expressly negate it? 2. When is the emergency exception plausibly implicated such that the plaintiff has the burden to negate it? 3. Does a plaintiff overcome the notice-of-claim jurisdictional hurdle with conclusory allegations that the governmental unit "had timely notice of claim that it was responsible for damages arising out of the subject collision"?.¹ Polk's counter-statement asks whether the court of appeals correctly (1) applied Rule 91a's pleading-based standard rather than a plea-to-the-jurisdiction evidentiary standard, (2) held notice adequately pleaded, (3) refused dismissal on official immunity, an affirmative defense, and (4) held his allegations sufficiently challenged the emergency exception.²

Petitioner (City of Houston): Suing the government differs from suing a private party: the plaintiff bears the burden to establish waiver of immunity, waivers are construed narrowly and doubts resolved for immunity. Under Bethel v. Quilling and Rattray v. City of Brownsville, a plaintiff must negate exceptions plausibly implicated by the nature of the dispute, and once the City invoked the emergency exception in its answer Polk had to plead non-conclusory facts negating it; his list of negligent acts does not reach recklessness, as the Court held in Powell, and his conclusory assertion that no exception applies does not negate it. On notice, a bare allegation of timely notice is conclusory, a plaintiff cannot supplement the petition through a Rule 91a response, and a governmental unit does not have actual notice of a claim simply because its employee was in a collision. The City asks the Court to reverse and render judgment dismissing for want of jurisdiction.¹

Respondent (Betram Polk): The City's motion challenged only the sufficiency of the pleadings and offered no evidence, so the court of appeals correctly applied Rule 91a's standard, which requires taking Polk's allegations as true and construing them liberally; treating the motion as a plea to the jurisdiction would let governmental defendants challenge jurisdictional facts without producing evidence. His amended petition expressly alleged timely notice, and actual notice may be inferred from the pleaded facts. Official immunity and the emergency exception are matters on which the City bears the burden, they cannot be established from his pleadings alone, and his specific allegations (conscious indifference or reckless disregard, no audible or visible signals, failure to keep a lookout, control speed, or yield) sufficiently challenge the exception at this stage. He also contends the City's additional arguments not decided by the court of appeals are waived.²

The City argues the opinion departs from the Court's holding in Bethel that a court deciding a Rule 91a motion may consider the defendant's pleadings to determine whether an affirmative defense is before it; lets plaintiffs avoid the emergency exception through omission of relevant facts; and deepens disagreement among the First and Fourteenth Courts of Appeals about when the exception is "plausibly implicated," with some opinions suggesting the mere presence of an authorized emergency vehicle suffices and others, as here, requiring little of the plaintiff.¹ It adds that the question affects personal-injury suits against every governmental unit in the state.² No response to the petition for review is on file.

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