Post-Response Travel Is Not “Responding”: Fifth Circuit Narrows TTCA Emergency and 9‑1‑1 Exceptions and Clarifies 12(b)(6) Evidence Boundaries in Payne v. City of Houston

Introduction

In Payne v. City of Houston, the Fifth Circuit affirmed the denial of the City’s Rule 12(b)(6) motion to dismiss a Texas Tort Claims Act (TTCA) suit arising from a fatal traffic collision caused by a Houston police officer driving 70 mph in a 35 mph zone, without lights or sirens, while glancing at his laptop as he returned from booking a DWI suspect to complete paperwork and file charges. The case presents two principal legal questions:

• Whether, for purposes of the TTCA’s emergency (§ 101.055(2)) and 9‑1‑1 (§ 101.062(b)) exceptions to the motor-vehicle waiver, an officer is “reacting to an emergency situation” or “responding to an emergency or 9‑1‑1 call” while returning from a booking to finish reporting and charging tasks; and
• Whether the officer’s conduct violated applicable law—specifically, whether the alleged speed and inattention amount to reckless driving—thereby defeating those TTCA exceptions even if they otherwise could apply.

The City also asked the court to treat deposition and affidavit testimony filed in prior state-court proceedings as part of the Rule 12(b)(6) record via judicial notice or incorporation by reference. The court declined, limiting its analysis to the complaint’s well-pleaded facts.

The Fifth Circuit (unpublished) held that: (1) the officer was neither “reacting” to an emergency situation nor “responding” to an emergency or 9‑1‑1 call at the time of the crash; (2) even if he were, his alleged conduct violated applicable law because it was reckless; and (3) at the pleading stage, plaintiffs adequately alleged proximate cause. The decision offers a significant Erie-guided clarification of the scope of the TTCA’s emergency and 9‑1‑1 exceptions, and it reaffirms tight evidentiary boundaries for Rule 12(b)(6) practice.

Summary of the Opinion

• Record on 12(b)(6): The court refused to take judicial notice of the factual content of deposition and affidavit exhibits filed in prior state-court summary judgment proceedings and declined to treat those materials as incorporated by reference. The analysis relied solely on the complaint.
• Emergency exception—“reacting to an emergency situation” (§ 101.055(2)): The City’s theory that the “emergency situation” was created by the decedent turning in front of the officer—thereby making the officer’s evasive braking a “reaction”—was rejected. Texas courts construe “emergency situation” as an exigency distinct from the collision itself; adopting the City’s view would swallow the TTCA’s motor-vehicle waiver.
• 9‑1‑1 exception—“responding to an emergency or 9‑1‑1 call” (§ 101.062(b)): Making an Erie guess, the court held that once the suspect had been arrested, booked, and secured, and the officer had left the booking center to return to the station to complete a report and file charges, the officer was “returning” rather than “responding.” City-defined “assignment” status and an internal two-hour charging deadline do not expand state-law immunity.
• Even if exceptions applied—violation of law/recklessness: The alleged conduct—70 mph in a 35 mph zone, without lights or sirens, and while looking at a laptop—constitutes reckless disregard under Texas Transportation Code § 545.401 and violates the duty framework of Chapter 546. That violation defeats the emergency and 9‑1‑1 exceptions.
• Pleading sufficiency: Plaintiffs’ allegation that the collision would not have occurred had the officer obeyed the speed limit sufficiently pleads proximate cause at this stage.
• Result: The City is not entitled to governmental immunity on the pleadings. The district court’s denial of the motion to dismiss is affirmed.

Analysis

Precedents and Authorities Cited

• Rule 12(b)(6) record limits and judicial notice:
  • Scanlan v. Texas A&M Univ., 343 F.3d 533 (5th Cir. 2003): Courts accept well-pleaded allegations as true and may consider documents referenced in the complaint and central to the claim.
  • Taylor v. Charter Medical Corp., 162 F.3d 827 (5th Cir. 1998): Courts may judicially notice the existence of state-court filings but not adopt as true disputed factual assertions within depositions or affidavits from other proceedings.
  • Funk v. Stryker Corp., 631 F.3d 777 (5th Cir. 2011): Permits judicial notice of public records but not for the truth of reasonably disputable facts.
  • In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007): Documents can be considered if central to the claim; contracts at the heart of claims qualify.
• TTCA framework, waiver, and exceptions:
  • Tex. Civ. Prac. & Rem. Code §§ 101.021(1), 101.025: Waiver for personal injury/death caused by an employee’s negligence in operation of a motor vehicle, if the employee would be personally liable.
  • § 101.055(2) (“emergency exception”): No waiver for actions while responding to an emergency call or reacting to an emergency situation if in compliance with applicable laws/ordinances—or, absent such, not taken with conscious indifference or reckless disregard.
  • § 101.062(b) (“9‑1‑1 exception”): No waiver for actions of an employee responding to a 9‑1‑1 emergency call unless the action violates a statute or ordinance applicable to the action.
• Definition and scope of “emergency” and “responding”:
  • City of San Antonio v. Hartman, 201 S.W.3d 667 (Tex. 2006): Broadly construed “emergency situation” to apply to disaster flooding and barricade placement, but did not obliterate limits; context involved public disaster management, not traffic collisions.
  • City of Arlington v. Maspero, 640 S.W.3d 523 (Tex. 2022), and City of Houston v. Green, 672 S.W.3d 27 (Tex. 2023): During emergency responses under Chapter 546, liability hinges on “reckless disregard”; high speeds in pursuit can be non-reckless if risk is assessed and mitigated.
  • City of Austin v. Powell, 704 S.W.3d 437 (Tex. 2024): Reinforces pursuit context for “reacting to an emergency.”
  • City of Austin v. Choudhary, 2006 WL 1649312 (Tex. App.—Austin 2006) (mem. op.): After scene secured and leaving to resume non-emergency business, responder is no longer “responding” to the emergency; closely parallels Payne.
  • City of Houston v. Denby, 2022 WL 3588753 (Tex. App.—Houston [1st Dist.] 2022) (mem. op.): EMTs remained “responding” during continuous transport efforts even absent acute emergency pressure—demonstrates continuity-of-response principle.
  • Tex. Dep’t of Pub. Safety v. Little, 259 S.W.3d 236 (Tex. App.—Houston [14th Dist.] 2008) (mem. op.): Officer driving to the dispatched location was “responding” despite uncertainty about the emergency’s severity—again, continuity while en route.
  • Jefferson Cnty. v. Hudson, 2011 WL 3925724 (Tex. App.—Beaumont 2011) (mem. op.): “Emergency” connotes unforeseen circumstances calling for immediate action.
  • City of Houston v. Cruz, 2023 WL 8938408 (Tex. App.—Houston [1st Dist.] 2023) (mem. op.): “Emergency situation” interpreted broadly but not boundlessly; animal-control response to a non-specific dog-bite call was not an emergency.
• Statutory duties during emergency driving:
  • Tex. Transp. Code §§ 546.001, 546.005: Emergency vehicles may exceed limits if they do not endanger life or property; drivers owe a duty of due regard and are liable for reckless disregard.
  • Tex. Transp. Code § 545.401: Reckless driving is willful or wanton disregard for the safety of persons or property.
  • City of Amarillo v. Martin, 971 S.W.2d 426 (Tex. 1998): Interprets the predecessor to § 546.005; “due regard” duty with liability for reckless conduct.
• Construction canons and immunity principles:
  • Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016): Avoid statutory constructions that render provisions meaningless (anti-surplusage).
  • Dohlen v. City of San Antonio, 643 S.W.3d 387 (Tex. 2022): State law defines the contours of governmental immunity; municipal policy cannot alter it.
  • Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506 (Tex. 2019): Clear and unambiguous waiver requirement.
• Appellate jurisdiction and standards:
  • Morgan v. Plano ISD, 724 F.3d 579 (5th Cir. 2013); Rhodes v. City of Arlington, 215 F. App’x 329 (5th Cir. 2007): Collateral-order review of denials of municipal immunity.
  • Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir. 2010): De novo review of immunity-based 12(b)(6) denials.
  • Peña v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018): Plausibility standard.

Legal Reasoning

1) What facts may be considered at Rule 12(b)(6)?

The court adhered to the well-pleaded allegations rule. Although a court may notice the existence of state-court filings, it may not accept as true contested factual assertions within deposition transcripts and affidavits filed in another proceeding. Nor did the City satisfy the “incorporation by reference” doctrine: the officer’s deposition testimony was central to the City’s defense, not to plaintiffs’ claim; and selective expert deposition excerpts are not the kind of plaintiff-reliant, claim-defining documents (like contracts) that are “central” to liability theories. This threshold ruling framed the immunity analysis around the complaint’s allegations.

2) “Reacting to an emergency situation” cannot mean reacting to the collision itself

The City’s argument—that the “emergency situation” was created when the decedent turned across traffic, such that the officer’s braking and collision-mitigation efforts were “reactions” within § 101.055(2)—was rejected for two independent reasons:

• Text and context: Reading “emergency situation” to encompass every imminent vehicle collision would largely swallow the motor-vehicle waiver, contrary to anti-surplusage canons.
• Case law: Texas courts treat the “emergency situation” as an exigency distinct from the collision event—e.g., pursuits of fleeing suspects—rather than the crash dynamics themselves.

The court therefore refused to expand the emergency exception beyond what Texas authorities recognize.

3) “Responding to an emergency or 9‑1‑1 call” ends when the scene is secure and the responder is returning to non-response tasks

Making an Erie guess, the court interpreted “responding” using ordinary meaning—actions directly connected to and temporally proximate with the emergency call. Here, the suspect had been arrested, booked, and secured; the officer had left the booking facility and was driving back to complete a report and file charges. That constitutes “returning” rather than “responding.” The decision harmonizes:

• Choudhary: After the investigative function at the scene concluded, the responder was no longer “responding.”
• Denby and Little: “Responding” continues while en route to the scene or while engaged in continuous transport or care linked to the call.

Crucially, municipal policy cannot expand state-law immunity. The City’s “still assigned” status and its internal two-hour charge-filing deadline did not convert post-booking travel into a continuing emergency response—an outcome that would allow immunity to swing with local administrative settings and the happenstance of when dispatch toggles an assignment off.

4) Even if the officer were “reacting” or “responding,” his alleged conduct violated applicable law (recklessness), defeating immunity

Under Chapter 546 of the Transportation Code, emergency drivers may depart from certain rules (e.g., speed limits), but not in ways that endanger life or property; they remain liable for reckless disregard. Texas courts have repeatedly held that, during an emergency response, the dispositive question “largely collapses” into whether the officer acted with reckless disregard.

The complaint alleged:

• 70 mph in a 35 mph zone on a hazardous, high-traffic urban corridor;
• No lights or sirens activated; and
• Inattention while looking at a laptop immediately before impact.

The court deemed those allegations sufficient at the pleading stage to constitute reckless driving (§ 545.401) and to show noncompliance with Chapter 546’s constraints. Unlike pursuit cases like Maspero and Green, where officers slowed and engaged in risk assessment with warning signals, the officer here was not pursuing a suspect or confronting an acute threat—he was returning to complete paperwork under a departmental deadline. The complaint’s allegation that the crash would not have occurred at the speed limit adequately pleaded causation.

Impact

On the scope of municipal immunity under the TTCA

• Clarifies that “responding” is bounded: once the emergency’s core is addressed (arrest made, suspect secured, scene cleared), travel to complete administrative tasks is not “response” for § 101.055(2) or § 101.062(b). That distinction curbs reflexive invocation of immunity for post-scene driving.
• Rejects “collision-as-emergency” theory: “Reacting” must relate to an exigency apart from the accident dynamics; treating every crash-avoidance maneuver as an “emergency situation” would nullify the TTCA motor-vehicle waiver.
• Emphasizes state law over local policy: Municipal dispatch practices or internal deadlines cannot expand the statutory exceptions. Immunity’s scope remains a matter of state law, promoting statewide uniformity.
• Reinforces the reckless-disregard backstop: Even within a bona fide response, immunity is lost if conduct is reckless under Chapter 546/§ 545.401.

On pleading and motion practice

• Tightens 12(b)(6) evidentiary limits: Defendants cannot smuggle in contested factual narratives through judicial notice of state-court exhibits or by recharacterizing defense-oriented depositions as “central” to plaintiffs’ claim.
• Signals what facts matter: Speed relative to limit, use of lights/sirens, driver attention, roadway context, and the temporal/functional connection to the original call are pivotal allegations for immunity analysis.

On police driving policies and training

• Administrative urgency (e.g., charge-filing deadlines) will not justify excessive speed or inattention. Agencies should not assume TTCA immunity covers high-speed travel for paperwork tasks.
• Use of warning devices and documented risk assessment during true responses remain important indicia against recklessness under Maspero and Green.

On future litigation

• Expect closer scrutiny of what counts as a continuous “response” versus “returning” to routine duties, with courts examining breaks in time and intervening events (arrest, booking, scene clearance).
• The decision is unpublished and an Erie prediction, but it will be influential in federal TTCA cases within the Fifth Circuit and may be persuasive to Texas appellate courts confronting similar fact patterns.
• Unresolved question preserved: Whether “negligence per se” is an independent TTCA theory remains unsettled; Payne treats it as a method of proving breach, avoiding the doctrinal question.

Complex Concepts Simplified

• TTCA motor-vehicle waiver: Texas waives municipal immunity for injuries caused by employee negligence involving motor vehicles, if the employee would be personally liable.
• Emergency exception (§ 101.055(2)): No waiver when the employee is responding to an emergency or reacting to an emergency situation, if the action complies with applicable laws; without such laws, the action must not be taken with reckless disregard.
• 9‑1‑1 exception (§ 101.062(b)): No waiver for actions while responding to a 9‑1‑1 emergency call unless the action violates a statute/ordinance applicable to the action.
• “Reacting” vs. “responding”: “Reacting” involves immediate action to an exigent situation; “responding” entails conduct directly connected to and proximate in time to the emergency call. Once the scene is secured and the responder leaves to do administrative tasks, he is “returning,” not “responding.”
• Reckless disregard: More than negligence or a momentary lapse; requires conscious indifference to a high degree of risk (e.g., very high speed without lights/sirens on a busy road while distracted).
• Chapter 546 (Transportation Code): Permits certain driving exemptions during emergencies but does not excuse endangering behavior; imposes liability for reckless disregard.
• Rule 12(b)(6): At the motion-to-dismiss stage, the court accepts the complaint’s well-pleaded facts as true and does not consider disputed facts outside the complaint. Limited exceptions exist for incorporation by reference (documents the complaint relies on and that are central to the claim) and judicial notice (existence of public records, not the truth of disputed facts asserted therein).
• Erie guess: A federal court’s prediction of how the state’s highest court would decide an unsettled state-law issue.
• Collateral order doctrine: Allows appeals of certain interlocutory orders, including denials of governmental immunity claims by Texas municipalities.

Conclusion

Payne v. City of Houston establishes two important principles for TTCA litigation. First, the Fifth Circuit, predicting Texas law, limits “responding to an emergency or 9‑1‑1 call” to actions that remain directly and temporally tied to the emergency; once a responder leaves a secured scene to perform administrative tasks, he is “returning,” not “responding.” It likewise rejects equating the dynamics of an impending crash with the “emergency situation” contemplated by § 101.055(2). Second, even where an emergency response is ongoing, Chapter 546’s duty framework exposes municipalities to liability for reckless driving; allegations of extreme speed, lack of warning signals, and distraction can defeat immunity at the pleading stage.

Procedurally, the decision underscores that defendants cannot expand the 12(b)(6) record through judicial notice of contested facts in state-court exhibits or by repackaging defense evidence as “central” to plaintiffs’ claims. Substantively, it recalibrates the boundary between protected emergency driving and routine travel, ensuring that municipal immunity does not drift with local policy or swallow the TTCA’s motor-vehicle waiver. The opinion is a significant, if unpublished, marker for how federal courts in the Fifth Circuit will approach TTCA emergency and 9‑1‑1 defenses in police driving cases, with likely ripple effects in training, policy, and litigation strategy across Texas.