COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-24-00325-CV ————————————
Barbara Baskin, Appellant
v.
Presidio County, Texas, Appellee
On Appeal from the 394th Judicial District Court Presidio County, Texas Trial Court No. 8244
M E MO RA N D UM O PI NI O N
Appellant Barbara Baskin appeals from the trial court’s order granting Presidio County’s
plea to the jurisdiction. In one issue, Baskin argues § 101.021(1) of the Texas Tort Claims Act
(TTCA) provides a waiver of governmental immunity for her claims against the County because her damages arose from the County’s negligent “operation or use of a motor-driven vehicle.” Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). Finding no error, we affirm.
I. BACKGROUND
After a May 2023 flood, from which Baskin sustained damages, Baskin sued the County
for negligence pursuant to § 101.021(1) of the TTCA. Baskin has lived on a 150-year-old
homestead located south of the mountains of Redford, Texas and adjacent to the Rio Grande since
2002. Baskin’s property was safeguarded from rain events by a detention pond and dam designed
to direct water into an arroyo, which flowed through a spillway and into a historic irrigation canal.
The protection system redirected rainwater from the mountains away from Baskin’s home. Baskin
alleged that, for many years, the County had recognized its responsibility for performing work
related to protecting her property and it carried out work on the detention pond and dam to manage
water flow from the irrigation canal and the access road to her property.
Baskin alleged the County acknowledged its responsibility for protecting her property,
citing in support several incidents of work performed by the County on her property. First, on
March 8, 2010, after Border Patrol vehicles damaged an access road to her property, a county judge
instructed Ruben Carrasco, the County’s roads and bridges supervisor, to make repairs to the road
and detention pond. Baskin alleged Carrasco at first did nothing. Then, on July 11, 2011, she
alleged the county judge visited her property and again instructed Carrasco to make the previously
ordered repairs. Baskin alleged Carrasco still did nothing. Baskin then alleged that on January 7,
2013, Carrasco operated a County truck and dumped three loads of sediment along the access road
to her property. She alleged the three loads dumped by Carrasco redirected the natural flow of
water and disrupted the protection system for her property. She then alleged that on August 27,
2013, Carrasco met with her and an engineer at the detention pond. The engineer advised Carrasco
2 on how to properly clean the detention system using County bulldozers and backhoes. Baskin
alleged that when Carrasco performed the work with the bulldozer and backhoe, he performed it
improperly.
Baskin went on to allege that, on June 19, 2014, water broke over the top of the detention
pond and the water flow was redirected from south to north, instead of flowing into the Rio Grande.
She then alleged that, on December 13 and 14, 2014, Carrasco directed a County employee to use
a County backhoe to perform work on the detention pond. She alleged the County employee
completed faulty work by following Carrasco’s instructions and not the engineer’s. Baskin
continued that, on May 16, 2018, a special meeting was held at the detention pond where Baskin
showed damage from four wheelers and dumping. She alleged that the judge ordered Carrasco to
construct and install “No dumping” and “No vehicles” signs around the pond area. The judge
further instructed Carrasco to rework and correct the drainage. Baskin alleged the repairs were
never made and the signs were never installed. Baskin alleged, that after constant complaints,
during the first two weeks of May 2022, County workers performed work using County trucks,
bulldozers, and backhoes. She alleged they attempted to raise County Road 18 by stacking auto
tires. She alleged this caused the major arroyo to back up, blow out the raised area, and backed up
the pond area to the south instead of taking the water to the spillway on the north side. She further
alleged the negligent work caused the walls of the dam to erode and become compromised.
Finally, Baskin alleged, on May 27, 2023, rain in the mountains above Redford, Texas,
directed water through an arroyo toward the Rio Grande. As the water passed through culverts
under Highway 170 above Baskin’s property, it ran into the detention pond. Baskin alleged that
during Carrasco’s mismanaged maintenance of the pond in 2014 with the use of Presidio County
motor-driven equipment, the height of the dam impeding the pond waters was significantly
3 lowered and the buildup of sediment was not removed by Carrasco. In addition, she alleged
Carrasco’s negligent relocation and improper construction of a new spillway reduced the surface
area of the pond and resulted in the inevitable failure of the structure. She contended that the
“combination of these factors assured that eventually the dam and pond had no chance of
containing the water” and that “the dam overtopped in several areas and scoured through the east
face resulting in a wall of water hurtling down a smaller dry arroyo to Baskin’s house—flooding
her home and the entire 10 acres.”
Baskin alleged the collapse of the detention pond culminated from years of neglect to the
area around her home. More specifically, she alleged the refusal to follow the directives of County
superiors, the disregard of instructions from a licensed professional engineer, and the blocking of
the vital arroyo paralleling the road in question were the direct causes of the disaster. Baskin
alleged Carrasco’s negligent operation of the County’s motor-driven vehicles and/or equipment
caused the property damage. According to Baskin, Carrasco’s “shotty operation, supervision and
direction of Presidio County’s motor driven vehicles and equipment” caused the May 27, 2023
catastrophe. 1
The County filed a plea to the jurisdiction in which it challenged jurisdiction on three
grounds: (1) property damage cannot be recovered in a premises liability case under the TTCA;
(2) the County has not waived its governmental immunity for the discretionary function of
maintenance of the detention pond; and (3) there is no pleading or evidence to support Baskin’s
allegation that her damages resulted from the County’s operation or use of a motor-driven vehicle
or equipment. In Baskin’s response to the County’s plea, she asserted the County’s first and second
grounds were not applicable. The trial court conducted a hearing on the plea at which no evidence
1 Baskin originally filed suit against Carrasco but dropped him from the lawsuit in her first amended petition.
4 was submitted. Baskin asked for the opportunity to amend her pleading if the court decided to
grant the plea. The trial court took the case under advisement and later signed an order granting
the plea.
Baskin appeals. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (permitting an
accelerated appeal of an interlocutory order that “grants or denies a plea to the jurisdiction by a
governmental unit”).
II. STANDARD OF REVIEW
“Because governmental immunity is jurisdictional, it is properly raised through a plea to
the jurisdiction, which we review de novo.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528
(Tex. 2022); El Paso Cnty. Water Improvement Dist. #1 v. Ochoa, 554 S.W.3d 51, 54 (Tex. App.—
El Paso 2018, no pet.) (“Whether a trial court has subject matter jurisdiction is a question of law
and is properly asserted in a plea to the jurisdiction[,]” which is reviewed de novo). A plea to the
jurisdiction “may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When, as here, the plea only
challenges the pleading itself, we determine whether the plaintiff has alleged facts that
affirmatively establish the court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). We must accept the allegations in the pleadings as true and construe
them liberally in the plaintiff’s favor. Id.
The plaintiff has the burden of establishing facts that affirmatively show the trial court has
jurisdiction. Maspero, 640 S.W.3d at 528; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993). If the pleadings fail to allege facts to affirmatively demonstrate the trial
court’s jurisdiction, but also do not affirmatively demonstrate incurable jurisdictional defects, the
issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend.
5 Miranda, 133 S.W.3d. at 226–27. If the pleadings affirmatively negate the existence of
jurisdiction, the plea may be granted without affording the plaintiff an opportunity to amend. Id.
at 227; see also Rattray v. City of Brownsville, 662 S.W.3d 860, 865 (Tex. 2023) (holding that if
a plaintiff cannot satisfy its burden, the court must dismiss the suit). “Further, if a plaintiff has
been provided a reasonable opportunity to amend after a governmental entity files its plea to the
jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would constitute a
waiver of immunity, then the trial court should dismiss the plaintiff’s action with prejudice,
because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally
determined.” Sepulveda v. Cnty. of El Paso, 170 S.W.3d 605, 617 (Tex. App.—El Paso 2005, pet.
denied). When the pleadings raise a fact question on jurisdiction, dismissal is improper, and the
issue should be resolved by the factfinder. See Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113,
116 (Tex. 2010); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (noting that “the
proper function of a dilatory plea does not authorize an inquiry so far into the substance of the
claims presented that plaintiffs are required to put on their case simply to establish jurisdiction”).
“The Act also provides various exceptions or caveats[, which the plaintiff must negate,]
that function as a withdrawal of the waiver, and thus of the court’s jurisdiction to proceed, under
certain conditions.” Rattray, 662 S.W.3d at 866–67 (holding both parts of the analysis are needed
to answer whether immunity is waived). “[N]o great effort is needed to negate many or indeed
most statutory exceptions to the general waiver of immunity” and a “plaintiff has never had to
march through the Act provision by provision.” Id. at 867. “Pleadings whose affirmative
allegations functionally exclude the exceptions are typically sufficient.” Id. “Plaintiffs thus need
only expressly negate those exceptions that their allegations plausibly implicate, which will depend
on the nature of the dispute.” Id. at 867–68. “A governmental defendant, in turn, plays its role by
6 identifying where jurisdiction might be lacking and raising any such deficiencies, most commonly
in a plea to the jurisdiction[.]” Id. at 868. “If a plaintiff has not shown that a claim affirmatively
falls within a statutory waiver, the defendant should say so.” Id. (emphasis in original). “Likewise,
if the plaintiff omits or otherwise fails to negate a relevant exception to the waiver, the defendant
should speak up.” Id.
“Just one valid jurisdictional obstacle is enough for the court to halt further proceedings.”
Rattray, 662 S.W.3d at 868. “The fundamental rule is that the court may not reach the merits if it
finds a single valid basis to defeat jurisdiction.” Id. “When one such ground exists, it is not
necessary that every other potential jurisdictional defect be raised, fleshed out, or resolved at the
outset.” Id. When, as here, a governmental unit challenges jurisdiction on multiple grounds,
“courts are . . . not duty-bound to address them all if any one of them warrants dismissal[.]” Id.
III. APPLICABLE LAW
Chapter 101 of the TTCA waives a governmental unit’s immunity for, among other things,
property damage “proximately caused by the wrongful act or omission or the negligence of an
employee acting within his scope of employment if . . . the property damage . . . arises from the
operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be
personally liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(1)(A)–(B); see also id. § 101.025(a) (“Sovereign immunity to suit is waived and
abolished to the extent of liability created by this chapter.”).
Although the TTCA does not define the term “arises from,” it at least “requires a nexus
between the injury negligently caused by a governmental employee and the operation or use of a
motor-driven vehicle[.]” City of El Paso v. Cangialosi, 632 S.W.3d 611, 622 (Tex. App.—El Paso
2020, no pet.) (quoting LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51
7 (Tex. 1992)). The nexus “requires more than mere involvement of property.” Dallas Area Rapid
Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); Cangialosi, 632 S.W.3d at 622. “Property
does not cause injury if it does no more than furnish the condition that makes the injury possible.”
Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998);
see also Hagelskaer v. Tex. Dep’t of Transp., 492 S.W.3d 8, 14 (Tex. App.—Beaumont 2016, no
pet.) (holding, unless use of motorized equipment was a substantial factor in causing the accident
or the injury, the use or operation of the vehicle or equipment does not cause injury if it does
nothing more than furnish the condition that makes the injury possible). Rather, “the equipment’s
use must have actually caused the injury.” Rattray, 662 S.W.3d at 873 (citation omitted).
The Supreme Court has defined “use” as “to put or bring into action or service; to employ
for or apply to a given purpose,” and “operation” as “a doing or performing of a practical work.”
Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989) (internal
quotations and citations omitted); Rattray, 662 S.W.3d at 871. “To that end, our cases require more
than merely stating that government property plays a role in an alleged injury.” Rattray, 662
S.W.3d at 871. However, § 101.021(1)(A) “does not explicitly require that the operation or use be
‘active’ or that it be ongoing ‘at the time of the incident.’” PHI, Inc. v. Tex. Juv. Just. Dep’t, 593
S.W.3d 296, 305 (Tex. 2019).
A plaintiff can satisfy the “arising from” standard by demonstrating proximate cause, i.e.,
that the governmental employee’s use or operation of the vehicle or equipment proximately caused
the relevant injury. Rattray, 662 S.W.3d at 873–74. In making this causal assessment, particularly
in the context of the TTCA, we look to the record and the pleadings to determine if the alleged
cause is too geographically or temporally attenuated from the alleged effect. Id. at 874 (“In this
sense, the use/nonuse analysis and the nexus requirement understandably inform each other.”).
8 “Vast time gaps or vast distances could defeat either showing under these circumstances.” Id. “But
the existence of a logically defined single episode within a small spatial area, where the challenged
governmental actions were undertaken both soon after and because of the downpour, makes it
more likely (but certainly not guaranteed) that both the temporal and geographic showings can be
made.” Id.; see also City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. App.—Dallas 2010, pet.
denied) (“When an alleged cause is geographically, temporally, or causally attenuated from the
alleged effect, that attenuation will tend to show that the alleged cause did no more than furnish
the condition that made the effect possible.”).
IV. OPERATION OR USE OF MOTOR-DRIVEN EQUIPMENT
In its plea to the jurisdiction, the County challenge Baskin’s allegations under the statute’s
nexus requirement, alleging the property damage did not arise from the operation or use of the
County’s motor-driven backhoes, bulldozers, and trucks. 2 The County alleged Baskin’s damages
did not arise from or involve the use or operation of a motor-driven vehicle and/or equipment
because no motor-driven vehicle and/or equipment owned by the County was “doing or performing
a practical work,” was being “put into action or service,” or was otherwise “being employed or
applied to a given purpose” at the time of the May 2023 flood. The County asserted that, at most,
use of the motor-driven vehicles and/or equipment possibly furnished a condition that may have
caused Baskin’s damages that resulted from the flooding.
Baskin’s claim relies on a pattern of alleged negligent acts using County motor-driven
vehicles or equipment or both. According to Baskin, the attempt to raise County Road 18 with
2 During the hearing, the trial court narrowed the issues for its consideration. The trial court asked Baskin’s attorney about her allegation that a cause of the damage was that sediment was not removed and how “the failure to act” factored into the court’s evaluation of the statute’s application. Counsel replied that if that was their sole basis for their claim, the court would be correct in dismissing the claim on the ground that the failure to remove the sediment was within the County’s discretion, but counsel added, “that’s not what we’re saying.” Counsel also agreed that if Baskin was alleging negligent design, a dismissal would be appropriate.
9 stacked auto tires in May 2022—along with Carrasco’s previously negligent work on the detention
pond—caused the once-stable walls of the dam to erode and become compromised, resulting in
flooding to her property a year later in May 2023. To determine whether Baskin raised a fact issue
on the nexus requirement, we turn to several cases for helpful guidance.
First, the Texas Supreme Court has held a fact issue existed on whether property damage
arose from a city’s “operation or use.” In Rattray, a group of homeowners sued Brownsville for
closing a motor-driven storm-water gate during a rainstorm, causing water to accumulate and flood
their homes. 662 S.W.3d at 863–64. Although the rainwater was the immediate cause of the
homeowners’ damages, the Texas Supreme Court concluded these allegations satisfied
§ 101.021(1)’s “operation or use” requirement because the gate had a motor and was “used to
control waterflow,” “the City closed the gate, and it was that use of the gate (the attempt to control
waterflow) that immediately preceded and allegedly caused the flooding of the homeowners’
neighborhood.” Id. at 872 (emphasis in original). Regarding the nexus requirement, the Court
concluded that, at least at this stage of the litigation, the homeowners satisfied their burden to
create a fact issue on whether their property damage arose from the closure of the gate. Id. at 874.
It continued that “the temporal and geographic links are both tight” because “a close temporal
proximity existed between the closing of the gate and the flooding of the homeowners’
properties[,]” and it “all happened within the same episode of events.” Id. Further, there was no
allegation by the city of there being “any significant geographical attenuation between the gate
and the homeowners’ properties.” Id.
Similarly, the First Court of Appeals has also found a fact issue where Houston city
employees were using a “heavy trash truck” to collect fallen tree limbs near the street. City of
Houston v. Johnson, No. 01-23-00938-CV, 2025 WL 1033754, at *1 (Tex. App.—Houston [1st
10 Dist.] Apr. 8, 2025, no pet.) (mem. op.). As Johnson, who was driving on the same street, passed
the city’s truck, a limb fell from the truck and struck her car. Johnson sued Houston, alleging its
governmental immunity was waived under § 101.021(1). Id. The court concluded it was not
necessary that the city’s trash truck itself strike Johnson’s vehicle to satisfy the “damage arises
from operation or use” requirement and her allegations satisfied the § 101.021(1) requirement that
a plaintiff’s damages arise from the operation and use of a motor-driven vehicle due to a
government employee’s negligence. Id. at *2–3. The court noted that, although it was a falling tree
limb that struck Johnson’s vehicle, it was “operation and use of [the city’s] trash truck for its
intended purpose (retrieving tree limbs)” and the “failure to properly load and secure the limb onto
the truck, which led to the limb falling out of the truck and causing Johnson’s damages.” Id. at *3.
The court further noted that “[t]hese events are alleged to have occurred in close temporal and
geographic proximity such that it was the operation and use of the truck to collect limbs that
resulted in a limb falling on Johnson’s vehicle as she drove on the street.” Id.
In contrast with these authorities, we are also guided by a string of cases where a plaintiff
failed to raise a fact issue to waive immunity under the TTCA. In San Antonio Water System v.
Overby, the Overbys’ home and yard, which had an alley that ran behind it, were flooded by
rainwater and sewage. 429 S.W.3d 716, 718 (Tex. App.—San Antonio 2014, no pet.). After their
complaints to SAWS and others remained unresolved, the Overbys sued multiple defendants
including SAWS, alleging SAWS knew its maintenance of the sewer system, including the alley’s
surface over the sewer system, caused rainwater to damage their yard and home. They also alleged
SAWS knew its failure to use proper manhole covers caused the sewer system to overflow and
deposit fecal matter across their yard. Id. The Overbys offered evidence to show (1) SAWS used
motor-driven equipment to maintain the alley, (2) the alley collected rainwater which sometimes
11 flooded their yard with rainwater and sewage, and (3) this constituted a nuisance. Id. at 722. The
court of appeals concluded the requisite nexus was not present because “[t]he evidence
conclusively prove[d] that it was not SAWS’s use of motor-driven equipment to excavate, repair,
and refill the alley that damaged the Overbys’ property. Rather, it was the condition of the alley
that led to their damage, and a use of motor-driven equipment that results in a condition that causes
an injury is not a sufficient nexus.” Id.
In Dorbandt v. Cameron County, the County performed excavation work in 2005 on a
public easement located along the property line between some of the appellants’ properties. No.
13-11-00337-CV, 2012 WL 1390576, at *1 (Tex. App.—Corpus Christi-Edinburg Apr. 19, 2012,
no pet.) (mem. op.). The appellants alleged the County “took certain actions to divert water from
County maintained borrow ditches running along both sides of West Arroyo City Boulevard and
direct the flow of water into the easement.” Id. The appellants contended “‘the County, through
the use of motor-driven vehicles and/or equipment, tore down a fence, damaged [appellants’]
property, marooned a large piece of construction equipment [in the public easement], and
negligently performed excavation work which caused substantial damage to their property during
heavy rains’ because of a new ‘massive low area in the flow path [of the easement] that . . .
obstructed egress to the Arroyo Colorado.’” Id. In March 2007, heavy rainfall occurred and,
allegedly because of the County’s negligent excavation work, “water was diverted into the
[e]asement and then prevented from properly draining into the Arroyo Colorado,” and appellants’
properties were flooded because of the County’s prior negligent actions, combined with the heavy
rainfall. Id. The appellants also alleged the same type of damage occurred again in 2008, when a
hurricane struck causing heavy rainfall in the area. Id.
12 On appeal, the court held that although the appellants characterized their injury “as one
arising from the County’s negligent operation or use of motor-driven equipment, the record
show[ed] that even when liberally construed, their complaint concern[ed] a condition the County
may have created years before the heavy rainfall flooded their properties in 2007 and 2008.” Id. at
*3. The court noted that the parties agreed the County’s motor-driven equipment was removed
from the area two years before any flooding occurred and it was not present during any of the
heavy rainfall events in 2007 and 2008. Id. at *4. The court held that “the County’s use of motor-
driven equipment, at most, only created the condition that made the flooding of their properties
possible at least two years later.” Id. Therefore, the appellants failed to show a causal nexus
between the County’s alleged act of negligent use of motor-driven equipment and their purported
injuries. Id.
Finally, in Ector County v. Breedlove, after heavy rains in October 2000 flooded the
Breedloves’ home, they sued Ector County, claiming that (1) in performing its road and ditch work,
the county negligently increased the grade near their home to the extent that water would not drain
away from their residence; (2) the county negligently installed drainage culverts near other
properties and failed to place a culvert near their property; (3) the county’s right-of-way and
drainage ditches constituted a premises defect; and (4) County employees’ negligent operation and
use of motor-driven vehicles or motor-driven equipment proximately caused the flooding to the
home. 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.). On appeal from the trial court’s
denial of the plea, the county pointed out there was no motor-driven equipment near the
Breedloves’ property at the time of the flooding, the last work by the county near the Breedloves’
property was done two years before the flooding, and the use of motor-driven equipment did not
cause injury within the meaning of § 101.021(1) because it did no more than furnish the condition
13 that made the Breedloves’ injury possible. Id. at 866. The Breedloves contended County
employees were negligent in their use of motor-driven equipment while performing road and ditch
grade work near their property and, therefore, governmental immunity was waived. Id. The court
held that the use of Ector County’s motor vehicle only furnished the condition of the increased
grade and misplacement of culverts which caused the flooding of their home. Id. at 867.
Here, we conclude that Baskin’s allegations are more akin to those in Overby, Dorbandt,
and Breedlove, and distinguishable from Rattray and Johnson. Although Baskin contends the
County used or operated backhoes, bulldozers, and trucks in working on the retention pond located
on her property—thus raising allegations concerning “operation or use” of motor-driven vehicles
or equipment under § 101.021(1)(A)—nevertheless, she does not contend any County vehicles or
equipment were in operation or use, or even present on her property, in May 2023. See PHI, Inc.,
593 S.W.3d at 305 (“[W]hether a government vehicle was in ‘active’ operation ‘at the time of the
incident’ is an important consideration in determining whether an alleged injury arises from the
operation or use of a vehicle.”). The alleged negligence by the County occurred before the May
2023 flood—as early as 2013 and no later than 2022. Therefore, there is no temporal or geographic
proximity between the alleged negligent “operation or use” of motor-driven vehicles and/or
equipment and Baskin’s damages. Based on the allegations in Baskin’s first amended petition, we
must conclude the County’s use or operation of motor-driven vehicles and/or equipment only
furnished the condition that caused the flooding of Baskin’s property. Accordingly, we conclude
the trial court did not err by granting the County’s plea to the jurisdiction on the basis of the
allegations contained in Baskin’s first amended petition. 3
3 Baskin raises for the first time on appeal that the County’s plea should also be denied under § 101.021(2), which provides a governmental unit may be liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). Baskin neither developed this argument on appeal nor
14 V. OPPORTUNITY TO AMEND
Because we conclude the County is immune from Baskin’s pleaded claims, we must finally
determine whether to dismiss those claims with prejudice or remand the case to the trial court to
give her an opportunity to replead.
Generally, a plaintiff deserves “a reasonable opportunity to amend” unless the pleadings
affirmatively negate the existence of jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 639
(Tex. 2004). However, dismissal with prejudice is appropriate “when a trial court lacks subject
matter jurisdiction because of the [governmental] immunity bar” and the plaintiff is incapable of
remedying the jurisdictional defect. Id. “If a plaintiff has been provided a reasonable opportunity
to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff’s amended
pleading still does not allege facts that would constitute a waiver of immunity, then the trial court
should dismiss the plaintiff’s action.” Id. “Such a dismissal is with prejudice because a plaintiff
should not be permitted to relitigate jurisdiction once that issue has been finally determined.” Id.
Here, our record shows that Baskin amended her pleadings the day after the County filed
its plea to the jurisdiction. Additionally, Baskin responded to the plea pointing to the allegations
made in her amended petition. Accordingly, Baskin has already been given a fair opportunity to
amend her pleadings. See Sepulveda, 170 S.W.3d at 617.
Further, as we concluded above, Baskin’s allegations concerning the operation or use of
motor-driven vehicle or equipment and use of tangible personal property indicate her claims are
barred by sovereign immunity. Based on the facts alleged, we further conclude the defect in her
pleading is incurable. It is clear from the pleadings that the negligent use that Baskin has alleged,
did she include allegations in her pleadings identifying the personal property complained of or demonstrate that her damages resulted from the use or misuse of tangible personal property. See Tex. R. App. P. 38.1(i).
15 at most, created the condition that made the injuries possible, and thus the County did not waive
its immunity. See Sykes, 136 S.W.3d 635, 639. Accordingly, we conclude the trial court did not err
in granting the plea to the jurisdiction without giving Baskin another opportunity to replead.
VI. CONCLUSION
We affirm the trial court’s order granting the County’s plea to the jurisdiction.
GINA M. PALAFOX, Justice
November 19, 2025
Before Salas Mendoza C.J., Palafox and Soto, JJ.