MEMORANDUM OPINION No. 04-10-00649-CV
City of SAN ANTONIO, Appellant
v.
Mario GIRELA and Alejandrina Garcia, Individually, as heirs at Law of Patricia Girela Matthews, Deceased, and A/N/F of Christina Miracle Garcia, an Incapacitated Adult, Appellees
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-17744 Honorable Solomon Casseb, III, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
Delivered and Filed: March 2, 2011
REVERSED AND RENDERED
The City of San Antonio appeals an order denying its plea to the jurisdiction asserting
governmental immunity in a suit arising from actions taken by city-employed paramedics
responding to a 9-1-1 call. The suit was brought by Mario Girela and Alejandrina Garcia,
individually, as heirs at law of Patricia Girela Matthews, deceased, and as next friend of
Christina Miracle Garcia, (collectively, “Girela”). We reverse and render. 04-10-00649-CV
BACKGROUND
According to the allegations in the underlying suit, on November 1, 2007, Girela called
9-1-1 and requested an ambulance for his daughter, Patricia Matthews, who was having trouble
breathing. While waiting for the ambulance to arrive, Matthews, who had been diagnosed with
chronic obstructive pulmonary disease, began using a portable oxygen unit. When the ambulance
arrived, the paramedics removed the oxygen mask used by Matthews and failed to use a gurney
to take Matthews from her apartment to the ambulance. After a thirty-minute delay, the
paramedics transported Matthews to the hospital. Upon arriving at the hospital, Matthews was
pronounced dead.
The City filed a plea to the jurisdiction, asserting it was immune from suit and asking the
trial court to dismiss the suit for lack of subject-matter jurisdiction. Specifically, the City argued
the suit failed to allege (1) the negligent use of tangible personal property as required by section
101.021(1) of the Texas Tort Claims Act (“TTCA”), and (2) the violation of a statute or
ordinance applicable to the action as required by section 101.062 of the TTCA. The City
attached two affidavits to its plea. The first affidavit was from one of the paramedics, who stated
that all actions she took concerning Matthews were in response to a 9-1-1 emergency. The
second affidavit was from Girela, who detailed the actions taken by the paramedics. No other
evidence was submitted. The trial court denied the plea, and the City appealed.
APPLICABLE LAW
Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it may be
properly asserted in a jurisdictional plea. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004). In a suit against a governmental unit, the plaintiff must affirmatively
demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid
-2- 04-10-00649-CV
Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met this
burden, courts consider the facts alleged by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties. Id.
When considering a plea to the jurisdiction, courts must construe the pleadings in favor
of the pleader and look to the pleader’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). Whether the pleader has alleged facts that affirmatively
demonstrate subject-matter jurisdiction is a legal question that courts review de novo. Miranda,
133 S.W.3d at 226.
Under the doctrine of governmental immunity, a municipality is immune from tort
liability from its own acts or the acts of its agents, unless the TTCA clearly and unambiguously
waives immunity. City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). The TTCA
waives immunity for personal injury and death 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; and for property damage, personal injury, and death caused by the
wrongful act or omission or negligence of an employee operating or using a motor vehicle within
the scope of his employment, if the employee would be personally liable to the claimant
according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2005). Despite the
waiver provisions in section 101.021, section 101.062(b) provides that the TTCA,
applies to a claim against a public agency that arises from an action of an employee of a public agency . . . that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.
Id. § 101.062(b) (emphasis added). Section 101.062(b) provides an additional protection for a
governmental unit because it requires that the plaintiff allege and prove that the action forming
the basis of the complaint violated a statute or ordinance. City of El Paso v. Hernandez, 16
-3- 04-10-00649-CV
S.W.3d 409, 415-16 (Tex. App.—El Paso 2000, pet. denied). Thus, in claims arising from the
action of a city employee responding to a 9-1-1 emergency call, immunity is waived only if the
action violates a statute or ordinance applicable to the action. Guillen v. City of San Antonio, 13
S.W.3d 428, 432 (Tex. App.—San Antonio 2000, pet. denied).
DISCUSSION
In responding to the City’s plea to the jurisdiction, Girela was required to demonstrate
not only that the underlying claims arise from actions falling within one of section 101.021’s
limited waivers of immunity, but also that these actions violated a statute or an ordinance
applicable to the actions. See City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex.
2006) (recognizing TTCA’s statutory exceptions apply unless the plaintiff presents evidence to
the contrary). In its first issue, the City argues Girela failed to demonstrate that the underlying
claims arise from actions involving a violation of a statute or ordinance as required by section
101.062 of the TTCA. In response, Girela asserts he satisfied the requisites of section 101.062
because the underlying claims arise from actions of city employees who violated three statutes.
Specifically, Girela asserts the responding paramedics in this case violated sections 773.050,
773.061, and 773.063 of the Texas Health and Safety Code.
A review of the pleadings and the evidence in the record reveals that the underlying suit
does not allege the paramedics took actions in violation of the above-referenced statutes. Rather,
the underlying suit alleges the paramedics who responded to the 9-1-1 call were negligent by
removing Matthews’s oxygen mask, by failing to use a gurney to take Matthews to the
ambulance, and by delaying her transport to the hospital. None of the statutes cited by Girela
governs these actions.
-4- 04-10-00649-CV
All three statutes are located in Chapter 773 of the Texas Health and Safety Code,
otherwise known as the “Emergency Health Care Act.” TEX. HEALTH & SAFETY CODE ANN.
§ 773.001 (West 2010).
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MEMORANDUM OPINION No. 04-10-00649-CV
City of SAN ANTONIO, Appellant
v.
Mario GIRELA and Alejandrina Garcia, Individually, as heirs at Law of Patricia Girela Matthews, Deceased, and A/N/F of Christina Miracle Garcia, an Incapacitated Adult, Appellees
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-17744 Honorable Solomon Casseb, III, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
Delivered and Filed: March 2, 2011
REVERSED AND RENDERED
The City of San Antonio appeals an order denying its plea to the jurisdiction asserting
governmental immunity in a suit arising from actions taken by city-employed paramedics
responding to a 9-1-1 call. The suit was brought by Mario Girela and Alejandrina Garcia,
individually, as heirs at law of Patricia Girela Matthews, deceased, and as next friend of
Christina Miracle Garcia, (collectively, “Girela”). We reverse and render. 04-10-00649-CV
BACKGROUND
According to the allegations in the underlying suit, on November 1, 2007, Girela called
9-1-1 and requested an ambulance for his daughter, Patricia Matthews, who was having trouble
breathing. While waiting for the ambulance to arrive, Matthews, who had been diagnosed with
chronic obstructive pulmonary disease, began using a portable oxygen unit. When the ambulance
arrived, the paramedics removed the oxygen mask used by Matthews and failed to use a gurney
to take Matthews from her apartment to the ambulance. After a thirty-minute delay, the
paramedics transported Matthews to the hospital. Upon arriving at the hospital, Matthews was
pronounced dead.
The City filed a plea to the jurisdiction, asserting it was immune from suit and asking the
trial court to dismiss the suit for lack of subject-matter jurisdiction. Specifically, the City argued
the suit failed to allege (1) the negligent use of tangible personal property as required by section
101.021(1) of the Texas Tort Claims Act (“TTCA”), and (2) the violation of a statute or
ordinance applicable to the action as required by section 101.062 of the TTCA. The City
attached two affidavits to its plea. The first affidavit was from one of the paramedics, who stated
that all actions she took concerning Matthews were in response to a 9-1-1 emergency. The
second affidavit was from Girela, who detailed the actions taken by the paramedics. No other
evidence was submitted. The trial court denied the plea, and the City appealed.
APPLICABLE LAW
Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it may be
properly asserted in a jurisdictional plea. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004). In a suit against a governmental unit, the plaintiff must affirmatively
demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid
-2- 04-10-00649-CV
Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met this
burden, courts consider the facts alleged by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties. Id.
When considering a plea to the jurisdiction, courts must construe the pleadings in favor
of the pleader and look to the pleader’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). Whether the pleader has alleged facts that affirmatively
demonstrate subject-matter jurisdiction is a legal question that courts review de novo. Miranda,
133 S.W.3d at 226.
Under the doctrine of governmental immunity, a municipality is immune from tort
liability from its own acts or the acts of its agents, unless the TTCA clearly and unambiguously
waives immunity. City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). The TTCA
waives immunity for personal injury and death 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; and for property damage, personal injury, and death caused by the
wrongful act or omission or negligence of an employee operating or using a motor vehicle within
the scope of his employment, if the employee would be personally liable to the claimant
according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2005). Despite the
waiver provisions in section 101.021, section 101.062(b) provides that the TTCA,
applies to a claim against a public agency that arises from an action of an employee of a public agency . . . that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.
Id. § 101.062(b) (emphasis added). Section 101.062(b) provides an additional protection for a
governmental unit because it requires that the plaintiff allege and prove that the action forming
the basis of the complaint violated a statute or ordinance. City of El Paso v. Hernandez, 16
-3- 04-10-00649-CV
S.W.3d 409, 415-16 (Tex. App.—El Paso 2000, pet. denied). Thus, in claims arising from the
action of a city employee responding to a 9-1-1 emergency call, immunity is waived only if the
action violates a statute or ordinance applicable to the action. Guillen v. City of San Antonio, 13
S.W.3d 428, 432 (Tex. App.—San Antonio 2000, pet. denied).
DISCUSSION
In responding to the City’s plea to the jurisdiction, Girela was required to demonstrate
not only that the underlying claims arise from actions falling within one of section 101.021’s
limited waivers of immunity, but also that these actions violated a statute or an ordinance
applicable to the actions. See City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex.
2006) (recognizing TTCA’s statutory exceptions apply unless the plaintiff presents evidence to
the contrary). In its first issue, the City argues Girela failed to demonstrate that the underlying
claims arise from actions involving a violation of a statute or ordinance as required by section
101.062 of the TTCA. In response, Girela asserts he satisfied the requisites of section 101.062
because the underlying claims arise from actions of city employees who violated three statutes.
Specifically, Girela asserts the responding paramedics in this case violated sections 773.050,
773.061, and 773.063 of the Texas Health and Safety Code.
A review of the pleadings and the evidence in the record reveals that the underlying suit
does not allege the paramedics took actions in violation of the above-referenced statutes. Rather,
the underlying suit alleges the paramedics who responded to the 9-1-1 call were negligent by
removing Matthews’s oxygen mask, by failing to use a gurney to take Matthews to the
ambulance, and by delaying her transport to the hospital. None of the statutes cited by Girela
governs these actions.
-4- 04-10-00649-CV
All three statutes are located in Chapter 773 of the Texas Health and Safety Code,
otherwise known as the “Emergency Health Care Act.” TEX. HEALTH & SAFETY CODE ANN.
§ 773.001 (West 2010). Among other things, Section 773.050, entitled “Minimum Standards,”
addresses staffing requirements for emergency medical services vehicles, and requires the
executive commissioner of the Texas Health and Human Services Commission to set minimum
standards for emergency medical services vehicles and emergency medical services personnel. 1
Id. § 773.050. Section 773.061, entitled “Disciplinary Actions,” generally provides for the
revocation, suspension, or non-renewal of licenses and certificates of emergency medical
services personnel, and for the reprimand of such personnel by the Department of State Health
Services. Id. § 773.061. Section 773.063, entitled “Civil Penalty,” generally provides that the
attorney general, district attorney, or county attorney may bring a civil action to compel
compliance with chapter 773, and that a person who violates the chapter or a rule adopted under
the chapter is liable for a civil penalty in addition to other remedies. Id. § 773.063.
Girela further asserts he satisfied the requisites of section 101.062(b) because the
underlying claims arise from actions involving violations of Title 25, Chapter 157 of the Texas
Administrative Code. However, as this court previously held in a similar case, the Texas
Administrative Code is neither a “statute” nor an “ordinance” for purposes of section 101.062.
Guillen, 13 S.W.3d at 433. We conclude Girela failed to demonstrate that the underlying claims
arise from actions violating a “statute or ordinance applicable to the action.”
1 The version of section 773.050 in effect on November 1, 2007, called on the Texas Board of Health to set these minimum standards.
-5- 04-10-00649-CV
CONCLUSION
Because Girela failed to plead or prove that a statute or ordinance was violated by the
paramedics, the underlying claims are barred by section 101.062. 2 See id. at 434 (holding claims
were barred by section 101.062 when the plaintiff failed to plead or produce evidence that a
statute or ordinance was violated by paramedics). We reverse the trial court’s order denying the
plea to the jurisdiction, and render judgment that the case be dismissed for lack of subject-matter
jurisdiction.
Karen Angelini, Justice
2 In its second issue, the City argues its governmental immunity was not waived because Girela failed to demonstrate a negligent use of tangible personal property. We need not address the City’s second issue because it is unnecessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.
-6-