IN THE TENTH COURT OF APPEALS
No. 10-24-00039-CV
CITY OF WACO, TEXAS, Appellant v.
CASSANDRA PAGE AND MATTHEW VASQUEZ, Appellees
From the 170th District Court McLennan County, Texas Trial Court No. 2023-2210-4
MEMORANDUM OPINION
Cassandra Page and Matthew Vasquez sued the City of Waco, Texas regarding the
death of their dog, Finn. The City responded by filing a plea to the jurisdiction which
was denied after a hearing. Because the City’s immunity from suit was not waived, the
trial court’s “Order on Defendants’ Plea to the Jurisdiction” is reversed.
BACKGROUND
A Waco police officer responded to a 9-1-1 call reporting a home invasion in
progress. Unknown to the officer, the City’s GPS system gave the officer the wrong address for the home invasion. When the officer arrived at the unknowingly wrong
address, he saw that the back door to the residence was open. He approached the
residence while holding his service weapon and announced, “Waco Police Department,”
at the back door. Five or six dogs charged out of that door. One of the dogs, a black
labrador retriever named Finn, rushed toward the officer as the officer backed up. Finn
continued to lunge and bark at the officer, forcing the officer to retreat into a side yard
closed in by a fence behind him. The officer shot Finn, and Finn eventually died.
STANDARD OF REVIEW
In reviewing a grant or denial of a plea to the jurisdiction, we determine whether
the plaintiff's pleadings, construed in favor of the plaintiff, allege sufficient facts
affirmatively demonstrating the trial court's jurisdiction to hear the case. Hearts Bluff
Game Ranch v. State, 381 S.W.3d 468, 476 (Tex. 2012); Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 936 (Tex. 1988). Whether a court has subject matter jurisdiction is a question
of law, which we review de novo. Hearts Bluff, 381 S.W.3d at 476 (Tex. 2012); Tex. Dep't
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
SOVEREIGN IMMUNITY
Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit
in which a party has sued the State or a state agency unless the Legislature has consented
to suit. Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).
Governmental immunity provides similar protections to the political subdivisions of the
State, such as counties, cities, and school districts. Id. Although sovereign and
governmental immunity are distinct, the terms are often used interchangeably. Gulf Coast
City of Waco v. Page Page 2 Ctr. v. Curry, 658 S.W.3d 281, 284 (Tex. 2022).
Two related but distinct principles of sovereign immunity are: immunity from
suit and immunity from liability. Id. Immunity from suit, which is at issue here,
implicates a court’s subject matter jurisdiction for lawsuits in which the State or certain
governmental units have been sued and is properly asserted in a plea to the jurisdiction.
See Tex. Dep't of Criminal Justice v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020); Sampson v. Univ.
of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Rusk State Hosp. v. Black, 392 S.W.3d 88,
91 (Tex. 2012).
A plaintiff who sues the State or governmental unit must establish the State's or
governmental unit’s consent to suit. Tex. DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Such consent must ordinarily be found in a constitutional provision or legislative
enactment. Gulf Coast Ctr., 658 S.W.3d at 284; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 695 (Tex. 2003). In other words, a plaintiff must affirmatively demonstrate the court's
jurisdiction by establishing a valid waiver of immunity. Gulf Coast Ctr., 658 S.W.3d at
284.
While sovereign immunity does not necessarily bar a suit to vindicate
constitutional rights, immunity from suit is not waived if the constitutional claims are
facially invalid. Klumb v. Hous. Mun. Emples. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015).
Further, the legislatively enacted Texas Tort Claims Act waives sovereign immunity from
suits arising from (1) the negligent conduct of an employee if property damage, personal
injury, or death arises from the operation or use of a motor-driven vehicle or motor-
driven equipment and if the employee would be personally liable to the claimant or (2)
City of Waco v. Page Page 3 personal injuries or death caused by a condition or use of tangible personal property if
the governmental unit would, were it a private person, be liable to the claimant according
to Texas law. See TEX. CIV. PRAC. & REM. CODE § 101.021(1), (2); State Dep't of Pub. Safety
v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Page’s and Vasquez’s trial pleadings mention
constitutional provisions and potentially raise other claims which allegedly invoked the
Texas Tort Claims Act.
CAUSES OF ACTION
Article I, § 19
In their first amended petition, Page and Vasquez title their first cause of action as
one pursuant to Article I, § 19 of the Texas Constitution—Deprivation of Property.
Generally, there is no private cause of action for damages relating to alleged violations of
Texas constitutional rights. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex.
1995); Donohue v. Dominguez, 486 S.W.3d 50, 56 (Tex. App.—San Antonio 2016, pet.
denied). But even if there is, in this case, Page and Vasquez do not allege that Article I,
§ 19, by itself, waives the City’s immunity. Instead, they only mention Article I, § 19 as a
means to bootstrap their way into the Texas Tort Claims Act by alleging that the “actions
of killing Finn amounted to an unlawful seizure in violation of … Article I, § 19 of the
Texas Constitution, subjecting the department to liability under Texas Tort Claims Act
101.021(1) and 101.0215(a)(1).” (Emphasis added). Creative pleading cannot be used to
effect the loss or waiver of immunity, and simply mentioning a constitutional provision
is not enough to effect a waiver. See Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d
384, 392 (Tex. 2011). Moreover, parties are not entitled to relief which they do not request.
City of Waco v. Page Page 4 See id. Thus, Page and Vasquez are not entitled to relief—that being, that the Texas
Constitution independently waives the City’s sovereign immunity—because they did not
plead or establish an independent constitutional waiver of immunity. 1
Even if Page and Vasquez were not seeking to allege an independent constitutional
waiver of immunity, but instead, were pleading a statutory waiver of immunity, the
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IN THE TENTH COURT OF APPEALS
No. 10-24-00039-CV
CITY OF WACO, TEXAS, Appellant v.
CASSANDRA PAGE AND MATTHEW VASQUEZ, Appellees
From the 170th District Court McLennan County, Texas Trial Court No. 2023-2210-4
MEMORANDUM OPINION
Cassandra Page and Matthew Vasquez sued the City of Waco, Texas regarding the
death of their dog, Finn. The City responded by filing a plea to the jurisdiction which
was denied after a hearing. Because the City’s immunity from suit was not waived, the
trial court’s “Order on Defendants’ Plea to the Jurisdiction” is reversed.
BACKGROUND
A Waco police officer responded to a 9-1-1 call reporting a home invasion in
progress. Unknown to the officer, the City’s GPS system gave the officer the wrong address for the home invasion. When the officer arrived at the unknowingly wrong
address, he saw that the back door to the residence was open. He approached the
residence while holding his service weapon and announced, “Waco Police Department,”
at the back door. Five or six dogs charged out of that door. One of the dogs, a black
labrador retriever named Finn, rushed toward the officer as the officer backed up. Finn
continued to lunge and bark at the officer, forcing the officer to retreat into a side yard
closed in by a fence behind him. The officer shot Finn, and Finn eventually died.
STANDARD OF REVIEW
In reviewing a grant or denial of a plea to the jurisdiction, we determine whether
the plaintiff's pleadings, construed in favor of the plaintiff, allege sufficient facts
affirmatively demonstrating the trial court's jurisdiction to hear the case. Hearts Bluff
Game Ranch v. State, 381 S.W.3d 468, 476 (Tex. 2012); Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 936 (Tex. 1988). Whether a court has subject matter jurisdiction is a question
of law, which we review de novo. Hearts Bluff, 381 S.W.3d at 476 (Tex. 2012); Tex. Dep't
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
SOVEREIGN IMMUNITY
Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit
in which a party has sued the State or a state agency unless the Legislature has consented
to suit. Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).
Governmental immunity provides similar protections to the political subdivisions of the
State, such as counties, cities, and school districts. Id. Although sovereign and
governmental immunity are distinct, the terms are often used interchangeably. Gulf Coast
City of Waco v. Page Page 2 Ctr. v. Curry, 658 S.W.3d 281, 284 (Tex. 2022).
Two related but distinct principles of sovereign immunity are: immunity from
suit and immunity from liability. Id. Immunity from suit, which is at issue here,
implicates a court’s subject matter jurisdiction for lawsuits in which the State or certain
governmental units have been sued and is properly asserted in a plea to the jurisdiction.
See Tex. Dep't of Criminal Justice v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020); Sampson v. Univ.
of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Rusk State Hosp. v. Black, 392 S.W.3d 88,
91 (Tex. 2012).
A plaintiff who sues the State or governmental unit must establish the State's or
governmental unit’s consent to suit. Tex. DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Such consent must ordinarily be found in a constitutional provision or legislative
enactment. Gulf Coast Ctr., 658 S.W.3d at 284; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 695 (Tex. 2003). In other words, a plaintiff must affirmatively demonstrate the court's
jurisdiction by establishing a valid waiver of immunity. Gulf Coast Ctr., 658 S.W.3d at
284.
While sovereign immunity does not necessarily bar a suit to vindicate
constitutional rights, immunity from suit is not waived if the constitutional claims are
facially invalid. Klumb v. Hous. Mun. Emples. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015).
Further, the legislatively enacted Texas Tort Claims Act waives sovereign immunity from
suits arising from (1) the negligent conduct of an employee if property damage, personal
injury, or death arises from the operation or use of a motor-driven vehicle or motor-
driven equipment and if the employee would be personally liable to the claimant or (2)
City of Waco v. Page Page 3 personal injuries or death caused by a condition or use of tangible personal property if
the governmental unit would, were it a private person, be liable to the claimant according
to Texas law. See TEX. CIV. PRAC. & REM. CODE § 101.021(1), (2); State Dep't of Pub. Safety
v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Page’s and Vasquez’s trial pleadings mention
constitutional provisions and potentially raise other claims which allegedly invoked the
Texas Tort Claims Act.
CAUSES OF ACTION
Article I, § 19
In their first amended petition, Page and Vasquez title their first cause of action as
one pursuant to Article I, § 19 of the Texas Constitution—Deprivation of Property.
Generally, there is no private cause of action for damages relating to alleged violations of
Texas constitutional rights. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex.
1995); Donohue v. Dominguez, 486 S.W.3d 50, 56 (Tex. App.—San Antonio 2016, pet.
denied). But even if there is, in this case, Page and Vasquez do not allege that Article I,
§ 19, by itself, waives the City’s immunity. Instead, they only mention Article I, § 19 as a
means to bootstrap their way into the Texas Tort Claims Act by alleging that the “actions
of killing Finn amounted to an unlawful seizure in violation of … Article I, § 19 of the
Texas Constitution, subjecting the department to liability under Texas Tort Claims Act
101.021(1) and 101.0215(a)(1).” (Emphasis added). Creative pleading cannot be used to
effect the loss or waiver of immunity, and simply mentioning a constitutional provision
is not enough to effect a waiver. See Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d
384, 392 (Tex. 2011). Moreover, parties are not entitled to relief which they do not request.
City of Waco v. Page Page 4 See id. Thus, Page and Vasquez are not entitled to relief—that being, that the Texas
Constitution independently waives the City’s sovereign immunity—because they did not
plead or establish an independent constitutional waiver of immunity. 1
Even if Page and Vasquez were not seeking to allege an independent constitutional
waiver of immunity, but instead, were pleading a statutory waiver of immunity, the
sections of the Texas Tort Claims Act pled by Page and Vasquez do not waive the City’s
immunity. Section 101.021(1) requires the operation or use of a motor-driven vehicle or
motor-driven equipment when proximately causing property damage 2 in order to waive
the City’s immunity. See TEX. CIV. PRAC. & REM. CODE § 101.021(1). Page and Vasquez
have not alleged any facts in which a motor-driven vehicle or motor-driven equipment
was operated or used which proximately caused Finn’s death; and thus, have not pled
facts establishing a valid waiver of immunity.
Additionally, section 101.0215 is not an independent waiver of the City’s
immunity. 3 See City of Mission v. Cantu, 89 S.W.3d 795, 802 (Tex. App.—Corpus Christi
2002, no pet.); see also City of Cibolo v. LeGros, No. 08-23-00291-CV, 2024 Tex. App. LEXIS
4174 (Tex. App.—El Paso June 14, 2024, no pet. h.) (mem. op.). Section 101.0215(a)
provides a list of governmental functions, while (b) provides a list of proprietary
1 To the extent Page’s and Vasquez’s pleadings under this section of the amended petition also attempt to raise a claim under the Fourth Amendment of the United States Constitution, our disposition here applies to that claim as well.
2 Texas law labels pets as "property" for purposes of tort-law recovery. See Strickland v. Medlen, 397 S.W.3d 184, 188 (Tex. 2013).
3 At the hearing, Page and Vasquez argued to the trial court that section 101.0215 was an independent waiver of the City’s immunity. City of Waco v. Page Page 5 functions. TEX. CIV. PRAC. & REM. CODE § 101.0215. A governmental unit such as the City
of Waco is protected by immunity from suits based on its performance of governmental
functions but not from suits based on its performance of proprietary functions. Wasson
Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018); see Tooke v. City of
Mexia, 197 S.W.3d 325, 343 (Tex. 2006). Thus, “[d]etermining a municipality's immunity
from suit is a two-step inquiry…. First, we determine whether the function is
governmental or proprietary…. If it is governmental, the second step is to determine
whether immunity is waived under the Texas Tort Claims Act….” Tex. Bay Cherry Hill,
L.P. v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.)
(internal citations omitted); see also City of Mission v. Cantu, 89 S.W.3d 795, 802 (Tex.
App.—Corpus Christi 2002, no pet.). In this case, the waiver, if any, would be provided
by section 101.021(1)—from the operation or use of a motor-driven vehicle or motor-
driven equipment. TEX. CIV. PRAC. & REM. CODE § 101.021(1).
Page and Vasquez alleged that the City was acting pursuant to a governmental
function. We agree; but because they have not alleged any facts that Finn’s death was
proximately caused by the City’s operation or use of a motor-driven vehicle or motor-
driven equipment, they have not pled facts establishing a valid waiver of immunity. See
id.
Negligence
Page’s and Vasquez’s next stated cause of action is negligence. Under that heading
in their amended petition, they allege a series of negligent acts which they assert caused
Finn’s death: negligent use of the City’s GPS system, negligent training in the GPS
City of Waco v. Page Page 6 system, negligent training and supervision of the officer, and negligence of the officer for
failing to use reasonable force. In none of these claims do Page and Vasquez allege facts
of the operation or use of a motor-driven vehicle or motor-driven equipment. Thus, in
the absence of such factual allegations, Page and Vasquez have not established a valid
waiver of immunity for these negligence claims. See TEX. CIV. PRAC. & REM. CODE §
101.021(1); State Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001).
Intentional Infliction of Emotional Distress
Page’s and Vasquez’s last stated cause of action is intentional infliction of
emotional distress. Immunity is not waived for intentional torts such as intentional
infliction of emotional distress under the Texas Tort Claims Act. See TEX. CIV. PRAC. &
REM. CODE § 101.057; Petta, 44 S.W.3d at 580; DeHorney v. Talley, 630 S.W.3d 297, 307 (Tex.
App.—El Paso 2021, no pet.). Thus, Page and Vasquez have not established a valid
waiver of immunity for this claim.
PAGE ‘S AND VASQUEZ’S ASSERTIONS ON APPEAL
Page and Vasquez claim on appeal that the City only alleged immunity from
liability in its plea to the jurisdiction which does not affect subject matter jurisdiction.
Thus, their argument continues, the trial court’s order should be affirmed. Page’s and
Vasquez’s contention is without merit. Subject matter jurisdiction can be raised for the
first time on appeal by the parties or by the reviewing court, and a court is obligated to
determine the existence of subject matter jurisdiction regardless of whether the parties
have questioned it. Tex. DOT v. Self, 690 S.W.3d 12, 20 (Tex. 2024); Univ. of Tex. Sw. Med.
Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358-59 (Tex. 2004). Thus, even if the City
City of Waco v. Page Page 7 only alleged immunity from liability, a finding we do not make, an appellate court's
review of a plea to the jurisdiction is not limited to the grounds set forth in the
governmental unit's plea in the trial court. Self, 690 S.W.3d at 20.
Page and Vasquez also contend on appeal that the City is liable under 42 U.S.C. §
1983 and the Fourth Amendment of the United States Constitution. Page and Vasquez
did not raise these claims in their petition and on appeal, provided no facts or application
of those facts to law which might waive the City’s immunity. As we stated previously,
creative pleading or simply mentioning a constitutional provision cannot effect a waiver
of immunity. See Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 392 (Tex. 2011).
OPPORTUNITY TO AMEND
The question becomes, however, should Page and Vasquez be afforded the
opportunity to amend their pleadings to bring their claims within a waiver of immunity?
If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiffs should be afforded the
opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27
(Tex. 2004). In other words, a pleader must be given an opportunity to amend only if it
is possible to cure the pleading defect. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
840 (Tex. 2007). But, if the pleadings affirmatively negate the existence of jurisdiction,
then a plea to the jurisdiction may be granted without allowing the plaintiffs an
opportunity to amend. Miranda, 133 S.W.3d Id. at 227.
The pleadings in this case, as we have detailed, affirmatively negate the existence
City of Waco v. Page Page 8 of jurisdiction. There are no other facts that could be pled in support of Page’s and
Vasquez’s pleadings, and Page and Vasquez do not suggest any that could be pled. See
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Thus, we are not
required to remand this proceeding to the trial court so that Page and Vasquez may
amend their pleadings.
CONCLUSION
This case involves the regrettable, tragic loss of a beloved dog. Page and Vasquez
did nothing wrong; but, in this situation, the law just does not provide a remedy.
Accordingly, we reverse the trial court’s denial of the City’s plea to the jurisdiction
and dismiss Page’s and Vasquez’s claims with prejudice. See Harris County v. Sykes, 136
S.W.3d 635, 636 (Tex. 2004) (holding that dismissal pursuant to a plea to the jurisdiction
based on sovereign immunity is with prejudice).
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Reversed and rendered Opinion delivered and filed October 24, 2024 [CV06]
City of Waco v. Page Page 9