Norma Torres v. City of Corpus Christi

• Court: Court of Appeals of Texas
• Decided: April 22, 2015
• Docket: 13-14-00506-CV
• Status: Published

Opinion

ACCEPTED 13-14-00506-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 4/22/2015 3:39:34 PM DORIAN RAMIREZ CLERK NO. 13-14-00506-CV

FILED IN IN THE THIRTEENTH COURT OF APPEALS 13th COURT OF APPEALS CORPUS CORPUS CHRISTI, TEXAS CHRISTI/EDINBURG, TEXAS 4/22/2015 3:39:34 PM DORIAN E. RAMIREZ Clerk Norma Torres Appellant vs. City of Corpus Christi Appellee

On appeal from Cause No. 2011-CCV-62438-4 County Court at Law Number 4 of Nueces County, Texas Honorable James Klager, Presiding Judge

APPELLANT’S BRIEF

LAW OFFICES OF THOMAS J. HENRY Thomas J. Henry State Bar No. 09484210 George A. DeVera State Bar No. 24048431 521 Starr Street Corpus Christi, Texas, 78401 Telephone: (361) 985-0600 Fax: (361) 985-0601 Email: gadevera-svc@tjhlaw.com Counsel for AppellantNorma Torres

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s order appealed from,

and the names and addresses of all trial and appellate counsel:

1. Appellant-Plaintiff is Norma Torres.

2. Trial and appellate counsel for Appellate-Defendant City of Corpus Christi is Corpus Christi City Attorney, Mark DeKoch, P.O. Box 9277, 1201 Leopard Street, Corpus Christi, Texas, 78401.

i TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iv

STATEMENT OF THE CASE ............................................................................ vii

STATEMENT REGARDING ORAL ARGUMENT ...........................................x

ISSUE PRESENTED ............................................................................................. xi

Was sovereign immunity properly waived pursuant to § 101.021 of the TEXAS TORT CLAIMS ACT for the personal injuries proximately caused by the negligence of Officer Walker? .................................................................... xi

STATEMENT OF FACTS ......................................................................................1

SUMMARY OF THE ARGUMENT .....................................................................2

ARGUMENT ............................................................................................................3

I. STANDARD OF REVIEW ........................................................................3

II. NORMA PROPERLY PLED A STATUTORY WAIVER OF SOVEREIGN IMMUNITY.................................................................................6

III. THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN EMERGENCY. ....................................................................................................8

IV. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES, OFFICER WALKER FAILED TO COMPLY WITH THE LAW AND ORDINANCES APPLICABLE TO EMERGENCY ACTION……......................................................................................................11

ii A. OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS DEPOSITION. ....................................................................................................15

B. OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT. .....................16

C. OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF NORMA TORRES...............................................................................................17

D. AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT FOR CAUSING THE COLLISION. .......................................................................20

E. OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES. ................21

V. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES AND NO LAWS OR ORDINANCES GOVERN HIS CONDUCT, OFFICER WALKER’S CONDUCT CONSTITUTES CONSCIOUS INDIFFERENCE OR RECKLESS DISREGARD FOR THE SAFETY OF OTHERS......................................................................................22

CONCLUSION/PRAYER .................................................................................25

iii TABLE OF AUTHORITIES

Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) ................. 5, 6, 16

Cantu v. Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no

pet.).............................................................................................................................4

City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) ...............................28

City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no

pet.)...........................................................................................................................16

City of Elsa v. Gonzales, 325 S.W.3d 622, 625 (Tex. 2010). ....................................6

City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994) ...................12

City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006).......................28

City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio

1984, writ ref’d n.r.e.). .............................................................................................26

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). ...............8

Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.) .............11

Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003).......................................4

Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2

(Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not

designated for publication) ........................................................................................3

iv Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 928 (Tex. 1998) ..........................3

Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio

1988, no writ) ...........................................................................................................11

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)........

......................................................................................................................... vii, 6, 7

Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App. – Corpus Christi

2003, no pet.) .............................................................................................................4

Rivas v. City of Houston, 17 S.W.3d 23, 27 (Tex. App. – Houston [14th Dist.]

2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied). ......................................12

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.

2002) ..........................................................................................................................3

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) ....4

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004).

.......................................................................................................................... passim

Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El

Paso 2014, pet. filed)................................................................................................21

Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).................7

University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) ................................7

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); ...............................11

v Statutes

TEX. CIV. PRAC. & REM. CODE §101.021(1). .............................................................7

TEX. CIV. PRAC. & REM. CODE §101.021...................................................................7

TEX. CIV. PRAC. & REM. CODE §101.055(2). .......................................................8, 14

TEX. TRANSP. CODE ANN. § 546.002(b)...................................................................24

TEX. TRANSP. CODE ANN. § 546.003 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009)...............................................24

TEX. TRANSP. CODE ANN. § 546.001 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.001(3) (Vernon 2009) ..........................................19

vi STATEMENT OF THE CASE

Appellant Norma Torres (“Norma”) was severely injured in a collision with

Officer Robert Walker (“Officer Walker”) on July 18, 2011, when he lost control

of his police vehicle while attempting to assist in a high-speed chase. As a result

of her injuries, Norma requires an L4-5laminectomy and discectomy with surgical

stabilization and fusion. It is undisputed that Officer Walker was acting in the

course and scope of his employment with Appellee the City of Corpus Christi

(“City”).

The City filed a plea to the jurisdiction asserting that the trial Court lacked

subject matter jurisdiction because immunity was not waived under the TEXAS

TORT CLAIMS ACT (“Act”) because Officer Walker was responding to an

emergency call and properly complied with the laws and ordinances applicable to

emergency action. Alternatively, the City argued that Officer Walker did not act

with conscious indifference or reckless disregard for Norma’s safety.

The trial court erroneously held that Norma failed to raise a fact issue

establishing subject matter jurisdiction despite the fact that the Texas Supreme

Court has held that disputed facts must be resolved at trial by a jury. 1 Moreover, if

1 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004). vii this Court properly takes all evidence favorable to Norma as true and resolves all

reasonable inferences and doubts in her favor, then the only proper holding is to

allow a jury to determine whether Officer Walkers actions were taken in proper

compliance with the laws and ordinances applicable to emergency actions or

whether his actions were consciously indifferent to or in reckless disregard of

Norma’s safety. 2 By this brief, Norma respectfully requests that the Court reverse

the trial court’s ruling that immunity was not properly waived under the TEXAS

TORT CLAIMS ACT.

Appellant filed suit in County Court at Law Number 4 of Nueces County,

Texas, on November 23, 2011, alleging that the City was liable to Norma pursuant

to § 101.021 of the CIVIL PRACTICE & REMEDIES CODE because Officer Walker

committed wrongful acts or omissions while acting in the course and scope of his

employment with the City while operating a motor-driven vehicle and would be

personally liable to Norma under Texas Law. (1 CR 5-12). On June 18, 2013, the

City filed a plea to the jurisdiction asserting that the trial court lacked subject

matter jurisdiction over this case. (1 CR 18-23). In response to the City’s plea,

Norma filed an Amended Petition on July 19, 2013 and a Response with evidence

on July 22, 2013. (1 CR 114-122, 1 CR 124-141).

2 Miranda, 133 S.W.3d at 227-28. viii The first hearing on the Plea was held on July 22, 2013. (1 RR 1-16). At the

request of the trial court judge, both parties filed additional briefings with evidence

for the court on their positions (1 CR 328-333, 1 CR 424-439). On June 16, 2014,

the Court granted the City’s plea and rendered a take nothing judgment against

Norma. Subsequently, Norma filed a Motion for Reconsideration and Motion for

New Trial on July 15, 2014. (1 CR 441-449). The Court heard Norma’s Motion

for Reconsideration and Motion for New Trial on August 27, 2014 (2 RR 1-35).

The trial court denied Norma’s Motion for Reconsideration and Motion for New

Trial on August 27, 2014. (1 CR 530).

ix STATEMENT REGARDING ORAL ARGUMENT

Oral argument would give the Court a more complete understanding of the

facts and legal issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The

facts in the instant case require additional explanation in order to fully understand

the chronology of events. Therefore, the decisional process would be significantly

aided by having counsel present to explain why the facts do or do not support

Appellant’s contentions. See TEX. R. APP. P. 39.1(d). Accordingly, Appellee

respectfully requests the Court grant oral argument.

x ISSUE PRESENTED

There is a single issue to be resolved by the Court in this appeal:

Was sovereign immunity properly waived pursuant to § 101.021 of the TEXAS TORT CLAIMS ACT for the personal injuries proximately caused by the negligence of Officer Walker?

xi STATEMENT OF FACTS

On July 18, 2011, Officer Walker, an employee of the Corpus Christi Police

Department, lost control of his police car while traveling westbound on the 2500

block of Laredo in excess of the posted speed limit and collided with Norma

Torres in the eastbound lane of traffic. As a result of the collision, Officer Walker

was cited for unsafe change from a direct course. (1 CR 54-56). Additionally, he

was cited by the Police Department for violating § 4.04(B)(3) of the General Rules

Manual and disciplined by his supervising officer. (1 CR 221-223, 272-277).

Norma sustained serious personal injuries as a result of the collision which require

a laminectomy and discectomy with surgical stabilization and fusion at L4-5 to

address. (1 CR 108).

1 SUMMARY OF THE ARGUMENT

The trial court’s ruling in its August 27, 2014 order should be reversed

because the evidence presented by Norma creates a jurisdictional fact issue that a

jury must resolve as to whether the immunity has properly been waived under the

TEXAS TORT CLAIMS ACT. Subject Matter Jurisdiction over this case exists for four

reasons.

First, Norma properly pled a statutory waiver of sovereign immunity in her

live pleading before this Court.

Second, the Emergency Situation Exception (“Exception”) to the ACT does

not apply because the City failed to prove that Officer Walker was responding to

an emergency.

Third, Officer Walker admitted that he failed to act as a reasonably prudent

officer while assisting in apprehending a stolen vehicle.

Fourth, assuming the exception applies, whether Officer Walker’s conduct

during the collision was reckless is a fact question for the jury.

The trial court’s August 27, 2014 order should be REVERSED.

2 ARGUMENT

At issue is whether or not the “Emergency Exception” to the TEXAS TORT

CLAIMS ACT was applicable to Officer Walker’s actions on July 18, 2011, and,

assuming that the exception applies, did Walker’s conduct constitute a reckless

disregard for the safety of all persons. The undisputed evidence creates a disputed

fact issue that Officer Walker failed to act as a reasonably prudent officer at the

time of the collision and that his actions constitute a finding of reckless conduct.

I. STANDARD OF REVIEW

A trial court’s ruling on a plea to the jurisdiction is a question of law and

reviewed de novo. 3 A plea to the jurisdiction is a dilatory plea that seeks dismissal

of a case for lack of subject matter jurisdiction. 4 When a plea to the jurisdiction

challenges the pleadings, the court determines if the pleader has alleged facts

that affirmatively demonstrate the court’s jurisdiction to hear the cause rather

3 Miranda, 133 S.W.3d at 226 (emphasis added); see Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 928 (Tex. 1998); Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2 (Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not designated for publication) (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). 4 Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003). 3 than looking at the claim’s merits.5 Since the plaintiff bears the burden to allege

facts affirmatively demonstrating the trial court’s jurisdiction to hear a case, the

courts construe the pleadings liberally and in the plaintiff’s favor and should

look to the pleader’s intent. 6 The Court assumes the truth of the jurisdictional

facts alleged in the pleadings unless the defendant presents evidence to negative

their existence.7

However, if a plea to the jurisdiction challenges the existence of

jurisdictional facts, the court will consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised.8 The purpose

of the plea is not to force a plaintiff to preview her case on the merits, but rather, to

establish why the merits of the claims should never be reached. 9 Although the

issues raised by a plea to the jurisdiction often require hearing evidence, a plea

to the jurisdiction does not authorize an inquiry so far into the substance of the

claims presented that the plaintiff is required to put on her case simply to

5 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Cantu v. Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added). 6 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d at 446; Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added). 7 Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). 8 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (emphasis added). 9 Id. at 554. 4 establish jurisdiction. 10 Whether a determination of subject matter jurisdiction can

be made in a preliminary hearing or should await a fuller development of the

merits of the case must be left to the trial court’s discretion. 11

When jurisdiction involves the merits of the case, the trial court must

review the evidence to determine whether there is a fact issue.12 This standard

mirrors a summary judgment procedure under Tex. R. Civ. P. 166a(c). 13 That is,

the defendant must first present evidence to show that the Court lacks

subject-matter jurisdiction; if the defendant does so, then the plaintiff must then

show there is a disputed material fact on the jurisdictional issue.14 If the facts are

disputed, the court cannot grant the plea to the jurisdiction and the issue must be

resolved by the finder-of-fact at trial; however, if the evidence is undisputed or if

there is no fact question on the jurisdictional issue, the trial court will rule on the

plea to the jurisdiction as a matter of law. 15 When reviewing a plea to the

jurisdiction in which the pleading requirement is met and evidence has been

10 Id. (emphasis added). 11 Id. 12 Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Elsa v. Gonzales, 325 S.W.3d 622, 625 (Tex. 2010). 13 Mission Consol., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228. 14 Id. (emphasis added). 15 Mission Consol., 372 S.W.3d at 635; University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (emphasis added). 5 submitted to support the plea that implicates the merits of the case, all evidence

favorable to the nonmovant is taken as true and all reasonably inferences and

doubts are resolved in favor of the nonmovant.16 If the evidence submitted

creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. 17

II. NORMA PROPERLY PLED A STATUTORY WAIVER OF SOVEREIGN IMMUNITY

Sovereign immunity from suit defeats a trial court’s subject matter

jurisdiction unless the state specifically consents to suit.18 In a suit against a

governmental unit, the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity. 19 The TEXAS TORT CLAIMS

ACT provides a limited waiver of governmental immunity if certain conditions are

met. The ACT states:

A governmental unit in the state is liable for:

(1) Property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) The property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

16 Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004) (emphasis added). 17 Miranda, 133 S.W.3d at 227-28 (emphasis added). 18 Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). 19 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). 6 (B) The employee would be personally liable to the claimant according to Texas law; and (2) Personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE §101.021. Thus, a governmental unit may be held

liable for the wrongful acts or omissions of its employees under the ACT if they are

acting within the scope of their employment and when the personal injuries or

property damage arises from the operation or use of a motor-driven vehicle or

equipment if the same employee could be held liable to the claimant under Texas

law. 20

Norma’s Amended Petition specifically alleges that Officer Walker was in

the course and scope of his employment and that he was negligent in the operation

of his police vehicle at that time of the collision. (1 CR 146-154). Moreover, both

Officer Walker and his supervisor, Lieutenant J.C. Hooper (“Lt. Hooper”) testified

that Officer Walker is in the course and scope of his employment with the City at

the time the collision occurred. (1 CR 179, 1 CR 249). Additionally, it is

undisputed that the collision arose from Officer Walker’s operation or use of a

motor driven-vehicle. (1 CR 179).

20 TEX. CIV. PRAC. & REM. CODE §101.021(1). 7 III. THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN EMERGENCY.

The ACT contains exclusions and exceptions to liability that, although a

proper waiver of statutory immunity has properly been pled, nonetheless excuses

the governmental entity’s conduct. Specifically, the ACT excludes claims arising:

(2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.

TEX. CIV. PRAC. & REM. CODE §101.055(2). The City’s plea alleges that Officer

Walker’s conduct is excusable because he was responding to an emergency call.

The evidence, when viewed favorably to Norma, raises a fact issue as to whether

Officer Walker was responding to an emergency.

The existence of an emergency situation is a matter of fact that

ordinarily should be determined by the jury. 21 The City asserts that since

Walker was operating with lights and sirens at the time the collision occurred that

he was automatically responding to an emergency situation. Simply because

21 Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio 1988, no writ) (emphasis added) 8 Walker decided to activate his lights and sirens while travelling toward the

intersection where the collision occurred does not automatically mean that he was

“responding to an emergency.” In order to succeed on a plea to the jurisdiction,

there can be no issue of material fact regarding the existence of any

emergency and whether the City complied with relevant laws. 22

In determining whether an emergency situation arises, Courts have

employed a reasonably prudent officer standard and examined the need to

which an officer responds and the risks of the officer’s course of action based

on the officer’s perception of the facts at the time of the event. 23 Need is

determined by factors such as the seriousness of the situation to which the official

responds and what alternative courses of action, if any, are available, to achieve a

comparable result.24 Risk refers to the countervailing public safety concerns; the

nature and severity of harm that the official’s actions could cause (including injury

to bystanders as well as the possibility that an accident would prevent the officials

from reaching the scene of the emergency), the likelihood that any harm would

occur, and whether any risk of harm would be clear to a reasonably prudent

22 Id. (emphasis added). 23 Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.) quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); see also Rivas v. City of Houston, 17 S.W.3d 23, 27 (Tex. App. – Houston [14th Dist.] 2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied). 24 Id. 9 official.25 To counter an emergency vehicle driver’s proof that his actions were

necessary, the injured bystander must prove that no reasonable person in the

driver’s position could have thought the facts justified his acts. 26

In his deposition, Officer Walker testified that, in light of the results of his

actions, he failed to act as a reasonably prudent officer in course of action based on

his perception of the events at the time they occurred:

Q Okay. Do you agree that if you were driving your vehicle a little slower that day, that you could have prevented yourself from losing control and striking my client's vehicle? A I believe if I was driving in a safe and prudent manner that the collision would not have occurred. Q Okay. Do you believe that you could have responded to the call in a safe and prudent manner and still been able to arrive at the location that you were trying to reach? A I -- I don't know. Q (By Mr. De Vera) Okay. Looking back at everything, do you think that -- that the best thing for you to have done at the time was to proceed in a safe and prudent manner so that you could safely and efficiently get to the intersection to lay down the strips, the spike strips? A Yes, sir. Q Okay. Knowing what you know today, would you do things differently? A Yes, sir.

25 Id. 26 Id. quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994) (emphasis added). 10 Q Okay. How would you have done things differently? A I -- I either wouldn't have tried to get to that intersection or I would have went further to a different location further off so I'd have more time to set up the spike strips. * * * Q Do you believe that as a result of violating the rules manual you were not acting as a reasonably prudent police officer should have acted on the day of the collision? A I don't believe I was driving at a reasonable and prudent manner.

(1 CR 184, 186) (emphasis added). Thus, Officer Walker’s own testimony creates

a fact issue as to whether he was responding to an emergency at the time of the

collision.

IV. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES, OFFICER WALKER FAILED TO COMPLY WITH THE LAW AND ORDINANCES APPLICABLE TO EMERGENCY ACTION.

The City asserts that sovereign immunity is not waived under the ACT

because Officer Walker was responding to an emergency call at the time of the

collision and that his actions did not violate any laws or ordinances applicable to

an emergency situation. Even if the exception applies, Norma’s alleges sufficient

jurisdictional facts in her Amended Petition that actively demonstrate that Officer

Walker failed to act in compliance with the applicable laws or ordinances

11 applicable to an emergency situation at the time of the collision. Moreover, the

undisputed evidence supports these allegations.

The Texas Supreme Court, in Bland Independent School District v. Blue,

held that a plea to the jurisdiction cannot be used to have require a plaintiff to

prove her entire case in order to establish jurisdiction—so long as a plaintiff

properly pleads that the conduct was reckless, listed the purportedly reckless

conduct and specified the laws applicable, granting a plea to the jurisdiction is

improper:

Whether Porter is required to prove in response to the City’s plea to the jurisdiction that Dethloff violated any of the statutes pleaded by Porter is similar to the issue of whether a plaintiff must prove the amount of damages alleged in the petition in order to establish jurisdiction in a trial court. As the Texas Supreme Court noted in Bland, absent a specific allegation that the amount was pleaded merely as a sham for the purpose of wrongfully obtaining jurisdiction, the plaintiff’s allegation of damages in excess of the jurisdictional limit suffices to show the amount in controversy and establish jurisdiction to the trial court. A plea to the jurisdiction cannot be used to require the plaintiff to try her entire case in order to show entitlement to damages in excess of the trial court’s jurisdictional limit.

Similarly, absent an allegation by the City that Porter fraudulently alleged violations of sections 546.005 and 546.001(3) by Dethloff in order to obtain jurisdiction in the trial court, Porter cannot be required to prove her entire case to demonstrate the

12 statutory violations by Dethloff in order to establish jurisdiction. * * * However, Porter pleaded Dethloff was reckless in his actions, listed the purportedly reckless conduct, and specified the laws applicable to an emergency response with which she alleges Dethloff failed to comply. Requiring Porter to carry her ultimate burden to prove Dethloff’s conduct met either prong of the pleaded allegations in response to the City’s plea to the jurisdiction would impermissibly require Porter to prove her case on the merits simply to establish jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554. Although the City’s entitlement to immunity pursuant to section 101.055 might be established after the case is further developed, Porter is not required to prove her case in order to defeat the plea to the jurisdiction. Id. 27

SECTION 101.055(2) of the ACT specifically excludes claims arising from the

action of an employee while responding to an emergency call or reacting to an

emergency situation if the action is in compliance with the laws and ordinances

applicable to emergency action, or in the absence of such a law or ordinance, if the

action is not taken with conscious indifference or reckless disregard for the safety

of others. 28 Like Porter, Norma pled in her Amended Petition that if Officer

Walker was responding to an emergency call that his behavior was not in

compliance with the laws and ordinances applicable to an emergency action or, in

27 City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no pet.) citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (emphasis added). 28 TEX. CIV. PRAC. & REM. § 101.055(2). 13 the absence of such law or ordinance, with conscious indifference or reckless

disregard for the safety of others. (1 CR 115-119).

The undisputed evidence establishes that Officer Walker was in the course

and scope of his employment with the City at the time of the collision. (1 CR 179,

1 CR 249). Additionally, Lt. Hopper identified that the applicable laws and

ordinances that govern Walker’s actions:

Q Okay. Fair enough. The uniform division manual, that's the operating manual for the division that you work in and the division that Officer Walker was working in at the time the collision happened. Is that correct? A I think that really applies to the general rules manual. This manual is in place, but I think the general rules manual is more our bible. This document, yes, it does exist and it did exist for us at the time. Q Okay. Other than the general rules manual and this uniform division manual, would there be any other employee manuals or handbooks that would govern the manner in which Officer Walker was to operate his vehicle? A There might be elements in the Texas traffic code that would apply, but other than that, no, sir. I can't think of any others. Q And when you're talking about the Texas traffic code, Lieutenant, just to make sure I'm clear, you're talking about the codified statutes that go over the what the proper rules for operating vehicles for anyone on the Texas roadway? A Yes, sir. Q Is that fair? A Yes, sir. 14 Q Okay. And are you talking about specifically the sections of the traffic code that deal with emergency vehicles or are you just speaking more generally about the rules that every vehicle in the roadway has to follow? A Both.

(1 CR 232). The evidence shows that Walker violated not only the specific

portions of the TRANSPORTATION CODE that govern the operation of authorized

emergency vehicles, but that he also violated internal rules and regulations of the

Police Department and the City of Corpus Christi. (1 CR 287-327).

A. OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS DEPOSITION.

The Emergency Exception to the ACT does not apply because Officer

Walker violated laws and ordinances applicable to an emergency situation and

expressly admitted liability for causing the collision in his deposition:

Q Okay. And so let me just ask you formally for the record, are you assuming responsibility for causing this collision? A Yes, sir. Q Okay. Is there anything that my client Ms. Torres did to cause the collision? A No, sir. Q Is there anything that my client Ms. Torres didn't do to avoid the collision? A No, sir.

15 1 (CR 175). Officer Walker’s testimony alone is sufficient to raise a fact

issue regarding the emergency exception.

B. OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT.

The evidence also shows that Officer Walker violated the specific portions

of the TRANSPORTATION CODE that govern the operation of authorized emergency

vehicles. Specifically, Walker specifically admitted that he received a citation

from the investigating officer for unsafe change from a direct course and that he

pled guilty to the charge:

Q Okay. And according to -- according to the report for this particular wreck, it says that you received - - you were charged with unsafe change from a direct course. Is that fair? A Yes, sir. Q Okay. And -- and since you were charged as a -- an officer and not as an off duty civilian, is there a different process by which officers resolve these kind of citations or are they resolved as if they were – as if you were in a civilian vehicle? A They're resolved the same way. Q Okay. And so how did you resolve this particular citation? A I went to the court and pled guilty and requested the deferred adjudication.

16 (1 CR 165 1 CR 278-280) (emphasis added). The fact that Officer Walker was

cited for violating the TRANSPORTATION CODE is sufficient to raise a fact issue

regarding the emergency exception.

C. OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF NORMA TORRES.

In addition to receiving a citation for unsafe change from a direct course, the

investigating officer’s report shows that the collision occurred in Ms. Torres’s lane

(in the direction of oncoming traffic). (1 CR 278-280). The fact that Officer

Walker’s speed was so excessive that it caused him to lose control of his vehicle

and strike another oncoming vehicle raises a fact issue about whether Officer

Walker complied with the laws applicable to emergency situations.

The El Paso Court of Appeals held that sufficient evidence was presented to

raise a fact issue concerning whether an officer in pursuit of a suspect violated the

laws applicable to an emergency situation.29 In Bonilla, as in this case, the Court

of Appeals found that the applicable statues pertaining to the officer’s actions were

§§ 546.001 and 546.005 of the TRANSPORTATION CODE. The officer is question

ran a red light while pursuing a suspect and the Court held that there was sufficient

29 Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El Paso 2014, pet. filed). 17 evidence to raise a fact issue as to whether the officer slowed before entering the

intersection where the collision occurred.

In this case, SECTION 546.001(3) allows an operator of an authorized

emergency vehicle to exceed the maximum speed limit as long as the operator does

not endanger life or property. 30 Officer Walker testified that his excessive speed in

conjunction with a soft brake caused him to lose control of his vehicle:

Q Got it. Okay. And so you're coming around the S curve and are you -- are you intending when it gets to the S curve to continue straight on Agnes toward -- A Continue westbound. Q Right. Continue westbound? A Yes, sir. Q Okay. And so when you come around the curve, you're hitting your brakes because of your speed? A Yes, sir. Q Okay. Is it fair to say that -- that the reason that you had to hit your brakes coming around that curve is because you were operating your vehicle over the posted speed limit because of the emergency? A Yes, sir. * * * Q Okay. So basically you're -- you're going through the S curve, you're going to intend on proceeding westbound towards the intersection of Agnes and Port, you hit your brake to reduce your speed, because of the speed you're going

30 TEX. TRANSP. CODE ANN. §§ 546.001(3) (Vernon 2009) (emphasis added).

18 around the curve. The brake is soft and so -- as a result of that your speed does not decrease and that causes you to lose control of the vehicle. Is that fair? A Yeah.

(1 CR 170-171). Norma Torres testified that the impact occurred in her lane and

caused property damage to her vehicle and bruising to her body:

Q Okay. Tell me in your own words as much detail as you can recall how the accident happened. A I just know that he did the curve and he was going really fast and I did a turn to the right and we still end up hitting. Q Okay. How would you describe the impact? A It was awful. It was awful. I was -- it was awful. It was his car was completely out of control. Q Was there property damage to your vehicle? A Yes, sir. * * * Q Okay. Did you have any cuts? A I don't -- just bruises. Q Okay. Where were you bruised? A In my leg and I don't remember where else. I just remember my leg. Q Okay. Which leg? A I think it was the right. 31

The fact that Officer Walker operated his vehicle at such an excessive speed as to

endanger both the life AND property of Norma Torres is sufficient to raise a fact

31 Deposition of Norma Torres, page:line 22:17 – 28:18. 19 D. AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT FOR CAUSING THE COLLISION.

Additionally, Officer Walker’s actions were reviewed by the City Vehicle

Accident Review Board (VARB) and the collision was found to be a preventable

event and the Board assessed points against his operating record. (1 CR 281-291).

As a result of these findings, the VARB required Officer Walker to attend

counseling sessions and a remedial driver training program. Id.

Officer Walker testified that he had the ability to appeal the Board’s decision

but elected not to because he accepted responsibility for causing the wreck:

Q Okay. And -- and you know that the accident review board allows an appeal from the decision of the board, correct? A Yes, sir. Q Okay. And did you -- did you elect to appeal? A No, sir. Q Okay. Is the reason that you elected not to appeal because you accepted responsibility that the collision was your fault? A Yes, sir.

(1 CR 182). The fact that the City found the collision to be preventable an

assessed a penalty to Officer Walker is sufficient to raise a fact issue regarding the

emergency exception.

20 E. OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES.

As a result of the collision, Officer Walker was cited at the scene for

violating Rule 4.04(B)(3) of the Police Department’s General Rules Manual for

failing to operate his vehicle in a safe and prudent manner. (1 CR 287-291).

Officer Walker admitted being internally disciplined by the Police Department for

failing to operate his vehicle in a safe and prudent manner:

Q And can you read for the ladies and gentlemen of the jury what violation 4.04 B3 is? A Yes, sir. "Employees shall operate police vehicles in a safe and prudent manner at all times and will be held accountable for the carelessness or negligence. Improper use or operation of a police vehicle may contribute grounds for disciplinary action." Q Okay. And do you admit that the way that you operated the vehicle on July 18th of 2011 was in violation of 4.04 B3? A Yes, sir. * * * Q What disciplinary action was instituted against you as a result of this violation? A I was written a letter of counsel.

(1 CR 182). The San Antonio Court of Appeals, in City of San Antonio v. Higle,

held that acting in violation of prescribed governmental procedures would prevent

21 the City from raising an immunity defense. 32 Lt. Hopper testified that the City’s

General Rules Manual would govern Officer Walker’s conduct at the time of the

collision. (1 CR 232). The fact that Officer Walker was cited for violating

departmental procedures alone is sufficient to raise a fact issue regarding the

V. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES AND NO LAWS OR ORDINANCES GOVERN HIS CONDUCT, OFFICER WALKER’S CONDUCT CONSTITUTES CONSCIOUS INDIFFERENCE OR RECKLESS DISREGARD FOR THE SAFETY OF OTHERS.

The City asserts immunity has not been waived because no pleadings

establish that the City acted with conscious disregard and no evidence exists that

Officer Walker acted with conscious indifference or reckless disregard for the

safety of others. CHAPTER 546 of the TRANSPORTATION CODE governs the

operation of authorized emergency vehicles. It condones conduct by operators of

authorized emergency vehicles which would normally violate the CODE when

responding to an emergency call or pursuing an actual or suspected violator of the

law. 33 Additionally, the statute requires the use of audio or visual signals when

32 City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio 1984, writ ref’d n.r.e.) (emphasis added). 33 TEX. TRANSP. CODE ANN. §§ 546.001; TEX. TRANSP. CODE ANN. 546.002(b) (Vernon 2009). 22 proceeding past a red light or stop sign, after slowing for safe operation. 34 There

is no specific statute which authorizes an officer to exceed the maximum speed

to such a degree that they lose control of their vehicle and strike oncoming

traffic.35 Despite condoning normally illegal conduct, the TRANSPORTATION CODE

requires that the operator of an authorized emergency vehicle responding to an

emergency operate the vehicle with appropriate regard for the safety of all persons

and without reckless disregard for the safety of others.36

The Texas Supreme Court requires a finding of reckless conduct before

liability may be premised upon the conduct of an operator of an emergency vehicle

in an emergency situation. 37 To recover damages resulting from the emergency

operation of an emergency vehicle, a plaintiff must show that the operator has

committed an act that the operator knew or should have known posed a high

degree of risk of serious injury. 38 There is no requirement that the officer

specifically testify that he knew the relevant facts but did not care about the

34 TEX. TRANSP. CODE ANN. § 546.003 (Vernon 2009) (emphasis added). 35 While TEX. TRANSP. CODE ANN. § 546.001(3) does allow an authorized emergency vehicle to exceed a maximum speed limit, it must not endanger life or property. In this case, Walker testified that his excessive speed caused him to lose control of his vehicle and strike Ms. Torres in her lane of travel. 36 TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009). 37 City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (emphasis added). 38 Id. at 430 (emphasis added). 23 result. 39 The evidence shows that Walker’s actions at the time of the collision

violated CHAPTER 546 of the TRANSPORTATION CODE:

Q Hold on. Let me just finish my question. That collision itself was one hundred percent completely and totally your fault? A Yes, sir. Q Okay. Now, even though you're operating your vehicle with lights and sirens, you acknowledge that the internal regulations of the department as well as the laws of the state of Texas require that you operate your vehicle with due regard to other people on the roadway, correct? A Yes, sir. Q Based on what happened in the collision and how the collision occurred, do you believe that you operated your vehicle with due care and due regard on the day of the collision? A No, sir. Q Okay. And that's because you lost control of the vehicle coming around the curve, correct? A Yes, sir.

(1 CR 175). The evidence shows that Officer Walker failed to operate his vehicle

with due regard for the safety of Norma Torres and is sufficient to raise a fact issue

that his conduct violated § 546.005 of the TRANSPORTATION CODE. Accordingly,

the trial court’s ruling on the City’s plea should be REVERSED.

39 City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006). 24 CONCLUSION/PRAYER

Norma Torres has properly pled a waiver of sovereign immunity under the

TEXAS TORT CLAIMS ACT. Moreover, the evidence presented, when view in the

light most favorable to Norma, establishes fact issues as to whether the emergency

exception applies. Further, the evidence raises fact issues as to whether Officer

Walker properly complied with the laws and ordinances applicable to emergency

actions when he operated his vehicle at an excessive speed and lost control coming

around a curb causing him to collide with oncoming traffic. The evidence also

raises a fact issue as to whether, in the absence of applicable laws or ordinances

governing emergency situations, Officer Walker’s conduct constituted conscious

indifference or reckless disregard for the safety of Norma Torres and the general

public.

Because a trial court cannot properly grant a plea to the jurisdiction if the

jurisdictional facts are disputed, Appellant respectfully requests that this Court

REVERSE the trial court’s judgment and allow a jury to decide the issue.

25 Respectfully submitted,

LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas 78401 Telephone: (361) 985-0600 Facsimile: (361) 985-0601

By: /s/George A. DeVera Thomas J. Henry State Bar No. 09484210 George A. DeVera State Bar No. 24048431 ATTORNEYS FOR APPELLANT NORMA TORRES

26 CERTIFICATE OF COMPLIANCE WITH WORD LIMITATION I certify that I have reviewed the Appellee’s Brief and have concluded that every factual statement made herein is supported by competent evidence included in the appendix or the record.

Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify that the foregoing brief contains 6,449 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer generated document created in Microsoft Word, using 14-point typeface for all text, except for the footnotes, which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare this document.

/S/ George A. DeVera GEORGE A. DEVERA STATE BAR NO. 24048431

27 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing document has been forwarded to all counsel of record in the manner indicated below on the 20th day of April, 2015:

VIA E-SERVICE Mark DeKoch City of Corpus Christi Legal Department 1201 Leopard Street P.O. Box 9277 Corpus Christi, Texas 78401 Telephone: (361) 826-3372 Facsimile: (361) 826-3239

/s/George A. DeVera GEORGE A. DEVERA

28 APPENDIX

In compliance with TEX. R. APP. P. 38.1(k), copies of the following

documents are included:

TAB 1………………………………………Order Granting Plea to the Jurisdiction

TAB 2……………………………………………………TEX. TRANSP. CODE § 546

TAB 3…………………………………………………Mejia v. City of San Antonio, 89 S.W.3d 611 (Tex. 2002)

TAB 4…………………………………City of Dallas v. Porter, 2002 WL 1773008 (Tex. App. – Dallas 2002, no writ.)

TAB 5………………………………....................Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)

TAB 6…………………………….…….Tex. Dep’t of Parks & Wildlife v. Miranda 133 S.W.3d 217 (Tex. 2004)

TAB 7……………………………………………..City of San Antonio v. Higle, 685 S.W.2d 682 (Tex. App. – San Antonio 1985, writ ref’d n.r.e.)

TAB 8……………………………………Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 (Tex. App. – El Paso, pet. filed)

29 Page 1

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

tional use statute.

Supreme Court of Texas. Reversed and rendered. TEXAS DEPARTMENT OF PARKS AND WILD- LIFE, Petitioner, Phillips, C.J., and Hecht, Owen, and Smith, JJ., v. joined parts I, II, III.A, III.B, III.C.2, III.C.3, III.D, Maria MIRANDA and Ray Miranda, Respondents. and IV of Justice Wainwright's opinion.

No. 01–0619. Phillips, C.J., and Hecht and Smith, JJ., joined Argued Oct. 30, 2002. part III.C.1 of Justice Wainwright's opinion. April 2, 2004. Wallace B. Jefferson, J., filed a dissenting opi- Background: Visitor to state park and her husband nion. sued the Parks and Wildlife Department for personal injuries visitor sustained when a tree limb fell on her Scott Brister, J., filed a dissenting opinion in head. The 38th Judicial District Court, Uvalde County, which O'Neill and Schneider, J., joined. Mickey R. Pennington, J., denied Department's plea to the jurisdiction. Department appealed. The San An- West Headnotes tonio Court of Appeals, 55 S.W.3d 648, affirmed. Review was granted. [1] Courts 106 247(7)

Holdings: The Supreme Court, J. Dale Wainwright, J., held that: 106 Courts (1) in ruling on the plea to the jurisdiction, the trial 106VI Courts of Appellate Jurisdiction court could consider evidence beyond the allegations 106VI(B) Courts of Particular States in the pleadings, disapproving of Sullivan v. Wilmer 106k247 Texas Hutchins Indep. Sch. Dist., 47 S.W.3d 529, Denton 106k247(7) k. Review by or certificate County v. Howard, 22 S.W.3d 113, Tex. Dep't of to Supreme Court by Court of Civil Appeals of ques- Mental Health & Mental Retardation v. Pearce, 16 tions where its decision conflicts with or overrules that S.W.3d 456, Tex. State Employees Union/CWA Local of another Court of Civil Appeals or that of the Su- 6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61, preme Court. Most Cited Cases DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo A new decision of a court of appeals “conflicts” v. State, Office of the Governor, 998 S.W.2d 337, City with a prior decision of another court of appeals or of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep. prior decision of the Supreme Court, as basis for Su- Sch. Dist. v. Blue, 989 S.W.2d 441, and preme Court's jurisdiction over interlocutory appeal (2) Parks and Wildlife Department did not act with from the new decision, when the prior and new cases gross negligence, and thus, Department had sovereign are so similar that the decision in one case is neces- immunity under Texas Tort Claims Act and recrea- sarily conclusive of the decision in the other. V.T.C.A., Government Code § 22.001(a)(2).

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jurisdiction; disapproving of Sullivan v. Wilmer Hut- [2] Pleading 302 111.36 chins Indep. Sch. Dist., 47 S.W.3d 529, Denton County v. Howard, 22 S.W.3d 113, Tex. Dep't of Mental Health & Mental Retardation v. Pearce, 16 302 Pleading S.W.3d 456, Tex. State Employees Union/CWA Local 302III Responses or Responsive Pleadings in 6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61, General DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 302III(B) Dilatory Pleas and Matter in Ab- 654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo atement v. State, Office of the Governor, 998 S.W.2d 337, City 302k111 Decision of Issue, and Proceedings of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep. Thereon Sch. Dist. v. Blue, 989 S.W.2d 441.. 302k111.36 k. Scope of inquiry and matters considered in general. Most Cited Cases (Formerly 106k122) [4] States 360 191.4(1)

The plaintiff's allegations, in the petition, of the 360 States amount in controversy control for subject matter ju- 360VI Actions risdiction purposes, unless the party challenging ju- 360k191 Liability and Consent of State to Be risdiction pleads and proves that the plaintiff's allega- Sued in General tions of the amount in controversy were made frau- 360k191.4 Necessity of Consent dulently for the purpose of obtaining jurisdiction. 360k191.4(1) k. In general. Most Cited Cases

[3] Pleading 302 111.36 Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the 302 Pleading State or certain governmental units have been sued, 302III Responses or Responsive Pleadings in unless the State consents to suit. General 302III(B) Dilatory Pleas and Matter in Ab- atement [5] States 360 191.1 302k111 Decision of Issue, and Proceedings Thereon 360 States 302k111.36 k. Scope of inquiry and 360VI Actions matters considered in general. Most Cited Cases 360k191 Liability and Consent of State to Be (Formerly 106k39) Sued in General 360k191.1 k. In general. Most Cited Cases If the alleged defect in subject matter jurisdiction does not involve the amount in controversy, the party States 360 208 alleging the defect by a plea to the jurisdiction is not required to further allege the pleadings are fraudulent, 360 States in order for the trial court to have authority to consider 360VI Actions evidence outside of allegations in pleadings if con- 360k208 k. Pleading. Most Cited Cases sideration of such additional evidence is necessary for trial court to determine whether it has subject matter

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

The State's immunity from liability is an affirma- General tive defense, while immunity from suit deprives a 302III(B) Dilatory Pleas and Matter in Ab- court of subject matter jurisdiction. atement 302k104 Plea to the Jurisdiction [6] Municipal Corporations 268 851 302k104(1) k. In general. Most Cited Cases 268 Municipal Corporations 268XII Torts Sovereign immunity from suit defeats a trial 268XII(E) Condition or Use of Public Build- court's subject matter jurisdiction, and thus is properly ings and Other Property asserted in a plea to the jurisdiction. 268k851 k. Parks and public squares and places. Most Cited Cases [9] Courts 106 39

The recreational use statute limits a governmental 106 Courts unit's duty for premises defects, for which sovereign 106I Nature, Extent, and Exercise of Jurisdiction immunity under the Texas Tort Claims Act is waived, in General to that which is owed a trespasser, i.e., not to injure 106I(A) In General that person willfully, wantonly, or through gross neg- 106k39 k. Determination of questions of ligence. V.T.C.A., Civil Practice & Remedies Code §§ jurisdiction in general. Most Cited Cases 75.002(c, d), 101.021, 101.025, 101.058. The trial court must determine at its earliest op- [7] Negligence 272 273 portunity whether it has the constitutional or statutory authority to decide the case, before allowing the liti- 272 Negligence gation to proceed. 272V Heightened Degrees of Negligence 272k273 k. Gross negligence. Most Cited [10] Courts 106 39 Cases 106 Courts Gross negligence involves two components: (1) 106I Nature, Extent, and Exercise of Jurisdiction viewed objectively from the actor's standpoint, the act in General or omission complained of must involve an extreme 106I(A) In General degree of risk, considering the probability and mag- 106k39 k. Determination of questions of nitude of the potential harm to others, and (2) the actor jurisdiction in general. Most Cited Cases must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious in- Whether a court has subject matter jurisdiction is difference to the rights, safety, or welfare of others. a question of law.

[8] Pleading 302 104(1) [11] Appeal and Error 30 893(1)

302 Pleading 30 Appeal and Error 302III Responses or Responsive Pleadings in 30XVI Review

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30XVI(F) Trial De Novo 302III Responses or Responsive Pleadings in 30k892 Trial De Novo General 30k893 Cases Triable in Appellate 302III(B) Dilatory Pleas and Matter in Ab- Court atement 30k893(1) k. In general. Most Cited 302k111 Decision of Issue, and Proceedings Cases Thereon 302k111.38 k. Petition, complaint, dec- Whether a pleader has alleged facts that affirma- laration or other pleadings. Most Cited Cases tively demonstrate a trial court's subject matter juris- diction is a question of law reviewed de novo. When a plea to the jurisdiction challenges the pleadings, the court determines if the pleader has [12] Courts 106 39 alleged facts that affirmatively demonstrate the court's subject matter jurisdiction to hear the cause, con- struing the pleadings liberally in favor of the pleader 106 Courts and looking to the pleader's intent. 106I Nature, Extent, and Exercise of Jurisdiction in General 106I(A) In General [14] Pleading 302 111.48 106k39 k. Determination of questions of jurisdiction in general. Most Cited Cases 302 Pleading 302III Responses or Responsive Pleadings in Whether undisputed evidence of jurisdictional General facts establishes a trial court's subject matter jurisdic- 302III(B) Dilatory Pleas and Matter in Ab- tion is a question of law; however, in some cases, atement disputed evidence of jurisdictional facts that also im- 302k111 Decision of Issue, and Proceedings plicate the merits of the case may require resolution by Thereon the finder of fact. 302k111.48 k. Amendments following sustaining of pleas. Most Cited Cases

[13] Pleading 302 104(1) If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's subject 302 Pleading matter jurisdiction but do not affirmatively demon- 302III Responses or Responsive Pleadings in strate incurable defects in jurisdiction, the issue is one General of pleading sufficiency, and the plaintiffs should be 302III(B) Dilatory Pleas and Matter in Ab- afforded the opportunity to amend following sustain- atement ing of plea to the jurisdiction. 302k104 Plea to the Jurisdiction 302k104(1) k. In general. Most Cited Cases [15] Pleading 302 111.48

Pleading 302 111.38 302 Pleading 302III Responses or Responsive Pleadings in General 302 Pleading 302III(B) Dilatory Pleas and Matter in Ab-

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atement liminary hearing or await a fuller development of the 302k111 Decision of Issue, and Proceedings case, mindful that the determination of whether sub- Thereon ject matter jurisdiction exists must be made as soon as 302k111.48 k. Amendments following practicable. sustaining of pleas. Most Cited Cases [18] Pleading 302 111.36 If the pleadings affirmatively negate the existence of subject matter jurisdiction, then a plea to the juris- 302 Pleading diction may be granted without allowing the plaintiffs 302III Responses or Responsive Pleadings in an opportunity to amend. General 302III(B) Dilatory Pleas and Matter in Ab- [16] Appeal and Error 30 863 atement 302k111 Decision of Issue, and Proceedings 30 Appeal and Error Thereon 30XVI Review 302k111.36 k. Scope of inquiry and 30XVI(A) Scope, Standards, and Extent, in matters considered in general. Most Cited Cases General 30k862 Extent of Review Dependent on In a case in which the jurisdictional challenge, Nature of Decision Appealed from relating to subject matter jurisdiction, implicates the 30k863 k. In general. Most Cited Cases merits of the plaintiffs' cause of action and the plea to the jurisdiction includes evidence beyond the allega- If a plea to the jurisdiction challenges the exis- tions in the pleadings, the trial court reviews the re- tence of jurisdictional facts, the appellate court con- levant evidence to determine if a fact issue exists. siders relevant evidence, beyond the allegations in the pleadings, submitted by the parties when necessary to [19] Judgment 228 178 resolve the subject matter jurisdiction issues raised, as the trial court is required to do. 228 Judgment 228V On Motion or Summary Proceeding [17] Courts 106 39 228k178 k. Nature of summary judgment. Most Cited Cases 106 Courts 106I Nature, Extent, and Exercise of Jurisdiction Purpose of summary judgments is to eliminate in General patently unmeritorious claims and untenable defenses. 106I(A) In General Vernon's Ann.Texas Rules Civ.Proc., Rule 166a. 106k39 k. Determination of questions of jurisdiction in general. Most Cited Cases [20] Pleading 302 111.39(.5)

When the consideration of a trial court's subject 302 Pleading matter jurisdiction requires the examination of evi- 302III Responses or Responsive Pleadings in dence beyond the allegations in the pleadings, the trial General court exercises its discretion in deciding whether the 302III(B) Dilatory Pleas and Matter in Ab- jurisdictional determination should be made at a pre-

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atement which the pleading requirement has been met and 302k111 Decision of Issue, and Proceedings evidence has been submitted to support the plea that Thereon implicates the merits of the case, the appellate court 302k111.39 Presumptions and Burden takes as true all evidence favorable to the nonmovant of Proof and indulges every reasonable inference and resolve 302k111.39(.5) k. In general. Most any doubts in the nonmovant's favor. Cited Cases [23] Pleading 302 111.34 After the State asserts and supports with evidence that the trial court lacks subject matter jurisdiction, 302 Pleading based on the State's sovereign immunity, the plaintiff 302III Responses or Responsive Pleadings in is required, if the facts underlying the merits and General subject matter jurisdiction are intertwined, to show 302III(B) Dilatory Pleas and Matter in Ab- that there is a disputed material fact regarding the atement jurisdictional issue. 302k111 Decision of Issue, and Proceedings Thereon [21] Appeal and Error 30 893(1) 302k111.34 k. Time for trial. Most Cited Cases 30 Appeal and Error 30XVI Review The scheduling of a hearing on a plea to the ju- 30XVI(F) Trial De Novo risdiction is left to the discretion of the trial court, 30k892 Trial De Novo which is in the best position to evaluate the appropri- 30k893 Cases Triable in Appellate ate time frame for hearing such a plea in any particular Court case. 30k893(1) k. In general. Most Cited Cases [24] States 360 112.2(6)

Appellate courts reviewing a challenge to a trial 360 States court's subject matter jurisdiction review the trial 360III Property, Contracts, and Liabilities court's ruling de novo. 360k112 Torts 360k112.2 Nature of Act or Claim [22] Appeal and Error 30 916(1) 360k112.2(6) k. State parks, injuries in. Most Cited Cases 30 Appeal and Error 30XVI Review Visitor to state park alleged sufficient facts re- 30XVI(G) Presumptions garding Parks and Wildlife Department's gross neg- 30k915 Pleading ligence to survive a plea to the jurisdiction by the 30k916 In General Department based solely on the pleadings, with the 30k916(1) k. In general. Most Cited Department alleging sovereign immunity under the Cases Texas Tort Claims Act and recreational use statute, as to park visitor's premises defect claim alleging she When reviewing a plea to the jurisdiction in was seriously injured by falling tree limb at camp site;

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visitor alleged that she specifically asked Depart- 268 Municipal Corporations ment's employee for recommendation of safe camping 268XII Torts location, that Department was aware of unpruned, 268XII(E) Condition or Use of Public Build- uninspected tree branches creating dangerous defec- ings and Other Property tive condition at camp site but failed to alleviate the 268k847 k. Nature and grounds of liability danger, and that Department consciously and delibe- of municipality as proprietor. Most Cited Cases rately failed to warn visitor of the extremely danger- ous condition, though visitor did not cite specific Tort Claims Act's scheme of a limited waiver of evidence that Department had actual knowledge that immunity from suit does not allow plaintiffs to cir- tree limb would fall. (Per Wainwright, J., for a plu- cumvent the heightened standards of a premises defect rality of the court.) V.T.C.A., Civil Practice & Re- claim by re-casting the same acts as a claim relating to medies Code §§ 75.002(c, d), 101.021, 101.025, the negligent condition or use of tangible property. 101.058. V.T.C.A., Civil Practice & Remedies Code § 101.022.

[25] States 360 112.2(6) *220 Howard G. Baldwin, First Asst. Atty. Gen., Jeffrey S. Boyd, Thompson & Knight, Harry W. 360 States Deckard, Office of Attorney General, Nelly R. Her- 360III Property, Contracts, and Liabilities rera, Office of Attorney General, Julie Caruthers 360k112 Torts Parsley, Public Utility Com'n, and Lisa Royce Eskow, 360k112.2 Nature of Act or Claim Attorney General's Office, Austin, for Petitioner. 360k112.2(6) k. State parks, injuries in. Most Cited Cases Emmett R. Harris, Law Office of R. Emmett Harris, Jerry Don Evans, Uvalde, TX, for Respondent. Parks and Wildlife Department did not act with gross negligence, and thus, Department had sovereign Justice WAINWRIGHT delivered the opinion of the immunity under Texas Tort Claims Act and recrea- Court with respect to parts I., II., III.A., III.B., III.C.2., tional use statute, as to state park visitor's premises III.C.3., III.D., and IV., in which Chief Justice defect claim alleging she was seriously injured by PHILLIPS, Justice HECHT, Justice OWEN, and Jus- falling tree limb at camp site; operations and main- tice SMITH joined, and a plurality opinion with re- tenance specialist for state park provided affidavit spect to Part III.C.1., in which Chief Justice PHIL- opining that tree limb fell because of unpredictable LIPS, Justice HECHT, and Justice SMITH joined. and unforeseeable phenomenon known as “sudden Maria Miranda sustained injuries after a tree limb branch drop syndrome,” and there was no evidence fell on her at Garner State Park in Uvalde County. that such syndrome created extreme risk of danger or Maria and her husband Ray sued the Texas Parks and that Department had actual subjective knowledge of Wildlife Department,FN1 alleging negligence and *221 that risk but nevertheless proceeded in conscious dis- gross negligence. The Department filed a plea to the regard for safety of others. V.T.C.A., Civil Practice & jurisdiction, to which it attached supporting evidence, Remedies Code §§ 75.002(c, d), 101.021, 101.025, and argued that sovereign immunity barred the Mi- 101.058. randas' claims. The trial court denied the plea to the jurisdiction and a unanimous court of appeals af- [26] Municipal Corporations 268 847 firmed, holding that the trial court could not consider evidence in support of the plea because the Depart-

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ment did not allege that the Mirandas' pleadings were ated by the Texas Parks and Wildlife Department. The a sham for the purpose of wrongfully obtaining juris- Mirandas asked a park ranger to recommend a camp- diction. 55 S.W.3d 648, 652. site that would be safe for children. While standing next to a picnic table at the recommended campsite, a FN1. The Mirandas originally named the falling tree branch approximately twelve inches in “Texas Department of Parks and Wildlife” as diameter and fifteen feet long struck Maria on the defendant but corrected the name to the head. As a result of the incident, Maria suffered ex- “Texas Parks and Wildlife Department” in tensive injuries to her head, neck, and spine. Ray their third amended petition. Because the suffered mental anguish and other damages related to parties and lower courts retained the original his wife's injuries. style of the case, we retain that style but in our opinion refer to the Department by its On May 7, 1999, the Mirandas filed suit against correct name. the Department, alleging negligence and later amended their suit to add gross negligence claims. In accord with our decision in Bland Independent With respect to the gross negligence claims, the Mi- School District v. Blue, 34 S.W.3d 547 (Tex.2000), we randas alleged that the Department “knew of the hold that the trial court in this case was required to dangers of its falling tree branches, failed to inspect, examine the evidence on which the parties relied to failed to prune, failed to alleviate or remove the dan- determine if a fact issue existed regarding the alleged ger, and consciously and deliberately failed to warn gross negligence of the Department. Due to the un- Plaintiffs of the extremely dangerous condition,” usual confluence of standards erected by the Legisla- “knew that its property contained hidden, dangerous ture for waiver of sovereign immunity in the Texas defect [sic] in that its tree branches which have not Tort Claims Act and the recreational use statute, been inspected or pruned regularly fall,” failed “to plaintiffs must plead gross negligence to establish make safe the dangerous condition of its campsite subject matter jurisdiction. Further, if the plaintiffs' trees,” and “failed to warn or make reasonably safe the factual allegations are challenged with supporting dangerous condition of which it was aware.” In addi- evidence necessary to consideration of the plea to the tion, the Mirandas alleged that the Department's jurisdiction, to avoid dismissal plaintiffs must raise at conduct was “willful, wanton, or grossly negligent.” least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdic- Over a year after the Mirandas filed suit and after tion. Because the Mirandas failed to raise a genuine the parties conducted discovery, the Department filed issue of material fact regarding the alleged gross neg- a plea to the jurisdiction*222 and motion to dismiss, ligence of the Department, we conclude that the trial arguing that the Mirandas' allegations were insuffi- court lacked subject matter jurisdiction over this cient to invoke a waiver of the Department's sovereign lawsuit. Therefore, we reverse the judgment of the immunity under the standard established in the Tort court of appeals and render judgment dismissing the Claims Act and the recreational use statute.FN2 TEX. case. CIV. PRAC. & REM. Code §§ 101.001–.109; id. §§ 75.001–.004. The Department attached evidence in I. Factual and Procedural Background support of its plea. The Mirandas filed a response to The Mirandas' third amended petition contains the Department's plea and their third amended original the following allegations: In April 1998, the Mirandas petition. In their response, the Mirandas stated that and their family were camping and picnicking as they relied on evidence attached to the Department's paying guests at Garner State Park, owned and oper- plea, including written discovery responses from the

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Department and the deposition the Mirandas took of tablish subject matter jurisdiction to proceed with the assistant park manager Craig VanBaarle. At the trial litigation. court's hearing on the Department's plea, the parties addressed the allegations in the Mirandas' third After originally dismissing the petition for want amended original petition. The next day, the trial court of jurisdiction, we granted the Department's petition denied the plea. The Department filed this interlocu- on motion for rehearing. Before we consider the tory appeal claiming that the trial court erroneously substantive issues presented, we first determine denied its plea to the jurisdiction and motion to dis- whether we have jurisdiction over this interlocutory miss. Id. § 51.014(a)(8). The court of appeals affirmed appeal. the trial court's denial of the plea, stating that the Mi- randas pled a premises defect cause of action based on II. Conflicts Jurisdiction gross negligence under the recreational use statute. 55 [1] When there is no dissent in the court of ap- S.W.3d at 652. The court of appeals rejected the De- peals, this Court has jurisdiction over interlocutory partment's argument that there was no evidence to appeals only if the court of appeals' decision “holds support gross negligence, holding that “the trial court differently” or conflicts with “a prior decision of was not authorized to inquire into the substance of the another court of appeals or of the supreme court on a claims because the Department did not specifically question of law material to a decision of the case.” allege that the Mirandas' allegations were pled merely TEX. GOV'T CODE 22.001(a)(2); FN3 *223Schein v. as a sham for the purpose of wrongfully obtaining Stromboe, 102 S.W.3d 675, 687 (Tex.2002); Tex. jurisdiction.” Id. (citing Bland, 34 S.W.3d at 554 and Natural Res. Conservation Comm'n v. White, 46 Rylander v. Caldwell, 23 S.W.3d 132, 135 S.W.3d 864, 867 (Tex.2001). Two decisions conflict (Tex.App.-BAustin 2000, no pet.)). for purposes of establishing our jurisdiction under section 22.001(a)(2) when the two cases are so similar FN2. The Department also moved for sum- that the decision in one case is necessarily conclusive mary judgment under Texas Rule of Civil of the decision in the other. Schein, 102 S.W.3d at Procedure 166a(b)-(c)and 166a(I). The trial 687–88; White, 46 S.W.3d at 867. “The conflict must court denied both motions, but the Depart- be on the very question of law actually involved and ment does not appeal the trial court's denial determined, in respect of an issue in both cases, the of either motion. test being whether one would operate to overrule the other in case they were both rendered by the same The Department contends that the court of ap- court.” Christy v. Williams, 156 Tex. 555, 298 S.W.2d peals erred in relying solely upon the conclusory al- 565, 568–69 (1957) (citation omitted). legations found in the Mirandas' petition to affirm the trial courts denial of the Department's plea to the ju- FN3. The Legislature amended section risdiction and in disregarding the Department's evi- 22.001 of the Government Code, effective dence submitted with its plea. Specifically, the De- September 1, 2003. Act of June 11, 2003, partment contends that gross negligence is a jurisdic- 78th Leg., R.S., Ch. 204 (codified as section tional prerequisite to the Mirandas' claims and that its 22.001(e) of the Texas Government Code). evidence affirmatively negates gross negligence. The The amendment, which applies to actions Department further argues that because the Mirandas filed on or after September 1, 2003 and does failed to plead specific facts alleging gross negligence not govern our jurisdiction in this case, pro- in their petition or introduce evidence to controvert the vides that “one court holds differently from evidence in the Department's plea, they failed to es- another when there is inconsistency in their

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respective decisions that should be clarified when necessary to resolve the jurisdictional issues to remove unnecessary uncertainty in the law raised. 34 S.W.3d at 555; see also County of Cameron and unfairness to litigants.” v. Brown, 80 S.W.3d 549, 556–57 (Tex.2002) (con- sidering pleadings and limited jurisdictional evidence The Department contends that this Court has ju- in evaluating forseeability element of premises defect risdiction over its interlocutory appeal because the claim under the Tort Claims Act); Tex. Dep't of court of appeals' decision here conflicts with our opi- Criminal Justice v. Miller, 51 S.W.3d 583, 587 nion in Bland. In Bland, we held that a trial court “may (Tex.2001) (examining pleadings and limited juris- consider evidence and must do so when necessary to dictional evidence to determine whether plaintiff af- resolve the jurisdictional issues raised.” 34 S.W.3d at firmatively demonstrated waiver of sovereign im- 555 (emphasis added). While recognizing that “a munity); White, 46 S.W.3d at 868 (analyzing the facts dilatory plea does not authorize an inquiry so far into alleged by the plaintiff and to the extent relevant, the substance of the claims presented that plaintiffs are evidence submitted by the parties, in considering required to put on their case simply to establish juris- whether plaintiff stated a claim for injuries caused by diction,” we explained that “because a court must not “motor-driven equipment” under the Tort Claims act without determining that it has subject-matter Act). *224 In Bland, our preclusion of a trial court's jurisdiction to do so, it should hear evidence as ne- inquiry behind the facts pled in determining subject cessary to determine the issue before proceeding with matter jurisdiction was limited to the jurisdictional the case.” Id. at 554. “The court should, of course, amount. 34 S.W.3d at 554. Even this bar could be confine itself to the evidence relevant to the jurisdic- lifted, and evidence of the jurisdictional amount con- tional issue.” Id. at 555. sidered, in circumstances in which an adverse party asserts that the amount in controversy was pled as a sham to obtain jurisdiction.FN4 Id. That circumstance In Bland, we included examples of when relevant is not at issue here. Thus, the court of appeals' holding evidence may be considered in determining whether conflicts with the same question of law that we de- jurisdiction has been established. See id. at 554. We cided in Bland, and the opinions cannot stand together. also observed that when the defendant contends that Schein, 102 S.W.3d at 689. This conflict provides the the amount in controversy falls below the trial court's basis for our jurisdiction to consider the merits of the jurisdictional limit, the trial court should limit its plea. See Tex. Gov't Code § 22.001(a)(2). inquiry to the pleadings. Id. In that situation, we con- cluded, “the plaintiff's pleadings are determinative unless the defendant specifically alleges that the FN4. The plaintiff's allegations in the petition amount was pleaded merely as a sham for the purpose of the amount in controversy control for ju- of wrongfully obtaining jurisdiction.” Id. risdictional purposes unless the party chal- lenging jurisdiction pleads and proves that the plaintiff's allegations of the amount in [2][3] In this case, the court of appeals inaccu- controversy were made fraudulently for the rately stated and then misapplied Bland's holding. 55 purpose of obtaining jurisdiction. See Bland, S.W.3d at 650–52. The court of appeals held that an 34 S.W.3d at 554; Cont'l Coffee Prods. Co. v. inquiry behind the factual allegations pled in support Cazarez, 937 S.W.2d 444, 449 (Tex.1996); of subject matter jurisdiction was improper unless the Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263, Department specifically alleged that the Mirandas' 263 (1886). We disapprove of courts of ap- allegations were pled merely as a sham to wrongfully peals' holdings that require a party to allege obtain jurisdiction. Id. at 652. This conflicts with our that pleadings, other than the jurisdictional holding in Bland that a court must consider evidence

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amount, are fraudulent in order for the trial Texas Tort Claims Act provides a limited waiver of court to consider evidence, when otherwise sovereign immunity. TEX. CIV. PRAC. & necessary, of whether it has jurisdiction over REM.CODE §§ 101.001–.109. Sovereign immunity a case. See, e.g., Sullivan v. Wilmer Hutchins includes two distinct principles, immunity from suit Indep. Sch. Dist., 47 S.W.3d 529, 531 and immunity from liability. Jones, 8 S.W.3d at 638; (Tex.App.-Dallas 2000), rev'd on other Fed. Sign, 951 S.W.2d at 405. Immunity from liability grounds, 51 S.W.3d 293 (Tex.2001); Denton is an affirmative defense, while immunity from suit County v. Howard, 22 S.W.3d 113, 117–18 deprives a court of subject matter jurisdiction. Jones, 8 (Tex.App.-Fort Worth 2000, no pet.); Tex. S.W.3d at 638; Fed. Sign, 951 S.W.2d at 405. The Tort Dep't of Mental Health & Mental Retarda- Claims Act creates a unique statutory scheme in which tion v. Pearce, 16 S.W.3d 456, 460 the two immunities are co-extensive: “Sovereign (Tex.App.-Waco 2000, pet. dism'd w.o.j.); immunity to suit is waived and abolished to the extent Tex. State Employees Union/CWA Local of liability created by this chapter.” TEX. CIV. PRAC. 6184 v. Tex. Workforce Comm'n, 16 S.W.3d & REM.CODE § 101.025(a); State ex rel. State Dep't 61, 65, 66 (Tex.App.-Austin 2000, no pet.); of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d DalMac Constr. Co. v. Tex. A & M Univ., 35 322, 326 (Tex.2002); Miller, 51 S.W.3d at 587. Thus, S.W.3d 654, 655 n. 1 (Tex.App.-Austin the Department is immune from suit unless the Tort 1999), rev'd on other grounds, sub nom. Gen. Claims *225 Act expressly waives immunity. See Servs. Comm'n v. Little–Tex Insulation Co., TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A) Inc., 39 S.W.3d 591 (Tex.2001); Univ. of (defining a governmental unit to include “all depart- Houston v. Elthon, 9 S.W.3d 351, 356 ments” of the state), 101.021, 101.025; White, 46 (Tex.App.-Houston [14th Dist.] 1999, pet. S.W.3d at 868. dism'd w.o.j.); Curbo v. State, Office of the Governor, 998 S.W.2d 337, 341–42 The Tort Claims Act expressly waives sovereign (Tex.App.-Austin 1999, no pet.); City of Sa- immunity in three areas: “ ‘use of publicly owned ginaw v. Carter, 996 S.W.2d 1, 3 automobiles, premises defects, and injuries arising out (Tex.App.-Fort Worth 1999, pet. dism-d of conditions or use of property.’ ” Brown, 80 S.W.3d w.o.j.); Bland Indep. Sch. Dist. v. Blue, 989 at 554 (quoting Tex. Dep't of Transp. v. Able, 35 S.W.2d 441, 447 (Tex.App.-Dallas 1999), S.W.3d 608, 611 (Tex.2000)); see TEX. CIV. PRAC. rev'd, 34 S.W.3d 547 (Tex.2000). & REM CODE § 101.021. Section 101.058 of the Tort Claims Act further modifies a governmental unit's III. The Department's Plea to the Jurisdiction waiver of immunity from suit by imposing the limita- A. Sovereign Immunity tions of liability articulated in the recreational use [4][5] In Texas, sovereign immunity deprives a statute. TEX. CIV. PRAC. & REM.CODE § 101.058 trial court of subject matter jurisdiction for lawsuits in (“To the extent that Chapter 75 limits the liability of a which the state or certain governmental units have governmental unit under circumstances in which the been sued unless the state consents to suit. Tex. Dep't governmental unit would be liable under [the Tort of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Claims Act], Chapter 75 controls.”). Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997), superseded by statute on other grounds as The recreational use statute provides: stated in Little–Tex Insulation Co., 39 S.W.3d at 593; Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); If an owner, lessee, or occupant of real property Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The other than agricultural land gives permission to

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another to enter the premises for recreation, the actual, subjective awareness of the risk involved, but owner, lessee, or occupant, by giving the permis- nevertheless proceed in conscious indifference to the sion, does not: rights, safety, or welfare of others.” Louisiana–Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999) (1) assure that the premises are safe for that pur- (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 pose; (Tex.1994)).

(2) owe to the person to whom permission is FN5. The recreational use statute does not granted a greater degree of care than is owed to a limit the liability of an owner, lessee, or oc- trespasser on the premises; or cupant “who has been grossly negligent or has acted with malicious intent or in bad faith.” TEX. CIV. PRAC. & REM.CODE (3) assume responsibility or incur liability for any 75.002(d). injury to any individual or property caused by any act of the person to whom permission is granted. B. Standard of Review [8][9] Sovereign immunity from suit defeats a Id. § 75.002(c)(1)-(3). Recreational use includes trial court's subject matter jurisdiction*226 and thus is camping and picnicking, the activities in which the properly asserted in a plea to the jurisdiction. Jones, 8 Mirandas were engaged at the state park when Maria S.W.3d at 637; see also Hosner, 1 Tex. at 769 (re- was injured. Id. § 75.001(3). As applied to a govern- cognizing as appropriate procedure the challenge of a mental unit, the recreational use statute limits liability courts subject matter jurisdiction through a plea to the even if the person pays to enter the premises. Id. § jurisdiction). The trial court must determine at its 75.003(c) (excepting governmental units from the earliest opportunity whether it has the constitutional or chapter's exclusion of landowners who charge a fee statutory authority to decide the case before allowing for recreational use of land). the litigation to proceed. Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903) [6][7] The recreational use statute limits the De- (“[T]here can be no doubt that the courts of Texas partment's duty for premises defects to that which is must look to the Constitution of this state, the enact- owed a trespasser.FN5 Id. The limited duty owed a ments of the Legislature, and the common law for trespasser is not to injure that person willfully, wan- their authority to proceed ....);” see also State Bar of tonly, or through gross negligence. Tex. Utils. Elec. Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994) (“As Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997). a general proposition, before a court may address the Therefore, a governmental unit waives sovereign merits of any case, the court must have jurisdiction immunity under the recreational use statute and the over the party or the property subject to the suit, ju- Tort Claims Act only if it is grossly negligent. TEX. risdiction over the subject matter, jurisdiction to enter CIV. PRAC. & REM.CODE § 75.002(c)-(d); City of the particular judgment, and capacity to act as a Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex.2002); court.)”; Gentry v. Bowser, 2 Tex.Civ.App. 388, 21 Timmons, 947 S.W.2d at 193. “[G]ross negligence S.W. 569, 570 (Fort Worth 1893, no writ) (“Certainly involves two components: (1) viewed objectively the court has the right to hear the necessary evidence from the actor's standpoint, the act or omission com- to enable it to decide as to whether or not it has power plained of must involve an extreme degree of risk, to try the case it is sought to have it adjudicate, considering the probability and magnitude of the po- whether the allegations disclosing such want of juris- tential harm to others; and (2) the actor must have diction appear in the petition of the plaintiff, or in the

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plea to the jurisdiction by the defendant.”). Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial courts jurisdiction [10][11][12] Whether a court has subject matter but do not affirmatively demonstrate incurable defects jurisdiction is a question of law. Tex. Natural Res. in jurisdiction, the issue is one of pleading sufficiency Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, and the plaintiffs*227 should be afforded the oppor- 855 (Tex.2002). Whether a pleader has alleged facts tunity to amend. Brown, 80 S.W.3d at 555. If the that affirmatively demonstrate a trial court's subject pleadings affirmatively negate the existence of juris- matter jurisdiction is a question of law reviewed de diction, then a plea to the jurisdiction may be granted novo. Likewise, whether undisputed evidence of ju- without allowing the plaintiffs an opportunity to risdictional facts establishes a trial court's jurisdiction amend. Id. is also a question of law. However, in some cases, disputed evidence of jurisdictional facts that also im- [16][17][18] However, if a plea to the jurisdiction plicate the merits of the case may require resolution by challenges the existence of jurisdictional facts, we the finder of fact. See Gates v. Pitts, 291 S.W. 948, consider relevant evidence submitted by the parties 949 (Tex.Civ.App.-Amarillo 1927, no writ); Gentry, when necessary to resolve the jurisdictional issues 21 S.W. at 570; see also Valentin v. Hosp. Bella Vista, raised, as the trial court is required to do. See Bland, 254 F.3d 358, 363 n. 3 (1st Cir.2001) (observing that 34 S.W.3d at 555 (confining the evidentiary review to in certain situations, the predicate facts can be so evidence that is relevant to the jurisdictional issue). inextricably linked to the merits of the controversy When the consideration of a trial court's subject matter that the district court may “defer resolution of the jurisdiction requires the examination of evidence, the jurisdictional issue until the time of trial”); Cameron trial court exercises its discretion in deciding whether v. Children's Hosp. Med. Ctr., 131 F.3d 1167, 1170 the jurisdictional determination should be made at a (6th Cir.1997) (“[W]hether a district court has subject preliminary hearing or await a fuller development of matter jurisdiction is a question for the court, not a the case, mindful that this determination must be made jury, to decide, even if the determination requires as soon as practicable. Id. at 554. Then, in a case in making factual findings, unless the jurisdictional issue which the jurisdictional challenge implicates the me- is inextricably bound to the merits of the case.”); Wil- rits of the plaintiffs' cause of action and the plea to the liamson v. Tucker, 645 F.2d 404, 413 n. 6, 416 n. 10 jurisdiction includes evidence, the trial court reviews (5th Cir.1981) (suggesting that a federal district the relevant evidence to determine if a fact issue ex- court's role in determining jurisdictional facts may be ists. The United States Supreme Court and all of the more limited in cases in which the jurisdictional attack federal circuits have authorized federal district courts implicates the merits of plaintiff's cause of action). In to consider evidence in deciding motions to dismiss this case, we address a plea to the jurisdiction in which for lack of subject matter jurisdiction. See undisputed evidence implicates both the subject mat- FED.R.CIV.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, ter jurisdiction of the court and the merits of the case. 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209, (1947), overruled by implication on other grounds by Larson [13][14][15] When a plea to the jurisdiction v. Domestic & Foreign Commerce Corp., 337 U.S. challenges the pleadings, we determine if the pleader 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (observing has alleged facts that affirmatively demonstrate the that as a general rule, district courts have authority to court's jurisdiction to hear the cause. Tex. Ass'n of Bus. inquire “into the facts as they exist” “by affidavits or v. Tex. Air Control Bd., 852 S.W.2d 440, 446 otherwise” as well as the pleadings when determining (Tex.1993). We construe the pleadings liberally in whether the court has subject matter jurisdiction).FN6 If favor of the plaintiffs and look to the pleaders' intent. the evidence*228 creates a fact question regarding the

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jurisdictional issue, then the trial court cannot grant Rule 12(b)(1) motion); Williams v. United the plea to the jurisdiction, and the fact issue will be States, 50 F.3d 299, 304 (4th Cir.1995) (“In resolved by the fact finder. However, if the relevant ruling on a Rule 12(b)(1) motion, the court evidence is undisputed or fails to raise a fact question may consider exhibits outside the plead- on the jurisdictional issue, the trial court rules on the ings.”); Moran v. Kingdom of Saudi Arabia, plea to the jurisdiction as a matter of law. 27 F.3d 169, 172 (5th Cir.1994) (acknowl- edging a trial court's “authority to consider FN6. See, e.g., Harris v. P.A.M. Transp., evidence presented beyond the pleadings ... Inc., 339 F.3d 635, 637 n. 4 (8th Cir.2003) which may include considering affidavits, (acknowledging district court's authority to allowing further discovery, hearing oral tes- consider matters outside the pleadings when timony, conducting an evidentiary hearing”); subject matter jurisdiction is challenged un- Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, der Rule 12(b)(1)); Johnson v. Apna Ghar, 197 (D.C.Cir.1992) ( “[W]here necessary, Inc., 330 F.3d 999, 1001 (7th Cir.2003) the court may consider the complaint sup- (observing that when considering a motion plemented by undisputed facts evidenced in for dismissal for lack of subject matter juris- the record, or the complaint supplemented by diction, “ ‘[t]he district court may properly ... undisputed facts plus the court's resolution of view whatever evidence has been submitted disputed facts.”); Lawrence v. Dunbar, 919 on the issue’ ” (quoting Long v. Shorebank F.2d 1525, 1529 (11th Cir.1990) (noting that Dev. Corp., 182 F.3d 548, 554 (7th “substantial authority” acknowledges the Cir.1999))); Sizova v. Nat'l Inst. of Standards trial court's freedom to consider disputed & Tech., 282 F.3d 1320, 1324 (10th evidence when deciding a Rule 12(b)(1) Cir.2002) (noting district court's “ ‘wide motion) (citations omitted); Gould, Inc. v. discretion to allow affidavits, other docu- Pechiney Ugine Kuhlmann, 853 F.2d 445, ments, and a limited evidentiary hearing to 451 (6th Cir.1988) (“[T]he district court may resolve disputed jurisdictional facts under consider affidavits, allow discovery, hear Rule 12(b)(1)’ ” (quoting Holt v. United oral testimony, order an evidentiary hearing, States, 46 F.3d 1000, 1003 (10th Cir.1995))); or even postpone its determination if the Valentin, 254 F.3d at 363 (district court has question of jurisdiction is intertwined with “broad authority to order discovery, consider the merits.”); Mortensen v. First Fed. Sav. & extrinsic evidence, and hold evidentiary Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977) hearings in order to determine its own juris- (acknowledging that “substantial authority” diction”); Ass'n of Am. Med. Colls. v. United allows trial courts to weigh the evidence of States, 217 F.3d 770, 778 (9th Cir.2000) (“ disputed facts when considering a Rule ‘district court obviously does not abuse its 12(b)(1) motion); see also 5A Charles Alan discretion by looking to ... extra-pleading Wright & Arthur R. Miller, Federal Practice material’ ” in deciding a Rule 12(b)(1) mo- and Procedure § 1364, at 468–469 (2d tion to dismiss for lack of subject matter ju- ed.1990). risdiction (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989))); Maka- [19][20] We acknowledge that this standard rova v. United States, 201 F.3d 110, 113 (2d generally mirrors that of a summary judgment under Cir.2000) (allowing district court to “refer to Texas Rule of Civil Procedure 166a(c). We adhere to evidence outside the pleadings” to resolve a the fundamental precept that a court must not proceed

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on the merits of a case until legitimate challenges to its trum, Inc. v. Martinez, 941 S.W.2d 910, 911 jurisdiction have been decided. This standard accom- (Tex.1997). We indulge every reasonable inference plishes this goal and more. It also protects the interests and resolve any doubts in the nonmovant's favor. Id. of the state and the injured claimants in cases like this one, in which the determination of the subject matter [23] In his dissent JUSTICE JEFFERSON criti- jurisdiction of the court implicates the merits of the cizes this standard of review as depriving plaintiffs parties' cause of action. The standard allows the state responding to a plea of the procedural protections of a in a timely manner to extricate itself from litigation if motion for summary judgment, including a twen- it is truly immune. However, by reserving for the fact ty-*229 one day notice period or an adequate time to finder the resolution of disputed jurisdictional facts conduct discovery. TEX.R. CIV. P. 166a(c), 166a(i). that implicate the merits of the claim or defense, we However, the scheduling of a hearing of a plea to the preserve the parties' right to present the merits of their jurisdiction is left to the discretion of the trial court, case at trial. Similar to the purpose of a plea to the which is in the best position to evaluate the appropri- jurisdiction, which is to defeat a cause of action for ate time frame for hearing a plea in any particular case. which the state has not waived sovereign immunity This procedure does not dramatically differ from that (usually before the state has incurred the full costs of outlined in Texas Rule of Civil Procedure 120a go- litigation), the purpose of summary judgments in verning special appearances. Although Rule 120a Texas is “ ‘to eliminate patently unmeritorious claims requires any affidavits to be used at a hearing on a and untenable defenses.’ ” Casso v. Brand, 776 special appearance to be served at least seven days S.W.2d 551, 556 (Tex.1989) (quoting City of Houston before the hearing, it does not specify the length of a v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 notice period and is therefore presumably subject to (Tex.1979)). By requiring the state to meet the sum- the three-day notice period of Rule 21. TEX.R. CIV. mary judgment standard of proof in cases like this one, P. 21. Rule 120a allows the trial court to order a con- we protect the plaintiffs from having to “put on their tinuance and allow time for discovery if the devel- case simply to establish jurisdiction.” Bland, 34 opment of the case requires it. Nothing prevents a trial S.W.3d at 554. Instead, after the state asserts and court from doing the same with a plea to the jurisdic- supports with evidence that the trial court lacks subject tion where evidence is necessary. matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject Many other procedures in Texas practice ranging matter jurisdiction are intertwined, to show that there from a trial court's rulings on motions to strike inter- is a disputed material fact regarding the jurisdictional vention to the timing of a class certification decision to issue. See Huckabee v. Time Warner Entm't Co. L.P., even the alteration of the summary judgment notice 19 S.W.3d 413, 420 (Tex.2000); Phan Son Van v. periods—also “depend[ ] ... upon the wise exercise of Pena, 990 S.W.2d 751, 753 (Tex.1999). discretion by the trial court.” Union Carbide Corp. v. B.D. Moye, 798 S.W.2d 792, 794 (Tex.1990) (Hecht, [21][22] Appellate courts reviewing a challenge J., concurring); see, e.g., TEX.R. CIV. P. 42(c)(1)(A) to a trial court's subject matter jurisdiction review the (directing a trial court to determine whether a suit may trial court's ruling de novo. IT–Davy, 74 S.W.3d at be maintained as a class action “at an early practicable 855. When reviewing a plea to the jurisdiction in time”); TEX.R. CIV. P. 166a(c) (“Except on leave of which the pleading requirement has been met and court, with notice to opposing counsel, the motion and evidence has been submitted to support the plea that any supporting affidavits shall be filed and served at implicates the merits of the case, we take as true all least twenty-one days before the time specified for evidence favorable to the nonmovant. See Sci. Spec- hearing.”) (emphasis added); Guaranty Fed. Sav.

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Bank v. Horseshoe Operating Co., 793 S.W.2d 652, falling on Maria Miranda constitutes an allegation of a 657 (Tex.1990) (observing that the trial court has condition or use of real property and is an allegation of broad discretion in ruling on a motion to strike inter- a premises defect. vention, even though Rule 60 does not provide explicit guidelines for the scheduling of a hearing or the To state a claim under the recreational use statute, evaluation of evidence). Thus, the Texas civil proce- the Mirandas must allege sufficient facts to establish dural scheme entrusts many scheduling and proce- that the Department was grossly negligent. See TEX. dural issues to the sound discretion of the trial court, CIV. PRAC. & REM.CODE §§ 75.002(c)-(d), subject to appellate review. Of course, Texas practice 101.021, 101.025, 101.058. The Mirandas contend and rules also allow the parties to request additional that both their allegations and the evidence presented time to prepare for certain hearings or to conduct on the plea establish claims of gross negligence. discovery upon a showing of sufficient cause, and the Looking first to the relevant factual allegations in the court's ruling on such a motion is reviewed for an third amended petition, the Mirandas claim that (1) abuse of discretion. See, e.g., TEX.R. CIV. P. 166a(g), they specifically asked the Department's employee for 247, 251, 252. We note, also, that federal practice does a recommendation of a safe camping location; (2) at not prescribe a procedure for the consideration of the campsite, Maria was struck by a falling tree branch jurisdictional evidence but instead allows the district that severely injured her; (3) the unpruned, unins- courts to tailor a method to suit the requirements of the pected tree branches created a dangerous, defective cases before them. Land, 330 U.S. at 735 n. 4, 67 S.Ct. condition on the premises of which the Department 1009; Moran, 27 F.3d at 172. In any event, the Mi- was aware; (4) the Department knew of the dangers of randas do not complain that they had an inadequate its falling tree branches but failed to inspect, prune, opportunity to conduct sufficient discovery, nor did alleviate the dangers, or otherwise make safe the they request a continuance to do so. dangerous conditions of its trees; (5) the Department consciously and deliberately failed to warn the Mi- C. Waiver of Immunity Based on Premises Defects randas of the extremely dangerous condition; and (6) 1. The Mirandas' Pleadings the Department's conduct was willful, wanton, or [24] The Mirandas contend that their pleadings grossly negligent. A liberal construction of these al- fall within the Tort Claims Act's waiver of immunity legations, as required, demonstrates that the Mirandas for both premises defects and injuries arising out of stated a claim against the Department for gross neg- conditions or use of property. The Act provides that a ligence. This conclusion should not be read as a sug- state agency is liable for injury and death caused by “a gestion that the Department has a duty to inspect every condition or use of tangible personal or real property if tree in each of the many parks that the Department the governmental unit would, were it a private person, manages. Instead, in this case, the Mirandas alleged be liable to the claimant according to Texas law.” sufficient facts to survive a plea to the jurisdiction TEX. CIV. PRAC. & REM.CODE § 101.021(2). The based solely on the pleadings. Mirandas' pleadings allege injuries caused by a falling tree limb, which falls under the definition of real JUSTICE JEFFERSON'S dissent contends that property i.e., “ ‘land, and generally whatever is erected the Mirandas' third amended petition does not state a or growing upon or affixed *230 to land.’ ” San An- claim for gross negligence because the allegations are tonio Area Found. v. Lang, 35 S.W.3d 636, 640 conclusory and do not assert enough specific facts (Tex.2000) (quoting Chastain v. Koonce, 700 S.W.2d alleging that the Department had “actual subjective 579, 584 (Tex.1985) (Gonzalez, J., concurring)). The awareness of the risk involved and proceeded, never- Mirandas' allegation of an injury caused by a tree limb theless, with conscious indifference. He suggests that

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to state a claim the Mirandas should have pled that the Department had actual knowledge that the branch JUSTICE JEFFERSON also contends that the would fall yet nevertheless instructed Maria to camp Mirandas are entitled to replead. As a practical matter, beneath it.” 133 S.W.3d at 242. The pleading hurdle the Mirandas have already repled to try to cure the he seeks to erect would be groundbreaking, indeed, “defects” that JUSTICE JEFFERSON raises. The extending beyond current requirements under our Mirandas no doubt filed their third amended petition, rules of civil procedure and case law. Rules 45 and 47 in which allegations of gross negligence were raised require that the original pleadings give a short state- for the first time in this lawsuit, in response to the ment of the cause of action sufficient to give the op- Department's plea to the jurisdiction. However, be- posing party fair notice of the claim involved. TEX.R. cause the Mirandas' third amended petition satisfies CIV. P. 45, 47; Paramount Pipe & Supply Co., Inc. v. the notice pleading requirements of our procedural Muhr, 749 S.W.2d 491, 494 (Tex.1988); Castleberry rules, the Mirandas do not need, nor are they entitled v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 to, an opportunity to replead. See TEX.R. CIV. P. 47. (Tex.1981). Rule 45 does not require that the plaintiff set out in his pleadings the evidence upon which he 2. The Department's Evidence relies to establish his asserted cause of action. Muhr, [25] The Department challenged the Mirandas' 749 S.W.2d at 494–95. While it is clear that “[t]he pleadings and also submitted evidence to controvert party suing the governmental entity must establish the the factual allegations supporting jurisdiction. We state's consent, which may be alleged either by refer- consider the relevant evidence submitted to decide this ence to a statute or to express legislative permission,” jurisdictional challenge. See Bland, 34 S.W.3d at 555. Jones, 8 S.W.3d at 638, and that “[m]ere reference to The Department attached the deposition testimony of the Tort Claims Act does not establish the state's Craig VanBaarle, the assistant park manager for consent to be sued and thus is not enough to confer Garner State Park, to its plea to the jurisdiction. jurisdiction on the trial court,” Miller, 51 S.W.3d at VanBaarle testified that while the park normally in- 587, the Mirandas' pleadings allege sufficient facts to spects and maintains its trees, tree limbs are only bring their claims under the recreational use statute pruned or trimmed if they appear to be dead. Ac- and the Tort Claims Act. cording to VanBaarle, the tree limb that fell on Maria was living. He testified that both dead and living tree *231 Although facts alleged in a petition should limbs have fallen at various locations in the park. He not be improperly stretched to state a claim for gross testified that the park knows that tree limbs can fall negligence, JUSTICE JEFFERSON'S pleading stan- and have fallen on approximately twenty occasions. dard for gross negligence would be virtually imposs- However, no one had ever been injured by falling tree ible to meet, even when grossly negligent conduct limbs. He also testified that the tree limb that injured occurred, absent an admission of liability. His stan- Maria Miranda fell from fifty feet above the campsite dard requires specific factual allegations in an original and that the park employees would not have been able petition of what the defendant knew and thought i.e., to see the limb clearly without climbing the tree even its state of mind. His pleading hurdle would require if the limb had been dead. discovery into the very extrinsic facts which he be- moans consideration of in the plea to the jurisdiction. In addition, the Department attached the affidavit The Mirandas' third amended petition provided suffi- of Roy B. Inks, operations and maintenance specialist cient notice to ascertain the nature and basic issues of at Garner State Park. Inks' responsibilities included the controversy and the evidence that probably would supervision of park maintenance including preserva- be relevant. tion and maintenance of trees at campsites. According

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to his affidavit, Inks inspected the campsite after the failed to raise a fact question regarding the Depart- accident. His examination of the tree and the fallen ment's alleged gross negligence. The Mirandas fall branch failed to reveal any indication that the branch short of satisfying the requirements for the Legisla- was dead, decaying, or in need of pruning. Inks opined ture's limited grant of a waiver of sovereign immunity that there was no reason to conclude that the tree from suit under the applicable statutes. Therefore, the presented a dangerous or hazardous condition. Inks trial court lacked subject matter jurisdiction. further opined that the branch that struck Maria “broke away from the tree as a result of an unpredictable and 3. Dissent unforseeable phenomenon known as ‘sudden branch In his dissent, JUSTICE BRISTER takes the view drop syndrome.’ ” Inks explained that “[i]t would be that all pleas to jurisdiction based on immunity must rare for anyone to be able to predict which branches take the form of two “standard” or “established” mo- will fall and which ones will not” as a result of this tions—either special exceptions or motions for sum- phenomenon. The Mirandas cite the Department's mary judgment. 133 S.W.3d at 239–40. This approach evidence as proof that the Department knew about might be appropriate, if we were starting from scratch. sudden branch drop syndrome and did nothing about Given that we are not writing on a blank slate, that it, thus establishing gross negligence. The Mirandas pleas have been a useful procedural vehicle in Texas did not cite any controverting evidence in their re- for over 150 years, and that use of its counterpart sponse to the Department's plea. (Federal Rule of Civil Procedure 12(b)(1)) to chal- lenge subject matter jurisdiction in the federal judicial *232 We first examine this evidence to determine system when evidence is involved has been authorized whether it establishes that the Department was grossly by every federal circuit court, the Court declines to negligent. We have observed that with regard to the abolish by written opinion such pleas to the jurisdic- subjective component of gross negligence, it is the tion. defendant's state of mind whether the defendant knew about a peril but nevertheless acted in a way that The plea to the jurisdiction was included in pro- demonstrated that he did not care about the conse- cedural rules promulgated by this Court in 1877 and quences that separates ordinary negligence from gross has been used as a procedural vehicle to challenge negligence. Louisiana–Pacific, 19 S.W.3d at 246–47. subject matter jurisdiction in trial courts for over a We search the record for evidence that the Depart- century and a half. See TEX.R. CIV. P. 85; TEX. ment's acts or omissions demonstrate that it did not DIST. CT. R. 7, 47 Tex. 597, 617 (1877); Hosner, 1 care about the consequences to the Mirandas of a Tex. at 769. In fact, as early as 1893, Texas courts known extreme risk of danger. The Mirandas fail to indicated that evidentiary challenges to subject matter point to any evidence, and the record contains no jurisdiction raised in pleas to the jurisdiction should be evidence, that shows that sudden branch drop syn- considered by trial courts. See, e.g., Gates, 291 S.W. at drome constitutes an extreme risk of danger or that the 949; Gentry, 21 S.W. at 570. With such a long lineage, Department had actual, subjective knowledge of that one wonders why a plea to jurisdiction does not qual- risk but nevertheless proceeded in conscious disregard ify as a “standard” or “established” motion. Perhaps a for the safety of others. Nor is there any evidence that second mention in the Texas Rules of Civil Procedure the Department could have taken any reasonable steps would suffice. to minimize the dangers of an “unforseeable” and “unpredictable” phenomenon. We conclude that the We decide that refining the rules for considering a evidence in the record establishes that the Department plea supported by evidence is a better approach than was not grossly negligent and that the Mirandas have eliminating the motion. This approach is consistent

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with precedent, is not disruptive to civil practice going preting the premises defect provision to further limit back more than a century, and furthers the legislative the waiver of immunity for negligent use or condition purpose of timely adjudicating subject matter juris- of real property). Other Texas courts have recognized diction when the immunity and liability facts are the that to allow plaintiffs to characterize premises defect same. claims as claims caused by the negligent condition or use of personal or real property would render the There is a suggestion in the dissents that con- Legislature's heightened requirements for premises firming in this opinion the authority of trial courts to defect claims meaningless. See, e.g., State v. Estate of consider evidence in a plea to the jurisdiction is unfair Horton, 4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no to the *233 parties in this case. The facts undercut this pet.) (stating that once a claim is determined to be a assertion. At the trial court, both parties relied on premises defect, the claimant is limited to the provi- extrinsic evidence in briefing the plea, and both parties sions delineated by the section on premises defects had extrinsic evidence on file with the court. Fur- and may not assert a general negligence theory); ac- thermore, plaintiffs expressly stated in their response cord Laman v. Big Spring State Hosp., 970 S.W.2d to the plea that they were relying on “Defendants' 670, 671–72 (Tex.App.-Eastland 1998, pet. denied); responses to discovery requests, and upon the deposi- Univ. of Texas Pan Am. v. Valdez, 869 S.W.2d 446, tion of Craig VanBaarle [the Department's assistant 450 (Tex.App.-Corpus Christi 1993, writ denied); park manager].” In fact, the Mirandas deposed Van- Hawley v. State Dep't of Highways and Pub. Transp., Baarle months before the Department filed its plea. 830 S.W.2d 278, 281 (Tex.App.-Amarillo 1992, no There is good reason why Plaintiffs have not argued writ). Accordingly, we conclude that the Mirandas unfair surprise. Given Texas precedents and the ac- have not established a cause of action under the Tort tions of the parties, there was none. Claims Act for condition or use of tangible property separate from their premises defect claim. D. Waiver of Immunity Based on Condition or Use of Tangible Property IV. Conclusion [26] The Mirandas assert that their pleadings also Trial courts should decide dilatory pleas early at state a cause of action for injuries resulting from a the pleading stage of litigation if possible. Here, the condition or use of tangible property. The allegations' Legislature's mandate is not so simple. By statute, in the Mirandas third amended petition concern only waiver of sovereign immunity for recreational use of the Department's failure to act to reduce risks of fall- the Department's premises can only be effected by a ing tree limbs and failure to warn the Mirandas of the showing that it acted with gross negligence. Due to the risk of falling tree limbs. These allegations comprise standard erected (gross negligence), the determination the elements of their premises defect claim. The Tort of whether immunity was waived may require con- Claims Act's scheme of a limited waiver of immunity sideration of extrinsic facts after reasonable opportu- from suit does not allow plaintiffs to circumvent the nity for targeted discovery. To preclude consideration heightened standards of a premises defect claim con- of extrinsic facts when necessary to decide a plea to tained in section 101.022 by re-casting the same acts the jurisdiction would require a trial on the merits for as a claim relating to the negligent condition or use of many cases that do not need it, waste the resources of tangible property. See State v. Tennison, 509 S.W.2d the courts and the parties in the case, and *234 involve 560, 562 (Tex.1974) (rejecting the argument that the state courts in rulings on the merits in cases over Tort Claims Act “creates two entirely separate which they have no jurisdiction. grounds of liability” for negligent use or condition of real property and premise defect, but instead inter- For the reasons explained, we conclude that the

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Department established that it was not grossly negli- gent and that the Mirandas failed to raise a fact issue Second, I cannot agree that the Mirandas' plead- on that point. Thus, the trial court lacked subject ing has alleged sufficient facts to confer jurisdiction matter jurisdiction over the action. The judgment of on the trial court. The Mirandas assert that the De- the court of appeals is reversed and the Mirandas' partment was aware that branches fall from trees, but action dismissed for lack of subject matter jurisdic- consciously chose not to post warnings. Is that gross tion. negligence? No. Texas law does not impose on lan- downers a duty to warn trespassers about all con- Justice JEFFERSON filed a dissenting opinion. ceivable dangers inherent in nature. What if you add Justice BRISTER filed a dissenting opinion, in which the allegation that the Department did not inspect or Justice O'NEILL and Justice SCHNEIDER joined. prune trees in Garner State Park? The Court today makes clear that the Department has no duty to in- Justice JEFFERSON, dissenting. spect trees in state parks. 133 S.W.3d 242. If there is I dissent on two grounds. First, I do not agree that no duty, a complaint about the failure to inspect or our precedent requires the Mirandas to produce evi- prune cannot possibly constitute a gross negligence dence on all essential elements of their cause of action pleading sufficient to invoke the courts jurisdiction. to establish the trial court's jurisdiction. The Court's But the Mirandas used the words “gross negligence.” holding is inconsistent with the distinction Bland Not enough. The Mirandas pleaded no facts even draws between requiring the plaintiff to prove pre- remotely suggesting the Department was aware the liminary facts as a predicate to the trial court's power limb was about to fall, much less that it would injure to entertain the merits, and requiring her to present the Maria. merits themselves on pain of dismissal. Bland Indep. School Dist. v. Blue, 34 S.W.3d 547 (Tex.2000).FN1 I Bland, in Proper Context FN1. I agree that the court of appeals' holding In deciding a plea to the jurisdiction, the trial conflicts with Bland to the extent it holds that court must consider evidence “when necessary to the trial court was prohibited from inquiring resolve the jurisdictional issues raised.” Bland, 34 into the merits because “... the Department S.W.3d at 555. That quote must be read in context. We did not specifically allege that the Mirandas noted that when a defendant challenges an organiza- allegations were pled merely as a sham for tion's standing to sue, the organization must present the purpose of wrongfully obtaining juris- evidence of its nature and purpose before it can pursue diction.” 55 S.W.3d 648, 652. Bland does not its claims—a burden that “does not involve a signifi- require that form of defensive pleading as the cant inquiry into the substance of the claims.” Id. at sole gateway through which the trial court 554. Similarly, we *235 observed that a challenge to may consider evidence. If that were so, we personal jurisdiction may “touch on the merits of the could not have held that there are limited case,” but is not aimed at “whether the defendant may circumstances in which, even in the absence be liable as alleged.” Id. at 555. That theme—that a of a defendant's pleading that the plaintiff's plaintiff is not required to litigate the merits to estab- pleadings were a sham, the trial court is re- lish jurisdiction—was emphasized throughout our quired to consider evidence. I depart from the opinion. Id. at 554. We cautioned that “the proper Courts holding, however, that this is such a function of a dilatory plea does not authorize an in- case. quiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply

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to establish jurisdiction.” Id. judge to judge.

I interpret Bland to mean that if a plea to the ju- FN2. The prevailing view appears to be that risdiction requires the trial court to wade deeply into the timeline is strictly enforced. See Luna v. the lawsuit's merits, it is not a valid plea. Yet today the Estate of Rodriguez, 906 S.W.2d 576, 582 Court immerses itself in the merits by reaching and (Tex.App.-Austin 1995, no writ) (“Because deciding the ultimate issue in the case: “... the evi- summary judgment is a harsh remedy, we dence in the record establishes that the Department strictly construe the twenty-one day time was not grossly negligent and that the Mirandas have limit.”). Accord Burns Motors, Inc. v. Gulf failed to raise a fact question regarding the Depart- Ins. Co., 975 S.W.2d 810, 812 ment's alleged gross negligence.” 133 S.W.3d at 221 (Tex.App.-Corpus Christi 1998) rev'd on (emphasis added). This holding misapplies Bland other grounds, 22 S.W.3d 417 (Tex.2000); because it permits a defendant, on painfully short Martin v. Martin, Martin & Richards, Inc., notice and before evidence has been developed, to 991 S.W.2d 1, 11 (Tex.App.-Fort Worth force the plaintiff either to present evidence on the 1997) rev'd on other grounds, 989 S.W.2d ultimate issue in the lawsuit, or lose the right to a jury 357 (Tex.1998); Bell v. Showa Denko K.K., trial on the merits. 899 S.W.2d 749, 759 (Tex.App.-Amarillo 1995, writ denied); Stephens v. Turtle Creek The Court asserts that its standard “mirrors that of Apartments, Ltd., 875 S.W.2d 25, 27 a summary judgment....” 133 S.W.3d 228. It is a poor (Tex.App.-Houston [14th Dist.] 1994, no reflection. Our summary judgment rule, unlike the writ); Wavell v. Caller–Times Pub. Co., 809 Court's standard, contains procedural safeguards to S.W.2d 633, 637 (Tex.App.-Corpus Christi ensure that the merits are not determined before the 1991, writ denied); Williams v. City of An- nonmovant has had an adequate time for discovery gleton, 724 S.W.2d 414, 417 and an opportunity to respond. TEX.R. CIV. P. (Tex.App.-Houston [1st Dist.] 1987, writ 166a(c) (“Except on leave of court, with notice to refd n.r.e.) disapproved of on other grounds, opposing counsel, the motion and any supporting 876 S.W.2d 314 (Tex.1994). affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on The Court cites a number of federal decisions leave of court, the adverse party, not later than seven holding that when jurisdictional facts are intertwined days prior to the day of hearing may file and serve with the merits, the trial court, in considering evi- opposing affidavits or other written response.”); dence, should either employ the standard applicable to 166a(i) (“After adequate time for discovery, a party a summary judgment or leave the jurisdictional*236 without presenting summary judgment evidence may determination to trial. 133 S.W.3d 228; see also 2 move for summary judgment on the ground that there JAMES WM. MOORE ET AL., MOORE'S FED- is no evidence of one or more essential elements of a ERAL PRACTICE § 12.30[3], at 12–37 to 12–38 (3d claim or defense....)”. As a uniform rule of procedure, ed.2003). I do not disagree with that proposition, but it the summary judgment rule leaves little to the imagi- does not answer a fundamental question. This Court nation. A party whose claim is subject to adjudication must decide what procedure governs in Texas when a on the merits is entitled to advance notice that it must plea to the jurisdiction is treated like a motion for present evidence and has an adequate opportunity to summary judgment. respond.FN2 The procedure the Court adopts today, in contrast, will vary from county to county and from As JUSTICE BRISTER observes, no procedural

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rule currently requires a trial court to advise the Statute plaintiff that evidence may or must be presented in Rather than dismiss the case on the merits under a opposition to a plea to the jurisdiction, and no rule summary judgment standard, I would examine the requires an adequate time for discovery before the pleadings to determine whether the Mirandas alleged court dismisses a case on the merits. 133 S.W.3d at facts sufficient to invoke the trial court's jurisdiction. 237. By default, then, trial courts will turn to Rule 21. See Tex. Ass'n Bus. v. Tex. Air Control Bd., 852 TEX.R. CIV. P. 21. Presumably, if a trial court's ruling S.W.2d 440, 446 (Tex.1993) (plaintiff has burden to comports with Rule 21's minimum procedural re- allege facts affirmatively demonstrating that the trial quirements, a dismissal on the merits will survive any court has subject matter jurisdiction). In my view, the challenge based on an abuse of discretion standard. Mirandas' pleading falls short. Just as the Department We should ask ourselves, then, whether the Rule's owes no duty to warn trespassers that rattlesnakes may minimum requirements are adequate when the stakes strike, it owes no duty to advise statutory trespassers are no less than a party's ability to present its case on that tree limbs fall in state parks. The Mirandas did not the merits. allege that the Department had so much as an inkling that the branch in question would fall. See TEX. CIV. Under Rule 21, a plea to the jurisdiction may be PRAC. & REM CODE § 41.001(7); see also Transp. served “three days before the time specified for the Ins. Co. v. Moriel, 879 S.W.2d 10, 21–22 (Tex.1994) hearing unless otherwise provided by these rules or (explaining that gross negligence requires at a mini- shortened by the court.” Id. The rule does not mention mum that the defendant subjectively “have actual an adverse party's right to present opposing evidence, awareness of the extreme risk created by his or her which may explain why the Mirandas did not con- conduct”). Rather, she alleges that the Department is trovert the Department's plea with their own evidence. generally aware that tree limbs fall, just as it must Compiling evidence of simple negligence on three know of countless other natural *237 perils in state days' notice—evidence that typically requires months parks. Because the Department owes no duty to warn of discovery—would be daunting in itself; but where, trespassers that forces of nature may cause random as here, a plaintiff must prove gross negligence, her harm, I would hold, contrary to the Courts conclusion, ability to contest the Department's jurisdictional plea that the Mirandas pleading does not invoke the trial could be essentially non-existent. courts jurisdiction.

The Mirandas had no reason to suspect that a The Mirandas did not allege that the Department summary judgment standard applied, requiring them was subjectively aware of any specific risk of injury. to controvert the Department's evidence, because the See id. Instead, they alleged: Department's plea to the jurisdiction was subject to Bland. 34 S.W.3d at 554–55 (trial court not authorized Defendant knew of the dangers of its falling tree to inquire so far into the substance of the claims pre- branches, failed to inspect, failed to prune, failed to sented that plaintiffs are required to put on their case alleviate or remove the danger, and consciously and simply to establish jurisdiction). At a minimum, I deliberately failed to warn Plaintiffs of the ex- would hold that if a summary judgment standard ap- tremely dangerous condition. Plaintiffs paid a plies, the trial court must so advise the parties and campsite rental fee and specifically asked defendant employ Rule 166a procedures. to assign them a safe campsite. Defendant knew that its property contained hidden, dangerous defect II (sic) in that its tree branches which have not been Pleading Requirements Under Recreational Use inspected or pruned regularly fall. Defendant did

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not warn Plaintiffs of the hidden danger. in their pleadings do the Mirandas assert that the De- partment was aware of any risk associated with either *** the tree or the campsite below. Instead, they simply recast allegations of simple negligence into a claim for gross negligence. Plaintiffs would show the court that the occurrence made the basis of this suit and the resulting damages set out below were a direct and proximate result of We are bound, however, to analyze their claims in Defendants negligence and its agents, servants, and light of the policies underlying the recreational use officers, both of commission or omission, or both statute. The statute exists to encourage landowners to separately and collectively, in failing to properly allow the public to enjoy outdoor recreation on their maintain and inspect the campsite where Plaintiffs property by limiting their liability for personal injury. were injured, in failing to properly maintain the City of Bellmead v. Torres, 89 S.W.3d 611, 617 campsite in a safe condition and/or in failing to ex- (Tex.2002) (Hankinson, J. dissenting). To accomplish ercise ordinary care to protect Plaintiffs from the that objective, the Legislature has placed stringent danger. parameters around the duty landowners owe “tres- passers.” See TEX. CIV. PRAC. & REM CODE § 75.002. The duty implicit in the Mirandas pleading, The Mirandas' gross negligence allegations however, would require*238 the Department to warn stated: all visitors of all perils commonly confronted by hu- Plaintiffs would show the court that the occurrences man interaction with nature. The scope of that pro- made the basis of this suit and the resulting injuries posed duty—obligating the Department to post and damages set out below were a direct and warnings about all naturally occurring dan- proximate result of Defendants negligence in failing gers—would create such an insurmountable practical to make safe the dangerous condition of its campsite and economic burden as to frustrate the legislatures trees. Defendant's conduct was willful, wanton, or intent to encourage landowners to make property grossly negligent. Defendant failed to warn or make available for recreational use. reasonably safe the dangerous condition of which it was aware and which Plaintiffs were unaware. Without allegations that the Department was aware that the limb would fall and nevertheless in- We can accept as true the Mirandas' allegation structed Maria to camp below it, the Mirandas have that the Department knew “its tree branches which not pleaded facts sufficient to proceed on their claim have not been inspected or pruned regularly fall” and under the recreational use statute. I do not mean to did not warn them about that contingency. That suggest that merely because the injury is alleged to pleading, however, is of neutral value in a suit against have resulted from a natural condition, the trial court the Department, which would owe no duty to warn is thereby deprived of jurisdiction. For example, the unless it had actual knowledge that the branch would trial courts jurisdiction would be properly invoked by fall yet nevertheless instructed Maria to camp beneath a pleading that the Department told the plaintiff it was it. See id.; see also Lee Lewis Constr., Inc. v. Harri- safe to dive into waters the Department knew were so son, 70 S.W.3d 778, 785 (Tex.2001) (reiterating that shallow that the dive posed a likelihood of serious gross negligence requires that “the actor must have injury, and that the plaintiff was severely injured di- actual, subjective awareness of the risk involved, but ving in reliance on that assurance. Here, by contrast, nevertheless proceed in conscious indifference to the the Mirandas did not plead that the Department di- rights, safety, or welfare of others.”). Indeed, nowhere rected Maria to a campsite knowing that an over-

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hanging tree branch would likely fall on her and cause have never been placed on notice that they must cure serious injury. the jurisdictional defect. It may well be that the facts will not lend themselves to a pleading that would I understand fully the Courts holding that the confer jurisdiction, but we are not equipped to make Mirandas gave “fair notice” that they were pursuing a that determination at this stage of the proceedings. gross negligence claim. Fair-notice pleadings, how- ever, must be viewed in this case through the prism of III sovereign immunity, which deprives a court of juris- Conclusion diction unless the State has expressly waived immun- We need not and should not inquire into the ul- ity. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 timate merits of this case. I would *239 remand the (Tex.1999). The plaintiffs' pleadings against the State cause to the trial court to give the Mirandas an op- must affirmatively establish jurisdiction to overcome portunity to amend their petition to plead facts estab- the contrary presumption. Tex. Dep't of Crim. Justice lishing jurisdiction. v. Miller, 51 S.W.3d 583, 587 (Tex.2001)(quoting Tex. Assn. Bus., 852 S.W.2d at 446). The plaintiff Justice BRISTER, joined by Justice O'NEILL and must plead facts that, if true, would establish that the Justice SCHNEIDER, dissenting. claims come within an express waiver of sovereign The Legislature has provided that state park vis- immunity before the trial court has jurisdiction to itors are owed the same duty of care as trespassers; FN1 proceed. Just as mere reference to the Texas Tort thus, the plaintiffs in this case had to prove the Parks Claims Act is insufficient to confer jurisdiction, Mil- and Wildlife Department caused deliberate, wilful, or ler, 51 S.W.3d at 587, the trial court's jurisdiction is malicious injury.FN2 All members of the Court agree not satisfied by mere notice that the plaintiff is pur- that either their petition or their summary judgment suing a gross negligence claim. The Mirandas have evidence fails to do so, though we disagree which. failed to affirmatively establish the court's jurisdiction because, even if all of the facts alleged in their FN1. TEX. CIV. PRAC. & REM.CODE §§ pleading were true, those facts would not amount to 75.002(c)(2), 75.003(g). gross negligence and therefore would not establish a waiver of sovereign immunity under the recreational FN2. Id. §§ 75.002(a)(2), 75.003, 101.022, use statute. 101.058.

When a plaintiff fails to plead facts establishing The Mirandas alleged Maria suffered severe in- jurisdiction, the issue is ordinarily one of pleading juries caused by the Department's gross negligence; sufficiency and the plaintiff should be afforded the specifically, they alleged the Department knew tree opportunity to amend. County of Cameron v. Brown, limbs could fall, and failed to warn them of that fact or 80 S.W.3d 549, 555 (Tex.2002). A court may grant a assign them a campsite where none would. I have plea to the jurisdiction without affording an opportu- grave doubts whether such facts could possibly con- nity to amend only when the pleadings “affirmatively stitute gross negligence—natural conditions usually negate” the existence of jurisdiction, a circumstance cannot be unreasonably dangerous (much less wan- not presented here. Id. In this case, however, the trial ton),FN3 and trespassers do not have to be warned of court overruled the Departments plea to the jurisdic- what everyone should know.FN4 Nor does the Parks tion, concluding implicitly that the Mirandas plead- Department appear to have a duty to provide camp- ings were sufficient to confer jurisdiction, and the sites safely away from trees; FN5 indeed, one has to ask court of appeals affirmed. Consequently, the Mirandas

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whether anyone would want to use such “parks” if it did.FN6 FN7. The OXFORD ENGLISH DICTIO- NARY (1989) defines “white elephant” as: FN3. See Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 a. A rare albino variety of elephant which (Tex.1996) (holding rock in dirt arena did not is highly venerated in some Asian coun- create unreasonably dangerous condition). tries. b. fig. A burdensome or costly pos- session (from the story that the kings of FN4. Cf. County of Cameron v. Brown, 80 Siam were accustomed to make a present S.W.3d 549, 558 (Tex.2002) (holding dark- of one of these animals to courtiers who ness caused by failed streetlights was not had rendered themselves obnoxious, in open and obvious hazard precluding recovery order to ruin the recipient by the cost of its by licensee because it could not be seen from maintenance). Also, an object, scheme, entrance to causeway). etc., considered to be without use or value.

FN5. See TEX. CIV. PRAC. & REM.CODE Pleas to the jurisdiction are nothing new. In his § 75.002(c)(1) (providing landowners who Commentaries on the Laws of England, Blackstone grant permission for recreational use do not lists them as a category of dilatory pleas that (along assure that the premises are safe for that with pleas of disability and abatement) deny the *240 purpose). propriety of the remedy rather than the injury.FN8 One hundred years ago, this Court addressed a variety of FN6. See Tex. Home Mgmt., Inc. v. Peavy, 89 matters as pleas to the jurisdiction, including objec- S.W.3d 30, 33 (Tex.2002) (holding question tions based on personal jurisdiction,FN9 subject-matter of legal duty is question of law requiring jurisdiction,FN10 dominant jurisdiction,FN11 venue,FN12 balance of factors such as risk, utility, con- capacity,FN13 and conflict of laws.FN14 sequences of the duty, and other relevant in- dividual and social interests). FN8. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF Faced with what appears to be an insupportable ENGLAND 301–03 (1768). allegation like the gross-negligence pleading here, litigants normally have two options: (1) demand more FN9. See, e.g., Rice v. Peteet, 66 Tex. 568, 1 specific facts by special exception, or (2) demand S.W. 657, 657 (1886). more specific facts by motion for summary judgment. Instead, the Department filed three motions, including FN10. See, e.g., McIlhenny Co. v. Todd, 71 a “plea to the jurisdiction”—the white elephant FN7 of Tex. 400, 9 S.W. 445, 446 (1888) (objecting current Texas motion practice. By use of this plea, the that amount at issue fell below court's juris- Department was able to force the trial judge (and dictional limits); Juneman v. Franklin, 67 ultimately this Court) to make an ad hoc decision Tex. 411, 3 S.W. 562, 562 (1887) (objecting whether our jurisdiction should be determined by that forcible entry and detainer action was reference to pleadings or evidence. Because it should not filed in justice court). be litigants rather than judges making that choice, I respectfully dissent. FN11. See, e.g., Cleveland v. Ward, 116 Tex.

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1, 285 S.W. 1063, 1072 (1926), disapproved any other matter, with affidavits served seven on other grounds, Walker v. Packer, 827 days before the hearing). S.W.2d 833, 842 (Tex.1992); Grathaus v. Witte, 72 Tex. 124, 11 S.W. 1032, 1032 Case law as well as rule amendments have con- (1888). tributed to the trend away from the common-law plea to the jurisdiction. For example, we have held that a FN12. See, e.g., Pecos & N.T. Ry. Co. v. complaint based on dominant jurisdiction in another Thompson, 106 Tex. 456, 167 S.W. 801, 801 court must be raised by plea in abatement in the (1914); Baines v. Jemison, 86 Tex. 118, 23 second court, or it is waived.FN17 Again, though this S.W. 639, 640 (1893); Watson v. Baker, 67 complaint could be characterized as a plea to the ju- Tex. 48, 2 S.W. 375, 375–76 (1886). risdiction, a more specific motion and procedure has rendered the common-law term obsolete. FN13. See, e.g., Brown v. Gay, 76 Tex. 444, 13 S.W. 472, 472–73 (1890). FN17. Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex.1991); Wyatt v. Shaw Plumbing FN14. See, e.g., Tex. & P. Ry. Co. v. Ri- Co., 760 S.W.2d 245, 247 (Tex.1988). chards, 68 Tex. 375, 4 S.W. 627, 629 (1887). But pleas to the jurisdiction have enjoyed a recent Since then, there has been a steady shift away resurgence in the field of governmental immunity. For from the common-law forms of pleading to the more many years, governmental units were not very partic- specific motion practice set out in the rules of civil ular about the vehicle for asserting immunity, raising procedure. For example, a defendant objecting to it sometimes by— venue today must file a motion to transfer that com- plies with the form requirements of Rule 86 and the • general demurrer; FN18 deadlines of Rule 87.FN15 Similarly, a nonresident objecting to personal jurisdiction must file a special FN18. See, e.g., State v. Hale, 136 Tex. 29, appearance that meets the requirements of Rule 146 S.W.2d 731, 735 (1941); Herring v. 120a.FN16 In substance, these motions could still be Houston Nat'l Exch. Bank, 113 Tex. 264, 253 categorized as “pleas to the jurisdiction;” but in form, S.W. 813, 814 (1923); Stephens v. Tex. & P. they must comply with the current rules of civil pro- Ry. Co., 100 Tex. 177, 97 S.W. 309, 310 cedure. (1906); Thomson v. Baker, 90 Tex. 163, 38 S.W. 21, 22 (1896). FN15. TEX.R. CIV. PROC. 86 (requiring unverified motion that is filed first and states • special demurrer; FN19 counties of improper, proper, or mandatory venue); TEX.R. CIV. PROC. 87 (requiring FN19. See, e.g., Thomson, 38 S.W. at 22. 45–days' notice of hearing, 30–days' notice of respondents affidavits, and 7–days' notice *241 • special exception; FN20 of movants affidavits).

FN20. See, e.g., Duhart v. State, 610 S.W.2d FN16. TEX.R. CIV. PROC. 120a (requiring 740, 741 (Tex.1980); Dir. of Dep't of Agric. sworn motion that is filed and heard before

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& Env't v. Printing Indus. Ass'n of Tex., 600 construed, as it is an exception to the general rule that S.W.2d 264, 265 (Tex.1980); Stephens, 97 interlocutory orders are not appealable.FN25 S.W. at 310. FN24. TEX. CIV. PRAC. & REM.CODE § • plea to the jurisdiction; FN21 51.014(a)(8).

FN21. See, e.g., Fed. Sign v. Tex. S. Univ., FN25. Bally Total Fitness Corp. v. Jackson, 951 S.W.2d 401, 403 (Tex.1997), superseded 53 S.W.3d 352, 355 (Tex.2001). by statute on other grounds as stated in Gen. Servs. Comm'n v. Little–Tex Insulation Co., As a result, almost overnight a “plea to the juris- Inc., 39 S.W.3d 591, 593 (Tex.2001); Lowe diction” became the motion of choice for asserting v. Tex. Tech Univ., 540 S.W.2d 297, 298 immunity; FN26 indeed, some appellate courts have (Tex.1976); State v. Lain, 162 Tex. 549, 349 refused to consider any other.FN27 This development S.W.2d 579, 580 (1961); Griffin v. Hawn, exalts form over substance. For example, before the 161 Tex. 422, 341 S.W.2d 151, 152 (1960); Legislature's amendment, one governmental entity Short v. W.T. Carter & Bro., 133 Tex. 202, unsuccessfully asserted immunity by means of a 126 S.W.2d 953, 955 (1938). summary judgment and special exceptions; imme- diately after the effective date, the entity filed the same • plea in abatement; FN22 or objection as a “plea to jurisdiction”—and prevailed. FN28

FN22. See, e.g., Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Lowe, 540 S.W.2d at FN26. See, e.g., Texas Natural Res. Con- 298; Griffin v. Hawn, 161 Tex. 422, 341 servation Comm'n v. IT–Davy, 74 S.W.3d S.W.2d 151, 152 (1960); W.D. Haden Co. v. 849, 852 (Tex.2002); Little–Tex Insulation Dodgen, 158 Tex. 74, 308 S.W.2d 838, 838 Co., Inc., 39 S.W.3d at 594; McClain v. Univ. (1958); Cobb v. Harrington, 144 Tex. 360, of Tex. Health Ctr. at Tyler, 119 S.W.3d 4, 5 190 S.W.2d 709, 710 (1945); Short v. W.T. (Tex.App.-Tyler 2000, pet. denied); Dallas Carter & Bro., 133 Tex. 202, 126 S.W.2d County Cmty. Coll. Dist. v. Bolton, 990 953, 955 (1938). S.W.2d 465, 466 (Tex.App.-Dallas 1999, no pet.); Alamo Cmty. Coll. Dist. v. Obayashi • summary judgment.FN23 Corp., 980 S.W.2d 745, 746 (Tex.App.-San Antonio 1998, pet. denied); Tex. Parks & Wildlife Dept. v. Garrett Place, Inc., 972 FN23. See, e.g., Overton Mem'l Hosp. v. S.W.2d 140, 142 (Tex.App.-Dallas 1998, no McGuire, 518 S.W.2d 528, 528 (Tex.1975) pet.); Tex. Parks & Wildlife Dep't v. Calla- (per curiam); Tex. Dept. of Corr. v. Herring, way, 971 S.W.2d 145, 147 (Tex.App.-Austin 513 S.W.2d 6, 7 (Tex.1974). 1998, no pet.).

In 1997, the Legislature amended the Civil Prac- FN27. See, e.g., Thomas v. Long, 97 S.W.3d tices and Remedies Code to allow interlocutory ap- 300, 302–03 (Tex. App.-Houston [14th Dist.] peals “from an interlocutory order ... [that] grants or 2003, pet. granted) (refusing interlocutory denies a plea to the jurisdiction by a governmental appeal of denial of summary judgment based unit.” FN24 We have held this section must be strictly

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on lack of subject matter jurisdiction as no order granted or denied a plea to the juris- In Bland Independent School District v. Blue,FN30 diction); Baylor Coll. of Med. v. Tate, 77 we attempted to bring some order to this resurgence by S.W.3d 467, 472 (Tex.App.-Houston [1st setting guidelines for handling such pleas. But due to Dist.] 2002, no pet.) (refusing interlocutory the broad range of issues a plea to the jurisdiction appeal because trial court's order was sum- might address, that was not easy to do. As we pointed mary judgment based on immunity from lia- out in several examples, consideration of some pleas bility rather than plea to the jurisdiction should not go beyond the pleadings, but consideration based on immunity from suit). of others must.FN31 When necessary, trial courts must consider evidence relating to the jurisdictional facts, FN28. Lamar Univ. v. Doe, 971 S.W.2d 191, but should not consider evidence relating to the me- 193 (Tex.App.-Beaumont 1998, no pet.). rits,FN32 even though the two are sometimes the same. Nor could we be specific about when pleas should be For several reasons, we should put a stop to this decided, leaving it to the trial court's discretion resurgence of common-law pleadings in immunity whether to address the issue at a preliminary hearing cases. First, it is fraught with uncertainty. Despite or after fuller development of the merits.FN33 hundreds of haphazardly-numbered rules, only once do the Texas Rules of Civil Procedure mention pleas FN30. 34 S.W.3d 547 (Tex.2000). to the jurisdiction, and then only in a rule regarding permissible parts of an answer rather than permissible FN31. Id. at 555. motions.*242 FN29 There is no rule—no case and no code—that specifies the form, deadlines, or eviden- FN32. Id. tiary requirements for pleas to the jurisdiction gener- ally. FN33. Id. at 554.

FN29. TEX.R. CIV. PROC. 85: The examples given in Bland certainly provided more procedural guidance than existed before. But The original answer may consist of mo- without considering all possible pleas to the jurisdic- tions to transfer venue, pleas to the juris- tion, we could not prescribe more definitive rules; diction, in abatement, or any other dilatory until all those disputes come before us, we should pleas; of special exceptions, of general probably not try. In the meantime, it will often be denial, and any defense by way of avoid- unclear what the trial court should consider, or when it ance or estoppel, and it may present a should do so, until the plea is decided (or perhaps even cross-action, which to that extent will later on appeal). To some observers, this may appear place defendant in the attitude of a plain- to be drawing up the rules after the game has been tiff. Matters in avoidance and estoppel may played.FN34 be stated together, or in several special pleas, each presenting a distinct defense, FN34. See id. at 555 (rejecting plaintiffs' and numbered so as to admit of separate demand for remand for full evidentiary issues to be formed on them. hearing because they did not contest evi- dence at original plea to the jurisdiction (Emphasis added). hearing).

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“motion to dismiss” when it was reversed). From almost any vantage point, the resurgence of pleas to the jurisdiction creates problems in immunity For plaintiffs, the problems created by the resur- cases. For governmental entities, it results in unne- gence of pleas to the jurisdiction are even more acute. cessary repetition. In this case, the Parks and Wildlife Defendants uncertain about how to present an im- Department could not be sure whether the trial court munity defense can simply try a little of everything; would consider evidence necessary, so it filed three plaintiffs, by contrast, may lose their case if they guess motions—a no-evidence motion for summary judg- wrong. In this case, for example, the Mirandas did not ment, a traditional motion for summary judgment, and attach any evidence to their responses to the various a plea to the jurisdiction. But as counsel for the De- motions. The lower courts agreed they did not need to, partment admitted at the hearing, “all three relate to but if we hold otherwise, then the Mirandas will learn the same set of issues.” three years too late that they should have presented evidence at the jurisdictional hearing. Such repetition is unnecessary for interlocutory review. Nothing in the Civil Practice and Remedies From a trial judge's vantage point, pleas to the Code suggests the Legislature intended to specify a jurisdiction create uncertainty, not just about the rules form motions had to take for that purpose, rather than to be applied but about the role of the judge. This case their substance. Indeed, the opposite is suggested by is one of many in which immunity from suit under the the Legislature's selection of a common-law term Texas Tort Claims Act is coextensive with immunity applicable to a broad category of motions, rather than from liability.FN36 As a result, deciding the jurisdic- a term pointing to any particular motion in the current tional question bears a strong resemblance to deciding rules of civil procedure. It has long been our practice the merits. to consider the substance of motions rather than their form; FN35 nothing in the legislative history *243 FN36. See TEX. CIV. PRAC. & suggests the interlocutory appeal statute was intended REM.CODE § 101.025(a) (waiving immun- to be an exception to that rule. ity to suit to the extent of liability under chapter 101), § 101.021 (creating govern- FN35. See, e.g., Speer v. Stover, 685 S.W.2d mental liability for specified acts resulting 22, 23 (Tex.1985) (per curiam) (considering from negligence, premises conditions, and plea to jurisdiction even though misnamed use of property to the extent private persons plea in abatement); see also TEX.R. CIV. would be liable). PROC. 71 (stating “[w]hen a party has mis- takenly designated any plea or pleading, the In these circumstances, it is difficult for Texas court, if justice so requires, shall treat the judges to detect the line between jurisdictional ques- plea or pleading as if it had been properly tions they must decide before going further and lia- designated”). Some courts themselves appear bility questions they cannot decide without usurping to use the possible terms for immunity mo- the function of the jury. Here, the Mirandas convinced tions interchangeably. See, e.g., State v. Ex- the lower courts that whether their pleadings were ecutive Condos., Inc., 673 S.W.2d 330, supported by any evidence was a question solely for 331–32 (Tex.App.-Corpus Christi 1984, writ the jury. But that is not true if they raised no material refused n.r.e.) (referring to immunity motion facts that could establish a waiver of immunity.FN37 as “plea to the jurisdiction” when it was filed, “plea in abatement” when it was denied, and

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

FN37. See TEX.R. CIV. PROC. 166a(c). FN40. See, e.g., Dallas Area Rapid Transit v. By contrast, returning to standard motions as the Whitley, 104 S.W.3d 540, 542 (Tex.2003) vehicles for asserting governmental immunity would (sovereign immunity asserted by plea to the clarify what the jurisdictional hearing will be like and jurisdiction and motion for summary judg- simplify many procedural questions. For decades, ment); County of Cameron v. Brown, 80 governmental units have asserted immunity by special S.W.3d 549, 553 (Tex.2002) (sovereign exceptions FN38 or motions for summary judgment.FN39 immunity asserted by plea to the jurisdiction In many cases (including this one), they still do so and special exceptions). today.FN40 Relying on standard procedural *244 mo- tions would eliminate many questions about dead- FN41. See, e.g., Tex. Dep't of Corr. v. Her- lines, forms, and evidence. It would make government ring, 513 S.W.2d 6, 9–10 (Tex.1974) (re- entities rather than trial judges decide whether the versing summary judgment based on im- jurisdictional challenge is directed to the plaintiff's munity as plaintiff was not allowed oppor- pleadings or the underlying facts. If a governmental tunity to replead). unit chooses wrong,FN41 it may always try again. But the plaintiff is not required to guess what rules or Returning to pre-resurgence practice would not procedures the trial judge might apply. change the incidence of governmental immunity. As we recently held, if a plea to the jurisdiction is directed FN38. See, e.g., John G. & Marie Stella only to the plaintiff's pleadings, we construe them in Kenedy Mem'l Found. v. Mauro, 921 S.W.2d the plaintiff's favor and allow an opportunity to amend 278, 281 (Tex.App.-Corpus Christi 1995, unless they affirmatively negate jurisdiction.FN42 This writ denied); Tex. Dep't of Corr. v. Winters, is, of course, identical to the rules governing special 765 S.W.2d 531, 532 (Tex.App.-Beaumont exceptions.FN43 And when governmental entities wish 1989, writ denied); Martine v. Bd. of Re- to rely on evidence, any questions of fact that affect gents, State Senior Colleges of Tex., 578 jurisdictional issues must be settled by the jury,FN44 the S.W.2d 465, 469 (Tex.Civ.App.-Tyler 1979, same standard that applies to summary judgments. no writ); Harrison v. Bunnell, 420 S.W.2d 777, 778 (Tex.Civ.App.-Austin 1967, no FN42. Cameron, 80 S.W.3d at 555; Tex. writ); State v. McDonald, 220 S.W.2d 732, Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 732 (Tex.Civ.App.-Texarkana 1949, writ 867 (Tex.2002). refused); Porter v. Langley, 155 S.W. 1042, 1043 (Tex.Civ.App.-Dallas 1913, writ re- FN43. See Brown, 80 S.W.3d at 559; Her- fused). ring, 513 S.W.2d at 9–10.

FN39. See, e.g., Ho v. Univ. of Tex. at Ar- FN44. See, e.g., Brown, 80 S.W.3d at 556 lington, 984 S.W.2d 672, 681–83 (holding foreseeability issue raised by plea to (Tex.App.-Amarillo 1998, pet. denied); the jurisdiction presented fact question for Russell v. Tex. Dep't of Human Res., 746 jury). S.W.2d 510, 513 (Tex.App.-Texarkana 1988, writ denied); Gay v. State, 730 S.W.2d 154, 159 (Tex.App.-Amarillo 1987, no writ). Nor can it be argued that courts exceed their ju- risdiction by requiring immunity pleas to be brought

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

in standard motions according to settled rules of pro- used to raise such issues.FN47 We should stop making cedure. As we stated shortly after the rules of civil the assumption*245 that the Legislature intended procedure were enacted: something different for pleas of governmental im- munity. Since [the trial court] had the power to sustain the demurrers and grant the motions, it had the power to FN47. See Baker v. Monsanto Co., 111 overrule them. The jurisdiction of a court must be S.W.3d 158, 159 (Tex.2003) (per curiam) determined, not upon the court's action in deciding (asserting limitations by summary judg- the questions presented in a case, but upon the ment); City of Port Arthur v. Tillman, 398 character of the case itself. Jurisdiction is the power S.W.2d 750, 751 (Tex.1965) (asserting li- to decide, and not merely the power to decide cor- mitations by special exception). rectly.FN45 Accordingly, I would reverse and remand for (1) FN45. Martin v. Sheppard, 145 Tex. 639, the Parks and Wildlife Department to specify whether 201 S.W.2d 810, 812–13 (1947). its plea to the jurisdiction is a challenge to the plead- ings (by special exception) or the evidence (by sum- Of course, returning to established procedural mary judgment), (2) the Mirandas to respond in com- motions will not remove all difficulties with issues of pliance with the rules of civil procedure, and (3) the governmental immunity. Judges of goodwill and in- lower courts to address the governmental immunity tellect will still disagree about whether a particular issue in accordance with the usual rules governing pleading is sufficiently specific, as JUSTICES JEF- disposition and review of those motions. FERSON and WAINWRIGHT do here. Governmen- tal units may incur unnecessary discovery costs and Tex.,2004. delays unless judges agree to hear summary judgment Texas Dept. of Parks and Wildlife v. Miranda motions on jurisdictional matters as early in the case 133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 as they might hear a plea to the jurisdiction. And ap- pellate courts must still distinguish between immunity END OF DOCUMENT from suit (as to which an interlocutory appeal will lie) and immunity from liability (as to which it will not).FN46 But simplification of our procedures should not be rejected because we cannot simplify every- thing.

FN46. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex.1999).

If the Texas Legislature mandated interlocutory review of “pleas in bar asserting limitations” (a de- velopment devoutly to be wished against), few would suggest such review was available only for motions entitled “Plea in Bar” instead of the summary judg- ment or special exception forms that have long been

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.