In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00052-CV
TEXAS DEPARTMENT OF CRIMINAL JUSTICE—CORRECTIONAL INSTITUTIONS DIVISION, APPELLANT
V.
FRANCISCO ESPINOZA, APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2021544735, Honorable Les Hatch, Presiding
June 29, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
“It’s not having what you want. It’s wanting what you’ve got.”1
In this appeal from an order granting, in part, its plea to the jurisdiction, the Texas
Department of Criminal Justice–Correctional Institutions Division wants what it already
got. That was a dismissal of a claim asserted by Francisco Espinoza involving the
1 SHERYL CROW, Soak Up the Sun, on C’MON, C’MON (A & M Records 2002). absence of seatbelts while being driven in a van. Others implicating the negligent way in
which the TDCJ employee drove the van were not dismissed. We affirm.
The dispute arose from the transport by TDCJ of Espinoza “for non-emergency
care.” As alleged in his original petition, “suddenly and without warning the transport van
stopped violently throwing Plaintiff forward because he had not been restrained in his seat
by state employees named Sandoval and Corpus.” “Since Plaintiff was shackled, he
could not protect himself as he was thrown forward and sustained” injuries. “[T]his non-
use of seatbelts or similar safety equipment subjects Defendant to liability under the
Texas Tort Claims Act 101.001 Tex. Civ. Prac. & Rem. Code.” “The Defendant’s
employees, while acting within the scope of their employment, were (1) negligent
regarding the use or misuse of tangible personal property and/or through furnishing
Plaintiff with inadequate or defective tangible personal property and (2) negligent
regarding their implementation of policy,” asserted Espinoza. Furthermore, the “tangible
property included but is not necessarily limited to seatbelts in the transport vehicle which
were removed and/or defective and/or not used by Defendant’s employees.” Those were
the live allegations when the TDCJ filed it plea to the jurisdiction.
With the plea, the State argued that “decisions regarding the installation of safety
features [were] discretionary determinations by a governmental unit and for which a
governmental unit [was] entitled to sovereign immunity.” Such safety measures included
the installation of seatbelts or like restraint in the back of a transport van. Thus, § 101.056
of the Texas Civil Practice and Remedies Code retained the cloak of sovereign immunity
and barred Espinoza from proceeding, it believed.2 Upon hearing the plea, the trial court
2 The statute provides that governmental entities retain immunity regarding “a claim based on: (1)
the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a 2 agreed and dismissed Espinoza’s “allegations that Defendant failed to fasten [existing]
seatbelts around [him] . . . (unless such belting is required by law), and [his] allegation the
Defendant used a transport vehicle that lacked seatbelts (unless the existence of such
belts is required by law).” It allowed the other claims to remain pending. TDCJ wanted
more. It appealed and continues to urge the same argument.
As said by the Supreme Court, “[w]hen . . . no special exception is made, we
liberally construe the pleadings in the pleader’s favor.” Bos v. Smith, 556 S.W.3d 293,
305–06 (Tex. 2018). The TDCJ did not specially except to Espinoza’s live pleading. So,
using the mantra in Bos to guide us, we see that much of what Espinoza complained of
encompassed the absence of seatbelts or passenger restraints. But, there was more.
He also alluded to the manner in which the driver operated the vehicle. Allegedly, the
operator “suddenly and without warning . . . stopped violently.” That act purportedly
caused Espinoza to be thrown forward and suffer injuries.
We see a combination of events and complaints underlying the suit. One
encompasses negligence regarding the way the driver operated the van and the other
concerns negligence attributable to the absence of seatbelts. Apparently, the trial court
read the petition as also averring an instance of negligence unrelated to missing
restraints. Via one question, it asked defense counsel: “But does the Plaintiff allege
negligence on the part of the driver in braking or stopping suddenly or something along
those lines that caused him to be thrown forward?” Additionally, Espinoza’s counsel
reenforced this construction of his pleading, at the hearing. He focused on the way the
governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.056(1)–(2). 3 driver drove and its result, not the lack of seatbelts. So too did he invite the TDCJ to file
special exceptions, move for summary judgment, or call if it cared for more information
“about some of the allegations in the petition.”
Espinoza did not wait for that call. Once the trial court granted part of the
jurisdictional plea, he amended his petition. Again, he alluded to the driver stopping
violently and without warning. The result of which included his being thrust forward due
to the lack of restraints. He also added that “[t]he driver of . . . was negligent in failing to
keep a proper lookout, speeding and failing to safely slow down without throwing Plaintiff
forward.”3
Next, statute provides that the government is liable for, among other things,
personal injury proximately caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if the injury arose from the operation
or use of a motor-driven vehicle. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A).
There need only be a nexus between the injury and operation of the vehicle; that is, its
operation must “‘actually cause’” the alleged injury. PHI, Inc. v. Tex. Juvenile Dep’t, 593
S.W.3d 296, 302 (Tex. 2019) (quoting Tex. Nat. Res. Conservation Comm’n v. White, 46
S.W.3d 864, 868 (Tex. 2001)). If negligently failing to apply the brakes of a non-moving
vehicle falls with the realm of operating it, see id. at 306 (so holding), then applying them
in a negligent way while the vehicle moves with passengers certainly is. And, that is an
3 We do not hesitate to consider the amended petition. Had the trial court cared to dismiss the
entire suit, it would have been obligated to afford Espinoza opportunity to amend his pleading to assert a viable claim, if such a claim existed. See Paxton v. Dolcefino Communs., LLC, No. 07-20-00279-CV, 2021 Tex. App. LEXIS 8052, at *7–8 (Tex. App.—Amarillo Sept. 30, 2021, no pet.) (mem. op.) (“When a plaintiff’s pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be allowed the opportunity to amend.”). So, it can be said that by amending his petition to expound upon his negligence claim, Espinoza did that to which he was otherwise entitled, and we need not ignore it.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00052-CV
TEXAS DEPARTMENT OF CRIMINAL JUSTICE—CORRECTIONAL INSTITUTIONS DIVISION, APPELLANT
V.
FRANCISCO ESPINOZA, APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2021544735, Honorable Les Hatch, Presiding
June 29, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
“It’s not having what you want. It’s wanting what you’ve got.”1
In this appeal from an order granting, in part, its plea to the jurisdiction, the Texas
Department of Criminal Justice–Correctional Institutions Division wants what it already
got. That was a dismissal of a claim asserted by Francisco Espinoza involving the
1 SHERYL CROW, Soak Up the Sun, on C’MON, C’MON (A & M Records 2002). absence of seatbelts while being driven in a van. Others implicating the negligent way in
which the TDCJ employee drove the van were not dismissed. We affirm.
The dispute arose from the transport by TDCJ of Espinoza “for non-emergency
care.” As alleged in his original petition, “suddenly and without warning the transport van
stopped violently throwing Plaintiff forward because he had not been restrained in his seat
by state employees named Sandoval and Corpus.” “Since Plaintiff was shackled, he
could not protect himself as he was thrown forward and sustained” injuries. “[T]his non-
use of seatbelts or similar safety equipment subjects Defendant to liability under the
Texas Tort Claims Act 101.001 Tex. Civ. Prac. & Rem. Code.” “The Defendant’s
employees, while acting within the scope of their employment, were (1) negligent
regarding the use or misuse of tangible personal property and/or through furnishing
Plaintiff with inadequate or defective tangible personal property and (2) negligent
regarding their implementation of policy,” asserted Espinoza. Furthermore, the “tangible
property included but is not necessarily limited to seatbelts in the transport vehicle which
were removed and/or defective and/or not used by Defendant’s employees.” Those were
the live allegations when the TDCJ filed it plea to the jurisdiction.
With the plea, the State argued that “decisions regarding the installation of safety
features [were] discretionary determinations by a governmental unit and for which a
governmental unit [was] entitled to sovereign immunity.” Such safety measures included
the installation of seatbelts or like restraint in the back of a transport van. Thus, § 101.056
of the Texas Civil Practice and Remedies Code retained the cloak of sovereign immunity
and barred Espinoza from proceeding, it believed.2 Upon hearing the plea, the trial court
2 The statute provides that governmental entities retain immunity regarding “a claim based on: (1)
the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a 2 agreed and dismissed Espinoza’s “allegations that Defendant failed to fasten [existing]
seatbelts around [him] . . . (unless such belting is required by law), and [his] allegation the
Defendant used a transport vehicle that lacked seatbelts (unless the existence of such
belts is required by law).” It allowed the other claims to remain pending. TDCJ wanted
more. It appealed and continues to urge the same argument.
As said by the Supreme Court, “[w]hen . . . no special exception is made, we
liberally construe the pleadings in the pleader’s favor.” Bos v. Smith, 556 S.W.3d 293,
305–06 (Tex. 2018). The TDCJ did not specially except to Espinoza’s live pleading. So,
using the mantra in Bos to guide us, we see that much of what Espinoza complained of
encompassed the absence of seatbelts or passenger restraints. But, there was more.
He also alluded to the manner in which the driver operated the vehicle. Allegedly, the
operator “suddenly and without warning . . . stopped violently.” That act purportedly
caused Espinoza to be thrown forward and suffer injuries.
We see a combination of events and complaints underlying the suit. One
encompasses negligence regarding the way the driver operated the van and the other
concerns negligence attributable to the absence of seatbelts. Apparently, the trial court
read the petition as also averring an instance of negligence unrelated to missing
restraints. Via one question, it asked defense counsel: “But does the Plaintiff allege
negligence on the part of the driver in braking or stopping suddenly or something along
those lines that caused him to be thrown forward?” Additionally, Espinoza’s counsel
reenforced this construction of his pleading, at the hearing. He focused on the way the
governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.056(1)–(2). 3 driver drove and its result, not the lack of seatbelts. So too did he invite the TDCJ to file
special exceptions, move for summary judgment, or call if it cared for more information
“about some of the allegations in the petition.”
Espinoza did not wait for that call. Once the trial court granted part of the
jurisdictional plea, he amended his petition. Again, he alluded to the driver stopping
violently and without warning. The result of which included his being thrust forward due
to the lack of restraints. He also added that “[t]he driver of . . . was negligent in failing to
keep a proper lookout, speeding and failing to safely slow down without throwing Plaintiff
forward.”3
Next, statute provides that the government is liable for, among other things,
personal injury proximately caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if the injury arose from the operation
or use of a motor-driven vehicle. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A).
There need only be a nexus between the injury and operation of the vehicle; that is, its
operation must “‘actually cause’” the alleged injury. PHI, Inc. v. Tex. Juvenile Dep’t, 593
S.W.3d 296, 302 (Tex. 2019) (quoting Tex. Nat. Res. Conservation Comm’n v. White, 46
S.W.3d 864, 868 (Tex. 2001)). If negligently failing to apply the brakes of a non-moving
vehicle falls with the realm of operating it, see id. at 306 (so holding), then applying them
in a negligent way while the vehicle moves with passengers certainly is. And, that is an
3 We do not hesitate to consider the amended petition. Had the trial court cared to dismiss the
entire suit, it would have been obligated to afford Espinoza opportunity to amend his pleading to assert a viable claim, if such a claim existed. See Paxton v. Dolcefino Communs., LLC, No. 07-20-00279-CV, 2021 Tex. App. LEXIS 8052, at *7–8 (Tex. App.—Amarillo Sept. 30, 2021, no pet.) (mem. op.) (“When a plaintiff’s pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be allowed the opportunity to amend.”). So, it can be said that by amending his petition to expound upon his negligence claim, Espinoza did that to which he was otherwise entitled, and we need not ignore it. 4 aspect of Espinoza’s complaint, irrespective of the presence of seatbelts or like restraints.
Because it is, we also reject the TDCJ’s supposition that Dallas County v. Garcia, No. 05-
18-01038-CV, 2019 Tex. App. LEXIS 6680 (Tex. App.—Dallas Aug. 1, 2019, no pet.)
(mem. op.), mandates dismissal of the entire suit.
In that case, Garcia was injured when being transported by Dallas County sheriff
deputies. Upon suing the County, he alleged that it “‘did not secure him or otherwise
restrain him,’ and ‘Defendant’s erratic driving caused [Garcia] to be thrown about the back
of the vehicle and break a vertebrae in his neck.’” Garcia, 2019 Tex. App. LEXIS 6680,
at *1–2. So, in his view, the County “was ‘negligent in failing to restrain [Garcia] and
operate the transport vehicle in a reasonably prudent manner.’” Id. (emphasis added).
Furthermore, the trial court denied the County’s claim of immunity asserted via to its plea
to the jurisdiction. On appeal, the court agreed with the County that its “decision about
what type of safety device to put in its vans was a discretionary decision for which the
County retains immunity.” Id. at *7. But, contrary to the TDCJ’s urgings here, it did not
dismiss the entire suit. Instead, the panel “conclude[d] the trial court erred in denying the
County’s plea to the jurisdiction on Garcia’s claims involving restraints.” Id. at *8
(emphasis added). Then, it rendered judgment “granting the County’s plea . . . and
dismissing . . . Garcia’s claims regarding the County’s use of restraints.” Id.
(emphasis added). However, it remanded the appeal “for further proceedings on Garcia’s
remaining claims.” Id. The remaining claim was that involving the operation of “the
transport vehicle in a reasonably prudent manner.” In short, the entire suit was not
dismissed; a negligence claim focused on the way the driver operated the van was
allowed to proceed.
5 Here, the trial court followed Garcia, just as the TDCJ asked it to. It dismissed one
claim founded upon the absence of seatbelts and retained another involving the operation
of the van. We find no fault in that. The mistake occurs with the TDCJ’s reading into
Garcia that which was missing.
To reiterate “it’s not having what you want” but “wanting what you’ve got.” Here,
the TDCJ got what it wanted: compliance with Garcia. Consequently, we overrule the
sole issue before us and affirm the trial court’s order granting and denying, in part, the
plea to the jurisdiction.
Brian Quinn Chief Justice