Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00083-CV
VIA METROPOLITAN TRANSIT AUTHORITY, Appellant
v.
Shantinia REYNOLDS, Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2015-CV-03641 Honorable David J. Rodriguez, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice
Delivered and Filed: July 18, 2018
AFFIRMED
This is an interlocutory appeal in which appellant, VIA Metropolitan Transit (“VIA”),
appeals a trial court’s order denying its plea to the jurisdiction. On appeal, VIA contends the trial
court erred in denying its plea to the jurisdiction because it is immune from suit and the motor-
driven vehicle exception of the Texas Tort Claims Act (“TTCA”) does not clearly and
unambiguously waive its immunity from suit. We recently addressed these same issues in VIA
Metropolitan Transit v. Meck, No. 04-17-00108-CV, 2018 WL 1831681 (Tex. App.—San Antonio 04-18-00083-CV
April 18, 2018, no pet. h.) (mem. op.). Based on our analysis and holding in Meck, we affirm the
trial court’s order denying VIA’s plea to the jurisdiction. 1
BACKGROUND
Appellee Shantinia Reynolds was injured while riding as a passenger on a bus operated by
VIA. According to Reynolds, the bus driver rear-ended a vehicle when it was turning right onto
an access road. Reynolds sued VIA for negligence, alleging VIA owed its passengers a duty to
exercise a high degree of care because it is a common carrier, and her injuries were proximately
caused by VIA’s breach of said duty.
VIA filed a plea to the jurisdiction, arguing that to the extent Reynolds’s negligence claim
against it was based on the “high degree of care” standard of care, the claim should be dismissed
for lack of jurisdiction because it is immune from suit. In its plea, VIA specifically argued it is
immune from suit because it is a governmental entity that exercises solely governmental functions
as opposed to proprietary functions. VIA further argued its immunity is not waived under the
motor-driven vehicle exception set forth under the TTCA because the motor-driven vehicle
exception only waives immunity for tort claims involving ordinary negligence as opposed to slight
negligence, i.e. the “high degree of care” standard of care.
The trial court denied VIA’s plea to the jurisdiction. This appeal followed.
ANALYSIS
On appeal, VIA contends the trial court erred in denying its plea to the jurisdiction because
it is immune from suit and its immunity is not waived. According to VIA, it is immune from suit
because it is a governmental entity that exercises purely governmental functions as opposed to
proprietary functions. VIA further contends its immunity from suit is not clearly and
1 In its brief, VIA admits its arguments would be resolved by our decision in Meck, which was pending at the time appellate counsel for VIA filed its brief in this appeal.
-2- 04-18-00083-CV
unambiguously waived by the motor-driven vehicle exception set forth under the TTCA because
the exception only waives immunity for tort claims involving ordinary negligence.
Standard of Review
Because governmental immunity from suit defeats a trial court’s subject matter
jurisdiction, it is properly asserted in a plea to the jurisdiction. State v. Holland, 221 S.W.3d 639,
642 (Tex. 2007); Tex. Dep’t of Pub. Safety v. Alexander, 300 S.W.3d 62, 69 (Tex. App.–Austin
2009, pet. denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–26
(Tex. 2004)). “A plea questioning the trial court’s jurisdiction raises a question of law that we
review de novo.” Holland, 221 S.W.3d at 642. In conducting our de novo review, we look to the
plaintiff’s petition to determine whether the facts as pled affirmatively demonstrate whether
jurisdiction exists. Id. at 642–43. We must accept the allegations in the petition as true, construe
them in favor of the pleading party, and examine the pleader’s intent. Miranda, 133 S.W.3d at
226; Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 337 (Tex. App.–
San Antonio 2010, no pet.). We also consider any evidence relevant to jurisdiction without
considering the merits of the claim beyond the extent necessary to determine jurisdiction.
Miranda, 133 S.W.3d at 226–27. When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts affirmatively demonstrating the trial court’s jurisdiction
to hear the matter. Id. at 226. If the relevant evidence fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea as a matter of law. Id. at 228. In the event the
pleadings are insufficient to establish jurisdiction yet do not affirmatively demonstrate an incurable
defect, then the plaintiff should be afforded an opportunity to replead. Holland, 221 S.W.3d at
642.
-3- 04-18-00083-CV
Applicable Law
In general, a governmental entity is immune from suit absent an express waiver of
immunity. Meck, 2018 WL 1831681, at *3. “[I]t is the Legislature’s sole province to waive or
abrogate sovereign immunity.” Id. (quoting Tex. Nat. Res. Conservation Comm'n v. IT–Davy, 74
S.W.3d 849, 853 (Tex. 2002)). Legislative consent to sue must be expressed in clear and
unambiguous language. Id.
“The TTCA provides for limited waivers of immunity from suit against governmental
entities for claims arising from three general areas: (1) injury caused by an employee’s operation
or use of a motor-driven vehicle or motor-driven equipment, (2) injury caused by a condition or
use of tangible property, and (3) injury caused by a condition or use of real property.” Id. (quoting
City of Houston v. Nicolai, No. 01–16–00184–CV, 2017 WL 3634279, at *5 (Tex. App.—Houston
[1st Dist.] Aug. 24, 2017, no pet.)); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West
2011). Under the motor-driven vehicle exception, a governmental entity 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 the 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
(B) the employee would be personally liable to the claimant according to Texas law . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).
Application
As noted above, we recently addressed both of VIA’s contentions regarding immunity from
suit and waiver of immunity under the motor-drive vehicle exception of the TTCA in Meck. See
2018 WL 1831681, at *4-*5. In Meck, we noted that this court has recognized that “VIA is a
governmental unit with exclusively governmental functions.” Id. at *4 (quoting Martinez v. VIA
-4- 04-18-00083-CV
Metro. Transit Auth., 38 S.W.3d 173, 175 (Tex. App.—San Antonio 2000, no pet.)).
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00083-CV
VIA METROPOLITAN TRANSIT AUTHORITY, Appellant
v.
Shantinia REYNOLDS, Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2015-CV-03641 Honorable David J. Rodriguez, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice
Delivered and Filed: July 18, 2018
AFFIRMED
This is an interlocutory appeal in which appellant, VIA Metropolitan Transit (“VIA”),
appeals a trial court’s order denying its plea to the jurisdiction. On appeal, VIA contends the trial
court erred in denying its plea to the jurisdiction because it is immune from suit and the motor-
driven vehicle exception of the Texas Tort Claims Act (“TTCA”) does not clearly and
unambiguously waive its immunity from suit. We recently addressed these same issues in VIA
Metropolitan Transit v. Meck, No. 04-17-00108-CV, 2018 WL 1831681 (Tex. App.—San Antonio 04-18-00083-CV
April 18, 2018, no pet. h.) (mem. op.). Based on our analysis and holding in Meck, we affirm the
trial court’s order denying VIA’s plea to the jurisdiction. 1
BACKGROUND
Appellee Shantinia Reynolds was injured while riding as a passenger on a bus operated by
VIA. According to Reynolds, the bus driver rear-ended a vehicle when it was turning right onto
an access road. Reynolds sued VIA for negligence, alleging VIA owed its passengers a duty to
exercise a high degree of care because it is a common carrier, and her injuries were proximately
caused by VIA’s breach of said duty.
VIA filed a plea to the jurisdiction, arguing that to the extent Reynolds’s negligence claim
against it was based on the “high degree of care” standard of care, the claim should be dismissed
for lack of jurisdiction because it is immune from suit. In its plea, VIA specifically argued it is
immune from suit because it is a governmental entity that exercises solely governmental functions
as opposed to proprietary functions. VIA further argued its immunity is not waived under the
motor-driven vehicle exception set forth under the TTCA because the motor-driven vehicle
exception only waives immunity for tort claims involving ordinary negligence as opposed to slight
negligence, i.e. the “high degree of care” standard of care.
The trial court denied VIA’s plea to the jurisdiction. This appeal followed.
ANALYSIS
On appeal, VIA contends the trial court erred in denying its plea to the jurisdiction because
it is immune from suit and its immunity is not waived. According to VIA, it is immune from suit
because it is a governmental entity that exercises purely governmental functions as opposed to
proprietary functions. VIA further contends its immunity from suit is not clearly and
1 In its brief, VIA admits its arguments would be resolved by our decision in Meck, which was pending at the time appellate counsel for VIA filed its brief in this appeal.
-2- 04-18-00083-CV
unambiguously waived by the motor-driven vehicle exception set forth under the TTCA because
the exception only waives immunity for tort claims involving ordinary negligence.
Standard of Review
Because governmental immunity from suit defeats a trial court’s subject matter
jurisdiction, it is properly asserted in a plea to the jurisdiction. State v. Holland, 221 S.W.3d 639,
642 (Tex. 2007); Tex. Dep’t of Pub. Safety v. Alexander, 300 S.W.3d 62, 69 (Tex. App.–Austin
2009, pet. denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–26
(Tex. 2004)). “A plea questioning the trial court’s jurisdiction raises a question of law that we
review de novo.” Holland, 221 S.W.3d at 642. In conducting our de novo review, we look to the
plaintiff’s petition to determine whether the facts as pled affirmatively demonstrate whether
jurisdiction exists. Id. at 642–43. We must accept the allegations in the petition as true, construe
them in favor of the pleading party, and examine the pleader’s intent. Miranda, 133 S.W.3d at
226; Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 337 (Tex. App.–
San Antonio 2010, no pet.). We also consider any evidence relevant to jurisdiction without
considering the merits of the claim beyond the extent necessary to determine jurisdiction.
Miranda, 133 S.W.3d at 226–27. When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts affirmatively demonstrating the trial court’s jurisdiction
to hear the matter. Id. at 226. If the relevant evidence fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea as a matter of law. Id. at 228. In the event the
pleadings are insufficient to establish jurisdiction yet do not affirmatively demonstrate an incurable
defect, then the plaintiff should be afforded an opportunity to replead. Holland, 221 S.W.3d at
642.
-3- 04-18-00083-CV
Applicable Law
In general, a governmental entity is immune from suit absent an express waiver of
immunity. Meck, 2018 WL 1831681, at *3. “[I]t is the Legislature’s sole province to waive or
abrogate sovereign immunity.” Id. (quoting Tex. Nat. Res. Conservation Comm'n v. IT–Davy, 74
S.W.3d 849, 853 (Tex. 2002)). Legislative consent to sue must be expressed in clear and
unambiguous language. Id.
“The TTCA provides for limited waivers of immunity from suit against governmental
entities for claims arising from three general areas: (1) injury caused by an employee’s operation
or use of a motor-driven vehicle or motor-driven equipment, (2) injury caused by a condition or
use of tangible property, and (3) injury caused by a condition or use of real property.” Id. (quoting
City of Houston v. Nicolai, No. 01–16–00184–CV, 2017 WL 3634279, at *5 (Tex. App.—Houston
[1st Dist.] Aug. 24, 2017, no pet.)); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West
2011). Under the motor-driven vehicle exception, a governmental entity 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 the 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
(B) the employee would be personally liable to the claimant according to Texas law . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).
Application
As noted above, we recently addressed both of VIA’s contentions regarding immunity from
suit and waiver of immunity under the motor-drive vehicle exception of the TTCA in Meck. See
2018 WL 1831681, at *4-*5. In Meck, we noted that this court has recognized that “VIA is a
governmental unit with exclusively governmental functions.” Id. at *4 (quoting Martinez v. VIA
-4- 04-18-00083-CV
Metro. Transit Auth., 38 S.W.3d 173, 175 (Tex. App.—San Antonio 2000, no pet.)). Thus, as we
held in Meck, we hold VIA is immune from suit unless its immunity has been waived. See id.
Having determined VIA is a governmental entity, which is generally immune from suit,
we now turn our attention to determining whether VIA’s immunity from suit is waived under the
motor-driven vehicle exception of the TTCA. According to VIA, the motor-driven vehicle
exception of the TTCA waives immunity only for ordinary negligence claims as opposed to
negligence claims involving a “high degree of care” standard. In Meck, we analyzed the language
of the motor-driven vehicle exception, concluding the exception “waives immunity for personal
injuries proximately caused by an employee’s negligent operation or use of a motor-driven vehicle
if the employee would be personally liable to the claimant under Texas law.” Id. We noted that
“[n]owhere in the motor-driven vehicle exception are specific standards of care expressly
mentioned as is the case with other exceptions under the TTCA,” and thus, “to determine whether
VIA’s immunity is waived by the motor-driven vehicle exception, we must determine whether the
bus driver would be liable.” Id. We then pointed out that “in cases involving common carriers, a
motor vehicle operator, like a bus driver, would be liable if he or she failed to exercise a ‘high
degree of care.’” Id. We therefore held that “contrary to VIA’s assertion, the motor-driven vehicle
exception is not limited to tort claims alleging only an ordinary standard of care; rather, the
exception incorporates whatever standard of care, including a ‘high degree of care,’ may be
applicable to the case.” Id.
Having revisited our analysis in Meck, we hold our decision in Meck controls this appeal.
Here, like the plaintiff in Meck, Reynolds argued VIA was a common carrier and its bus driver
would be personally liable under Texas law because he allegedly breached a “high degree of care”
to which he is allegedly subject. See id. at *5. Accordingly, we conclude that for the purposes of
waiver of immunity, the motor-driven vehicle exception is satisfied, and as a result, immunity is -5- 04-18-00083-CV
waived under the TTCA. See id. Therefore, because we conclude VIA’s immunity from suit is
waived, we hold the trial court did not err in denying VIA’s plea to the jurisdiction as to Reynolds’s
claim.
CONCLUSION
Based on the foregoing, we affirm the trial court’s order denying VIA’s plea to the jurisdiction.
Marialyn Barnard, Justice
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