                                 MEMORANDUM OPINION
                                        No. 04-10-00649-CV

                                      City of SAN ANTONIO,
                                              Appellant

                                                 v.

     Mario GIRELA and Alejandrina Garcia, Individually, as heirs at Law of Patricia Girela
      Matthews, Deceased, and A/N/F of Christina Miracle Garcia, an Incapacitated Adult,
                                        Appellees

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-17744
                          Honorable Solomon Casseb, III, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 2, 2011

REVERSED AND RENDERED

           The City of San Antonio appeals an order denying its plea to the jurisdiction asserting

governmental immunity in a suit arising from actions taken by city-employed paramedics

responding to a 9-1-1 call. The suit was brought by Mario Girela and Alejandrina Garcia,

individually, as heirs at law of Patricia Girela Matthews, deceased, and as next friend of

Christina Miracle Garcia, (collectively, “Girela”). We reverse and render.
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                                           BACKGROUND

       According to the allegations in the underlying suit, on November 1, 2007, Girela called

9-1-1 and requested an ambulance for his daughter, Patricia Matthews, who was having trouble

breathing. While waiting for the ambulance to arrive, Matthews, who had been diagnosed with

chronic obstructive pulmonary disease, began using a portable oxygen unit. When the ambulance

arrived, the paramedics removed the oxygen mask used by Matthews and failed to use a gurney

to take Matthews from her apartment to the ambulance. After a thirty-minute delay, the

paramedics transported Matthews to the hospital. Upon arriving at the hospital, Matthews was

pronounced dead.

       The City filed a plea to the jurisdiction, asserting it was immune from suit and asking the

trial court to dismiss the suit for lack of subject-matter jurisdiction. Specifically, the City argued

the suit failed to allege (1) the negligent use of tangible personal property as required by section

101.021(1) of the Texas Tort Claims Act (“TTCA”), and (2) the violation of a statute or

ordinance applicable to the action as required by section 101.062 of the TTCA. The City

attached two affidavits to its plea. The first affidavit was from one of the paramedics, who stated

that all actions she took concerning Matthews were in response to a 9-1-1 emergency. The

second affidavit was from Girela, who detailed the actions taken by the paramedics. No other

evidence was submitted. The trial court denied the plea, and the City appealed.

                                         APPLICABLE LAW

       Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it may be

properly asserted in a jurisdictional plea. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225-26 (Tex. 2004). In a suit against a governmental unit, the plaintiff must affirmatively

demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid



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Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met this

burden, courts consider the facts alleged by the plaintiff and, to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties. Id.

       When considering a plea to the jurisdiction, courts must construe the pleadings in favor

of the pleader and look to the pleader’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). Whether the pleader has alleged facts that affirmatively

demonstrate subject-matter jurisdiction is a legal question that courts review de novo. Miranda,

133 S.W.3d at 226.

       Under the doctrine of governmental immunity, a municipality is immune from tort

liability from its own acts or the acts of its agents, unless the TTCA clearly and unambiguously

waives immunity. City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). The TTCA

waives immunity for personal injury and death caused by a condition or use of tangible personal

or real property if the governmental unit would, were it a private person, be liable to the claimant

according to Texas law; and for property damage, personal injury, and death caused by the

wrongful act or omission or negligence of an employee operating or using a motor vehicle within

the scope of his employment, if the employee would be personally liable to the claimant

according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2005). Despite the

waiver provisions in section 101.021, section 101.062(b) provides that the TTCA,

       applies to a claim against a public agency that arises from an action of an
       employee of a public agency . . . that involves providing 9-1-1 service or
       responding to a 9-1-1 emergency call only if the action violates a statute or
       ordinance applicable to the action.

Id. § 101.062(b) (emphasis added). Section 101.062(b) provides an additional protection for a

governmental unit because it requires that the plaintiff allege and prove that the action forming

the basis of the complaint violated a statute or ordinance. City of El Paso v. Hernandez, 16

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S.W.3d 409, 415-16 (Tex. App.—El Paso 2000, pet. denied). Thus, in claims arising from the

action of a city employee responding to a 9-1-1 emergency call, immunity is waived only if the

action violates a statute or ordinance applicable to the action. Guillen v. City of San Antonio, 13

S.W.3d 428, 432 (Tex. App.—San Antonio 2000, pet. denied).

                                           DISCUSSION

       In responding to the City’s plea to the jurisdiction, Girela was required to demonstrate

not only that the underlying claims arise from actions falling within one of section 101.021’s

limited waivers of immunity, but also that these actions violated a statute or an ordinance

applicable to the actions. See City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex.

2006) (recognizing TTCA’s statutory exceptions apply unless the plaintiff presents evidence to

the contrary). In its first issue, the City argues Girela failed to demonstrate that the underlying

claims arise from actions involving a violation of a statute or ordinance as required by section

101.062 of the TTCA. In response, Girela asserts he satisfied the requisites of section 101.062

because the underlying claims arise from actions of city employees who violated three statutes.

Specifically, Girela asserts the responding paramedics in this case violated sections 773.050,

773.061, and 773.063 of the Texas Health and Safety Code.

       A review of the pleadings and the evidence in the record reveals that the underlying suit

does not allege the paramedics took actions in violation of the above-referenced statutes. Rather,

the underlying suit alleges the paramedics who responded to the 9-1-1 call were negligent by

removing Matthews’s oxygen mask, by failing to use a gurney to take Matthews to the

ambulance, and by delaying her transport to the hospital. None of the statutes cited by Girela

governs these actions.




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        All three statutes are located in Chapter 773 of the Texas Health and Safety Code,

otherwise known as the “Emergency Health Care Act.” TEX. HEALTH & SAFETY CODE ANN.

§ 773.001 (West 2010). Among other things, Section 773.050, entitled “Minimum Standards,”

addresses staffing requirements for emergency medical services vehicles, and requires the

executive commissioner of the Texas Health and Human Services Commission to set minimum

standards for emergency medical services vehicles and emergency medical services personnel. 1

Id. § 773.050. Section 773.061, entitled “Disciplinary Actions,” generally provides for the

revocation, suspension, or non-renewal of licenses and certificates of emergency medical

services personnel, and for the reprimand of such personnel by the Department of State Health

Services. Id. § 773.061. Section 773.063, entitled “Civil Penalty,” generally provides that the

attorney general, district attorney, or county attorney may bring a civil action to compel

compliance with chapter 773, and that a person who violates the chapter or a rule adopted under

the chapter is liable for a civil penalty in addition to other remedies. Id. § 773.063.

        Girela further asserts he satisfied the requisites of section 101.062(b) because the

underlying claims arise from actions involving violations of Title 25, Chapter 157 of the Texas

Administrative Code. However, as this court previously held in a similar case, the Texas

Administrative Code is neither a “statute” nor an “ordinance” for purposes of section 101.062.

Guillen, 13 S.W.3d at 433. We conclude Girela failed to demonstrate that the underlying claims

arise from actions violating a “statute or ordinance applicable to the action.”




1
The version of section 773.050 in effect on November 1, 2007, called on the Texas Board of Health to set these
minimum standards.


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                                                 CONCLUSION

        Because Girela failed to plead or prove that a statute or ordinance was violated by the

paramedics, the underlying claims are barred by section 101.062. 2 See id. at 434 (holding claims

were barred by section 101.062 when the plaintiff failed to plead or produce evidence that a

statute or ordinance was violated by paramedics). We reverse the trial court’s order denying the

plea to the jurisdiction, and render judgment that the case be dismissed for lack of subject-matter

jurisdiction.

                                                                       Karen Angelini, Justice




2
 In its second issue, the City argues its governmental immunity was not waived because Girela failed to demonstrate
a negligent use of tangible personal property. We need not address the City’s second issue because it is unnecessary
to the disposition of this appeal. See TEX. R. APP. P. 47.1.

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