Opinion filed April 12, 2018




                                     In The

        Eleventh Court of Appeals
                                   __________

                               No. 11-16-00304-CV
                                   __________

    WEST ODESSA VOLUNTEER FIRE DEPARTMENT, INC.,
                     Appellant
                                        V.
     E. ROMAN CONTRERAS AND MARTINA CONTRERAS
                   ET AL., Appellees


                      On Appeal from the 161st District Court
                               Ector County, Texas
                         Trial Court Cause No. B-138,033


                                  OPINION
       This appeal concerns a claim of governmental immunity. Ruben Contreras
and Samantha Alexis Escamilla were fatally injured when the motorcycle they were
riding upon collided with a parked brush truck owned and operated by the West
Odessa Volunteer Fire Department. Appellees, E. Roman Contreras and Martina
Contreras, brought a wrongful death and survival action against the Department
alleging that it negligently caused the death of Ruben Contreras.1 Intervenors, Steven
Escamilla and Stephanie Escamilla, joined Appellees’ suit against the Department,
asserting a wrongful death and survival action alleging that the Department
negligently caused the death of Escamilla.2
       The Department filed a traditional motion for summary judgment and plea to
the jurisdiction asserting that the claims asserted by Appellees and Intervenors were
barred by immunity. The trial court denied the motion. The Department brings this
interlocutory appeal of the trial court’s denial of its motion for summary judgment
and plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)
(West Supp. 2017) (permitting an appeal of an interlocutory order granting or
denying a plea to the jurisdiction by a governmental unit). We reverse and render.
                                        Background Facts
       Two members of the Department, Shane Alletto and Dakota Gibson,
responded to an accident on Interstate 20 and Farm to Market Road 1936 in a
Department “brush fire truck.” Prior to arriving at the scene of the accident, Alletto
and Gibson received a call from Captain Jason Cotton of the Odessa Fire Department
requesting their assistance to divert traffic off of Interstate 20. In order to divert
traffic, Alletto parked the Department’s brush truck across both lanes of the
interstate, perpendicular to traffic, with the lights turned on.                     Contreras and
Escamilla were riding a motorcycle on Interstate 20, and they collided with the brush
truck, resulting in their deaths.



       1
        We will refer to E. Roman Contreras and Martina Contreras as “Appellees.” They sued the
Department in the following capacities: individually, as personal representatives of the Estate of Ruben
Contreras, deceased, and on behalf of all wrongful death beneficiaries.
       2
        We will refer to Steven Escamilla and Stephanie Escamilla as “Intervenors.” They sued the
Department in the following capacities: as natural parents and sole surviving heirs of Samantha Alexis
Escamilla, on behalf of her estate, and as grandparents and sole managing conservators of Trinity Reigh
Escamilla Soto, the surviving minor child of Samantha Alexis Escamilla.

                                                   2
      Appellees sued the Department alleging that it was liable for its members’ act
of negligently parking the Department’s brush truck across Interstate 20. Appellees
included an allegation in their pleadings that Alletto and Gibson were employees of
the Department acting within the scope of their employment and, as such, the
Department was statutorily liable as a governmental unit under Section 101.021(1)
of the Texas Civil Practice and Remedies Code. See CIV. PRAC. & REM. § 101.021
(West 2011). Intervenors essentially made the same arguments in their pleadings,
but they also asserted that the Department acted intentionally, knowingly, or
recklessly.
      The Department filed a traditional motion for summary judgment and plea to
the jurisdiction asserting that it was immune from suit because Alletto and Gibson
were volunteers rather than employees. After a hearing, the trial court denied the
motion and the Department appealed.
                                      Analysis
      In one issue on appeal, the Department asserts that the trial court erred in
denying its motion for summary judgment and plea to the jurisdiction because it is
an emergency service organization, which is a governmental unit under the Texas
Tort Claims Act. See CIV. PRAC. & REM. § 101.001(1)(A), (3)(c). As such, the
Department contends that its immunity from suit is only waived to the extent
permitted by Section 101.021 of the Act. The Department asserts that immunity
from suit is only waived under Section 101.021 for the acts and omissions of an
employee of a governmental unit. The Department contends that the negligent acts
and omissions alleged by Appellees and Intervenors were committed by volunteers,
not employees. Accordingly, the Department asserts that there is no waiver of its
governmental immunity for the claims asserted by Appellees and Intervenors.
      “Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
                                          3
damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.
2008). The State retains sovereign immunity from suit to the extent that immunity
has not been abrogated by the legislature.         See Tex. Nat. Res. Conservation
Comm’n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002). “Governmental immunity
operates like sovereign immunity to afford similar protection to political
subdivisions of the State, including counties, cities, and school districts.” Harris
Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)).
       Governmental immunity encompasses both immunity from suit and
immunity from liability. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).
Immunity from suit completely bars actions against governmental entities unless the
legislature expressly consents to suit. Id. Immunity from suit deprives the courts of
subject-matter jurisdiction and thus completely bars the plaintiff’s claims. Wichita
Falls State Hosp., 106 S.W.3d at 696. Because sovereign/governmental immunity
from suit defeats a trial court’s subject-matter jurisdiction, it is properly asserted in
a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225–26 (Tex. 2004). Whether a court has subject-matter jurisdiction is a legal
question that we review de novo. Id. at 226; Ector Cty. v. Breedlove, 168 S.W.3d
864, 865 (Tex. App.—Eastland 2004, no pet.).
      Texas courts generally defer to the legislature to waive immunity because the
legislature is better suited to address the matter. See Reata, 197 S.W.3d at 375. For
a statute to effectuate a waiver of immunity, the legislative intent to waive immunity
must be expressed in clear and unambiguous language. Harris Cty. Hosp. Dist. v.
Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Tooke, 197 S.W.3d at 328–
29; see TEX. GOV’T CODE ANN. § 311.034 (West 2013) (“[A] statute shall not be
construed as a waiver of sovereign immunity unless the waiver is effected by clear
                                           4
and unambiguous language.”). The Texas Tort Claims Act provides a limited waiver
of immunity, allowing suits to be brought against governmental units only in certain,
narrowly defined circumstances. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d
583, 587 (Tex. 2001); Breedlove, 168 S.W.3d at 865.
       A plea to the jurisdiction can take two forms: (1) a challenge to the plaintiff’s
pleadings regarding his allegation of jurisdictional facts or (2) an evidentiary
challenge to the existence of jurisdictional facts. Miranda, 133 S.W.3d at 226–27;
see Garcia, 372 S.W.3d at 635.          The Department is primarily presenting an
evidentiary challenge to the existence of jurisdictional facts. Specifically, the
Department is challenging the allegation that the accident was caused by employees
of the Department.       If a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issues raised, as the trial court is required to
do. Miranda, 133 S.W.3d at 227. If the relevant evidence is undisputed or fails to
raise a fact question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. at 228. As noted by the court in Miranda, this
standard mirrors that of a traditional motion for summary judgment. Id.; see TEX.
R. CIV. P. 166a(c).
       We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). A party moving for traditional summary judgment
bears the burden of proving that there is no genuine issue of material fact as to at
least one essential element of the cause of action being asserted and that it is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire
Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). When reviewing a traditional motion
for summary judgment, we review the evidence in the light most favorable to the
nonmovant, indulge every reasonable inference in favor of the nonmovant, and


                                            5
resolve any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802,
824 (Tex. 2005).
       This appeal presents three questions for our consideration: (1) Is the
Department a governmental unit entitled to immunity? (2) Did the Department
conclusively establish that Alletto and Gibson were not employees of the
Department? (3) Does the Texas Tort Claims Act waive immunity for the
Department if Alletto and Gibson were not employees of the Department?
    The Department is a Governmental Unit Entitled to Governmental Immunity
       Appellees3 contend that the Department failed to conclusively establish that it
is a governmental unit protected by governmental immunity. See CIV. PRAC. & REM.
§§ 78.102, 78.103 (West 2017) (volunteer fire departments are only liable to the
extent that a county would be liable under the Texas Tort Claims Act while involved
in or providing an emergency response). The Texas Tort Claims Act includes an
“emergency service organization” as a “governmental unit” that is entitled to
governmental immunity. CIV. PRAC. & REM. § 101.001(3)(C). The Act’s definition
of an “emergency service organization” includes a volunteer fire department that is
operated by its members and exempt from state taxes as an exempt organization
under two provisions of the Tax Code. CIV. PRAC. & REM. § 101.001(1)(A); see CIV.
PRAC. & REM. § 78.101(2).
       Appellees challenge the Department’s evidence that it is an emergency service
organization under the Act. The Department’s evidence included an affidavit from
its fire chief, Jimmy Ellis, wherein he stated that the Department is a nonprofit
organization that is operated by members and organized to provide an emergency
response. Ellis also stated that the Department is exempt from state sales tax and


       3
        Appellees present the bulk of the arguments that are addressed in this opinion. We have noted
below the only argument that the Intervenors are asserting on appeal.

                                                 6
franchise tax. The Department also attached a letter from the Comptroller of Public
Accounts declaring that the Department is exempt from franchise tax and sales and
use tax. Appellees contend that the trial court erred in overruling their written
objections to these items of summary judgment evidence.
       Evidence offered in support of or in opposition to a summary judgment motion
must be in admissible form to constitute competent summary judgment evidence.
See TEX. R. CIV. P. 166a(f). In addition, there is no difference between the standards
for evidence that would be admissible in a summary judgment proceeding and those
applicable at a regular trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30
(Tex. 1997). We apply an abuse of discretion standard in reviewing a trial court’s
evidentiary rulings. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner without reference to guiding rules or principles. Samlowski,
M.D. v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011). Further, an appellate court must
uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Owens–Corning Fiberglas Corp., 972 S.W.2d at 43.
       Appellees objected to Ellis’s affidavit on the basis that it contained
unsubstantiated opinions or conclusions and was “never proven to be within his
personal knowledge.” Texas Rule of Civil Procedure 166a(f) provides that affidavits
must be based on personal knowledge, must set forth facts as would be admissible
in evidence, and must show that the affiant is competent to testify as to the matters
set forth therein. TEX. R. CIV. P. 166a(f). Ellis stated in his affidavit that “[t]he facts
stated herein are of my own personal knowledge and are true and correct.” Ellis also
stated that he served as the Department’s fire chief. This statement provided a basis
for finding that he had personal knowledge of the statements in question. Bosque
Asset Corp. v. Greenberg, 19 S.W.3d 514, 519 (Tex. App.—Eastland 2000, pet.


                                            7
denied). Accordingly, the trial court did not abuse its discretion by overruling
Appellees’ objection on these grounds to Ellis’s affidavit.
      Appellees also assert that the trial court erred in overruling their objection to
the letter from the Texas Comptroller of Public Accounts regarding the
Department’s tax status because it was not properly authenticated. The Department
contends that the letter was self-authenticated. We agree with the Department.
Documents bearing the seal of a political subdivision of the State and a “signature
purporting to be an execution or attestation” are self-authenticated. TEX. R. EVID.
902(1). The letter from the Comptroller is written on the Comptroller of Public
Accounts letterhead, it includes the seal of State for the Office of the Comptroller,
and it is electronically signed by an employee at the Comptroller’s office. Therefore,
the letter was properly authenticated and the trial court did not err in overruling
Appellees’ objection.
      Rule 166a(c) permits a summary judgment to be “based on uncontroverted
testimonial evidence of an interested witness . . . if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.” TEX. R. CIV. P. 166a(c). Ellis’s statements
that the Department is a volunteer fire department that is operated by its members
and exempt from state taxes as an exempt organization are clear, direct, and readily
controvertible. See CIV. PRAC. & REM. § 101.001(1)(A). Furthermore, Ellis’s
statements pertaining to the status of the Department are supported by the letter from
the Comptroller of Public Accounts. Accordingly, the summary judgment evidence
conclusively established that the Department is a governmental unit entitled to
governmental immunity. See Norrell v. Gardendale Volunteer Fire Dep’t, 115
S.W.3d 114, 117 (Tex. App.—San Antonio 2003, no pet.) (reaching the same
conclusion with respect to a volunteer fire department composed entirely of unpaid
volunteers); see also Freer Volunteer Fire Dep’t v. Wallace, No. 04-16-00373-CV,
                                            8
2016 WL 5795164, at *2 (Tex. App.—San Antonio Oct. 5, 2016, no pet.) (mem.
op.).
                The Department Established that Alletto and Gibson
                     Were Not Employees of the Department
        Appellees alleged in their pleadings that the Department was liable under
Section 101.021(1) of the Texas Tort Claims Act. This section provides that a
governmental unit of 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
                    (B) the employee would be personally liable to the
              claimant according to Texas law.
CIV. PRAC. & REM. § 101.021 (emphasis added).             It is well established that
subsection (1) of Section 101.021 requires an act or omission to be committed by an
employee acting within the scope of his employment as a prerequisite to liability.
DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995); Gardendale, 115 S.W.3d
at 117. As noted in Gardendale, a volunteer fire department has governmental
immunity under Section 101.021(1) if it is composed entirely of unpaid volunteers
because the Act defines an employee as a person “who is in the paid service of a
governmental unit.” 115 S.W.3d at 117; see CIV. PRAC. & REM. § 101.001(2).
        Ellis stated in his affidavit that every firefighter of the Department is a
volunteer and that none of them received a salary or other compensation. He
specifically stated that Alletto and Gibson are unpaid volunteer firefighters.
Appellees’ objections to Ellis’s affidavit extend to these statements. We have
already determined that the trial court did not err in overruling Appellees’ objections


                                           9
to Ellis’s affidavit. Specifically, Ellis’s status as the chief of the Department
establishes that he had sufficient knowledge regarding the status of the Department’s
firefighters.4 The Department also attached excerpts from Alletto’s deposition.
Alletto testified that he was serving as a volunteer firefighter at the time of the
accident and that he did not receive any compensation for being a volunteer
firefighter.
        Appellees contend that, at least, Alletto was an employee of the Department
because he was provided life insurance coverage through the Department.5
Appellees base this contention on deposition testimony from Alletto wherein he
stated that Ellis told him that the Department’s volunteers had life insurance.
However, Alletto did not know who paid for the life insurance, the name of the
insurance company, or the amount of coverage.
        The San Antonio Court of Appeals addressed a similar contention in Freer.
The volunteer firefighter in Freer was paid a stipend for each emergency run and
training session he attended. 2016 WL 5795164, at *2. Citing the Fair Labor
Standards Act, the court concluded that the stipend did not convert the volunteer
firefighter into an employee. Id.; see 29 C.F.R. § 553.106(a), (e). The Fair Labor
Standards Act expressly provides that “[v]olunteers may be paid expenses,
reasonable benefits, a nominal fee, or any combination thereof, for their service
without losing their status as volunteers.” 29 C.F.R. § 553.106(a). As was the case
in Freer, the summary judgment record does not establish that the Department’s


        Appellees also objected to three paragraphs in Ellis’s affidavit on the basis that they constituted
        4

inadmissible hearsay. These three paragraphs (nos. 10–12) are not relevant to our disposition of this appeal.
Accordingly, we do not reach Appellees’ hearsay objection.
        5
         Appellees additionally assert that a fact question exists regarding Gibson’s status because he was
fifteen years old and the Department’s bylaws require a member of the Department to be eighteen.
However, Appellees successfully challenged the admissibility of the Department’s bylaws as a part of the
summary judgment evidence. Accordingly, we do not consider Appellees’ contention because the bylaws
are not part of the summary judgment record available for our consideration.

                                                     10
provision of life insurance benefits to its volunteer firefighters affected their status
as volunteers. Accordingly, the summary judgment evidence establishes that Alletto
and Gibson were volunteers rather than employees of the Department.
     The Texas Tort Claims Act Does Not Waive Immunity for the Department
       Because Alletto and Gibson Were Not Employees of the Department
      Both Appellees and Intervenors assert that the Department’s immunity under
the Texas Tort Claims Act is waived even if Alletto and Gibson were not employees.
They base this assertion on Section 101.021(2). Section 101.021 provides in its
entirety as follows:
      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
                    (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 would, were
      it a private person, be liable to the claimant according to Texas law.
CIV. PRAC. & REM. § 101.021. Subsection (1) makes reference to an employee acting
within the scope of his employment. Thus, subsection (1) clearly requires the
involvement of an employee of a governmental unit in order to impose liability for
claims brought under the subsection pertaining to motor-driven equipment.
However, subsection (2) does not expressly reference an employee for claims arising
from the use of tangible personal property. Based upon this omission, Appellees and
Intervenors6 assert that unlike subsection (1), liability under subsection (2) is not

      6
       This is the only assertion raised by the Intervenors in their appellate brief.

                                                    11
dependent on the actions of an employee. Appellees and Intervenors assert that
immunity is waived under subsection (2) because the use of the fire truck also
constituted the use of tangible personal property. We disagree with Appellees’ and
Intervenors’ analysis.
        The Texas Supreme Court addressed Section 101.021(2) in DeWitt. 904
S.W.2d at 652–53. Dewitt involved a claim that a deputy for Harris County caused
an accident through his use of tangible personal property. Id. at 651. Individually,
the deputy had official immunity.7 Id. at 652. The court analyzed whether Harris
County’s governmental immunity existed under Section 101.021(2) if the deputy
involved in the incident had official immunity. Id. at 653. The court held that Harris
County’s governmental immunity was not waived under Section 101.021(2) if the
employee had official immunity. Id. at 654. The court reached this conclusion by
determining that the waiver of governmental immunity provided under
Section 101.021(2) is predicated on the respondeat superior liability of the
governmental unit for the acts of an employee. Id. at 653. The court concluded that
the parameters of respondeat superior liability under Section 101.021(1) (i.e., “of an
employee       acting     within      his    scope       of   employment”)          also    applied      to
Section 101.021(2) for the use of tangible personal property even though that
language is absent from Section 101.021(2). Id.; see Abutahoun v. Dow Chem. Co.,
463 S.W.3d 42, 50 (Tex. 2015) (“Quite plainly, in DeWitt we held that the inclusion
of the ‘use’ language [in Section 101.021(2)] was meant to impose liability for the




        7
          As noted by the court in DeWitt, sovereign immunity and official immunity are to be distinguished.
Official immunity protects individual officials from liability; sovereign immunity protects governmental
entities from liability. DeWitt, 904 S.W.2d at 653 (citing Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994)).
Official immunity inures to all governmental employees who perform discretionary functions in good faith
and within their authority. Id. at 652 (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994)).

                                                    12
negligent actions of an employee based on principles of respondeat superior.”
(emphasis added)).
      The Texas Supreme Court subsequently addressed Section 101.021(2) in
Bishop v. Texas A&M Univ., 35 S.W.3d 605 (Tex. 2000). A student that was
accidentally stabbed in a school theatrical production sued the university asserting
that the school’s faculty advisors were acting as university employees and that they
were negligent in their use of tangible personal property. Id. at 606. Following the
holding in DeWitt, the court analyzed whether the faculty advisors were university
employees versus volunteers with respect to their role in sponsoring the theatrical
production. Id. at 606–07. The court concluded that the faculty advisors were
employees and therefore that Section 101.021(2) waived the university’s immunity.
The analysis undertaken by the court in Bishop of “employee versus volunteer” is
significant to this appeal for this reason: if Appellees’ and Intervenors’ position that
sovereign/governmental immunity is waived under Section 101.021(2) for the acts
of a volunteer, there would have been no need for the court in Bishop to determine
whether the faculty advisors were employees. Thus, a governmental entity can only
be liable for the use of tangible personal property under Section 101.021(2) by and
through the use of an employee using the property.
      Appellees also contend that the Department is liable under the Texas Tort
Claims Act because Alletto and Gibson were acting under the direction of Cotton, a
paid employee of the City of Odessa Fire Department. They rely on Smith v.
University of Texas in support of this position. 664 S.W.2d 180 (Tex. App.—Austin
1984, writ ref’d n.r.e.). In Smith, liability against the university was predicated on
the actions of a paid university employee who supervised volunteers. Id. at 181.
The Austin Court of Appeals concluded that immunity for the university was waived
for the manner in which its paid employee supervised the volunteers. Id. Smith is
distinguishable from the facts in this case because Appellees are not suing the City
                                          13
of Odessa for Cotton’s actions. See Harris Cty. v. Dillard, 883 S.W.2d 166, 167 n.2
(Tex. 1994).
       Appellees also assert that a material issue of fact exists regarding the
Department’s liability under Section 101.062. See CIV. PRAC. & REM. § 101.062(b).
This statute provides:
              This chapter applies to a claim against a public agency that arises
       from an action of an employee of the public agency or a volunteer under
       direction of the public agency and 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. Appellees contend that there is a fact issue as to whether Alletto or Gibson
violated a criminal statute in the manner in which they parked the Department’s
brush truck on the interstate. Appellees additionally contend that Section 101.062(b)
constitutes a waiver of sovereign immunity. We disagree with this interpretation of
the statute.
       The Beaumont Court of Appeals addressed a similar contention in City of
Dayton v. Gates, 126 S.W.3d 288 (Tex. App.—Beaumont 2004, no pet.). The court
considered whether Section 101.062 expands the waiver of governmental immunity
set out in Section 101.021 to allow claims arising out of the action of a 9-1-1
emergency volunteer. Id. at 291. The court rejected the requested expansion of
Section 101.021 on the basis that a statute that waives immunity must do so clearly
and unambiguously. Id. at 292–94 (citing GOV’T § 311.034). The court concluded
that Section 101.062(b) does not clearly and unambiguously waive governmental
immunity and, therefore, does not expand the waiver of immunity in Section
101.021. Id. at 293 (citing City of El Paso v. Hernandez, 16 S.W.3d 409, 415–16
(Tex. App.—El Paso 2000, pet. denied) (holding Section 101.062 does not clearly
and unambiguously waive sovereign immunity of a governmental unit)); see
Gipson v. City of Dallas, 247 S.W.3d 465, 470 (Tex. App.—Dallas 2008, pet.

                                          14
denied). We agree with the analysis of the Beaumont, El Paso, and Dallas Courts of
Appeals that Section 101.062(b) does not expand the waiver of immunity in Section
101.021.
                                               Conclusion
        The summary judgment evidence conclusively establishes that the
Department’s immunity as an all-volunteer fire department is not waived under the
Texas Tort Claims Act.                Accordingly, the trial court erred in denying the
Department’s motion for summary judgment and plea to the jurisdiction. We sustain
the Department’s sole issue on appeal. With respect to the correct disposition,
Appellees assert that we should remand the matter in order to allow them the
opportunity to amend their pleadings. However, we have determined that the
Department has conclusively negated the existence of a jurisdictional fact.
Accordingly, a remand would not be proper. See Miranda, 133 S.W.3d at 227.
                                         This Court’s Ruling
        We reverse the trial court’s order, and we render judgment that the underlying
cause against the Department is dismissed for lack of jurisdiction.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


April 12, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.8



        8
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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