                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00205-CV


ARTHUR DELGADO, JR.                                                    APPELLANT

                                         V.

RIVER OAKS POLICE                                                      APPELLEES
DEPARTMENT AND CITY OF
RIVER OAKS


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           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 236-277180-15

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                           MEMORANDUM OPINION1

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      Appellant Arthur Delgado, Jr., pro se, filed this interlocutory appeal

challenging the trial court’s orders sustaining the pleas to the jurisdiction and the

special exceptions filed by Appellees River Oaks Police Department (the Police

Department) and City of River Oaks (the City). See Tex. Civ. Prac. & Rem. Code

      1
          See Tex. R. App. P. 47.4.
Ann. § 51.014(a)(8) (West Supp. 2016) (authorizing interlocutory appeal from

order granting or denying a plea to the jurisdiction filed by a governmental unit).

We affirm.

      Delgado sued the City and the Police Department for claims arising from

his arrest for driving while intoxicated on April 10, 2013.2 Specifically, Delgado

alleged that after his arrest, he was subjected to an involuntary blood draw

without a warrant in violation of his Constitutional rights. Delgado alleged only

negligence per se claims against the City and the Police Department, claiming

that they were negligent in failing to keep abreast of the law and in allowing

police officers to violate the law.

      The City and the Police Department answered, denied Delgado’s

allegations, and asserted affirmative defenses.        The City and the Police

Department filed pleas to the jurisdiction and special exceptions wherein the City

asserted sovereign immunity and the Police Department asserted that it lacked

capacity to be sued because it is not a separate jural entity subject to suit. The

trial court sustained the pleas to the jurisdiction and the special exceptions and

dismissed Delgado’s negligence per se claims with prejudice.         Delgado has

appealed.



      2
      Delgado also sued an unknown arresting officer employed by the Police
Department. The record does not reflect that the unknown arresting officer was
served with citation, nor does it reflect that he entered an appearance in this
case. He is not a party to this appeal.


                                        2
      In parts of his first and second issues, Delgado complains that the trial

court erred by sustaining the City’s and the Police Department’s pleas to the

jurisdiction and dismissing his negligence claims without affording him the

opportunity to amend his pleadings. As pointed out by the City and the Police

Department, Delgado does not challenge the trial court’s findings that his

negligence per se claim against the City was barred by governmental immunity

and that his negligence per se claim against the Police Department should be

dismissed because the Police Department lacks the capacity to be sued. Nor

does he cite to any legal authority for holding that there was error in these

findings.   He has therefore waived any complaint on appeal regarding these

findings by the trial court. See Tex. R. App. P. 38.1(f), (i).

      Delgado argues that the trial court should have given him the opportunity

to amend his pleadings to add additional claims based on violations of federal

law and his Constitutional rights before dismissing his negligence per se claims.

He does not contend that, nor does he articulate how, any amendment would

have cured the jurisdictional defects alleged in the pleas to the jurisdiction. See

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004)

(explaining that if the 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 afforded an opportunity to amend). After the City and the

Police Department filed their pleas to the jurisdiction, Delgado did not request an


                                           3
opportunity to amend his pleadings to add federal statutory and Constitutional

claims nor did he attempt to amend his pleadings. Accordingly, we conclude

Delgado waived his complaint that the trial court should have afforded him the

opportunity to amend his pleadings. See Tex. R. App. P. 33.1(a); Robinson v.

Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (holding plaintiff waived right to cure any jurisdictional defects

by amendment when he did not respond to plea to the jurisdiction with additional

jurisdictional facts reflecting a live controversy, did not request an opportunity to

replead, and did not attempt to replead); Gray v. City of Galveston, No. 14-03-

00298-CV, 2003 WL 22908145, at *2 (Tex. App.—Houston [14th Dist.] Dec. 11,

2003, no pet.) (mem. op.) (“[A]ppellant did not request an opportunity to amend in

the trial court, so she has waived any complaint that she has been denied this

opportunity.”).   We therefore overrule Delgado’s complaint that the trial court

erred by sustaining the City’s and the Police Department’s pleas to the

jurisdiction and dismissing his negligence per se claims without giving him the

opportunity to amend his pleadings to add federal statutory and Constitutional

claims.

      We do not address Delgado’s complaints regarding the trial court’s orders

sustaining the City’s and the Police Department’s special exceptions in the

remaining portions of this two issues because a trial court’s rulings on special

exceptions are not subject to review by interlocutory appeal. See Harris Cty.

Flood Control Dist. v. Adam, 56 S.W.3d 665, 670 n.8 (Tex. App.—Houston [14th


                                         4
Dist.] 2001, pet. dism’d w.o.j) (citing McCamey v. Kinnear, 484 S.W.2d 150,

153 (Tex. App.—Beaumont 1972, writ ref’d n.r.e.)); see also Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a). We therefore overrule Delgado’s two issues and

affirm the trial court’s orders sustaining the City’s and the Police Department’s

pleas to the jurisdiction.




                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: November 23, 2016




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