                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________
                                 NO. 09-12-00316-CV
                               _________________

                          CITY OF BEAUMONT, Appellant

                                           V.

                            DANNY STEWART, Appellee

________________________________________________________________________

                   On Appeal from the 58th District Court
                          Jefferson County, Texas
                         Trial Cause No. A-190,497
________________________________________________________________________

                             MEMORANDUM OPINION

      This is an appeal from the trial court‟s denial of a plea to the jurisdiction. Danny

Stewart, appellee, sued the City of Beaumont (“City”) after he was involved in a two-car

collision with a vehicle operated by Ada Sariah, and owned by the City. At the time of

the accident Sariah was on her lunch break. The City filed a plea to the jurisdiction

arguing that the City was immune from suit and the trial court lacked subject matter

jurisdiction. The trial court concluded that Sariah was within the course and scope of her

employment at the time of the accident, and even if she had not been, the City would


                                            1
remain liable to Stewart pursuant to the Restatement of Torts and therefore denied the

City‟s motion. This appeal followed. We reverse the judgment of the trial court.

                            PLEA TO THE JURISDICTION

                                  A. Sovereign Immunity

       In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction

for lawsuits in which the state or its political subdivisions, including cities, have been

sued unless the state consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). “The Texas Torts Claims Act provides a limited waiver of sovereign immunity.”

Miranda, 133 S.W.3d at 224; see also Tex. Civ. Prac. & Rem. Code §§ 101.001-.109

(West 2005 & Supp. 2012);. Thus, the City is immune from suit unless the Tort Claims

Act has expressly waived immunity. See Miranda, 133 S.W.3d at 224-25 (citing Tex.

Civ. Prac. & Rem. Code Ann. §§ 101.001(3)(A), 101.021, 101.025).

       The Tort Claims Act has been interpreted to waive sovereign immunity in three

areas: “„use of publicly owned automobiles, premises defects, and injuries arising out of

conditions or use of property.‟” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.

2000) (quoting Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)). Section

101.021 of the Tort Claims Act provides in pertinent part that a governmental unit is

liable for:




                                            2
       (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[.]

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). The Tort Claims Act defines employee

as “a person, including an officer or agent, who is in the paid service of a governmental

unit by competent authority, but does not include an independent contractor, an agent or

employee of an independent contractor, or a person who performs tasks the details of

which the governmental unit does not have the legal right to control.” Id. § 101.001(2)

(West Supp. 2012).

                                    B. Standard of Review

   Because sovereign immunity from suit defeats a trial court‟s subject matter

jurisdiction, it is properly raised by filing a plea to the jurisdiction. Miranda, 133 S.W.3d

at 225-26; Jones, 8 S.W.3d at 637. Whether the trial court has subject matter jurisdiction

is a question of law. Miranda, 133 S.W.3d at 226. The plaintiff has the burden to show

that jurisdiction exists by alleging facts that affirmatively demonstrate the trial court‟s

subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993). Whether the plaintiff has alleged facts that affirmatively demonstrate

the trial court‟s subject matter jurisdiction is a question of law reviewed de novo.

                                             3
Miranda, 133 S.W.3d at 226. “Likewise, whether undisputed evidence of jurisdictional

facts establishes a trial court‟s jurisdiction is also a question of law.” Id. When a plea to

the jurisdiction challenges the pleadings, we must determine whether the pleader has

alleged facts that affirmatively demonstrate the trial court‟s jurisdiction to hear the case.

Id. The Court further stated:

               However, 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. . . . If the evidence creates a fact question regarding the
       jurisdictional issue, then the trial court cannot grant the plea to the
       jurisdiction, and the fact issue will be resolved by the fact finder. However,
       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 227-28.   When considering evidence submitted in support of the plea to the

jurisdiction, “we take as true all evidence favorable to the nonmovant” and “indulge

every reasonable inference and resolve any doubts in the nonmovant‟s favor.” Id. at 228;

see also City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

                                          C. Analysis

   In its plea to the jurisdiction, the City argued that the trial court lacked subject matter

jurisdiction over the suit because Sariah was not in the paid service of the City or acting

within the scope of her employment at the time of the accident. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 101.001(2), (3)(B), 101.021. As evidence in support of its plea to

the jurisdiction the City attached an affidavit by Sariah. In her affidavit, Sariah stated


                                              4
that she was an employee of the City and was paid on an hourly basis. Sariah averred

that she was not paid for the time she was “„off the clock[.]‟” Sariah‟s affidavit further

provided:

              As a City employee in the Streets and Drainage Department, we are
       not paid for the time we are off work for lunch. We have forty-five (45)
       minutes for lunch. If we drive a City vehicle, we cannot take it out of our
       work area for lunch but, otherwise, we are free to go where we want during
       lunchtime.

              . . . On [the day of the accident] I was assigned, along with my
       helper . . . to patch potholes in the street close to the intersection of Weiss
       and Magnolia. At approximately 12:00 p.m., my helper and I stopped
       working, put up our tools and took off work for lunch. We left the area of
       Weiss and Magnolia, traveled in the City‟s vehicle to the Church‟s Chicken
       at the corner of Magnolia and Glasshouse where [my helper] purchased
       items for lunch. We then left Church‟s and headed to my house, which is
       in the City further north of Church‟s, but still in our work area. My lunch
       was at my house and [my helper] and I were going to both eat lunch at my
       house. Once lunch was over, we planned to return to work for the City.

Sariah stated that the accident occurred after they left Church‟s Chicken, while en route

to her house to eat lunch. Sariah further stated:

              At the time of the accident in question, I was not in the paid service
       of the City and I was not performing any duties or tasks for the City. I was
       simply driving to my home for my own benefit of eating lunch. I could
       have brought my lunch that day if I had chosen to do so and not left the
       work site.

       In his response to the City‟s plea to the jurisdiction, Stewart argued that Sariah

was in the scope of her employment at the time of the accident. The only evidence

provided by Stewart in response to the plea was a copy of the City‟s plea to the

jurisdiction, which included Sariah‟s affidavit. Stewart did not present any evidence

                                             5
disputing or contradicting the statements made in Sariah‟s affidavit.1        Citing Texas

common law, Stewart argued that because Sariah was driving a City-owned vehicle at the

time of the accident, a presumption arose that she was acting within the scope of her

employment. Additionally, Stewart argued, based on the statements made in Sariah‟s

affidavit, that at the time of the accident Sariah was “under the direction of the City”

regarding where she was allowed to take the vehicle, and she was driving the vehicle

“within the designated work area assigned to her[.]” Based on the foregoing, Stewart

asserted that a fact issue existed regarding whether Sariah was within the scope of her

employment at the time of the accident.

       Under Texas common law,

       To impose liability on an employer for the tort of his employee under the
       doctrine of respondeat superior, the employee‟s act must fall within the
       scope of the employee‟s general authority and must be in furtherance of the
       employer‟s business and for the accomplishment of the object for which the
       employee was hired.




       1
         Stewart attached a copy of Sariah‟s deposition to his brief and cited and quoted
portions of the deposition testimony in support of his appellate argument before this
Court. However, Sariah‟s deposition was not made part of the record in the trial court,
and thus, is not in the record before us on appeal. We cannot consider documents
attached to briefs that are not included in the clerk‟s record or the reporter‟s record. See
Tex. R. App. P. 34.1; Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App.—El Paso 2007, pet.
dism‟d w.o.j.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (“The attachment of documents as exhibits or appendices to briefs is
not formal inclusion in the record on appeal and, therefore, the documents cannot be
considered.”); Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (“We cannot consider documents attached to an appellate brief that do not appear
in the record.”).
                                             6
Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 906 (Tex. App.—Corpus Christi 1988,

no writ) (italics omitted) (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d

354, 357 (Tex. 1971)). The Tort Claims Act defines “scope of employment” as “the

performance for a governmental unit of the duties of an employee‟s office or employment

and includes being in or about the performance of a task lawfully assigned to an

employee by competent authority.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5).

      In determining whether an employee was acting within the scope of his

employment, courts have considered whether the employer had “the right and power to

direct and control the [employee] in the performance of the causal act or omission at the

very instance of its occurrence.” Wilson, 758 S.W.2d at 907. In this vein, Texas courts

have concluded that when an “employer neither requires any particular means of travel

nor directs the employee to take a particular route, the employee is not engaged in the

furtherance of [his employer‟s] business.” Id. Stewart correctly argues, under Texas

common law, when it is proved that a vehicle involved in an accident is owned by the

defendant and the driver was an employee of the defendant, “a presumption arises that

the driver was acting within the scope of his employment when the accident occurred.”

Robertson Tank Lines, 468 S.W.2d at 357. However, the presumption only prevails when

it is unrefuted. See id. Where there is evidence that the driver was on a personal errand,

or otherwise not in the furtherance of his employer‟s business, ownership of the vehicle

and the fact that the driver was an employee of the defendant are insufficient to raise a


                                            7
fact issue regarding scope of employment. Id. at 358. To the extent the Texas common

law framework applies here, we find the presumption that Sariah was within the scope of

her employment at the time of the accident rebutted by her affidavit. Once the

presumption is rebutted, the burden is on the plaintiff to produce other evidence that the

driver was within the scope of her employment. See id.; J & C Drilling Co. v. Salaiz, 866

S.W.2d 632, 637 (Tex. App.—San Antonio 1993, no writ). Unaided by the presumption

or other affirmative evidence, the fact that the driver was driving her employer‟s vehicle

at the time of the accident does not constitute probative evidence that the employee was

acting within the scope of her employment and is insufficient to raise a fact issue. See

Robertson, 468 S.W.2d at 358. We are unpersuaded by Stewart‟s argument that Sariah

was under the direction and control of the City at the time of the accident because she

was driving the City vehicle within her designated work area, in accordance with her

employer‟s policy. Contrary to Stewart‟s contention, this fact does not constitute

probative evidence that Sariah was acting in furtherance of her employer‟s business or

that she was “in or about the performance of a task lawfully assigned” to her by the City.

See id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5).            The evidence

established that at the time of the accident Sariah was driving to her house to eat lunch.

Going home for lunch was an action neither assigned, dictated nor directed by her

employer.




                                            8
      It is well settled under Texas law, “[w]hen an employee deviates from the

performance of his duties as an employee for his own, personal purposes, his employer is

neither responsible nor liable on a respondeat superior theory for what occurs during that

deviation.” Drooker v. Saeilo Motors, 756 S.W.2d 394, 397 (Tex. App.—Houston [1st

Dist.] 1988, writ denied); see also Hudiburgh v. Palvic, 274 S.W.2d 94, 100-101 (Tex.

Civ. App.—Beaumont 1955, writ ref‟d n.r.e.). Moreover, other courts applying Texas

common law have held that an employee driving a company vehicle while going to or

from lunch or dinner break was not within the scope of his employment. See Gant v.

Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212-13 (Tex. App.—Amarillo 1996, no

writ) (holding that employee was not within the scope of employment when the accident

occurred while he was in his company vehicle en route back to work after “attending his

personal business of eating lunch”); Drooker, 756 S.W.2d at 397-98 (finding no evidence

that employee was acting within scope of his employment where employee left work in

employer‟s vehicle with two co-workers for a dinner break, intended to return to work

after the meal, and was en route to dinner when the accident occurred); see also J & C

Drilling Co., 866 S.W.2d at 637-38 (holding that plaintiff failed to raise a fact issue

regarding whether driver was within the scope of his employment where driver, who was

in his company vehicle and was on 24-hour call, got into an accident returning to his rig

site, after having left the site to have dinner in another town); see also Robertson, 468

S.W.2d at 358-59 (discussing cases holding that presumption of course and scope is


                                            9
rebutted where the evidence establishes that the driver turned aside, even briefly, for a

personal errand); cf. Bell v. VPSI, Inc., 205 S.W.3d 706, 718 (Tex. App.—Fort Worth

2006, no pet.) (recognizing that “[e]ven when driving a vehicle furnished by the

employer, the employee is generally not in the course and scope while going to and

returning from work unless he is directed by his employer or furthering the employer‟s

business.”).

       Generally, whether an employee is acting within the scope of her employment at a

given time depends on whether the act from which the injury arose was in furtherance of

her employer‟s business and for the accomplishment of the objective for which the

employee was employed. City of Balch Springs v. Austin, 315 S.W.3d 219, 225 (Tex.

App.—Dallas 2010, no pet.) (applying the Texas Tort Claims Act); see also Terrell ex

rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 277-78 (Tex. App.—Texarkana 2003, no

pet.) (applying the Texas Tort Claims Act); compare Harris Cnty. v. Gibbons, 150

S.W.3d 877, 882-84 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (applying the Texas

Tort Claims Act). Sariah‟s uncontroverted affidavit established that at the time of the

accident she was not performing a task or duty assigned to her by the City, and she was

not paid during her lunch break. Moreover, Sariah‟s affidavit established that she was

only required to stay within her work area if she went to lunch in the City vehicle;

otherwise she was free to go wherever she wanted during her 45-minute lunch break.

The City presented evidence that Sariah was not acting within the scope of her


                                           10
employment at the time of the accident. Stewart failed to present evidence that Sariah

was acting either in furtherance of her employer‟s business at the time of the accident or

otherwise within the scope of her employment.

                                          D. Conclusion

       Stewart‟s claim against the City is barred by the doctrine of governmental

immunity.2 See City of Balch Springs, 315 S.W.3d at 227; cf. Drooker, 756 S.W.2d at

       2
         In its order denying the City‟s plea to the jurisdiction, the trial court concluded
that the City could be held liable for Sariah‟s actions even if Sariah was not acting within
the scope of her employment. In support of this conclusion, the trial court relied on
section 317 of the Restatement of Torts. Section 317 provides:

              A master is under a duty to exercise reasonable care so to control his
       servant while acting outside the scope of his employment as to prevent him
       from intentionally harming others or from so conducting himself as to
       create an unreasonable risk of bodily harm to them, if

           (a) the servant

               (i) is upon the premises in possession of the master . . ., or

               (ii) is using a chattel of the master, and

           (b) the master

               (i) knows or has reason to know that he has the ability to control his
               servant, and

               (ii) knows or should know of the necessity and opportunity for
               exercising such control.

RESTATEMENT (SECOND) OF TORTS § 317 (1965).

Stewart has not presented evidence that raises a fact issue with regard to the application
of section 317. We find section 317 inapplicable to the present case. Additionally, we
                                               11
397-98. We sustain issue one. We reverse the order of the trial court denying the City‟s

plea to the jurisdiction and dismiss the case for lack of jurisdiction.

       REVERSED AND DISMISSED.



                                                          ___________________________
                                                                CHARLES KREGER
                                                                      Justice

Submitted on October 10, 2012
Opinion Delivered November 1, 2012

Before McKeithen, C.J., Kreger and Horton, JJ.




are not persuaded that the intent of the Tort Claims Act to provide an express, limited
waiver of sovereign immunity may be undercut by the Restatement of Torts. We also
find the workers‟ compensation cases cited by the parties in their briefs before this Court
inapplicable to the present case. We find significant that the workers‟ compensation
statute was intended to protect injured workers and involves a liberal construction in
favor of injured workers; whereas, the doctrine of governmental immunity and the Tort
Claims Act are based on policy considerations aimed at protecting governmental entities.
In the absence of the State‟s consent to suit, the trial court lacks jurisdiction and must
dismiss the case. See Terrell, 111 S.W.3d at 276.
                                              12
