                              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.

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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.




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                                          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



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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
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                                                                                       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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