                           NUMBER 13-18-00443-CV

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


CITY OF CORPUS CHRISTI,                                                          Appellant,

                                              v.

MARIE MULLER AND DEAN MULLER,                                                    Appellees.


                On appeal from the County Court at Law No. 4
                         of Nueces County, Texas.


                           MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria
         Memorandum Opinion by Chief Justice Contreras

       Appellant, the City of Corpus Christi (the City), appeals the trial court’s denial of its

plea to the jurisdiction. Appellees Marie Muller and Dean Muller filed suit against the City
after Marie suffered injuries when she stepped into a pothole in the City Hall parking lot.

By one issue, the City argues that the trial court erred when it denied its plea. We affirm.

                                     I.   BACKGROUND

       Marie was employed by the City through a temporary staffing agency, and she

worked at City Hall in Corpus Christi, Texas. Around 8:00 a.m. on or about October 13,

2015, Marie parked in the City Hall parking lot and began to walk towards City Hall to

report for work. During her walk through the parking lot, Marie stepped into a pot hole,

fell, and suffered injuries. She brought suit against the City under a premises liability

theory pursuant to the Texas Tort Claims Act (TTCA), and her husband, Dean, brought a

claim for loss of consortium.

       The City filed a plea to the jurisdiction arguing that the City was Marie’s employer

and that, because Marie’s injury occurred in the course and scope of her employment,

Marie’s remedy was limited solely to the benefits under the workers’ compensation

insurance offered by the City. The City’s plea, however, did not address how Marie’s

injuries occurred within the course and scope of her employment. More specifically, the

City never alleged in its plea or introduced any evidence in support thereof that it implicitly

or directly intended, authorized, or instructed Marie to use the parking lot as her access

route to work. Appellees filed a response to the City’s plea and argued that Marie’s

injuries did not occur in the course and scope of her employment, and, therefore, Marie

was not subject to the exclusive remedy of workers’ compensation insurance. After a

hearing, the trial court denied the City’s plea. This interlocutory appeal followed. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing immediate appeal of an

interlocutory order denying a plea to the jurisdiction by a governmental unit).


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                                    II.   DISCUSSION

A. Standard of Review

       A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of

subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its

purpose is to defeat a cause of action without regard to whether the claims asserted have

merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the

disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623,

632 (Tex. 2015). The plaintiff has the burden to allege facts that affirmatively demonstrate

the trial court’s jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d

864, 867 (Tex. 2002). We construe the pleadings liberally in favor of the plaintiff and look

to the pleader’s intent. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922,

927 (Tex. 2015) (per curiam). If the pleadings generate a fact question regarding the

jurisdictional issue, a court cannot sustain the plea to the jurisdiction. Ryder, 453 S.W.3d

at 927. If jurisdictional facts are disputed, we consider any evidence submitted by the

parties to the trial court. Blue, 34 S.W.3d at 555.

B. Applicable Law

       Governmental immunity defeats subject-matter jurisdiction in suits against

subdivisions of the State, such as the City, unless that immunity has been clearly and

unambiguously waived by the legislature. See Sykes, 136 S.W.3d at 638. Governmental

immunity encompasses both immunity from liability and immunity from suit. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TTCA waives

governmental immunity for a governmental entity, like the City, for personal injuries

caused by a condition of real property. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2);


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see Miranda, 133 S.W.3d at 224; Jefferson Cty. v. Farris, 569 S.W.3d 814, 823 (Tex.

App.—Houston [1st Dist.] 2018, pet. filed) (per curiam) (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 101.025(a)).       However, “[a] governmental unit that has workers’

compensation insurance or that accepts the workers’ compensation laws of this state is

entitled to the privileges and immunities granted by the workers’ compensation laws of

this state to private individuals and corporations.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.028. The Texas Workers Compensation Act (TWCA) states that “[r]ecovery of

workers’ compensation benefits is the exclusive remedy of an employee covered by

workers’ compensation insurance coverage . . . for . . . a work-related injury sustained by

the employee.” TEX. LABOR CODE ANN. § 408.001(a); see City of Bellaire v. Johnson, 400

S.W.3d 922, 922 (Tex. 2013) (per curiam); see also City of Dallas v. Salyer, No. 05-12-

00701-CV, 2013 WL 3355027, at *2–3 (Tex. App.—Dallas July 1, 2013, no pet.) (mem.

op.).   Therefore, if the exclusive remedy bar provided by the TWCA applies to an

employee’s claim against his city employer, then the city’s governmental immunity is not

waived. City of Bellaire, 400 S.W.3d at 924; see Durhart v. State, 610 S.W.2d 740, 743

(Tex. 1980) (noting that, in adopting the TTCA and providing workers’ compensation

coverage for state employees, the state retains its immunity and provides its employees

an alternate remedy through workers compensation insurance).

        Under the TWCA, an injury is compensable and subject to the exclusive remedy

bar if it “arises out of and in the course and scope of employment . . . .” TEX. LAB. CODE

ANN. § 401.011(10); Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69, 74 (Tex.

App.—San Antonio 2018, no pet.); Apollo Enters., Inc. v. ScripNet, Inc., 301 S.W.3d 848,

852 (Tex. App.—Austin 2009, no pet.). Section 401.011(12) of the TWCA defines the


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“[c]ourse and scope of employment” as “an activity of any kind or character that has to do

with and originates in the work, business, trade, or profession of the employer and that is

performed by an employee while engaged in or about the furtherance of the affairs or

business of the employer.” TEX. LAB. CODE ANN. § 401.011(12). The long-standing rule

is that to be considered within the course and scope of employment, the employee’s injury

must “(1) relate to or originate in, and (2) occur in the furtherance of, the employer’s

business.” Leordeanu v. Am. Prot. Ins., 330 S.W.3d 239, 241 (Tex. 2010); see Am. Cas.

Co. of Reading Pa. v. Bushman, 480 S.W.3d 667, 673–74 (Tex. App.—San Antonio 2015,

no pet.); Tex. Workers’ Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 768 (Tex. App.—

Corpus Christi–Edinburg 1997, pet. denied) (“Course and scope of employment is not

limited to the exact moment when the employee reports for work, the moment when the

employee’s labors are completed, or to the place where work is done.”).

C. Analysis

       Here, the parties dispute whether Marie was in the course and scope of her

employment when she suffered her injuries. If she was within the course and scope of

her employment, then the exclusive remedy bar of the TWCA applies, and the City’s

immunity has not been waived. See City of Bellaire, 400 S.W.3d at 924; see also TEX.

LAB. CODE ANN. § 408.001(a).      If she was not within the course and scope of her

employment, the TTCA waives the City’s immunity because Marie suffered injuries as a

result of a condition of real property. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2);

City of Bellaire, 400 S.W.3d at 924

       The general rule in Texas is that travel to and from work is not considered to be

within the course and scope of the employee’s employment. Lumberman’s Reciprocal


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Ass’n v. Behnken, 246 S.W. 72, 74 (Tex. 1922); Bissett v. Tex. Emp’rs Ins. Ass’n, 704

S.W.2d 335, 337 (Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d n.r.e.); see Evans

v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 304 (Tex. 1990) (“The risks to which

employees are exposed while traveling to and from work are shared by society as a whole

and do not arise as a result of the work of employers.”); Tex. Comp. Ins. v. Matthews, 519

S.W.2d 630, 631 (Tex. 1974). An exception to this rule lies in the “access doctrine,” where

“the employer has evidenced an intention that the particular access route or area be used

by the employee in going to and from work, and where such access route or area is so

closely related to the employer’s premises as to be fairly treated as part of the premises.”

Matthews, 519 S.W.2d at 631 (citing Behnken, 246 S.W. at 74) (emphasis added);

Dickson v. Silva, 880 S.W.2d 785, 797 (Tex. App.—Houston [1st Dist.] 1993, writ denied);

Bordwine v. Tex. Employers’ Ins. Ass’n, 761 S.W.2d 117, 119 (Tex. App.—Houston [14th

Dist.] 1988, writ denied); Turner v. Tex. Employers’ Ins. Assoc., 715 S.W.2d 52, 53 (Tex.

App.—Dallas 1986, writ ref’d n.r.e.); Standard Fire Ins. v. Rodriguez, 645 S.W.2d 534,

538 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); Tex. Employers’ Ins. Ass’n v. Dean,

604 S.W.2d 346, 349 (Tex. App.—El Paso 1980, no writ); Kelty v. Travelers Ins., 391

S.W.2d 558, 562 (Tex. App.—Dallas 1965, writ ref’d n.r.e.). For the access doctrine to

apply, the injury need not “occur upon the only access to the place of employment . . . .”

Rodriguez, 645 S.W.2d at 539.

              The cases considering the application of the [access] doctrine
       support the general propositions that an employee is deemed to be in the
       course of his employment within a reasonable margin of time necessary for
       passing to and from the place of his [or her] work both before and after his
       [or her] actual hours of service; that an injury received within that period is
       ordinarily held to have been sustained in the course of employment if it
       occurs at a place intended by the employer for use by the employee in


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       passing to and from the actual place of service, on premises owned or
       controlled by the employer, or so closely related to the employer’s premises
       as to be fairly treated as part thereof . . . .

Tex. Employers’ Ins. Ass’n v. Lee, 596 S.W.2d 942, 945–46 (Tex. App.—Waco 1980, no

writ) (emphasis added). In summary, Texas courts have repeatedly noted that, in order

for the employee to be considered to be in the course of his or her employment, there

must be some intention by the employer, explicit or implicit, that the employee use that

particular access route. Bordwine, 761 S.W.2d at 119–20 (“If the employee [is] injured

while passing, with the express or implied consent of the employer, to or from his work by

way of the employer’s premises, . . . the injury is one arising out of and in the course of

the employment . . . .”); Turner, 715 S.W.2d at 54; Dean, 604 S.W.2d at 349; see

Matthews, 519 S.W.2d at 631 (noting that the employee’s right to use the access route

or area must be derived from her employment, rather than a route or area for public

travel); Behnken, 246 S.W. at 74.

       Here, appellees contend that the City failed to introduce any evidence that the City

intended or authorized Marie to park in the City Hall parking lot and that the parking lot is

open to the general public. We agree. The City presented no evidence along with its

plea indicating that the City implicitly or directly intended, authorized, or instructed Marie

to use the City Hall parking lot as her access route to work. See Matthews, 519 S.W.2d

at 631; Behnken, 246 S.W. at 74.

       Furthermore, whether an injury was received by an employee under circumstances

constituting the scope and course of his or her employment “is usually a question of fact

governed and controlled by the particular facts of each case.” Berry Contracting, L.P. v.

Mann, 549 S.W.3d 314, 325 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied);


                                              7
Turner, 715 S.W.2d at 55; Kelty, 391 S.W.2d at 565 (citing Liberty Mut. Ins. v. Nelson,

178 S.W.2d 514, 516 (Tex. 1944); Fed. Underwriters’ Exch. v. Lehers, 120 S.W.2d 791,

792 (Tex. [Comm’n Op.] 1938); Tex. Employers’ Ins. Ass’n v. Davidson, 295 S.W.2d 482,

484 (Tex. App.—Fort Wort 1956, writ ref’d n.r.e.)) (“Our courts have repeatedly stated

that whether an employee was in the course of his employment when he received an

injury is ordinarily a question of fact.”); but see Dickson, 880 S.W.2d at 787 (concluding

that employee was in the scope of employment as a matter of law in workers’

compensation case when “driveway on which accident occurred was located entirely on

the employer’s premises and provided the only means of ingress and egress.”).

      After reviewing the pleadings, the City’s plea to the jurisdiction, and the evidence

submitted therewith, we conclude that the City failed to show that the trial court lacked

subject-matter jurisdiction. See Rodriguez, 645 S.W.2d at 537; Kelty, 391 S.W.2d at 560,

564–65.

      We overrule the City’s sole issue.

                                   III.    CONCLUSION

      We affirm the trial court’s order.

                                                              DORI CONTRERAS
                                                              Chief Justice

Delivered and filed the
6th day of June, 2019.




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