      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00174-CV




                               Elgin Independent School District,
                            Emilia Lopez and Dora Morua, Appellants


                                                 v.


                            R. N., a Minor Child By Victoria Newman,
                          Individually and As Representative, Appellees




    FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
         NO. 25,017, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING



                                          OPINION


                Elgin Independent School District (Elgin I.S.D.) appeals from the district court’s

denial of its plea to the jurisdiction raising sovereign immunity against a suit brought by Victoria

Newman, individually and on behalf of her daughter, R. N. (collectively, “Newman”). The appeal

presents the narrow question of whether Newman pleaded facts constituting a valid waiver of Elgin

I.S.D.’s sovereign immunity under the tort claims act. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021 (West 2005). Applying our standard of review governing such issues, we affirm the

district court’s denial of the plea.
                                           BACKGROUND

                Consistent with our standard of review, discussed below, we take as true the

following facts from Newman’s pleadings. In the late morning of November 1, 2003, five-year-old

R. N. was picked up by an Elgin I.S.D. school bus to go to her half-day pre-kindergarten class.

Emilia Lopez was the driver and Dora Morua was the bus monitor. Newman alleged the following

acts by Lopez and Morua thereafter:


        Defendants Lopez and Morna [sic] had actual knowledge and knew Plaintiff
        Newman [the child] was seated on their bus and drove the minor child to school.
        Defendants arrived at school, exited the bus parked on the school campus and failed
        and refused to look in their bus to assure that Plaintiff Newman was off the bus and
        in school. Plaintiff Newman, a child of five years of age, fell asleep during the drive
        to school and was unaware the bus had arrived. Defendants locked Plaintiff inside
        the bus until approximately 3 PM without adequate ventilation, water and
        supervision. Plaintiff Newman awoke and tried to exit the bus but found herself
        locked inside the bus. Plaintiff Newman cried, screamed and tried to get the attention
        of Defendant’s employees but her calls were ignored. Plaintiff was confined inside
        the hot uncomfortable vehicle through out [sic] the majority of the day. Plaintiff was
        frightened and physically and emotionally injured because of Defendants’ negligence.


Newman made these allegations against Lopez and Morua the basis for a negligence claim against

Elgin I.S.D., pleading that “[t]he negligent, careless and reckless disregard of duty of Defendant

Elgin Independent School District consisted of leaving Plaintiff locke[d] inside their bus,” as well

as negligence claims against Lopez and Morua (“The negligent, careless and reckless disregard of

duty of Defendants consisted of, but is not limited to . . . failed to keep a proper lookout for

Plaintiffs’ safety . . . and [f]ailure to monitor the presence of Plaintiff, a minor child, in the bus.”).

                Newman pleaded that “Plaintiffs have suffered physical and emotional trauma and

damages” from R. N.’s being left on the bus, including R. N.’s past and future medical care, pain and

                                                    2
suffering, physical impairment, mental anguish, “[f]ear of future disease or condition,” and “[c]ost

of medical monitoring and prevention in the future.” Newman also sought her own past and future

medical expenses, mental anguish, “[f]ear of future disease or condition,” and “[c]ost of medical

monitoring and prevention in the future.”

               Elgin I.S.D. filed a plea to the jurisdiction based on sovereign immunity, asserting

that Newman had failed to demonstrate a valid waiver of immunity under the tort claims act. See

id. The district court denied its plea to the jurisdiction on February 25, 2005. From this order, Elgin

I.S.D. took this interlocutory appeal.1 Id. § 51.014(8) (West Supp. 2005).


                                           DISCUSSION

               Elgin I.S.D. presents two issues on appeal, together arguing that the district court

erred in denying its plea to the jurisdiction because Newman fails to plead a valid waiver of

sovereign immunity.


Standard of review

               Sovereign immunity deprives a trial court of subject-matter jurisdiction in suits

against the State or certain governmental units, including school districts, unless the governmental




       1
          The individual defendants Lopez and Morua also appear as parties to this appeal. However,
the sole order in the appellate record is the district court’s denial of Elgin I.S.D.’s plea to the
jurisdiction based on sovereign immunity. Although the individual defendants had sought dismissal
on other grounds, no order relating to these grounds is before us. Furthermore, the issue raised on
appeal concerns only sovereign immunity. In the context of this record and our limited jurisdiction
over interlocutory appeals, see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4), (8) (West Supp.
2005), there are no issues properly before us that the individual defendants would have standing to
raise. Thus, to the extent Lopez and Morua are appealing, we dismiss for want of jurisdiction.

                                                  3
unit consents to suit. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004); see Tex. Civ. Prac. & Rem. Code Ann. § 101.051 (West 2005). Because sovereign immunity,

if not waived, defeats a trial court’s jurisdiction, it is properly asserted in a plea to the jurisdiction.

Miranda, 133 S.W.3d at 225-26; Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999).

Subject-matter jurisdiction presents a question of law; we review de novo the district court’s grant

or denial of a plea to the jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998); Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm’n, 16 S.W.3d 61,

65 (Tex. App.—Austin, 2000, no pet.).

                Key to our disposition is the procedural posture of Elgin I.S.D.’s jurisdictional

challenge. Elgin I.S.D. did not dispute the underlying jurisdictional facts Newman alleged, and no

record was brought forward indicating that the district court heard evidence regarding jurisdictional

facts. See Miranda, 133 S.W.3d at 225-26. Rather, Elgin I.S.D.’s plea to the jurisdiction challenged

only Newman’s pleadings for failing to affirmatively demonstrate the district court’s jurisdiction.

We consider de novo whether Newman met her burden of alleging facts affirmatively demonstrating

the district court’s jurisdiction over the cause, id. at 226, which here requires allegations

demonstrating a valid waiver of Elgin I.S.D.’s immunity. See Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540, 542 (Tex. 2003); Texas Dep’t. of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

2001). To determine whether Newman met that burden, we “construe the pleadings liberally in favor

of the plaintiffs and look to the pleaders’ intent.” Miranda, 133 S.W.3d at 226. And, because Elgin

I.S.D. does not challenge them, we accept as true the pleadings’ factual allegations. Texas Ass’n of

Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).



                                                    4
Do Newman’s pleadings state a valid waiver of sovereign immunity?

               Newman contends that her pleadings demonstrate a valid waiver of sovereign

immunity under the following provision of the tort claims act:


       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.


Tex. Civ. Prac. & Rem. Code Ann. § 101.021; see also id. § 101.051 (exempting school districts

from tort claims act waivers of immunity “[e]xcept as to motor vehicles”). Elgin I.S.D. does not

dispute that Newman adequately pleaded that Lopez and Morua were acting within the scope of their

employment with the district and that their actions proximately caused R. N. and Newman damages.

It does dispute whether Newman has sufficiently alleged that such personal injury “arises from the

operation or use of a motor-driven vehicle.”

               When construing statutory immunity waivers under the tort claims act, the supreme

court has emphasized that the act “provides a limited waiver of sovereign immunity, allowing suits

to be brought against governmental units only in certain, narrowly defined circumstances.” Texas

Dep’t of Crim. Justice v. Miller, 51 S.W.3d at 587; see also Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 341-42 (Tex. 1998) (surveying legislative history of act to



                                                 5
illustrate that “the waiver of immunity in the Tort Claims Act is not, and was not intended to be,

complete”). We defer to the legislature’s intent, as the policy “decision as to who should bear

responsibility for governmental employees’ misconduct should be made by the people’s

representatives” rather than courts. Bossley, 968 S.W.2d at 341.

               To determine whether Newman’s allegations state a valid waiver of immunity, we

consider whether Newman alleges injuries proximately caused by Elgin I.S.D.’s negligence that have

a nexus to the “use” or “operation” of the school bus. See Whitley, 104 S.W.3d at 543; LeLeaux v.

Hampshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992); Austin Indep. Sch. Dist. v.

Gutierrez, 54 SW.3d 860, 863-64 (Tex. App.—Austin 2001, pet. denied); Michael Shaunessy and

Sarah Wells, Sovereign Immunity: “Bring Lawyers, Guns and Money” State Bar of Texas, Suing

& Defending Governmental Entities (July 28-29, 2005).


    Use or operation

               The supreme court has construed “use” under section 101.021 as “to put or bring into

action or service; to employ for or apply to a given purpose.” Whitley, 104 S.W.3d at 542; Mount

Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989) (quoting Beggs

v. Texas Dep’t of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App.—San

Antonio 1973, writ ref’d)). “Operation” under the provision is “a doing or performing of practical

work.” Mount Pleasant, 766 S.W.2d at 211 (citing Jackson v. City of Corpus Christi, 484 S.W.2d

806, 809 (Tex. Civ. App.—Corpus Christi 1972, writ ref’d n.r.e.)). The use or operation must be

by a governmental employee, not a third person. LeLeaux, 835 S.W.2d at 51.




                                                6
               Throughout her briefing, Newman identifies the relevant “use” or “operation” of the

bus as the utilization of it to transport R. N. to school, arguing that (1) transporting R. N. and other

students constitutes use or operation of the bus; (2) stopping and unloading the bus is part of this

transportation process; and (3) because R. N. was never unloaded at school, the “use” or “operation”

of the bus to transport her never ceased that day; therefore (4) R. N.’s injuries arose from such use

or operation. The concept that unloading a bus is part of the transportation process finds some

support in language from LeLeaux. In LeLeaux, a band student had entered an empty, parked school

bus with a friend through a rear emergency door that an unknown person had left open. 835 S.W.3d

at 50. She later exited the bus through the rear door. Id. The student picked up her pillow, which

had fallen to the ground when she jumped down, and threw it back into the bus. Id. She then

jumped back into the rear doorway, stood up while mistakenly thinking she was inside the door, and

hit her head on the top of the door frame. Id. at 50-51. The supreme court held that the student’s

injuries did not arise from the use of the bus:


       The bus in this case was not in operation; it was parked, empty, with the motor off.
       The driver was not aboard; there were no students aboard. The bus was not “doing
       or performing a practical work”; it was not being “put or [brought] into action or
       service”; it was not being “employ[ed] or applied to a given purpose.” The bus was
       nothing more than the place where [the plaintiff] happened to injure herself.


Id. at 51. The supreme court “agree[d] with [the student’s] contention that ‘there is no sound reason

why the acts of loading and unloading students on and off school buses should not be considered

part of the transportation process,’” but held that “the manner in which school district employees

loaded and unloaded students had nothing to do with [the] injuries.” Id. at 52 (emphasis added); see



                                                   7
also Finnigan v. Blanco County, 670 S.W.2d 313, 316 (Tex. App.—Austin 1984, no writ) (in

context of negligence suit arising from sheriff’s deputy leaving patrol car open and running near

prisoners, observing that “[t]he use and operation of a motor-driven vehicle . . . involves the

transportation of a person from one place to another, and such transportation includes the act of

stopping the vehicle when one has reached one’s destination”).

               Moreover, although Newman does not emphasize it, another “use” allegation is

apparent from our de novo review of her pleadings. Construing them broadly, as we must, see

Miranda, 133 S.W.3d at 227, Newman’s pleadings allege that Elgin I.S.D. negligently locked the

bus door, causing R. N. to be trapped inside the bus when she otherwise could have escaped, causing

injury. Cf. Bossley, 968 S.W.2d at 343 (accepting that county mental health facility’s unlocking of

outer door was “use” of tangible property under section 101.021(2), but holding that such use did

not cause escaped patient’s suicide).


    Do Newman’s injuries arise from such use?

               The heart of the issue with regard to whether immunity has been waived here, as in

LeLeaux, is whether R. N.’s and Newman’s alleged injuries arose from one of the uses of the bus

identified above. The mere involvement or proximity of a school bus to injury does not mean the

injury arises from the use or operation of the bus. LeLeaux, 835 S.W.2d at 52; see also Michael

Shaunessy, Sovereign Immunity & the Extent of the Waiver of Immunity Created by the Texas Tort

Claims Act, 53 Baylor L. Rev. 87, 130-32 (2001) (compiling cases). “When an injury occurs on a

school bus but does not arise out of the use or operation of the bus, and the bus is only the setting

for the injury, immunity for liability is not waived.” LeLeaux, 835 S.W.2d at 52.

                                                 8
                In numerous cases, Texas courts have addressed the circumstances under which

injuries related to the transport or unloading of students from a school bus are considered to arise

from the use of the bus and waive immunity. Frequently, courts attribute the injuries to the

“supervision” of students as opposed to the use or operation of the bus itself. See, e.g., Goston v.

Hutchison, 853 S.W.2d 729, 733 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“when the

allegations of negligence are related to the direction, control and supervision of the students, the suit

is barred; when the allegations of negligence are related to the negligent use of the motor-driven

vehicle itself, the suit is not barred”).

                In Gutierrez, for example, a school bus driver delivering children home after school

stopped across the street from eight-year-old Adriana Gutierrez’s home, and Adriana and her cousin,

Raul, disembarked. 54 S.W.3d at 861. The bus driver honked the bus’s horn to signal to the

children that it was safe to cross the street. Id. As the students crossed the street, Raul went across

safely, but Adriana was hit and killed by a drunk driver. Id.

                To determine whether the plaintiffs had alleged a claim arising from the use or

operation of the school bus, we first distinguished “school bus” cases where the injury occurred on

the bus itself or before the bus arrived on the scene. Id.; see LeLeaux, 835 S.W.2d at 50-51; Luna

v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442, 443 (Tex. App.—Corpus Christi 1991, writ

denied) (children hit by third party’s vehicle while awaiting arrival of school bus at allegedly poorly

planned location); Heyer v. North E. Indep. Sch. Dist., 730 S.W.2d 130, 130-31 (Tex. App.—San

Antonio 1987, writ ref’d n.r.e.) (driver lost control of private vehicle and hit students waiting at bus

stop on school grounds); Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526, 527 (Tex.



                                                   9
Civ. App.—Beaumont 1981, writ ref’d n.r.e.) (student was stabbed to death by third party while

riding school bus). We then examined several cases where students were injured after disembarking

from a school bus. Gutierrez, 54 S.W.3d at 864-66.

                As we acknowledged, several of our sister courts have deemed “supervisory” the

actions of bus drivers in allowing passengers to disembark under various circumstances contributing

to injury. Id. at 863-64; see Goston, 853 S.W.2d at 733 (students allowed to disembark at

undesignated stop at their request, later caught ride with friend, and were in accident; injuries arose

from supervisory actions rather than use of bus); see also Ransom v. Center for Health Care Serv.,

2 S.W.3d 643, 645 (Tex. App.—San Antonio 1999, pet. denied) (plaintiff was adult man with mental

capacity of four-year-old; bus driver left him at bus stop across from group home and departed before

man crossed street; man’s injuries when hit by drunk driver arose from supervisory actions rather

than use of bus).2 We distinguished these cases, however, by pointing to the Gutierrez bus driver’s

“affirmative action” of honking the bus horn. Gutierrez, 54 S.W.3d at 866. We analogized the facts

in Gutierrez to those of Hitchcock v. Garvin, 738 S.W.2d 34, 36 (Tex. App.—Dallas 1987, no writ),

where the bus driver allegedly failed to take action that could have helped the student cross the street

safely by not turning on his flashing lights. Gutierrez, 54 S.W.3d at 866. In both cases, because the




        2
          We also discussed Contreras v. Lufkin Independent School District, 810 S.W.2d 23, 26
(Tex. App.—Beaumont 1991, writ denied), which we characterized as holding that a bus driver’s
error in delivering a six-year-old to the wrong stop, leading to her getting hit by a car, arose from the
operation and use of the bus. See Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 865 (Tex.
App.—Austin 2001, pet. denied). The supreme court subsequently disagreed with that
characterization, concluding that Contreras did not reach whether immunity was waived. Dallas
Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); see also Tarkington Indep. Sch.
Dist. v. Aiken, 67 S.W.3d 319, 325 (Tex. App.—Beaumont 2002, no pet.).

                                                   10
bus was present at the time of the accident and because the bus driver engaged in some action

involving the bus itself that contributed to the accident, the courts found that there was “use” of a

motor-driven vehicle. Id.

               Subsequent to Gutierrez, the supreme court held that a bus passenger’s injuries did

not arise from the use or operation of a Dallas Area Rapid Transit bus where an altercation arose

between the plaintiff and another passenger, the bus driver ordered both passengers off the bus

within two blocks of each other, and the plaintiff was severely beaten by the other passenger and her

cohorts. Whitley, 104 S.W.3d at 542-43. Reversing the Dallas court of appeals, the supreme court

held that the plaintiff’s injuries “arose from the bus driver’s failure to supervise the public, which

is insufficient to waive immunity under the Tort Claims Act.” Id. The court distinguished Gutierrez

on the basis that no use of the bus similar to honking the horn contributed to Whitley’s injuries. Id.

at 543.

               Still more recently, the Dallas court of appeals has held that a plaintiff sufficiently

alleged a valid waiver where she alleged that the driver negligently stopped the bus in a manner that

left a “long step” and caused her to fall when disembarking. See Dallas Area Rapid Transit v. Willis,

163 S.W.3d 814, 817 (Tex. App.—Dallas 2005, pet. filed). Noting our Finnigan opinion, the court

stated that the “use” or “operation” of a motor-driven vehicle necessarily included the act of

stopping. Id. The court then found the requisite “affirmative action” in the driver’s “parking the bus

in a way that may have contributed to the accident.” Id.

               On the other hand, the First District Court of Appeals found no waiver where an

eight-year-old special education student fell through an emergency exit. See Montoya v. Houston



                                                 11
Indep. Sch. Dist., 177 S.W.3d 332, 336-39 (Tex. App.—Houston [1st Dist.] March 31, 2005, no

pet.). Before the accident, the student had a history of aggressive behavior on the school bus, and,

consequently, the school district equipped his seat with a special child-proof harness to restrain him.

Id. at 334-35. On the day of the accident, the passenger freed himself from the harness and, while

the bus was in motion, opened and fell out of the emergency exit. Id. at 335. The student’s parents

filed suit alleging failure to maintain a reasonable lookout and notice that he had disengaged the

harness, failure to stop the bus before the student reached the emergency exit, and failure to use a

child-proof harness to restrain the student. Id. The court found that the first two allegations related

to the bus driver’s failure to supervise and respond to the student’s behavior, not the use or operation

of the bus. Id. at 337. As for the third, the court held that the failure to use a proper harness was not

the cause of the student’s injuries; rather, they were caused by the student’s act of opening and

exiting the rear door of the bus. Id. at 337-38.

                While not employing the supervisory/use dichotomy, the Tyler court of appeals held

that injuries suffered by a mentally impaired man while being loaded onto a bus or van did not arise

from the use or operation of the motor vehicle. Starkey v. Andrews Ctr., 104 S.W.3d 626, 628-29

(Tex. App.—Tyler 2003, no pet.). It rejected the plaintiff’s attempt to invoke LeLeaux for the

proposition that loading and unloading passengers is “part of the transportation process,” see

LeLeaux, 835 S.W.2d at 52, characterizing that language as dicta. Starkey, 104 S.W.3d at 629.

Instead, the Tyler court construed LeLeaux and the supreme court’s subsequent decisions as holding

that “for property to be used in causing injury, it must actually be involved and not merely serve as

the situs of injury or furnish the condition that made the injury possible.” Id. (citing Miller, 51



                                                   12
S.W.3d at 590, and Bossley, 968 S.W.2d at 343). It concluded that “LeLeaux establishes that a

vehicle not in use or operation and which is only the site for the injury does not create a waiver of

immunity.” Id.

               Finally, in a 2003 memorandum opinion, we applied the Gutierrez “affirmative

action” concept in a case involving a student who was hit by a car after being dropped off by a school

bus. King v. Manor Indep. Sch. Dist., No. 03-02-00473-CV, 2003 Tex. App. LEXIS 6346, at *12

(Tex. App.—Austin July 24, 2003, no pet.). After disembarking, the student would routinely walk

with her friends on the same side of the road as the bus stop before crossing the road. Id. at *1. On

the day in question, the students appeared to be following this pattern, so the bus driver departed

from the stop. Id. The students then walked for only one-half block on the same side of the road

before attempting to cross the street. Id. at *1-2. At the crossing, one of the students was struck by

a passenger car. Id. at *1. In the suit that followed, it was alleged that the bus driver was negligent

in failing to remain at the bus stop long enough to ensure the student’s safety. Id. at *6. In

distinguishing the case from Gutierrez, we held that there was no affirmative action on the part of

the driver. Id. at *7-8. After surveying many of the cases we have reviewed here, we concluded that

“[t]he bus driver’s judgment about the amount of time necessary to remain at the bus stop and

judgment about what actions the children were going to take is a matter of the driver’s supervision

of the children rather than the operation or use of a motor vehicle.” Id. at *12.

               From these cases, we can discern the following general principles. First, for

sovereign immunity to be waived under section 101.021 of the tort claims act, a plaintiffs’ injuries

must actually have been caused by the use or operation of a motor vehicle—“the operation or use



                                                  13
of a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes the

injury possible.’” Whitley, 104 S.W.3d at 543 (quoting Bossley, 968 S.W.2d at 343); see also Miller,

51 S.W.3d at 590; Starkey, 104 S.W.3d at 628-29. Second, injuries arising from supervision of bus

passengers do not arise from the operation or use of a vehicle. See Montoya, 177 S.W.3d at 336-39.

Third, passenger injuries attributable to a bus driver’s decisions and actions regarding whether and

when passengers disembark the bus, and their safety in doing so, are considered supervisory in

nature. Whitley, 104 S.W.3d at 542-43; Ransom, 2 S.W.3d at 645; Goston, 853 S.W.2d at 733; see

also King, 2003 Tex. App. LEXIS 6346, at *12. Only where the injuries arise from some

“affirmative action” actually using or operating the bus is immunity waived. Gutierrez, 54 S.W.3d

at 866-67; Willis, 163 S.W.3d at 817.

                In her briefing, Newman characterizes her central “use” allegation to be that Lopez

and Morua failed or refused to “look in their bus to assure that Plaintiff Newman was off the bus and

in school,” which she characterizes as an aspect of the use of the bus to transport R. N. to school.

Under the legal principles we surveyed above, we would be inclined to agree with Elgin I.S.D. that

such allegations refer only to injuries arising from a failure to supervise, not from a use or operation

of the bus itself. The sole “affirmative action” identified in Newman’s brief is the following: “the

Plaintiff’s injuries resulted exclusively from the Defendants’ failure to unload her from the motor-

driven vehicle, an affirmative action on the Defendants’ behalf.” That affirmative action establishes

only that the bus happened to be the location of R. N.’s injuries attributable to Elgin I.S.D.’s

negligent supervision, and would not establish a waiver of immunity. See Whitley, 104 S.W.3d at




                                                  14
543 (quoting Bossley, 968 S.W.2d at 343); see also Miller, 51 S.W.3d at 590; Starkey, 104 S.W.3d

at 628-29.

               However, we have also determined that Newman’s pleadings, broadly construed,

sufficiently allege that R. N. and Newman were injured by the negligent locking of the bus door.

This action, as previously stated, is a use of the bus. The alleged negligent locking of the bus door

is akin to the negligent use of the bus horn we identified as a basis for waiver in Gutierrez and

distinguishes Newman’s allegations from those stating merely injuries caused by negligent

supervision.

               For this reason, we conclude that the Newmans have alleged a valid waiver of

sovereign immunity and that the district court did not err in denying Elgin I.S.D.’s plea to the

jurisdiction. We overrule Elgin I.S.D.’s issues on appeal.


                                         CONCLUSION

               We affirm the district court’s order denying Elgin I.S.D.’s plea to the jurisdiction.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: March 2, 2006




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