                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-13-00082-CV

 RYDER INTEGRATED LOGISTICS, INC. and Ryder Integrated Logistics of Texas, LLC,
                             Appellants

                                                   v.

                                       FAYETTE COUNTY,
                                           Appellee

                     From the 166th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-03779
                       Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 30, 2013

AFFIRMED

           This is an interlocutory appeal stemming from the trial court’s order granting Fayette

County’s plea to the jurisdiction. Fayette County’s plea to the jurisdiction asserted several grounds

for immunity from suit, but the trial court did not specify which ground its ruling was based upon.

Ryder Integrated Logistics, Inc. and Ryder Integrated Logistics of Tex., LLC (Ryder) appeal the

trial court’s order, claiming that Fayette County is not entitled to sovereign immunity or derived

official immunity. Fayette County responds that the trial court correctly ruled in its favor under

either of these immunity theories. Because we conclude that Ryder’s suit is barred by sovereign
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immunity, we affirm the trial court’s order granting the plea to the jurisdiction and dismissing

Ryder’s claims against Fayette County. 1

                                                 BACKGROUND

         This case concerns a fatal trucking accident that occurred on IH-10 in Fayette County,

Texas. Around 3:00 a.m., Fayette County Deputy Sheriff Randy Thumann stopped Ralph Molina

for a traffic violation. Molina’s truck pulled over on the shoulder of IH-10, and Thumann’s patrol

car pulled up behind Molina’s 18-wheeled truck. After pulling over, Molina’s truck began rolling

backward toward Thumann’s patrol car, so Thumann began reversing his car. Because Molina’s

truck continued to roll backward, Thumann drove his cruiser out from behind Molina’s truck and

onto a grassy area to the right.

         Thumann wanted to reposition his vehicle behind Molina’s truck again, so he turned his

patrol vehicle around in the grassy area to the right of the roadway, causing his vehicle to face

oncoming traffic. At all relevant times, Thumann’s vehicle remained in the grassy area to the right

of Molina’s truck, which was stopped on the right-side improved shoulder of the highway. Shortly

after Thumann turned his vehicle around, Ryder’s 18-wheeled truck, driven by Roberto Solis,

approached the area where Molina’s truck was stopped. While Thumann’s vehicle was parallel to

Molina’s truck in the grassy area but facing oncoming traffic, Solis’s truck hit the rear left side of

Molina’s truck. Solis’s truck immediately caught fire, and Solis died in the fire. All of these

events were captured by Thumann’s dashcam video. 2




1
  Because we conclude Ryder’s claim is barred by sovereign immunity, we need not reach Fayette County’s alternate
claim that Ryder’s suit is barred by derived official immunity. As such, we do not need to determine whether the
risk/need analysis or the reasonableness analysis is the proper good-faith analysis in this case. See TEX. R. APP. P.
47.1.
2
  When a videotape exists and there are no allegations that it has been tampered with, courts should use the video as
evidence and “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 378 (2007); see
also City of Dallas v. Hillis, 308 S.W.3d 526, 533 (Tex. App.—Dallas 2010, pet. denied).

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        After being sued by Molina, Ryder filed a third-party suit against Fayette County. 3 Ryder

alleged that Thumann, an employee of Fayette County, was a contributing cause of the accident

because the method he used to reposition his vehicle caused his vehicle’s lights to shine into the

eyes of oncoming traffic and to distract the approaching drivers, including Solis. Fayette County

filed a plea to the jurisdiction, asserting that the suit was barred by governmental immunity, a

species of sovereign immunity, and derived official immunity under the Texas Tort Claims Act

(TTCA). Ryder did not file a response. The trial court held a hearing on the plea to the jurisdiction,

but Ryder did not introduce any evidence. The trial court granted Fayette County’s plea to the

jurisdiction, and Ryder now appeals that order.

                                           STANDARD OF REVIEW

        A trial court lacks subject-matter jurisdiction when a governmental unit, such as a county,

is immune from suit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A

county is immune from suit unless the state has consented to waive immunity. Id. at 542; Texas

Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). A proper method of

asserting immunity from suit is in a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); City Of Kemah v. Vela, 149 S.W.3d 199, 202

(Tex. App.—Houston [14th Dist.] 2004, pet. denied). The determination of whether a court has

subject-matter jurisdiction is a question of law that is reviewed de novo. Miranda, 133 S.W.3d at

226; City of San Antonio v. Estrada, 219 S.W.3d 28, 31 (Tex. App.—San Antonio 2006, no pet.).

        When suing a governmental unit, the plaintiff bears the burden of affirmatively

demonstrating the trial court’s jurisdiction by alleging a valid waiver of immunity in its pleadings.

Whitley, 104 S.W.3d at 542. When the governmental unit files a plea to the jurisdiction, we must


3
 Solis’s heirs were also defendants in the underlying action, and Solis’s heirs and Molina’s passenger intervened in
the third-party petition against Fayette County. Ryder was the only party to appeal in the third-party action.

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decide whether the plaintiff has established the trial court’s jurisdiction. Miranda, 133 S.W.3d at

226. A plea to the jurisdiction can challenge a trial court’s jurisdiction in two ways: (1) by

contesting whether the pleadings allege facts sufficient to invoke the court’s jurisdiction; or (2) by

disputing the existence of the jurisdictional facts alleged. Id.

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, as it does in

this case, the trial court must consider relevant evidence presented by the parties to determine

whether an issue of fact exists. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)

(per curiam); Miranda, 133 S.W.3d at 227. “After a governmental entity presents evidence that

the trial court lacks subject[-]matter jurisdiction, the plaintiff must show there is a disputed

material fact regarding the jurisdictional issue.” City of Dallas v. Brooks, 349 S.W.3d 219, 224–

25 (Tex. App.—Dallas 2011, no pet.); see also Miranda, 133 S.W.3d at 228. When the evidence

creates a fact question as to the court’s jurisdiction, the trial court must deny the plea and allow

the fact finder to resolve the question. Hayes, 327 S.W.3d at 116; Miranda, 133 S.W.3d at 228.

Conversely, if the evidence is undisputed or fails to raise a fact question about the existence of the

court’s jurisdiction, the trial court must rule on the plea as a matter of law. Hayes, 327 S.W.3d at

116; Miranda, 133 S.W.3d at 228. Because this is a de novo review, these rules also guide this

court on appeal.

       This standard of review generally mirrors review of traditional summary judgments. City

of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Miranda, 133 S.W.3d at 228. As a

result, we assume evidence favorable to the nonmovant to be true, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Heinrich, 284 S.W.3d at 378;

Miranda, 133 S.W.3d at 228. Although resolution of the jurisdictional question often becomes

intertwined with factual questions on the merits of the plaintiff’s claim, the standard discussed

above, like that used for summary judgments, seeks to “protect the plaintiff[] from having to ‘put
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on [its] case simply to establish jurisdiction’” and, instead, requires the plaintiff to establish only

that there is a disputed material fact relevant to the issue of jurisdiction. Miranda, 133 S.W.3d at

228 (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)); see also State v.

Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (“[T]he burden of proof with respect to these

jurisdictional facts ‘does not involve a significant inquiry into the substance of the claims.’”

(quoting Blue, 34 S.W.3d at 554)).

                                      SOVEREIGN IMMUNITY

       The TTCA waives sovereign immunity in some limited circumstances, thus providing a

trial court with jurisdiction to hear those types of suits. TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.001–.109 (West 2011); Miranda, 133 S.W.3d at 224. Unless the TTCA clearly and

unambiguously waives immunity, the government will be immune from suit. Miranda, 133

S.W.3d at 224–25; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). The

TTCA waives immunity in three situations where a person suffers injury or death: “use of publicly

owned automobiles, premises defects, and injuries arising out of conditions or use of property.”

Miranda, 133 S.W.3d at 225 (quoting Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.

2002)) (internal quotation marks omitted).

       Indeed, the TTCA provides that the government 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; and




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       (2) personal injury and death so caused by a condition or use of tangible personal
           or real property if the governmental unit would, were it a private person, be
           liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). In this case, the parties dispute

whether Thumann’s use or operation of his motorized patrol vehicle resulted in a waiver of

immunity under section 101.021(1). See id. The Supreme Court of Texas has defined “use” to

mean “to put or bring into action or service; to employ for or apply to a given purpose,” and

“operation” to refer to “doing or performing of a practical work.” LeLeaux v. Hamshire-Fannett

Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (quoting Mount Pleasant Indep. Sch. Dist. v.

Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989)) (internal quotation marks omitted).

       A governmental unit will be liable under section 101.021(1) of the TTCA only if there is a

nexus between the operation or use of the motor-driven vehicle and the plaintiff’s injuries.

Whitley, 104 S.W.3d at 543; LeLeaux, 835 S.W.2d at 51 (“The phrase ‘arises from’ requires a

nexus between the injury negligently caused by a governmental employee and the operation or use

of a motor-driven vehicle or piece of equipment.”). To satisfy this requirement, “the [vehicle]’s

use must have actually caused the injury.” Whitley, 104 S.W.3d at 543 (alteration in original)

(quoting Texas Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001))

(internal quotation marks omitted). The operation or use of a motor vehicle will not have a

sufficient nexus to the plaintiff’s injuries “if it does no more than furnish the condition that makes

the injury possible.” Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d

339, 343 (Tex. 1998). This stringent nexus requirement corresponds with the TTCA’s intent that

waiver of sovereign immunity be limited. LeLeaux, 835 S.W.2d at 51.

       During oral argument, Ryder argued that the dispositive issue is whether Thumann was

negligent in maneuvering his vehicle. We disagree. We must first make a determination on the

legal question of whether there was a nexus, that is, whether Thumann’s use or operation of his
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vehicle was the cause of Solis’s death or whether it merely furnished the condition that made his

death possible.

        In relation to the nexus requirement, both parties cite City of Kemah v. Vela as a similar

case that provides guidance, but Ryder argues that its guidance is limited because it is

distinguishable from the case at hand. In City of Kemah, a police officer pulled over Gabriel Vela

for an expired registration sticker. 149 S.W.3d at 201. Vela and the officer stopped their vehicles

in a left-turn lane. Id. During the course of the stop, the officer realized Vela had an outstanding

traffic warrant, so he was arrested and placed in the backseat of the officer’s patrol car. Id. Another

officer arrived at the scene to assist, and he also stopped his vehicle in the left-turn lane behind the

first patrol car. Id. The emergency lights on both patrol cars were activated. Id. Shortly after

Vela was placed in the patrol car, a truck ran into the second patrol car, pushing it into the front

patrol car where Vela was sitting. Id. Vela sued the truck driver and the City of Kemah for injuries

he sustained as a result of the collision. Id.

        On appeal, the court of appeals focused on whether Vela had established that the use of the

patrol vehicles actually caused Vela’s injuries. The court determined that the vehicles did no more

than furnish the condition that made Vela’s injuries possible. Id. at 204. The court noted that Vela

did not complain that placing him in a patrol car was a negligent use of the vehicle, but instead

that “the officers acted negligently when they placed him in an improperly parked patrol car.” Id.

Regardless, the court held that the cause of Vela’s injuries was the truck driver’s collision with the

patrol cars, not Vela being seated in the vehicle. Id.

        Ryder argues that City of Kemah is distinguishable because, unlike the officers in City of

Kemah, Thumann was actively using his cruiser at the time his lights allegedly shined into Solis’s

eyes and distracted him. Ryder argues that this distraction to oncoming traffic was a contributing

cause to the accident in this case. Assuming Solis was distracted by the patrol car’s lights, the
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claim of distraction seems to be more properly classified as a condition that made the accident

possible than as the actual cause of the accident itself.

        Ryder also cites Junemann v. Harris County and City of San Antonio v. Johnson in support

of its position. Junemann involves an officer’s failure to use his overhead emergency patrol lights

while stopped and rendering assistance. Junemann, however, is distinguishable from the case at

issue because it was based on “the theory of use or misuse of non-defective tangible personal

property” under section 101.021(2), instead of being based on the use or operation of a

motor-driven vehicle under section 101.021(1). 84 S.W.3d 689, 695 (Tex. App.—Dallas 2002,

pet. denied). Under section 101.021(2), a plaintiff can establish a waiver of sovereign immunity

by establishing the “use or misuse of the property was a contributing factor to the alleged harm.”

Id. Ryder did not plead waiver of immunity under this theory in its third-party petition in the trial

court, nor has Ryder made this argument on appeal. Thus, Junemann is inapplicable to the case at

hand.

        In City of San Antonio v. Johnson, Bonnie Partlett was rear-ended by two motorists after

Partlett slowed her vehicle to a stop when a police car in front of her slowed to make a u-turn. 103

S.W.3d 639, 641 (Tex. App.—San Antonio 2003, pet. denied). Partlett sued the two motorists

who rear-ended her vehicle, Johnson and Thornton. Johnson and Thornton then filed a third-party

claim against the City for contribution. Id. In response, the City filed a plea to the jurisdiction

alleging, among other things, that a claim for contribution was barred by the TTCA. Id. This court

determined that a contribution claim was not barred so long as the City would not be immune from

a claim made by the underlying plaintiff, Partlett. Id. at 642. With limited discussion, this court

held that the claim for contribution was not barred because Partlett’s injuries arose “from an

automobile accident possibly caused by an improper u-turn made by the City’s police officer.” Id.



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As a result, the court concluded, “Partlett’s injuries were potentially caused by the officer’s

operation or use of a motor-driven vehicle—a claim for which immunity is waived.” Id.

        At first glance, Johnson may seem similar to the case at hand; however, we conclude that

it is factually distinguishable. The officer in Johnson apparently made an improper, and possibly

illegal u-turn on the roadway where vehicles were traveling. In comparison, Officer Thumann was

at all times off of the road in the grassy area, and Molina was stopped on the improved shoulder,

completely out of the lanes of travel. For the foregoing reasons, we are not persuaded by the

authority presented by Ryder.

        In addition to City of Kemah, Fayette County cites Texas Department of Public Safety v.

Grisham and City of Dallas v. Hillis to support its position that immunity is not waived. Fayette

County cites these cases in an effort to demonstrate that Ryder has not established a sufficient

nexus between Thumann’s actions in relocating his vehicle and Solis’s death. Specifically, Fayette

County argues that Thumann’s use of his vehicle in the grassy area to the right of the highway

“was too attenuated in the ‘use–causation’ analysis for Thumann’s conduct to have actually been

the cause of the injury in question.” Fayette County also asserts that Solis’s death was caused by

his decision not to switch lanes pursuant to the “Move Over Act.” See TEX. TRANSP. CODE ANN.

§ 545.157 (requiring vehicles passing an emergency vehicle to switch lanes or slow down). 4

        In Texas Department of Public Safety v. Grisham, an accident occurred in the left lane of

traffic, but the responding officer’s patrol car was parked on the right shoulder of the highway.

232 S.W.3d 822, 824 (Tex. App.—Houston [14th Dist.] 2007, no pet.). As the plaintiff approached

the scene he noticed the patrol car with its overheard emergency lights activated on the shoulder

of the right lane, so the plaintiff moved into the left lane. Id. Shortly after switching lanes, the


4
 Because we conclude there was not a sufficient nexus between Thumann’s use of his vehicle and Solis’s death, we
need not reach the issue of whether Solis had any possible obligations under the Move Over Act.

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plaintiff collided with a disabled vehicle in the left lane. Id. In his pleadings, the plaintiff alleged

that the officer “used or misused [his patrol car] and overhead emergency lights in a manner that

funneled [the plaintiff] directly into the disabled vehicle” because the officer should have expected

that passersby would change lanes pursuant to the Move Over Act. Id. at 825 (citing TEX. TRANSP.

CODE ANN. § 545.157(a) (West Supp. 2006)).

        Although this allegation could be read as making a claim involving misuse of tangible

personal property under section 101.021(2), the court of appeals analyzed the case under section

101.021(1) and the associated case law. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.

Similar to the court in City of Kemah, the Grisham court focused on the nexus requirement for

causation. See Grisham, 232 S.W.3d at 826–27. The court concluded that it was the plaintiff’s

decision to change lanes, instead of slowing down, that caused the collision and the plaintiff’s

injuries. Id. at 827. The court went on to explain that the patrol car being parked on the right

shoulder with its lights activated did nothing more than furnish the condition that made the

plaintiff’s injuries possible. Id.

        In City of Dallas v. Hillis, the decedent’s survivors sued the City of Dallas regarding a

single-vehicle accident that occurred after the decedent lost control of his motorcycle on an exit

ramp during a high-speed chase by a police officer. 308 S.W.3d 526, 528–29 (Tex. App.—Dallas

2010, pet. denied). The survivors based their suit against the City on multiple theories of

negligence, including the officer’s failure to follow the department’s “no-chase policy.” Id. at 529.

The City filed a plea to the jurisdiction based on section 101.021(1)(A) of the TTCA, specifically

asserting that the decedent’s death did not arise from the officer’s use of his motor vehicle. Id. at

532. After reviewing case law indicating that an injured person’s own decisions can break the

chain of causation, the court of appeals concluded “that the only actual cause of [the decedent]’s

accident was his own decision to attempt to exit . . . at a reckless rate of speed.” Id. at 534.
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       Although all of the cases cited above are helpful, Grisham is the most instructive to this

case. The core of the complaint in Grisham is that the officer’s overhead emergency lights caused

the plaintiff to take the action (switching lanes) that resulted in the accident. This can be compared

to the complaint by Ryder that Thumann’s lights caused Solis to become distracted or blinded and,

ultimately, collide with Molina’s truck.

       Ryder suggests that the necessary nexus is established because the patrol car was in active

use, i.e. moving at the time of the accident. We do not agree that the mere fact that the patrol car

was moving when the accident occurred is determinative. That is especially the case when the

focus of Ryder’s complaint is on the distracting nature of the vehicle’s lights, which could

presumably be illuminated even when the vehicle was not in motion.

       We likewise reject Fayette County’s contention that a nexus is established only when the

motor-driven vehicle is a “contact” or “near-contact” vehicle. This court is not inclined to adopt

such a bright-line test. Nor is there a need to apply such a test in this case. Under the existing case

law and due to the limited waiver of sovereign immunity, we conclude Thumann’s use of his

vehicle when turning around merely furnished the condition that made Solis’s death possible.

                                            CONCLUSION

       We conclude that Ryder failed to meet its heavy burden to establish a nexus between

Thumann’s use of his vehicle while turning around in the grassy around beside the highway and

Solis’s death. Accordingly, we affirm the trial court’s order granting Fayette County’s plea to the

jurisdiction on the basis of sovereign immunity.


                                                    Catherine Stone, Chief Justice




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