                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00234-CV

THE CITY OF MADISONVILLE,
                                                             Appellant
v.

THERESA MURDERS AND MARTINA MALDONADO,
                                 Appellees


                           From the 12th District Court
                              Madison County, Texas
                          Trial Court No. 11-12872-012-12


                           MEMORANDUM OPINION


       Theresa Murders and Martina Maldonado owned a beauty salon and dog

grooming business. They sued the City of Madisonville and its contractor, Brazos

Valley Services, for their part in the replacing and repairing of a City sewer line in front

of the business.    The City filed a plea to the jurisdiction alleging governmental

immunity, and Murders and Maldonado amended their petition. The City filed another

plea to the jurisdiction alleging governmental immunity which the trial court denied.
The City brings this interlocutory appeal.1 See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014 (a)(8) (West Supp. 2013). Because the trial court erred in denying the plea to the

jurisdiction, we reverse the trial court’s order and render judgment that the claims

against the City be dismissed with prejudice.

           Sovereign immunity protects the State and its various divisions from suit and

liability, whereas governmental immunity provides similar protection to the political

subdivisions of the state, such as counties, cities, and school districts.      Travis Cent.

Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing Wichita Falls State Hosp.

v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). When dealing with these immunities, the

Legislature has been required to express its intent to waive immunity clearly and

unambiguously. Id. (citing Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d

175, 177 (Tex. 1994) and TEX. GOV'T CODE ANN. § 311.034 (West Supp. 2011) (codifying

the clear and unambiguous standard)).

           A valid immunity defense defeats the trial court's subject-matter jurisdiction and

thus is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). An order which grants or denies a plea

questioning the trial court's jurisdiction is reviewed de novo. See State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007). When a plea to the jurisdiction challenges the pleadings,

such as in this case, we determine if the pleader has alleged facts that affirmatively

demonstrate the court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. We

1   Brazos Valley Services is not a part of this interlocutory appeal.

The City of Madisonville v. Murders                                                    Page 2
construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent.

Id.

       Murders’ and Maldonado’s first amended petition alleged their suit was brought

within subsections 1 and 2 of the Texas Tort Claims Act’s general waiver provision. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) & (2) (West 2011). Those subsections

afford a limited waiver of governmental immunity when either (1) property damage,

personal injury, or death is proximately caused by the wrongful act or omission or the

negligence of an employee acting within his scope of employment if the property

damage, personal injury, or death arises from the operation or use of a motor-driven

vehicle or motor-driven equipment; and the employee would be personally liable to the

claimant according to Texas law; or (2) personal injury and death is 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(1) & (2) (West 2011).

       Even in the most liberal construction of Murders’ and Maldonado’s pleadings,

there are no facts alleged which establish a waiver of the City’s immunity under either

subsection of section 101.021. There were no factual allegations, nor could there be, of

1) property damage, personal injury, or death; 2) proximately caused by the negligence

of; 3) an employee of the City; 4) arising from the use or operation of a motor vehicle or

motor driven equipment. Id. §101.021(1). Further, there were no factual allegations, nor



The City of Madisonville v. Murders                                                    Page 3
could there be, of personal injury or death caused by a condition or use of tangible

personal or real property. Id. (2). At most, Murders and Maldonado only allege the

City was negligent in its maintenance of the City’s sewer system and in its efforts to

assist Brazos Valley Services in locating the sewer line to be replaced or repaired. This

is not the kind of act that would bring the suit within the Tort Claims Act waiver of

immunity.

       To the extent Murders and Maldonado also pled claims for mental anguish and

nuisance, these claims, as alleged, also do not fall within the Tort Claims Act waiver of

immunity. First, there is no general duty not to negligently inflict emotional distress.

Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993). Second, nuisance liability arises only

when governmental immunity is clearly and unambiguously waived. City of Dallas v.

Jennings, 142 S.W.3d 310, 316 (Tex. 2004). Murders and Maldonado allege waiver only

through the Texas Tort Claims Act. Thus, this claim suffers from the same pleading

deficiencies as their negligence claim. And as stated previously, the pleadings do not

establish a waiver under the Tort Claims Act.

       Relying on the Dallas Court of Appeals’ opinion in City of Dallas v. Heard, 252

S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied), Murders and Maldonado contend

that we may not reach the question of whether immunity is waived as to the mental

anguish claim and the nuisance claim because the City did not complain about these

claims in its plea to the jurisdiction. However, the case relied upon in the Heard opinion



The City of Madisonville v. Murders                                                 Page 4
for that proposition, City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680 (Tex.

App.--Dallas 2003, pet. denied), has been expressly overruled by the Texas Supreme

Court. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). Consequently, we are

not precluded from addressing these jurisdictional issues raised for the first time on

appeal. Id.; see Kaufman County v. Leggett, 396, S.W.3d 24, 30 (Tex. App.—Dallas 2012,

pet. denied).2

        The trial court erred in denying the City’s plea to the jurisdiction. Because

jurisdictional facts cannot be alleged that would bring the suit within the waiver of

immunity provision of the Tort Claims Act, we are not obligated to remand this appeal

so that Murders and Maldonado may amend their petition. 3 See Tex. A&M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Accordingly, the order of the trial court is

reversed and judgment is rendered that the claims against the City are dismissed with

prejudice.



                                                  TOM GRAY
                                                  Chief Justice


2 At oral argument, Murders and Maldonado argued the Court could not address Murders’ and
Maldonado’s failure to plead any of the type damages that would bring their claims within the waiver of
governmental immunity. Because we are addressing the trial court’s subject matter jurisdiction, we
disagree. Thus, for the additional reason that Murders’ and Maldonado’s pleadings do not allege any
type of damages for which governmental immunity is waived, we also hold that they have failed to
invoke the trial court’s jurisdiction over their claims.

3Murders and Maldonado amended their pleadings in response to the City’s first plea to the jurisdiction
which, like its second plea, took issue with the failure to allege facts regarding the “use or operation of a
motor vehicle or motor driven equipment” element of section 101.021. Even in the amended petition,
Murders and Maldonado did not allege a use or operation of a motor vehicle or motor driven equipment
which corresponded to their negligence claim that the City failed to maintain its sewer system or assist
Brazos Valley Services in locating the sewer line.

The City of Madisonville v. Murders                                                                   Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed April 17, 2014
[CV06]




The City of Madisonville v. Murders          Page 6
