                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00324-CV

MCLENNAN COUNTY AND RAY MEADOWS,
                                                            Appellants
v.

RANDOLPH VEAZEY AND DEBRA VEAZEY,
                                                            Appellees


                           From the 170th District Court
                             McLennan County, Texas
                            Trial Court No. 2008-525-4


                                     OPINION


      Randolph and Debra Veazey sued McLennan County and Ray Meadows both in

his individual and official capacity pursuant to the Texas Tort Claims Act for damage

done to a house the Veazeys were having moved. The County and Meadows filed a

plea to the jurisdiction and an alternative motion for summary judgment. The trial

court granted the summary judgment as to Meadows in his individual capacity. In the

same order, the trial court denied the plea to the jurisdiction and alternative motion for

summary judgment as to the County and Meadows in his official capacity. The County

and Meadows appeal that portion of the order.
       On appeal, the County and Meadows argue that governmental immunity was

not waived regarding the Veazeys’ cause of action. Because the trial court erred in

denying the plea to the jurisdiction, we reverse the trial court’s order and render

judgment dismissing the Veazeys’ claims.1

                                           BACKGROUND

       The Veazeys hired a house mover. While moving a portion of the house along a

McLennan County road, forward progress was blocked by trees along the sides of the

road. Efforts to remove the house from obstructing the road caused damage to the

house, and ultimately, the house was destroyed to clear the road.

       The Veazeys sued Ray Meadows and McLennan County.                          The suit against

Meadows, an elected McLennan County Commissioner, is against him in both his

individual and in his official capacity. The suit against McLennan County is brought

solely due to the actions of Meadows in his official capacity.

       The suit alleges that Meadows was in charge of the efforts to clear the road of the

house. It is further alleged that Meadows was negligent in the manner in which he

ordered the house to be moved. Specifically, the Veazeys claim that although he did

not actually operate the wrecker used to move the house backwards nor did he actually

attach the wrecker winch-line (cable) to the beams on which the house was being

moved, the wrecker company employee was following Meadows’s instructions to the


1 As discussed later in this opinion, the proper term when referring to the immunity of a political
subdivision, rather than the State of Texas, is “governmental” immunity. This term, however, has not
been consistently used in the cases. For consistency, we will use “governmental” immunity in all
instances where it is appropriate even if the party or case used the term “sovereign” immunity. We will
use the term “sovereign” immunity only when we are specifically referring to the immunity of the State.

McLennan County v. Veazey                                                                       Page 2
extent that it was effectively Meadows’s operation and use of the wrecker. By these

allegations, the Veazeys attempt to bring themselves within the narrow waiver of

governmental immunity when property damage is caused by a government employee’s

use or operation of a motor-driven vehicle or motor-driven equipment. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021 (Vernon 2005).

                             SOVEREIGN/GOVERNMENTAL IMMUNITY

        Sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits against the State or other governmental units unless the governmental unit

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

2004). While sovereign immunity refers to the immunity from suit and liability of the

State, governmental immunity protects political subdivisions of the State, including

counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,

694 n.3 (Tex. 2003). Both sovereign and governmental immunity afford the same degree

of protection and both levels of government are subject to the Tort Claims Act. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.001(3) (Vernon 2005); Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). If an individual is sued in his official

capacity, he may raise any defense that would be available to his employer, including

the defense of immunity.2 Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App—El Paso




2 Because the Veazeys sued both the County and Meadows, an employee of the County, the County could
have filed a motion to dismiss Meadows under the election of remedies provision in the Tort Claims Act.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (Vernon 2005) (“If a suit is filed under this chapter against
both a governmental unit and any of its employees, the employees shall immediately be dismissed on the
filing of a motion by the governmental unit.”). However, the County did not file a motion to dismiss.

McLennan County v. Veazey                                                                           Page 3
1993, writ dism’d w.o.j.); accord Bowen v. Comstock, No. 10-05-00295-CV, 2008 Tex. App.

LEXIS 3927, *5 (Tex. App.—Waco May 28, 2008, pet. dism’d) (memo. op.).

       Because immunity from suit defeats a trial court's subject matter jurisdiction, it is

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

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); accord Tex. A&M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 844-46 (Tex. 2007). Whether a plaintiff has alleged facts that affirmatively

demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de

novo. Miranda, 133 S.W.3d at 226. We consider the facts alleged by the plaintiff and, to

the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.

Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).

                                 TEXAS TORT CLAIMS ACT

       The Texas Tort Claims Act provides a limited waiver of immunity for certain

suits against governmental entities and caps recoverable damages.           Mission Consol.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Because the Act does not

abolish immunity, we look to the terms of the Act to determine the scope of its waiver.

Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). Further, when construing a

statute that purportedly waives immunity, we generally resolve ambiguities by

retaining immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).

Operation or Use

       Pursuant to the Act, a governmental unit is liable for property damage

proximately caused by the negligence of an employee acting within his scope of

employment if the property damage arises from the operation or use of a motor-driven

McLennan County v. Veazey                                                              Page 4
vehicle or motor-driven equipment and the employee would be personally liable to the

claimant according to Texas law.     TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)

(Vernon 2005). The Veazeys assert that the motor-driven vehicle at issue, in this case

the wrecker, need not actually be operated by a governmental employee for the

government and the employee to come within the statutory waiver. We disagree with

the Veazeys.

       The Veazeys’ argument in this appeal is best expressed by the following

paragraph from their brief.

       Texas Court’s (sic) have construed the language of “operation or use” to
       mean the state actor was either operating the vehicle or, not actually
       operating the vehicle but in some way “using” the vehicle. A State Actor
       “uses” a motor driven vehicle when the State Actor somehow exercises
       direct control over a third party’s operation of a motor driven vehicle.
       McLennan County and Ray Meadows exercised direct control over the
       wrecker driver on Culpepper Road in the following ways. First, by being
       in charge of the scene and not allowing the house to move down the road.
       Second, by ordering the tow truck driver to back up even after the driver
       informed Mr. Meadows that if he backed up the house in this fashion it
       would fall, and third, directing the movements of the driver on how to
       back up. These actions caused the house to fall into the ditch which led to
       the house having to be destroyed. Ray Meadows (sic) actions were the
       direct and proximate cause of the house falling into the ditch.

Appellants’ brief pgs. 4-5. To support this argument, the Veazeys rely on County of

Galveston v. Morgan, 882 S.W.2d 485 (Tex. App.—Houston [14th Dist.] 1994, writ denied)

and City of El Campo v. Rubio, 980 S.W.2d 943 (Tex. App.—Corpus Christi 1998, pet.

dism’d w.o.j.).

       In County of Galveston v. Morgan, Morgan, the employee of an independent

contractor, was injured when he fell from the bed of a truck while delivering road


McLennan County v. Veazey                                                            Page 5
resurfacing material to repair a county road.      Galveston County supplied spotters

signaled the truck drivers when to move forward and when to stop. One of the spotters

moved the truck too close to a power line and Morgan climbed into the bed of the truck

to determine how close it was to the power line. He received an electric shock which

knocked him to the ground. The jury found Morgan and the County equally negligent.

On appeal, the County challenged the legal and factual sufficiency of the evidence to

support a finding that the accident arose from a County employee's use or operation of

a motor driven vehicle. The County argued that the vehicle was not a County truck and

the driver was not a County employee. The Houston Court rejected these arguments

and found a waiver of immunity because the County spotters "used" or "operated" the

trucks by controlling their movements. County of Galveston v. Morgan, 882 S.W.2d 485,

490 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

       In City of El Campo v. Rubio, the Corpus Christi Court of Appeals followed

Morgan. In that case, a police officer allegedly ordered an unlicensed passenger to

operate a motor vehicle following the driver's arrest. The passenger, in accordance with

the officer's order, followed the patrol car onto the highway and was struck by another

vehicle. The court of appeals found that immunity was waived because the officer

"used" or "operated" the vehicle by exercising control over it. City of El Campo v. Rubio,

980 S.W.2d 943, 945-946 (Tex. App.—Corpus Christi 1998, pet. dism'd w.o.j.).

       We decline to follow these cases. There is another line of cases that serves as a

guide to our decision in this appeal.



McLennan County v. Veazey                                                           Page 6
       The line of cases begins with the Texas Supreme Court’s decision in LeLeaux v.

Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992). In LeLeaux, Monica, a high

school band student, had been sitting on the floor of a parked school bus, hanging her

legs out of the opened rear emergency exit door. Monica jumped out of the rear

emergency door of the parked school bus to retrieve a pillow that had fallen. She

bumped her head on the door frame when she re-entered through the same door. The

bus driver was not present when these events took place. After the bus driver entered

the bus and discovered that the back door was open, he asked Monica to close it. As

she attempted to do so, she passed out and fell to the ground. Monica sued the school

district, alleging that the school district was negligent in its operation and use of school

buses because of its practice of regularly loading and unloading band students and their

instruments through the emergency doors. She made the same allegation against the

bus driver. The trial court granted summary judgment for the school district on the

ground of governmental immunity.

       The Supreme Court held that “[w]hile the statute does not specify whose

operation or use is necessary--the employee's, the person who suffers injury, or some

third party—[]the more plausible reading is that the required operation or use is that of

the employee. This requirement is consistent with the clear intent of the [Tort Claims]

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

Because the injury did not result from an employee's operation or use of the bus, the

Court held that immunity was not waived. Id. at 52. Additionally, the Court found that



McLennan County v. Veazey                                                             Page 7
the bus driver was exercising his judgment and discretion and found him to be immune

from liability. Id. at 53.

       Another case is Goston v. Hutchinson, 853 S.W.2d 729 (Tex. App.—Houston [1st

Dist.] 1993, no pet.). In Goston, two students were riding on a Houston Independent

School District bus when they asked the driver to let them off at an undesignated stop

where they were picked up by a friend. Later, the friend ran into a fixed object. One of

the students was killed and the other was seriously injured. The school district and the

bus driver were sued and asserted that they were entitled to governmental immunity

because the injuries did not arise out of the use or operation of a motor vehicle. The

trial court granted the school district’s and the bus driver’s motions for summary

judgment. Following LeLeaux and other school bus cases, the Houston Court agreed

that use of the school bus was not an issue in its case and affirmed the trial court’s

decision. Id. at 732-734.

       Yet another case is Sepulveda v. County of El Paso, 170 S.W.3d 605 (Tex. App.—El

Paso, pet. denied). In Sepulveda, in response to a complaint about drag racing in front of

a company, an El Paso County deputy asked the company’s assistant manager if the

company would build a “berm” 50 feet from the paved part of the roadway to prevent

the drag racers from escaping deputies on the unpaved part of the road. No one from

the Sheriff’s Department was present when the berm was constructed. Nevertheless,

Sepulveda and others sued the County and the Sheriff after their vehicle collided with

the berm.    The County filed a plea to the jurisdiction, alleging that governmental

immunity had not been waived. The trial court granted the plea to the jurisdiction.

McLennan County v. Veazey                                                           Page 8
          On appeal, Sepulveda acknowledged that the deputy did not personally operate

or use motor-driven equipment but argued that the deputy negligently exercised

control over the company employee who built the berm. Sepulveda also relied on

Morgan and Rubio, along with Sem v. State, 821 S.W.2d 411 (Tex. App.—Fort Worth 1991,

no pet.) and City of El Paso v. W.E.B. Investments, 950 S.W.2d 166 (Tex. App.—El Paso

1997, pet. denied). The El Paso Court of Appeals distinguished these four cases from its

case because it was undisputed that a county employee did not personally operate or

use a motor-driven vehicle or equipment to construct the berm. Sepulveda, 170 S.W.3d

at 614.

          But we believe the better reasoned and more factually similar case in this line of

cases is the Beaumont Court’s decision in Tarkington I.S.D. v. Aiken, 67 S.W.3d 319 (Tex.

App.—Beaumont 2002, no pet.). In that case, Aiken and his mother sued T.I.S.D. for

personal injuries sustained while riding on the tailgate of a privately-owned pickup

truck on school property. According to both parties, Aiken’s supervisor, a T.I.S.D.

employee, instructed Aiken and two others, who were participants in a summer work

program, to move school desks from one building to another. The supervisor then left

to mow the school’s football field. After mowing for a period of time, he returned to the

building and saw one of the participants backing up a pickup to the building. Aiken

was on the tailgate. Aiken was injured when the driver backed into the building.

          The thrust of Aiken’s pleadings, evidence, and arguments was that a T.I.S.D.

employee-supervisor, who was not driving the pickup, negligently supervised the

program participant who was driving and that the T.I.S.D. supervisors were not

McLennan County v. Veazey                                                             Page 9
properly trained.        Tarkington I.S.D. v. Aiken, 67 S.W.3d 319, 321-322 (Tex. App.—

Beaumont 2002, no pet.). Although the T.I.S.D. employee did not bring the privately

owned vehicle into service or action, did not employ it for or apply it to a given

purpose, and did not perform a practical work with it, Aiken argued that governmental

immunity was waived because the only supervisor on the site exercised control and

direction over the program participants’ actions and in that sense “used” or “operated”

the pickup. Id. at 334. Like the Veazeys, to support his argument, Aiken relied on

Morgan and Rubio.

       The Beaumont Court did not accept Aiken’s argument or the propositions

advocated by Morgan and Rubio. Instead, and relying on the Texas Supreme Court

decision in LeLeaux, the Beaumont Court held that Aiken’s complaint did not fall within

the scope of the waiver of immunity under the Tort Claims Act. Id. at 326; see LeLeaux v.

Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52 (Tex. 1992). The Court stated,

       Appellees would have us read the statute more expansively than LeLeaux
       stated it should be read. We decline to do so until directed otherwise by
       the Texas legislature or by the Texas Supreme Court. The record before us
       establishes that Tarkington I.S.D. did not own the vehicle and its employee
       did not operate or use the vehicle. There is no nexus between Mark
       Aiken's injuries and an employee's negligent operation or use of the
       vehicle.

Tarkington I.S.D., 67 S.W.3d at 326.

       Like the Beaumont Court, we decline to read the statute more expansively than it

is written. The record in this case establishes that Meadows did not use or operate the

wrecker, and thus, immunity was not waived as to McLennan County or Meadows in

his official capacity.

McLennan County v. Veazey                                                              Page 10
Personal Liability According to Texas Law

       The County and Meadows also assert that because Meadows would not be

personally liable for the facts as alleged by the Veazeys, governmental immunity was

not waived. Appellant’s brief at pg. 14 (“Furthermore, Commissioner Meadows could

not be personally liable to the Veazeys according to Texas law for allegedly making

such statements.    See § 101.021(1)(B), Texas Civil Practice & Remedies Code.”).     This

requisite is the second element required to be found for there to be a waiver of

governmental immunity under the Tort Claims Act provision.

       A government employee, like any other employee, is generally not liable to an

injured party if the duty owed the injured party arises solely from the relationship

between the government and the person injured and not from a duty that arises

generally on a person as a member of the public-at-large. This is where the provision

that is largely ignored in the evaluation of governmental immunity is so critical: the

provision that immunity is waived only if the employee would be liable to the claimant

according to Texas law. It is this conjunctive requirement that goes with the negligent

use or operation of a motor-driven vehicle or motor-driven equipment that caused

injury that makes the test difficult to meet in situations where the actor is not actually

operating the motor driven equipment as in this proceeding.

       So, even if we held that Meadows used or operated the wrecker, Meadows was

not individually liable to the Veazeys. This is one reason why the Morgan case is

inapplicable to this proceeding. The Tort Claims Act provides for a limited waiver if

property damage is proximately caused by the negligence of an employee acting within

McLennan County v. Veazey                                                           Page 11
the scope of employment and the property damage 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)

(Vernon 2005). In Morgan, the county did not allege individual immunity on behalf of

the employees. Thus, the question of individual liability of the employee was not

addressed by the court and did not have any impact on the court’s decision on appeal.

Had the county in Morgan alleged individual immunity, the result in that proceeding

may have been different.

       In this proceeding, the Veazeys are not actually asserting the wrecker was

operated negligently. Rather, they are asserting that the decisions Meadows made

about when and how to clear the road were his decisions and were negligent. The use

of the wrecker was nothing more than the mechanical implementation by a sub-

contractor of what the Veazeys assert were bad decisions. But whatever decisions

Meadows made were made by him in his capacity as a commissioner in McLennan

County to clear an obstruction from a roadway. As such, the duty is not Meadows’s as

a member of the public. Rather, it arises from his capacity as a commissioner.

       If an action involves personal deliberation, decision, and judgment, it is

discretionary; an action that requires obedience to orders or the performance of a duty

to which the employee has no choice is ministerial. Ramos v. Texas Dep't of Pub. Safety,

35 S.W.3d 723, 727 (Tex. App.—Houston [1st Dist]. 2000, pet. denied) (citing City of

Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). In determining whether an act is

discretionary, the issue is whether an employee was performing a discretionary

McLennan County v. Veazey                                                        Page 12
function, not whether he had the discretion to do an allegedly wrongful act while

discharging that function or whether the employee's job description included

discretionary duties. Id. (citing Chambers, 883 S.W.2d at 653). Whatever can be said of

the nature of Meadows’s actions, it is clear from all of the Veazeys’ allegations and the

evidence that there was no ministerial act that he was to perform and any action he

engaged in was a discretionary decision in determining the best method by which to

move the house so as to clear it from obstructing the county road. Cf. Ramos, 35 S.W.3d

723 (A Department of Public Safety officer was engaged in discretionary acts during a

driving test by requesting the driver to perform various driving action and by

evaluating whether the driver could safely operate the vehicle during the test.).

       Therefore, immunity was also not waived as to McLennan County and Meadows

in his official capacity because Meadows would not be liable as a private person under

Texas law because Meadows is not liable in his individual capacity. See DeWitt v. Harris

County, 904 S.W.2d 650 (Tex. 1995); Ramos, 35 S.W.3d at 729; see also Leitch v. Hornsby,

935 S.W.2d 114 (Tex. 1996) (Because a corporate officer acting on the corporation's

behalf does not owe a corporate employee an individual duty to provide that employee

with a safe work place, and because officers did not breach any separate duty, the court

of appeals erred in affirming their individual liability.). This is consistent with the

separate determination made by the trial court that dismissed Meadows in his

individual capacity.

       Because we sustain the first issue we need not address other issues raised by the

County and Meadows.

McLennan County v. Veazey                                                           Page 13
                                      CONCLUSION

       Our holding is consistent with the general purpose of governmental immunity in

that it protects the public coffers from uncertain and unpredictable results of litigation.

If bad or negligent decisions or instructions about how to implement government

decisions could result in liability because there is simply a use of a motor driven

equipment or use of tangible personal property, it would, in large part, do away with

governmental immunity.

       Because Meadows was not using or operating a motor-driven vehicle or motor-

driven equipment and because Meadows was not liable in his individual capacity, the

trial court had no subject matter jurisdiction of the Veazeys’ lawsuit and erred in

denying the County’s and Meadow’s plea to the jurisdiction. Further, this jurisdictional

defect in the Veazeys’ negligence claims cannot be cured by allowing them to plead

additional facts. See Tex. Parks & Wildlife Dep't v. E. E. Lowrey Realty, Ltd., 235 S.W.3d

692, 694 (Tex. 2007). Therefore, the trial court’s order is reversed, and judgment is

rendered that the claims against the County and Meadows are dismissed with

prejudice.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and rendered
Opinion delivered and filed March 10, 2010
[CV06]

McLennan County v. Veazey                                                           Page 14
