                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00102-CV

                     SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,
                                      Appellant

                                                  v.

                  Maria HALE, Individually and as Next Friend of B.J.H., a Minor,
                                            Appellee

                     From the 407th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CI12781
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 27, 2018

REVERSED AND RENDERED

           This is an accelerated appeal from the trial court’s order denying Appellant San Antonio

Independent School District’s (“SAISD”) plea to the jurisdiction based on governmental

immunity. Because we conclude SAISD is immune from Appellee Maria Hale’s (“Hale”) claim,

we reverse the trial court’s denial of SAISD’s plea to the jurisdiction and render judgment

dismissing Hale’s claim against SAISD for want of jurisdiction.
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                                           BACKGROUND

       Hale’s minor son, B.J.H., was injured while riding a school bus owned and operated by

SAISD. While the school bus was in motion, B.J.H. fell out of the school bus’s rear exit door and

landed on his head, sustaining severe injuries, including a traumatic brain injury. Hale alleges the

accident was caused by a defect in the rear exit door’s latching mechanism that caused the door to

open while the school bus was in motion.

       Hale sued the designers and manufacturers of the school bus and the latch mechanism,

asserting claims for products liability, negligence, misrepresentation, and breach of warranty. Hale

also asserted a claim against SAISD for negligence “in failing to maintain an acceptable latch

mechanism for the bus and in delivering it over to the SAISD bus driver to operate and transport

children in that negligently maintained condition.”

       SAISD filed a plea to the jurisdiction based on governmental immunity. After a hearing,

the trial court denied the plea to the jurisdiction, and SAISD filed this accelerated appeal.

                                            DISCUSSION

A.     Standard of review

       “A unit of state government is immune from suit and liability unless the state consents.”

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A plea to the jurisdiction

based on governmental immunity challenges the trial court’s subject matter jurisdiction. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Whether the plaintiff has

pleaded facts affirmatively demonstrating the trial court’s subject matter jurisdiction is a question

of law we review de novo. Id. at 226. We construe the pleadings “liberally in favor of the plaintiff[]

and look to the pleader[’s] intent.” Id.




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B.       Waiver of governmental immunity

         Hale alleges SAISD’s governmental immunity is waived under section 101.021 of the

Texas Tort Claims Act (“TTCA”). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

Section 101.021 expressly waives governmental immunity from claims for injury arising from a

government employee’s “operation or use of a motor-driven vehicle”:

         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 the
             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

         (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.

Id. A “school district[],” such as SAISD, is a “governmental unit” under the TTCA. See id.

§ 101.001(3)(B). For a personal injury to “arise from” a school district employee’s operation or

use of a motor-driven vehicle, there must be a “nexus” between the injury and the operation or use

of the motor vehicle. LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.

1992).

         On appeal, SAISD argues the trial court erred in denying its plea to the jurisdiction because

Hale (1) failed to identify an SAISD employee who would be personally liable to Hale under Texas

law based on the operation or use of the school bus and (2) failed to plead a nexus between that

operation or use and B.J.H.’s injury. We first address whether Hale’s pleadings allege “operation”

or “use” of the SAISD school bus.



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C.       “Operation” or “use”

         We strictly construe the “operation or use of a motor-driven vehicle” provision in light of

the legislature’s preference for a limited immunity waiver. Ryder Integrated Logistics, Inc. v.

Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015). “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.” Elgin Indep.

Sch. Dist. v. R.N., 191 S.W.3d 263, 269 (Tex. App.—Austin 2006, no pet.) (citing LeLeaux, 835

S.W.2d at 52). “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.

         To fall under the section 101.021 waiver, the alleged tortious act must relate to a

government employee’s actual operation of a vehicle, rather than to some other aspect of the

employee’s conduct. Ryder Integrated Logistics, 453 S.W.3d at 928. “In other words, even where

the plaintiff has alleged a tort on the part of a government driver, there is no immunity waiver

absent the negligent or otherwise improper use of a motor-driven vehicle.” Id. For example, failure

to supervise or control children on a school bus is not operation or use of the bus. See, e.g., Montoya

v. Houston Indep. Sch. Dist., 177 S.W.3d 332, 337–38 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (holding school bus driver’s failure to supervise child who escaped restraints and jumped out

of moving school bus was not operation or use of the school bus). 1

         In contrast, courts have held immunity is waived under section 101.021 where the school

bus driver is alleged to have taken some “affirmative action” in actually operating or using the


1
  See also Austin Indep. Sch. Dist. v. Salinas, No. 03-14-00209-CV, 2016 WL 1566707, at *5 (Tex. App.—Austin
Apr. 14, 2016, no pet.) (mem. op.) (holding school bus driver’s failure to supervise child who jumped out of moving
school bus was not operation or use of the school bus); Breckenridge Indep. Sch. Dist. v. Valdez, 211 S.W.3d 402, 411
(Tex. App.—Eastland 2006, no pet.) (holding school bus driver forgetting to unload child from school bus before
returning bus to the depot was not operation or use of the school bus); Goston v. Hutchison, 853 S.W.2d 729, 733–34
(Tex. App.—Houston [1st Dist.] 1993, no writ) (holding school bus driver allowing students to exit school bus at a
non-designated stop at their request was not operation or use of the school bus).

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school bus. See, e.g., R.N., 191 S.W.3d at 272 (holding bus driver forgetting to unload student

from school bus was a failure to supervise but affirmative act of locking school bus doors was

operation or use of the bus); see also City of Houston v. Nicolai, 539 S.W.3d 378, 390 (Tex. App.—

Houston [1st Dist.] 2017, pet. filed) (holding police officer’s affirmative decision not to use seat

belt to restrain detainee was a substantial factor in causing decedent’s ejection from patrol car

during traffic collision); Dallas Area Rapid Transit v. Willis, 163 S.W.3d 814, 817 (Tex. App.—

Dallas 2005, pet. denied) (holding bus driver’s affirmative action of parking too far from curb,

which contributed to injuries sustained by plaintiff who fell while exiting bus, was operation or

use of bus). 2

D.       Hale’s pleading

         In this case, we must consider whether Hale’s petition alleges “operation” or “use” of the

school bus. 3 In relevant part, Hale’s petition alleges:

                 Mr. Soto was transporting students home from school at the time of the
         incident in question. While driving the school bus on the 4500 block of Houston
         Street in San Antonio, Bexar County, Texas, [B.J.H.] fell out of the rear exit door
         of the IC bus, landing on his head, due to a defect in the rear exit door latching
         mechanism.

                 . . . [SAISD] was guilty of various acts and/or omissions which constituted
         negligence of an employee acting within his scope of employment where the injury
         arose from the use and operation or a motor vehicle. The proximate cause of the
         injury to of the injuries to [sic] [B.J.H.] . . . was the negligence of [SAISD] in failing
         to maintain an acceptable latch mechanism for the bus and in delivering it over to
         the SAISD bus driver to operate and transport children in that negligently
         maintained condition. The latch mechanism then failed while the bus was in
         operation or use by an SAISD bus driver.

2
 See also Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 866 (Tex. App.—Austin 2001, pet. denied) (holding
school bus driver’s “affirmative action of honking the horn” to signal student to cross the road after unloading was
operation or use of school bus); Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex. App.—Dallas 1987, no writ) (holding
school bus driver’s failure to activate bus flashers and warning signals prior to unloading students was operation or
use of school bus).
3
  SAISD filed its plea to the jurisdiction in response to Hale’s original petition. Prior to the hearing on the plea to the
jurisdiction, Hale amended her petition but did not amend any of the allegations against SAISD. Accordingly, we refer
to Hale’s original petition and first amended petition interchangeably as her “petition.”

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                 . . . In the present situation, the rear emergency exit door came open before
         the force application on the rear door was 90 degrees or more. This allowed the
         emergency exit door to swing open while the bus was in operation, allowing the
         child to fall from the moving school bus thereby causing his severe and disabling
         injuries.

                 The personal injury to [B.J.H.], arose from the operation or use of a motor-
         driven vehicle. This injury arose from the accident when the bus, owned by
         [SAISD], was in operation, and the latching mechanism on the rear door of the bus
         malfunctioned by opening before the latch handle was raised ninety degrees from
         its secured position as mandated by State law.

(emphases added).

         Critically, Hale does not allege any affirmative acts or omissions by the bus driver, nor

does she allege the bus driver’s actions or inaction caused B.J.H.’s injury. Hale does not allege the

school bus driver negligently or otherwise improperly operated or used the school bus. Rather,

Hale alleges SAISD (not the bus driver) was negligent in “failing to maintain an acceptable latch

mechanism for the bus and in delivering it over to the SAISD bus driver to operate and transport

children in that negligently maintained condition.”

         Therefore, accepting Hale’s allegations as true, SAISD’s negligence relates to the

maintenance of the school bus. However, even if SAISD was negligent in maintaining the school

bus, maintenance is not operation or use of the school bus. See Tex. Juvenile Justice Dep’t v. PHI,

Inc., 537 S.W.3d 707, 713 (Tex. App.—Fort Worth 2017, pet. filed) (“[M]aintenance is neither

operation nor use under the TTCA.”); Mt. Pleasant Indep. Sch. Dist. v. Elliott, No. 06-13-00115-

CV, 2014 WL 1513291, at *7–10 (Tex. App.—Texarkana Apr. 17, 2014, pet. denied) (mem. op.)

(holding school district’s governmental immunity was not waived in personal injury claim alleging

negligent maintenance of school bus brakes). 4


4
  As the Elliott court explained, we may not read the term “maintenance” into section 101.021. 2014 WL 1513291, at
*9. Where the legislature intended to waive immunity for “maintenance,” in addition to “operation” or “use,” it did so
in another provision of the TTCA that is inapplicable here. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.0215(a)(24) (West 2017)).

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                                                                                         04-18-00102-CV


        Because Hale has not alleged “operation” or “use” of the school bus, we need not address

whether B.J.H.’s injuries “arose from” such operation or use (i.e., whether there is a “nexus”

between any operation or use and B.J.H.’s injury). Even construed liberally in Hale’s favor, Hale’s

petition does not allege facts affirmatively demonstrating the trial court’s subject matter

jurisdiction over her claim against SAISD. See Miranda, 133 S.W.3d at 226. Accordingly, we

sustain SAISD’s sole issue on appeal and reverse the trial court’s denial of SAISD’s plea to the

jurisdiction.

E.      Opportunity to amend in the trial court

        In her briefing, Hale argues her “failure to identify an SAISD employee who would be

personally liable to” her is a curable defect and requests that we remand to the trial court so she

may replead. However, Hale’s pleading is not defective for failing to name an SAISD employee,

but rather for failing to plead an SAISD employee’s operation or use of a motor vehicle. Identifying

the employee will not cure the defect in her pleading.

        Therefore, we decline Hale’s request to remand to the trial court so that she may amend

her pleadings. See Salinas, 2016 WL 1566707, at *6 (declining plaintiff-appellee’s request for

remand because she “already had an opportunity to amend her petition after the District filed its

initial plea to the jurisdiction in which it raised the arguments that it raises on appeal, but [she] has

been unable to identify or allege facts that would support the trial court’s jurisdiction”).

                                             CONCLUSION

        Because Hale failed to plead facts demonstrating the limited waiver of governmental

immunity in TTCA section 101.021 waives SAISD’s immunity in this case, we reverse the trial

court’s order denying SAISD’s plea to the jurisdiction and render judgment dismissing Hale’s

claim against SAISD for want of jurisdiction.

                                                    Sandee Bryan Marion, Chief Justice
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