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                               MEMORANDUM OPINION

                            Nos. 04-09-00009-CV, 04-09-00010-CV

                      BEXAR METROPOLITAN WATER DISTRICT,
                                   Appellant

                                               v.

                                       Liliana ORANDAY,
                                             Appellee

                               Bexar Metropolitan Water District,
                                          Appellant

                                               v.

                                        Humberto Ramos,
                                           Appellee

                  From the 150th Judicial District Court, Bexar County, Texas
                       Trial Court Nos. 2008-CI-15587, 2008-CI-13594
                    Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by:    Phylis J. Speedlin, Justice

Sitting:       Karen Angelini, Justice
               Phylis J. Speedlin, Justice
               Steven C. Hilbig, Justice

Delivered and Filed: May 27, 2009

DISMISSED FOR LACK OF JURISDICTION
                                                                     04-09-00009-CV and 04-09-00010-CV

           In this consolidated interlocutory appeal, Bexar Metropolitan Water District (“Bexar Met”)

contends the trial court erred in denying its pleas to the jurisdiction to the lawsuits filed by Liliana

Oranday and Humberto Ramos. Because the orders at issue do not grant or deny Bexar Met’s pleas

to the jurisdiction, we must dismiss these appeals for lack of jurisdiction. Oranday’s motion to

dismiss the appeals for want of jurisdiction is granted.

           1. An appellate court has jurisdiction to immediately review an interlocutory order only

if specifically permitted by statute. Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334,

336 (Tex. 2000). In this case, all parties agree that the relevant statute is Texas Civil Practice &

Remedies Code § 51.014(a), which allows an interlocutory appeal to be considered from an order

granting or denying a plea to the jurisdiction by a governmental unit. TEX . CIV . PRAC. & REM .

CODE Ann. § 51.014(a)(8) (Vernon 2008). The parties further agree that Bexar Met qualifies as a

governmental unit. They disagree, however, that the following order denies Bexar Met’s plea to

the jurisdiction:

                   On this day came on to be heard Defendant Bexar Metropolitan Water
           District’s Pleas to the Jurisdiction. The Court, having considered said Motion, the
           Response, the pleadings on file herein, and the arguments of counsel, is of the
           opinion that the Pleas should be denied, but Plaintiff should amend its petition with
           regard to the claims against Bexar Metropolitan Water District. It is, therefore

                  Ordered the Plaintiff shall have thirty (30) days to file an amended petition
           addressing the claims asserted against Bexar Metropolitan Water District.1

           2. The decretal provisions of a judgment or signed order control over conflicting recitals

contained within the same judgment or order. See Nelson v. Britt, 241 S.W.3d 672, 676 (Tex.



       1
           …   The identical order was entered in both suits.

                                                           -2-
                                                                    04-09-00009-CV and 04-09-00010-CV

App.—Dallas 2007, no pet.); Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort

Worth 2001, no pet.) (“The factual recitations or reasons preceding the decretal portion of a

judgment form no part of the judgment itself.”). Applying the rule to the case before us, it is clear

that based on the decretal provision of the order, Bexar Met’s plea to the jurisdiction was neither

granted nor denied. The order instead grants Plaintiff thirty days to re-plead as allowed by the

Texas Supreme Court. Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007)

(plaintiff deserves “a reasonable opportunity to amend” unless the pleadings affirmatively negate

the existence of jurisdiction); Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Furthermore, an examination

of the transcript of the hearing on the plea to the jurisdiction compels the conclusion that the trial

court did not intend to deny the plea, but to allow the Plaintiff an opportunity to amend his

pleadings. The court specifically noted that Plaintiff’s pleadings did not affirmatively negate the

existence of jurisdiction:

        [H]e has made some allegations in here of general negligence in the manner in
        which the equipment was set up or the methodology in which the employees
        operated. I don’t know how you would put it, and I don’t know what the factual
        situation would be. But, you know, you’re asking me at this time, really, to dismiss
        his cause of action without allowing him an opportunity to try to plead it that way.
        You know, I think the law has always been that in cases I’ve been familiar with, that
        you have the opportunity to replead.

Finally, the trial court noted that Bexar Met could re-urge its plea to the jurisdiction after Plaintiff

had an opportunity to amend his pleadings. Sykes, 136 S.W.3d at 639 (after plaintiff is provided

a reasonable opportunity to amend and amended pleading still fails to allege facts that would

constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action). Here,


                                                  -3-
                                                                  04-09-00009-CV and 04-09-00010-CV

Bexar Met filed its notice of appeal before the thirty-day period granted by the trial court had run,

and the automatic stay of section 51.014(b) denied the Plainiff the opportunity to amend his

pleadings. See TEX . CIV . PRAC. & REM . CODE § 51.014(b) (Vernon 2008). Because the trial

court’s orders neither granted nor denied the pleas to the jurisdiction, we have no jurisdiction over

these consolidated appeals; therefore, the appeals are dismissed for lack of jurisdiction.



                                                       Phylis J. Speedlin, Justice




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