


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00086-CV
 
In the
Matter of M.A.D., a Juvenile
 
 
 

From the 52nd District Court
Coryell County, Texas
Trial Court No. JV-04-1718
 

MEMORANDUM  Opinion

 




          Appellant has filed a motion to dismiss this appeal.  The State
has not filed a response.  Accordingly, the appeal is dismissed.  See Tex. R. App. P. 42.1(a)(1).
PER CURIAM
 
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Appeal dismissed
Opinion delivered and
filed September 14, 2005
[CV06]


160;                                                                                         
DISSENTING OPINION
                                                                                                                
      I agree with Chief Justice McDonald on the disposition of the “actual notice” question.  I
disagree with the remainder of the opinion.
      The City of Houston filed a plea to the jurisdiction and a motion for summary judgment.  The
plea to the jurisdiction asserted that the court lacked subject matter jurisdiction because (1) the
Browns failed to plead an exception to the City's governmental immunity because they did not
allege an act or omission falling within the purview of the Texas Torts Claims Act (“TTCA”) and
(2) the claims were barred as a matter of law for failure to give proper notice.  The Motion for
Summary Judgment asserted that, as a matter of law: (1) the City owed no duty to the Browns;
(2) governmental immunity barred the claim; and (3) if governmental immunity were waived, the
Browns could not prove the elements of an “ordinary premises defect.”  The City filed Special
Exceptions to the Browns' Original Petition alleging that they had not alleged a cause of action
under the TTCA.  The Browns filed a response to the City's plea to the jurisdiction addressing
only the question of adequate notice.
      Although the court granted the plea to the jurisdiction, its order did not specify the grounds. 
It simply stated: “It is, therefore, ORDERED that Defendant City of Houston's Plea to the
Jurisdiction is SUSTAINED and this cause is ordered DISMISSED.”  The court never ruled on
the motion for summary judgment. 
      Governmental immunity protects the State from being sued absent legislative consent.  Federal
Sign v. Texas Southern Univ., 951 S.W.2d 401, 405 (Tex. 1997).  When the State is made a
defendant in a suit without legislative consent, a plea to the jurisdiction based on governmental
immunity should be sustained.  State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (Tex. 1961). 
In a non-TTCA suit, the court lacks jurisdiction to maintain the suit if the plaintiff did not obtain
legislative consent.  Id.; Liberty Mutual Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.
App.—Austin 1994, writ denied).
      By enacting the TTCA, the legislature waived the State's immunity in certain situations.  The
question before us is whether failing to state a claim under the TTCA is a jurisdictional defect
subject to a plea to the jurisdiction as it would be if the claim fell outside the TTCA and the
plaintiff had not obtained consent to sue the State.  I believe it is not.
      I acknowledge that the Beaumont Court has held that the failure to plead within the TTCA is
subject to a plea to the jurisdiction.  “A mere pleading of waiver of governmental immunity does
not constitute, for subject matter jurisdiction purposes, a waiver of such immunity.”  Lamar Univ.
v. Doe, 971 S.W.2d 191, 196 (Tex. App.—Beaumont 1998, no pet.).  Thus, the Court held that
where the pleadings do not allege a premises defect, condition or use of tangible personal
property, or use of a motor vehicle, the plaintiffs “failed to provide the trial court with subject
matter jurisdiction by failing to plead a cause of action under the [TTCA].”  Id. at 197.  The Court
granted the University's plea to the jurisdiction.  Id.  I disagree with that decision.
      The Texas Supreme Court offers guidance.  In Duhart v. State, 610 S.W.2d 740, 742 (Tex.
1980), the plaintiffs sued the State under the TTCA for exemplary damages in a wrongful death
suit even though the Act expressly disallowed exemplary damages.  The State asserted
governmental immunity and filed special exceptions and a plea in abatement.  Id. at 740.  The trial
court dismissed the cause for want of jurisdiction after the plaintiffs refused to amend.  Id.  The
Supreme Court upheld the trial court's dismissal for want of jurisdiction, finding that the
legislature had not waived the State's immunity for exemplary damages.
      The Supreme Court clarified Duhart in Davis v. City of San Antonio, 752 S.W.2d 518, 520
(Tex. 1988).  In Davis, a city employee sued for defamation, civil rights violations, conversion, 
and malicious prosecution.  Id. at 519.  The trial court directed a verdict for the city on all of the
causes of action except malicious prosecution.  Id.  The court granted a judgment n.o.v. on the
malicious prosecution action based on governmental immunity.  The city, however, had never pled
governmental immunity.  The question was whether governmental immunity is a defense that can
be waived.
      The city argued that governmental immunity is different from other defenses because the trial
court lacks jurisdiction if the claim lies outside the legislature's waiver of immunity.  Id. at 520. 
The Supreme Court rejected this argument, clarifying Duhart: 
We do not read our opinion in Duhart as holding that the trial court lacked subject matter
jurisdiction of the case and that any judgment rendered for the plaintiff would have been void. 
We further perceive no unfairness in requiring governmental units to plead their immunity in
order to avoid liability on that ground.  By enactment of the Tort Claims Act in 1973, the
Texas Legislature expressly waived immunity to suits by injured claimants and consented to
liability under specified circumstances.  We conclude that sovereign immunity may not be
asserted as a jurisdictional obstacle to the trial court's power to hear cases against
governmental defendants.  Instead, erroneous judgments against governmental units may be
corrected, as in other cases, on appeal.

Id.  
      As I understand the Davis holding, because the TTCA waives immunity in certain
circumstances, failing to allege facts that show a waiver of governmental immunity under the
TTCA is not a defect that deprives the court of subject matter jurisdiction.  See id.  Rather, the
claim of governmental immunity must be asserted by special exception or by a motion for
summary judgment.
      Here, the City asserted that the Browns had not pled a cause of action within the limited
waiver of immunity provided by the TTCA.  Because the Davis opinion holds that a pleading
defect is not a jurisdictional defect, I believe the proper vehicle was the City's summary-judgment
motion, which the court never reached.  On remand, the City may be able to establish as a matter
of law that the Browns have failed to state a cause of action under the TTCA, but the dismissal
for want of jurisdiction was improper.  I would reverse the dismissal order and remand the case
to the trial court for further proceedings.
 
                                                                       BILL VANCE
                                                                       Justice

Dissenting opinion delivered and filed August 18, 1999
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