Opinion issued August 30, 2018




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-17-00824-CV
                           ———————————
                       CONNIE HINOJOSA, Appellant
                                       V.
    METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
                     TEXAS, Appellee


                   On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-48853


                         MEMORANDUM OPINION

      Connie Hinojosa brings this interlocutory appeal of the trial court’s order

granting Metropolitan Transit Authority of Harris County, Texas (Metro)’s plea to
the jurisdiction.1 Because Metro conclusively established that the driver of the

Metro bus aboard which Hinojosa claims to have been injured was not Metro’s

employee, the Texas Tort Claims Act (TTCA) has not waived Metro’s

governmental immunity.

      We affirm.

                                    Background

      According to her live pleading, Connie Hinojosa had just boarded a Metro

bus and was walking to her seat when the bus driver, Merica Eubanks, made a

sudden and abrupt stop, causing Hinojosa to fall.

      Hinojosa sued Metro for injuries she claims to have sustained as a result of

her fall, alleging that Metro is liable for Eubanks’s negligence.2 Hinojosa’s

amended petition recognizes that, as a governmental unit,3 Metro is shielded from

liability, but Hinojosa asserts that the TTCA has waived Metro’s immunity here



1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2017) (authorizing
      appeal from interlocutory order granting or denying a governmental unit’s plea to
      the jurisdiction).
2
      Hinojosa also sued Eubanks and her employer, First Transit, but the trial court
      granted their motion for summary judgment.
3
      Hinojosa does not dispute Metro’s status as a governmental unit. See also Metro.
      Transit Auth. of Harris Cty. v. Douglas, 544 S.W.3d 486, 492 (Tex. App.—
      Houston [14th Dist.] Feb. 27, 2018, no pet.) (mem. op.) (“As a governmental unit,
      Metro is immune from suit absent an express waiver of governmental
      immunity.”).

                                          2
because she alleges negligent operation of a motor-driven vehicle by a Metro

employee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

      Metro filed a plea to the jurisdiction, arguing that its immunity is not waived

because Eubanks was not a Metro employee, but rather an employee of First

Transit, Inc., with whom Metro contracted to operate and manage some of its bus

routes, including the one at issue.

      In support of its plea to the jurisdiction, Metro attached excerpts from

Eubanks’s deposition transcript, in which she stated that she was employed and

paid by First Transit. Metro also attached its contract with First Transit, which

specifies that First Transit is “an independent Contractor in all its operations and

activities” and that the employees furnished by First Transit to perform the contract

are First Transit’s “employees or independent subcontractors.” See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021.

      Hinojosa responded that Metro’s evidence was not conclusive as to who

employed Eubanks, and a fact issue exists as to whether Eubanks was Metro’s

employee under the common law borrowed-employee doctrine.

      After a hearing, the trial court granted Metro’s plea to the jurisdiction,

dismissing Hinojosa’s claims against it with prejudice.4


4
      The trial court’s order also severed Hinojosa’s claims against Metro; her
      remaining claims against First Transit and Eubanks were later dismissed on
      summary judgment.
                                         3
                                        Discussion

      Hinojosa contends that the trial court erred in granting Metro’s plea to the

jurisdiction because there is an issue of material fact as to whether Eubanks was

Metro’s employee.5 Metro argues that because the uncontroverted evidence shows

that Eubanks was not in its paid service, we must affirm. We agree with Metro.

A.    Standard of Review

      Generally,    “immunity     from     suit   implicates   courts’   subject-matter

jurisdiction.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d

154, 160 (Tex. 2016) (quoting Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex.

2012)). Thus, it “is properly asserted in a plea to the jurisdiction.” Id. (quoting Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). As

subject-matter jurisdiction is a question of law, we review a trial court’s ruling on a

plea to the jurisdiction de novo. Id.

      Where, as here, the plea challenges the existence of jurisdictional facts, the

court must consider relevant evidence submitted by the parties. Miranda, 133

S.W.3d at 227. Our review mirrors that of a matter-of-law summary-judgment

5
      Hinojosa also contends that the trial court erred in granting Metro’s plea to the
      jurisdiction because her pleadings affirmatively demonstrated the court’s subject
      matter jurisdiction. We need not address this issue, because, as explained below,
      the jurisdictional evidence conclusively establishes that Eubanks was not a Metro
      employee. City of Houston v. Ranjel, 407 S.W.3d 880, 893 (Tex. App.—Houston
      [14th Dist.] 2013, no pet.) (“Because the evidence does not support further
      amendments that would cure this jurisdictional deficiency, we conclude it would
      be futile to remand this matter to the trial court to allow appellees another
      opportunity to amend their pleadings.”).
                                            4
motion. Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex. 2016);

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);

City of Houston v. Nicolai, 539 S.W.3d 378, 385 (Tex. App.—Houston [1st Dist.]

2017, pet. filed). We take as true all evidence favorable to the non-movant and we

indulge every reasonable inference and resolve any doubts in the non-movant’s

favor. Miranda, 133 S.W.3d at 228. If the defendant meets its burden to establish

that the trial court lacks jurisdiction, the plaintiff is then required to show that there

is a material fact question regarding the jurisdictional issue. Id. If the evidence

raises a fact issue regarding jurisdiction, the plea cannot be granted, and a fact

finder must resolve the issue. Id. at 227–28. On the other hand, if the evidence is

undisputed or fails to raise a fact issue, the plea must be determined as a matter of

law. Id. at 228.

B.    Governmental Immunity

      The doctrine of governmental immunity bars litigation against the state and

its governmental units unless the state consents by waiving its immunity. Tex.

Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013). Because any

legislative waiver of immunity must be undertaken “by clear and unambiguous

language,” statutory waivers of immunity are to be construed narrowly. Id.; see

TEX. GOV’T CODE ANN. § 311.034 (West 2013).




                                            5
      The TTCA provides a limited waiver of immunity for certain tort claims

against a governmental unit. Ngakoue, 408 S.W.3d at 354. Relevant here, the

TTCA imposes liability on a governmental unit for the negligence of employees

acting in the scope of employment if the injury claimed “arises from the operation

or use of a motor-driven vehicle” and the employee would have been personally

liable under Texas law. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).6

C.    Analysis

      Under the TTCA, Metro is immune from Hinojosa’s lawsuit if Eubanks was

not acting as its employee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. The

record evidence shows that First Transit—not Metro—paid Eubanks to operate the


6
      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 his 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.

      TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

                                             6
Metro bus on which Hinojosa was allegedly injured. Therefore, under the TTCA,

Eubanks was not Metro’s employee, and the trial court did not err in granting

Metro’s plea to the jurisdiction.

      The TTCA defines “employee” for purposes of governmental immunity as:

             [A] person, including an officer or agent, who is in the paid
             service of a governmental unit by competent authority, but does
             not include an independent contractor, an agent or employee of
             an independent contractor, or a person who performs tasks the
             details of which the governmental unit does not have the legal
             right to control.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (West 2011).

      The statutory definition requires both “control and paid employment to

invoke the [TTCA]’s waiver of immunity.” Olivares v. Brown & Gay Eng’g, Inc.,

401 S.W.3d 363, 368 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 461 S.W.3d

117 (Tex. 2015) (emphasis in original) (quoting Adkins v. Furey, 2 S.W.3d 346,

348 (Tex. App.—San Antonio 1999, no pet.)); see also City of Houston v. Ranjel,

407 S.W.3d 880, 890 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“The

statutory definition requires both control and paid employment to invoke the

TTCA waiver of immunity.”).

      Accordingly, if Eubanks was not in Metro’s “paid service,” Metro’s

immunity is not waived under section 101.021(1) of the TTCA. See Marino v.

Lenoir, 526 S.W.3d 403, 406 (Tex. 2017) (“The statutory definition of employee of

a governmental unit requires that the defendant ‘is in the paid service’ of the

                                        7
claimed governmental unit.”); Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003)

(affirming appellate court’s holding that physician not in state university’s “paid

service” was not entitled to summary judgment as employee of UT); Harris Cnty.

v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994) (under “plain language” of TTCA

section 101.021(1), governmental unit is not liable for actions of person who is not

its paid employee); City of Dayton v. Gates, 126 S.W.3d 288, 293 (Tex. App.—

Beaumont 2004, no pet.) (“While section 101.021(1) of the Tort Claims Act

creates liability in specified circumstances, section 101.021(1) does so only when

the claims stem from the action of a paid employee of the governmental unit.”);

Thomas v. Harris Cnty., 30 S.W.3d 51, 53 (Tex. App.—Houston [1st Dist.] 2000,

no pet.) (“A government is not liable for acts in its behalf of a person who is not a

paid employee.”); Reynosa v. Univ. of Tex. Health Science Ctr., 57 S.W.3d 442,

445 (Tex. App.—San Antonio 2001, pet. denied) (doctors not paid by

governmental entity were not its employees under TTCA section 101.021); Adkins,

2 S.W.3d at 348 (control by governmental entity did “not resolve the issue [of

employee status]. . . as the statutory definition would seem to require control and

paid employment to invoke the Tort Claims Act’s waiver of immunity.”).

      To prove that it did not pay Eubanks, Metro attached an excerpt from

Eubanks’s deposition transcript. Eubanks stated unequivocally that at the time of




                                          8
Hinojosa’s accident, she was paid by First Transit.7 Moreover, there is no evidence

that Eubanks received her paychecks from Metro. Cf. Kamel v. Sotelo, No. 01-07-

00366-CV, 2009 WL 793742,f at *5 (Tex. App.—Houston [1st Dist.] Mar. 26,

2009, no pet.) (mem. op.) (“Sotelo testified that she received her paychecks from

the University of Texas and there is no evidence that Sotelo received payment from

any other source. . . .”).

       Because this evidence conclusively established that Eubanks was not in

Metro’s paid service, and because Hinojosa did not present jurisdictional evidence

to raise a fact issue as to who paid Eubanks, the trial court properly granted

Metro’s plea to the jurisdiction. See Miranda, 133 S. W.3d at 228 (if evidence is

undisputed or fails to raise fact issue, plea must be determined as matter of law);

see also Poland v. Willerson, No. 01-07-00198-CV, 2008 WL 660334, at *6 (Tex.

App.—Houston [1st Dist.] Mar. 13, 2008, pet. denied) (mem. op.) (physician’s

affidavit stating that he was salaried employee of state-owned hospital “carried


7
       When asked where her paychecks, issued by First Transit, actually came from,
       Eubanks responded: “First Transit? I direct-deposit into my account, so I really
       don’t look at the check.” Hinojosa argues that this confusing exchange creates a
       fact issue, but it does not affect, much less contradict, Eubanks’s clear testimony
       that she was paid by First Transit. See MacDonald v. Warner, No. 01-04-01028-
       CV, 2005 WL 2670932, at *4 (Tex. App.—Houston [1st Dist.] Oct. 20, 2005, no
       pet.) (mem. op.) (evidence physicians were salaried employees of governmental
       entity carried their burden of showing that they were paid employees, even though
       “the evidence did not provide exact details” on how they were paid;
       uncontroverted evidence “conclusively established that [state-owned hospital] was
       the governmental entity that compensated [them].”).

                                            9
[his] burden of showing that he was [hospital]’s employee.”); see also Fryday v.

Michaelski, 541 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied) (building inspector’s declaration that City paid him for his services based

on timesheets he submitted proved he was “in the paid service of a governmental

unit”).

      Because Eubanks was not in Metro’s paid service, she was not Metro’s

“employee” as that term is defined by TTCA section 101.001(2). Accordingly, we

need not answer the question whether Metro had the right to control Eubanks. See,

e.g., Murk, 120 S.W.3d at 867 (holding, without addressing right-to-control prong

of TTCA definition of employee, that because physician “cannot be said to have

been in [governmental unit]’s ‘paid service,’” physician “was not entitled to

summary judgment as an employee”).

      Despite section 101.001(2)’s plain language requiring paid service, Hinojosa

argues that a person may be an employee under the TTCA even if she is not in the

paid service of a governmental unit. Specifically, Hinojosa argues that the common

law “borrowed employee” doctrine applies here to negate section 101.021’s paid

service requirement for employee status. She points to no authority for this

proposition, and the case law does not support it.

      Under the borrowed-employee doctrine, an employee of one employer

becomes a borrowed employee of another employer for purposes of vicarious


                                         10
liability if the other employer has “the right to direct and control the employee with

respect to the details of the particular work at issue.” Powell v. Knipp, 479 S.W.3d

394, 400 (Tex. App.—Dallas 2015, pet. denied). As the Texas Supreme Court

explained in St. Joseph Hospital v. Wolff, which employer has the right to control

the work at issue determines whether an employee is a borrowed employee. See 94

S.W.3d 513, 542 (Tex. 2002) (plurality op.). “The right to control remains the

‘supreme test’ for whether the master-servant relationship exists and thus whether

the rule of vicarious liability applies.” Id. (quoting Golden Spread Council, Inc.

No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996)).

      Hinojosa argues that the balancing test for determining common law

borrowed-employee status—which unlike section 101.001(2), does not require

paid service—applies here to create a fact issue as to whether Eubanks was

Metro’s common-law borrowed employee under the TTCA’s immunity waiver,

regardless of whether Metro paid her. 8

      We disagree that the common law borrowed-employee doctrine supplants

the TTCA’s mandate that governmental immunity is waived only for acts of paid
8
      The factors used to determine borrowed-employee status include: (1) whether the
      machine used by the borrowing employer is both owned by the general employer
      and operated by the general’s employee; (2) whether the employee is expected to
      operate the machine in the way his general employer would expect while giving
      only the results called for by the borrower; (3) whether the general employer can
      substitute another employee at any time; (4) whether the employee is borrowed for
      merely a temporary period of time; and (5) whether the employee has the skill of a
      specialist. See Lara v. Lile, 828 S.W.2d 536, 538 (Tex. App.—Corpus Christi
      1991, writ denied).
                                          11
employees. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2). The extent of

governmental immunity is a matter for the legislature to decide: “[T]he truest

manifestation of what lawmakers intended is what they enacted. This voted-on

language is what constitutes the law, and when a statute’s words are unambiguous

and yield but one interpretation, ‘the judge’s inquiry is at an end.’” Christus Health

Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 653–54 (Tex. 2013) (quoting Combs v.

Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013); see also

Thomas, 30 S.W.3d at 54–55 (“We have repeatedly held that the extent of

governmental immunity is a matter for the legislature to determine . . . .”).

      Where, as here, a statute defines a term, we are bound to construe that term

by its statutory definition only. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d

314, 318 (Tex. 2002) (disagreeing with court of appeals’ analysis under Texas

Whistleblower Act because it ignored limiting nature of Legislature’s definition of

“appropriate law enforcement authority,” and thus impermissibly expanded

statutory definition); TEX. GOV’T CODE ANN. § 311.011(b) (“Words and phrases

that have acquired a technical or particular meaning, whether by legislative

definition or otherwise, shall be construed accordingly.”). To accept Hinojosa’s

argument that the borrowed-employee doctrine overrides the TTCA’s express

requirement of paid service “would be to extend the waiver further than the Act

provides, which we will not do.” See Thomas, 30 S.W.3d at 54 (quoting Dillard,


                                          12
883 S.W.2d at 168). As we stated in Thomas v. Harris County, the legislature has

chosen to enact the TTCA and to waive immunity only for conduct “of an

employee,” as defined by section 101.001(2). Id. at 55 (refusing to consider

independent contractor as “employee,” because TTCA defines “employee”

specifically to exclude “independent contractors”); see also TEX. CIV. PRAC. &

REM. CODE ANN. §§ 101.021; 101.001(2) (defining “employee”).

      Moreover, to the extent courts have applied Wolff’s borrowed-employee

doctrine to determine whether a person comes within the TTCA’s definition of

employee, they have done so only in addressing the right-to-control prong, and

never to the exclusion of the paid-service prong, of the definition. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.001(2); see also Marino, 526 S.W.3d at 408–09

(Wolff’s borrowed-employee doctrine guided right-to-control inquiry but did not

displace requirement of paid service); Murk, 120 S.W.3d at 867 (employee status

determined by applying Wolff’s right-to-control test in conjunction with paid

service requirement).

      We conclude that the TTCA did not waive Metro’s immunity here, where

Metro conclusively proved that Eubanks was not its paid employee.




                                       13
                                   Conclusion

      We affirm the trial court’s judgment.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.




                                        14
