                                   NO. 12-09-00117-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

TEXAS PARKS AND WILDLIFE                         §            APPEAL FROM THE 241ST
DEPARTMENT,
APPELLANT

V.                                               §            JUDICIAL DISTRICT COURT


KENNETH W. GARLAND,
APPELLEE                                         §            SMITH COUNTY, TEXAS


                                             OPINION
       The Texas Parks and Wildlife Department (“TPWD”) appeals the denial of its plea to the
jurisdiction in a lawsuit brought against it by Kenneth W. Garland. In one issue, TPWD asserts
that the trial court should have granted the plea because Garland’s lawsuit was barred by
sovereign immunity. We reverse and dismiss.


                                           BACKGROUND
       On June 30, 2003, Garland was performing court ordered community service at Tyler
State Park, a TPWD-operated park, and was assigned to trash collection. A TPWD employee
drove Garland around in a pickup truck so that he could empty trash barrels and remove litter
from the roadside. Garland rode in the bed of the pickup. While the pickup was moving,
Garland fell from the back of the truck, suffering significant injuries.
       Garland sued TPWD, alleging that the TPWD driver had negligently operated the truck,
resulting in his fall and injuries. TPWD filed a plea to the jurisdiction, alleging that sovereign
immunity barred Garland’s lawsuit. Following a hearing, the trial court denied the plea. This
interlocutory appeal followed.
                                   PLEA TO THE JURISDICTION
        In its sole issue, TPWD argues that sovereign immunity bars Garland’s lawsuit. More
specifically, TPWD asserts that Garland’s pleadings fail to affirmatively demonstrate
jurisdiction.
Sovereign Immunity
        In 1847, the Texas Supreme Court held that “no State can be sued in her own courts
without her consent, and then only in the manner indicated by that consent.”             Hosner v.
DeYoung, 1 Tex. 764, 769 (1847). This immunity also applies to “the various divisions of state
government, including agencies, boards, hospitals, and universities.” Wichita Falls State Hosp.
v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). In this context, it is referred to as sovereign
immunity. Id.
        In Texas, sovereign immunity has two components: immunity from suit and immunity
from liability. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594
(Tex. 2001). Immunity from suit is jurisdictional and bars suit; immunity from liability is not
jurisdictional and protects from judgments. Harris County Hosp. Dist. v. Tomball Reg’l Hosp.,
283 S.W.3d 838, 842 (Tex. 2009). Sovereign immunity from suit deprives a trial court of subject
matter jurisdiction. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Standard of Review
        The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject
matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). An appellate court addressing a challenge to a trial court’s subject matter
jurisdiction reviews the trial court’s ruling de novo. Id. at 228. The reviewing court exercises its
own judgment and redetermines each issue of fact and law. See Schade v. Tex. Workers’ Comp.
Comm’n, 150 S.W.3d 542, 549 (Tex. App.–Austin 2004, pet. denied) (citing Quick v. City of
Austin, 7 S.W.3d 109, 116 (Tex. 1998)). The reviewing court accords the trial court’s decision
no deference. See Schade, 150 S.W.3d at 549 (citing Quick, 7 S.W.3d at 116). When a
conclusion of law is erroneous, but the trial court reached the right result, the erroneous
conclusion of law does not require reversal. See BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). If a trial court lacks jurisdiction over some claims but not others,
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the trial court should dismiss those claims over which it does not have subject matter jurisdiction
but retain those claims over which it does. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex.
2006).
         “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda,
133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id. If the pleadings affirmatively negate the existence of jurisdiction, a plea to
the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at
227. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one
of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-
27. If a plaintiff has been provided a reasonable opportunity to amend after a governmental
entity files its plea to the jurisdiction, and the plaintiff’s amended pleading still does not allege
facts that would constitute a waiver of immunity, the trial court should dismiss the plaintiff’s
action. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). “Such a dismissal is with
prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has
been finally determined.” Id.
Garland’s Pleadings
         In order for the State’s immunity to be waived and the trial court to have jurisdiction, a
party must show that the State has consented to suit. See Travis County v. Pelzel & Assocs.,
Inc., 77 S.W.3d 246, 248 (Tex. 2002). Consent can be established by statute or legislative
resolution. Id. In very limited situations, consent can be established by conduct. See, e.g., Reata
Constr., 197 S.W.3d at 376-77.                  Garland’s pleadings present facts in support of pleaded
assertions that the legislature has consented to suits such as his by way of section 101.021 of the
Texas Tort Claims Act.1 See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 2005).


         1
             Section 101.021 states that

         [a] governmental unit . . . 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:

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           As it did in its plea, TPWD asserts here that section 101.021 does not provide Garland the
necessary waiver of immunity when that section is read in light of article 42.20 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.20 (Vernon 2006).
Article 42.20(b) provides that


           [the Texas Tort Claims Act] does not apply to a claim based on an act or a failure to act of an
           individual [who is an officer or employee of a state agency or of a political subdivision other than
           a county] or a governmental entity the officer serves as an officer or employee if the act or failure
           to act is in connection with [a community service program or work program].



See id. Thus, TPWD argues the plain language of article 42.20(b) negates any consent to suit
that might otherwise be provided by section 101.021. Because Garland asserts no other basis for
the State’s alleged consent to suit, TPWD claims that it is immune from Garland’s suit and the
trial court erred in denying its plea to the jurisdiction.
           Garland argues that article 42.20(b) does not negate the Texas Tort Claims Act as to the
actions complained of in his suit because the driver’s actions were ministerial, not discretionary.
Alternatively, Garland argues that article 42.20(b) applies only to acts “not performed with
conscious indifference to the safety of others.”                    See TEX. CODE CRIM. PROC. ANN. art.
42.20(a)(2). Because he contends that the driver’s actions were committed with conscious
indifference to the safety of others, Garland asserts that article 42.20(b) is inapplicable to his
case and that he can utilize the Texas Tort Claims Act to establish TPWD’s consent to suit by
statute.
Statutory Construction
           In construing a statute, our primary objective is to determine and give effect to the
legislature’s intent in enacting it. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In


                    (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 (Vernon 2005).
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determining legislative intent, we examine the entire act, not just isolated portions of it. City of
San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We start with the plain and
common meaning of the statute’s words. McIntyre, 109 S.W.3d at 745. Unless the statute is
ambiguous, we determine the legislature’s intent from the language of the statute itself.
Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002). We must presume that every
word of the statute has been used for a purpose and that every word excluded from the statute has
been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d
656, 659 (Tex. 1995). We should not insert words into the statute except to give effect to clear
legislative intent.   Id.   We presume that the legislature enacted the statute with complete
knowledge of existing law and with reference to it. Acker v. Tex. Water Comm’n, 790 S.W.2d
299, 301 (Tex. 1990). We also may consider the object sought to be obtained by the statute and
the consequences of a particular construction. TEX. GOV’T CODE ANN. § 311.023 (Vernon
2005).
         Chapter 42 of the code of criminal procedure focuses on the judgment and sentence in
criminal cases. Article 42.20 of that chapter is entitled “Immunities.” Article 42.20(a) provides
immunity from certain acts or failures to act in connection with a community service program or
work program, if the acts or failures to act were not performed with conscious indifference for
the safety of others. See TEX. CODE CRIM. PROC. ANN. art. 42.20(a).
         Article 42.20(b), however, has no such limiting language. See TEX. CODE CRIM. PROC.
ANN. art. 42.20(b). It simply states that the Texas Tort Claims Act does not apply to a claim
based on an act by a state employee related to a community service program. Therefore, the
plain language of the statute supports TPWD’s assertion that the Texas Tort Claims Act is
inapplicable to Garland’s claims.
         Further, the object sought to be obtained by the statute is immunity. The consequence of
construing article 42.20(b) so that the Texas Tort Claims Act is inapplicable to claims related to
community service program actions is immunity for the governmental entity. To encourage state
agencies to participate in community service programs, it certainly is conceivable that the
legislature intended such a result.       Finally, to arrive at either of Garland’s proposed
constructions, we would need to insert words into the statute.         Because there is no clear


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legislative intent for us to do so, we decline Garland’s invitation. See Laidlaw Waste, 904
S.W.2d at 659.
          Garland relies heavily on Tarrant County v. Morales, 207 S.W.3d 870 (Tex. App.–Fort
Worth 2006, no pet.). However, the Morales court did not construe article 42.20(b). See id. at
876. Nor did it hold that the Texas Tort Claims Act applies to acts related to a community
service program. See id.
          “[F]or the Legislature to waive sovereign immunity [by enacting a statute], it must do so
by clear and unambiguous language.” Univ. of Tex. Med. Branch at Galveston v. York, 871
S.W.2d 175, 177 (Tex. 1994). In light of article 42.20(b), Garland cannot demonstrate a clear
and unambiguous waiver of sovereign immunity. Therefore, a plea to the jurisdiction was
proper.
Constitutionality of Article 42.20
          Garland alleges on appeal that article 42.20(b) is unconstitutional. He argues that it
constitutes the creation of a special law, or a special privilege, in violation of the Texas
Constitution. He also argues that it violates the Due Process Clause and Equal Protection Clause
of the United States Constitution
          A special law is one “limited to a particular class of persons distinguished by some
characteristic other than geography.” Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 450 (Tex.
2000).     Nevertheless, the legislature maintains broad authority to make classifications for
legislative purposes. Id. The constitutional limitation on this authority requires a broad enough
classification to ensure a substantial class and a legitimate basis to distinguish the class from
others with respect to the public purpose of the legislation. Id. The ultimate test is whether there
is a reasonable basis for the classification and whether the law treats all within the class equally.
Id. at 451. Garland also asserts that the statute creates a special privilege or emolument in
violation of article I, section 3 of the Texas Constitution. So long as the classification does not
distinguish between persons on a suspect basis or impinge on a fundamental right, a statute does
not violate this constitutional provision if it is rationally related to a legitimate state purpose.
Trinity River Auth. v. URS Consultants, Inc.–Tex., 889 S.W.2d 259, 264 (Tex. 1994).
          To demonstrate that the statute violates the Due Process Clause substantively, Garland
must establish that he was deprived of a constitutionally protected right by an arbitrary use of the
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state’s power. Byers v. Patterson, 219 S.W.3d 514, 525 (Tex. App.–Tyler 2007, no pet.). If the
statute is rationally related to furthering a legitimate state interest, the statute satisfies the Due
Process Clause. Id. To demonstrate that the statute violates the Equal Protection Clause, Garland
must establish that he was treated differently from other similarly situated parties and that he was
treated differently without a reasonable basis. See Sanders v. Palunsky, 36 S.W.3d 222, 225
(Tex. App.–Houston [14th Dist.] 2001, no pet.). A statute that does not single out members of a
suspect class or implicate a fundamental right need only be rationally related to a legitimate state
interest to satisfy the Equal Protection Clause. See id.
       To encourage state agencies to participate in these programs and to combat litigation
abuse from the participants, the legislature deemed it necessary to make the Texas Tort Claims
Act inapplicable to claims arising from actions related to a community service program. Here,
article 42.20(b) serves a legitimate state interest in implementing a community service program.
And article 42.20(b) is reasonably and rationally related to that interest. Further, Garland is not a
member of a suspect class and no fundamental right is implicated by the operation of article
42.20(b). Therefore, Garland’s constitutional challenges fail.


                                           CONCLUSION
       Garland’s pleadings affirmatively negate the existence of subject matter jurisdiction. See
Miranda, 133 S.W.3d at 227. Therefore, the trial court erred by denying TPWD’s plea to the
jurisdiction. Accordingly, we sustain TPWD’s sole issue.2 Generally, the proper remedy when a
court lacks subject matter jurisdiction is to dismiss the case without prejudice, but when a
dispositive defect cannot be remedied, dismissal with prejudice is proper. Cf. Hickman v.
Adams, 35 S.W.3d 120, 124 (Tex. App.–Houston [14th Dist.] 2000, no pet.). Therefore, the trial
court should have granted the plea and dismissed these claims with prejudice. Accordingly, we
reverse the order of the trial court denying TPWD’s plea to the jurisdiction and dismiss
Garland’s action, with prejudice, for lack of subject matter jurisdiction. See Sykes, 136 S.W.3d
at 639 (requiring dismissal with prejudice where plaintiff previously had opportunity to amend);


       2
          Because we have sustained TPWD’s challenge to Garland’s pleadings, we do not reach TPWD’s
arguments related to the existence of jurisdictional facts. See T EX. R. APP. P. 47.1.

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see also TEX. R. APP. P. 43.2 (authorizing court of appeals to reverse the trial court’s judgment
and render the judgment the trial court should have rendered).


                                                                BRIAN HOYLE
                                                                  Justice



Opinion delivered May 28, 2010.
Panel consisted of Worthen, CJ., Griffith, J. and Hoyle, J.




                                                    (PUBLISH)




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