      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00606-CV



                              The University of Texas, Appellant

                                                 v.

                               Hermelinda Amezquita, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201st JUDICIAL DISTRICT
    NO. D-1-GN-03-000578, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                            MEMORANDUM OPINION

               The University of Texas at Austin (the “University”) appeals the district court’s order

denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West

2008). The University asserts that sovereign immunity bars the tort claims of appellee, Hermelinda

Amezquita. Amezquita sued the University under the Texas Tort Claims Act. See Tex. Civ. Prac.

& Rem. Code Ann. §§ 101.001-.109 (West 2005 & Supp. 2008) (the “Act”). We will reverse the

trial court’s order and render judgment granting the University’s plea.


                     FACTUAL AND PROCEDURAL BACKGROUND

               On February 23, 2001, Amezquita sustained injuries when she slipped on a metal

plate incorporated into a walkway in front of the University’s baseball stadium. The plate, which

served as a removable drainage trench cover, was slippery because rain had accumulated on it.
Amezquita filed suit in February 2003, alleging that the plate was a premises defect for which the

University’s immunity had been waived under the Act.1 See Act § 101.022.

                The University filed a plea to the jurisdiction asserting that the plate was not a

premises defect and that even if it was, its presence was a discretionary decision for which the

University retained immunity from suit under section 101.056 of the Act. In support of its plea, the

University filed an affidavit by William Throop, an engineer employed by the University. The trial

court excluded portions of Throop’s affidavit and denied the University’s plea. The University

perfected this interlocutory appeal.


                                    STANDARD OF REVIEW

                We review the denial of a plea to the jurisdiction de novo. Texas Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a plea challenges the existence of

jurisdictional facts, a court should consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issues raised. Id. Where the jurisdictional issue or facts do

not implicate the merits of the plaintiff’s case, and the facts are disputed, the court—not the

jury—must make the necessary fact findings to resolve the jurisdictional issue. See id. (“‘Whether

a district court has subject matter jurisdiction is a question for the court, not a jury, to decide, even

if the determination requires making factual findings, unless the jurisdictional issue is inextricably

bound to the merits of the case.’”) (quoting Cameron v. Children’s Hosp. Med. Ctr., 131 F.3d 1167,

1170 (6th Cir. 1997)). If, however, the facts relevant to jurisdiction are undisputed, the court should


        1
          Amezquita originally alleged that the plate was both a premises defect and a special defect,
but she later amended her petition to delete her special-defect claim.

                                                   2
make the jurisdictional determination as a matter of law based solely on those undisputed facts.

Id. at 228. Because a court should not proceed with a case over which it has no jurisdiction, it should

make the jurisdictional determination as soon as practicable, but has discretion to defer the decision

until the case has been more fully developed. Id. at 227.2 On appeal, any fact findings made to

resolve the jurisdictional issue may be challenged, as any other fact findings, for legal and factual

sufficiency. This includes implied fact findings if written findings and conclusions are not issued.

Cf. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).


                                             DISCUSSION

                The jurisdictional evidence here does not implicate the merits of the plaintiff’s case:

 the jurisdictional issue concerns whether incorporating a metal plate into a sidewalk was a

discretionary decision, whereas the merits concern whether the University acted negligently. Thus,

the trial court was required to resolve the jurisdictional issue on the basis of facts that it found or that

were undisputed. See Miranda, 133 S.W.3d at 226 (citing Cameron, 131 F.3d at 1170). As plaintiff,

Amezquita bore the burden of proving facts that would establish the trial court’s jurisdiction. See

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).




        2
          Here, the trial court’s order denying the plea to the jurisdiction did not indicate that the
court was deferring its jurisdictional determination until the case was more fully developed. Nor did
Amezquita urge a deferral of the issue in her response to the University’s plea to the jurisdiction.
Accordingly, because the trial court did not purport to exercise its discretion in this regard, we will
not attempt to apply an abuse-of-discretion standard in reviewing the trial court’s denial of portions
of the plea. In any event, as discussed below, the relevant facts before the trial court were
conclusive, so fuller development of the case would have been pointless.

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               The University argues that its evidence proves conclusively that it has not waived

immunity under the Act. See Act § 101.021 (discussing waiver of immunity). Under section

101.056 of the Act,


       the State preserves its immunity for an act “if the law leaves the performance or
       nonperformance of the act to the discretion of the governmental unit.” Thus, if the
       State’s action is discretionary, it does not waive its immunity. An act is discretionary
       if it requires exercising judgment and the law does not mandate performing the act
       with such precision that nothing is left to discretion or judgment. Design of any
       public work, such as a roadway, is a discretionary function involving many policy
       decisions, and the governmental entity responsible may not be sued for such
       decisions.



State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam) (emphasis added) (quoting Act

§ 101.056(2)) (citations omitted). Plans formulated by state engineers are paradigmatic discretionary

decisions immune from suit. See id. at 86; see also Sanchez v. Matagorda County, 124 S.W.3d 350,

353 (Tex. App.—Corpus Christi 2003, no pet.) (choice of “one design over another is the essence

of the exercise of discretion”). This rule applies to plans for all manner of public works. See,

e.g., Rodriguez, 985 S.W.2d at 85 (roadways); City of Round Rock v. Smith, 687 S.W.2d 300, 303

(Tex. 1985) (subdivision plat); Perez v. City of Dallas, 180 S.W.3d 906, 913 (Tex. App.—Dallas

2005, no pet.) (trash pit); Sanchez, 124 S.W.3d at 353 (bridge); Berry v. City of Reno,

107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (drainage system); University of

Texas Health Scis. Ctr. v. Bruen, 92 S.W.3d 24, 27 (Tex. App.—San Antonio 2002, pet. denied)

(auditorium ramp); Ramos v. Texas Dep’t of Pub. Safety, 35 S.W.3d 723, 733 (Tex. App.—Houston

[1st Dist.] 2000, pet. denied) (parking lot); Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.



                                                  4
App.—Dallas 1993) (public buildings and other municipal premises), aff’d, 870 S.W.2d 21, 37

(Tex. 1994).

                Here, the University’s evidence showed that the University incorporated a metal plate

into a sidewalk to cover a drainage trench. Amezquita argues that the University failed to establish

that this action represents a discretionary decision by University engineers. On the contrary, the

affidavit of engineer Throop, which the University submitted in support of its plea to the jurisdiction,

establishes just that.3 Throop’s affidavit states: “[T]he metal plate Ms. Amezquita allegedly slipped

on was a part of the original design of the University baseball stadium.” The affidavit also states:

“[T]he metal plate in question was constructed and incorporated into the baseball stadium sidewalk

in conformity with the architectural plans and original design.” While the trial court excluded

portions of Throop’s affidavit, it did not exclude the quoted portions, and Amezquita offered no

evidence to rebut them. Because the quoted portions implicate the trial court’s jurisdiction, we must

consider them. Miranda, 133 S.W.3d at 227. Furthermore, affidavit aside, it is hard to imagine how

decisions about the composition and placement of trench covers could be non-discretionary. See

Rodriguez, 985 S.W.2d at 85 (“[d]esign of any public work . . . is a discretionary function”)

(emphasis added). We therefore conclude that incorporating the metal plate into the sidewalk was

a discretionary design decision for which the University retains immunity. See id. at 86.

                Our conclusion might be different if Amezquita had complained not of the metal

plate’s presence but of its installation, for the Act waives immunity for negligent implementation of


        3
         Throop was an interested witness, but we credit his affidavit because it was “clear, positive
and direct, otherwise credible and free from contradictions and inconsistencies, and could have been
readily controverted.” Tex. R. Civ. P. 166a(c).

                                                   5
discretionary decisions. See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex.

2007). But nowhere in the record does Amezquita allege that the metal plate was defectively

constructed, positioned, maintained, or the like. Rather, Amezquita has consistently alleged—and

no evidence indicates that she could do otherwise—that the “defect” at issue is simply the

University’s decision to use a potentially slippery metal plate. For example, in response to an

interrogatory asking for the exact conditions that caused her injuries, Amezquita answered: “The

conditions . . . were . . . having a metal surface on a walkway, which became extremely slippery

when wet on a rainy day.” This is a complaint about the decision to put a potentially slippery metal

plate in the walkway, not a complaint about the execution of that decision. As a result, the

University’s immunity from suit has not been waived.

               For the foregoing reasons, we hold that the University’s incorporation of a metal plate

into its sidewalk was a discretionary decision for which the University retains immunity under the

Act. See Act § 101.056. Because our holding disposes of this case, we do not address other issues

raised on appeal. Accord Perez, 180 S.W.3d at 913 (declining to consider premises defect claim

because underlying discretionary decision immunized city from suit).


                                         CONCLUSION

               Because the jurisdictional evidence shows conclusively that the University’s

incorporation of a metal plate into a sidewalk was a discretionary decision for which the University

retains immunity under the Texas Tort Claims Act, we reverse the trial court’s order denying the

University’s plea to the jurisdiction and render judgment granting the University’s plea and

dismissing Amezquita’s suit for lack of jurisdiction.

                                                 6
                                           __________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Reversed and Rendered

Filed: June 4, 2009




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