                                                                             ACCEPTED
                                                                         13-14-00506-CV
                                                         THIRTEENTH COURT OF APPEALS
                                                                CORPUS CHRISTI, TEXAS
                                                                    4/22/2015 3:39:34 PM
                                                                       DORIAN RAMIREZ
                                                                                  CLERK
                NO. 13-14-00506-CV


                                              FILED IN
    IN THE THIRTEENTH COURT OF APPEALS
                                  13th COURT OF APPEALS
                               CORPUS
            CORPUS CHRISTI, TEXAS      CHRISTI/EDINBURG, TEXAS
                                        4/22/2015 3:39:34 PM
                                         DORIAN E. RAMIREZ
                                                Clerk
                   Norma Torres
                      Appellant
                         vs.
               City of Corpus Christi
                      Appellee


    On appeal from Cause No. 2011-CCV-62438-4
County Court at Law Number 4 of Nueces County, Texas
       Honorable James Klager, Presiding Judge


              APPELLANT’S BRIEF


                       LAW OFFICES OF THOMAS J. HENRY
                       Thomas J. Henry
                       State Bar No. 09484210
                       George A. DeVera
                       State Bar No. 24048431
                       521 Starr Street
                       Corpus Christi, Texas, 78401
                       Telephone: (361) 985-0600
                       Fax: (361) 985-0601
                       Email: gadevera-svc@tjhlaw.com
                       Counsel for AppellantNorma Torres

        ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a list of all parties to the trial court’s order appealed from,

and the names and addresses of all trial and appellate counsel:

      1. Appellant-Plaintiff is Norma Torres.

      2. Trial and appellate counsel for Appellate-Defendant City of Corpus
         Christi is Corpus Christi City Attorney, Mark DeKoch, P.O. Box 9277,
         1201 Leopard Street, Corpus Christi, Texas, 78401.




                                          i
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iv

STATEMENT OF THE CASE ............................................................................ vii

STATEMENT REGARDING ORAL ARGUMENT ...........................................x

ISSUE PRESENTED ............................................................................................. xi

   Was sovereign immunity properly waived pursuant to § 101.021 of the
   TEXAS TORT CLAIMS ACT for the personal injuries proximately caused by
   the negligence of Officer Walker? .................................................................... xi

STATEMENT OF FACTS ......................................................................................1

SUMMARY OF THE ARGUMENT .....................................................................2

ARGUMENT ............................................................................................................3

   I.      STANDARD OF REVIEW ........................................................................3

   II. NORMA PROPERLY PLED A STATUTORY WAIVER OF
   SOVEREIGN IMMUNITY.................................................................................6

   III. THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY
   BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN
   EMERGENCY. ....................................................................................................8

   IV. ASSUMING THE EMERGENCY SITUATION EXCEPTION
   APPLIES, OFFICER WALKER FAILED TO COMPLY WITH THE
   LAW AND ORDINANCES APPLICABLE TO EMERGENCY
   ACTION……......................................................................................................11

                                                          ii
   A. OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS
   DEPOSITION. ....................................................................................................15

   B. OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE
   TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT. .....................16

   C. OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF
   NORMA TORRES...............................................................................................17

   D. AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT
   FOR CAUSING THE COLLISION. .......................................................................20

   E. OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES. ................21

V. ASSUMING THE EMERGENCY SITUATION EXCEPTION
APPLIES AND NO LAWS OR ORDINANCES GOVERN HIS
CONDUCT, OFFICER WALKER’S CONDUCT CONSTITUTES
CONSCIOUS INDIFFERENCE OR RECKLESS DISREGARD FOR THE
SAFETY OF OTHERS......................................................................................22

CONCLUSION/PRAYER .................................................................................25




                                                      iii
                                         TABLE OF AUTHORITIES

Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) ................. 5, 6, 16

Cantu v. Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no

pet.).............................................................................................................................4

City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) ...............................28

City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no

pet.)...........................................................................................................................16

City of Elsa v. Gonzales, 325 S.W.3d 622, 625 (Tex. 2010). ....................................6

City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994) ...................12

City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006).......................28

City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio

1984, writ ref’d n.r.e.). .............................................................................................26

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). ...............8

Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.) .............11

Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003).......................................4

Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2

(Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not

designated for publication) ........................................................................................3

                                                                iv
Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 928 (Tex. 1998) ..........................3

Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio

1988, no writ) ...........................................................................................................11

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

......................................................................................................................... vii, 6, 7

Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App. – Corpus Christi

2003, no pet.) .............................................................................................................4

Rivas v. City of Houston, 17 S.W.3d 23, 27 (Tex. App. – Houston [14th Dist.]

2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied). ......................................12

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.

2002) ..........................................................................................................................3

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) ....4

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004).

.......................................................................................................................... passim

Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El

Paso 2014, pet. filed)................................................................................................21

Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).................7

University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) ................................7

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); ...............................11

                                                                v
Statutes

TEX. CIV. PRAC. & REM. CODE §101.021(1). .............................................................7

TEX. CIV. PRAC. & REM. CODE §101.021...................................................................7

TEX. CIV. PRAC. & REM. CODE §101.055(2). .......................................................8, 14

TEX. TRANSP. CODE ANN. § 546.002(b)...................................................................24

TEX. TRANSP. CODE ANN. § 546.003 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009)...............................................24

TEX. TRANSP. CODE ANN. § 546.001 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.001(3) (Vernon 2009) ..........................................19




                                                   vi
                            STATEMENT OF THE CASE

       Appellant Norma Torres (“Norma”) was severely injured in a collision with

Officer Robert Walker (“Officer Walker”) on July 18, 2011, when he lost control

of his police vehicle while attempting to assist in a high-speed chase. As a result

of her injuries, Norma requires an L4-5laminectomy and discectomy with surgical

stabilization and fusion. It is undisputed that Officer Walker was acting in the

course and scope of his employment with Appellee the City of Corpus Christi

(“City”).

       The City filed a plea to the jurisdiction asserting that the trial Court lacked

subject matter jurisdiction because immunity was not waived under the TEXAS

TORT CLAIMS ACT (“Act”) because Officer Walker was responding to an

emergency call and properly complied with the laws and ordinances applicable to

emergency action. Alternatively, the City argued that Officer Walker did not act

with conscious indifference or reckless disregard for Norma’s safety.

       The trial court erroneously held that Norma failed to raise a fact issue

establishing subject matter jurisdiction despite the fact that the Texas Supreme

Court has held that disputed facts must be resolved at trial by a jury. 1 Moreover, if



1
 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Texas Dep’t of
Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004).
                                             vii
this Court properly takes all evidence favorable to Norma as true and resolves all

reasonable inferences and doubts in her favor, then the only proper holding is to

allow a jury to determine whether Officer Walkers actions were taken in proper

compliance with the laws and ordinances applicable to emergency actions or

whether his actions were consciously indifferent to or in reckless disregard of

Norma’s safety. 2 By this brief, Norma respectfully requests that the Court reverse

the trial court’s ruling that immunity was not properly waived under the TEXAS

TORT CLAIMS ACT.

         Appellant filed suit in County Court at Law Number 4 of Nueces County,

Texas, on November 23, 2011, alleging that the City was liable to Norma pursuant

to § 101.021 of the CIVIL PRACTICE & REMEDIES CODE because Officer Walker

committed wrongful acts or omissions while acting in the course and scope of his

employment with the City while operating a motor-driven vehicle and would be

personally liable to Norma under Texas Law. (1 CR 5-12). On June 18, 2013, the

City filed a plea to the jurisdiction asserting that the trial court lacked subject

matter jurisdiction over this case. (1 CR 18-23). In response to the City’s plea,

Norma filed an Amended Petition on July 19, 2013 and a Response with evidence

on July 22, 2013. (1 CR 114-122, 1 CR 124-141).


2
    Miranda, 133 S.W.3d at 227-28.
                                       viii
      The first hearing on the Plea was held on July 22, 2013. (1 RR 1-16). At the

request of the trial court judge, both parties filed additional briefings with evidence

for the court on their positions (1 CR 328-333, 1 CR 424-439). On June 16, 2014,

the Court granted the City’s plea and rendered a take nothing judgment against

Norma. Subsequently, Norma filed a Motion for Reconsideration and Motion for

New Trial on July 15, 2014. (1 CR 441-449). The Court heard Norma’s Motion

for Reconsideration and Motion for New Trial on August 27, 2014 (2 RR 1-35).

The trial court denied Norma’s Motion for Reconsideration and Motion for New

Trial on August 27, 2014. (1 CR 530).




                                          ix
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would give the Court a more complete understanding of the

facts and legal issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The

facts in the instant case require additional explanation in order to fully understand

the chronology of events. Therefore, the decisional process would be significantly

aided by having counsel present to explain why the facts do or do not support

Appellant’s contentions.    See TEX. R. APP. P. 39.1(d). Accordingly, Appellee

respectfully requests the Court grant oral argument.




                                         x
                               ISSUE PRESENTED

There is a single issue to be resolved by the Court in this appeal:


Was sovereign immunity properly waived pursuant to § 101.021 of the TEXAS
TORT CLAIMS ACT for the personal injuries proximately caused by the
negligence of Officer Walker?




                                          xi
                           STATEMENT OF FACTS

      On July 18, 2011, Officer Walker, an employee of the Corpus Christi Police

Department, lost control of his police car while traveling westbound on the 2500

block of Laredo in excess of the posted speed limit and collided with Norma

Torres in the eastbound lane of traffic. As a result of the collision, Officer Walker

was cited for unsafe change from a direct course. (1 CR 54-56). Additionally, he

was cited by the Police Department for violating § 4.04(B)(3) of the General Rules

Manual and disciplined by his supervising officer. (1 CR 221-223, 272-277).

Norma sustained serious personal injuries as a result of the collision which require

a laminectomy and discectomy with surgical stabilization and fusion at L4-5 to

address. (1 CR 108).




                                         1
                       SUMMARY OF THE ARGUMENT

      The trial court’s ruling in its August 27, 2014 order should be reversed

because the evidence presented by Norma creates a jurisdictional fact issue that a

jury must resolve as to whether the immunity has properly been waived under the

TEXAS TORT CLAIMS ACT. Subject Matter Jurisdiction over this case exists for four

reasons.

      First, Norma properly pled a statutory waiver of sovereign immunity in her

live pleading before this Court.

      Second, the Emergency Situation Exception (“Exception”) to the ACT does

not apply because the City failed to prove that Officer Walker was responding to

an emergency.

      Third, Officer Walker admitted that he failed to act as a reasonably prudent

officer while assisting in apprehending a stolen vehicle.

      Fourth, assuming the exception applies, whether Officer Walker’s conduct

during the collision was reckless is a fact question for the jury.

      The trial court’s August 27, 2014 order should be REVERSED.




                                           2
                                      ARGUMENT

       At issue is whether or not the “Emergency Exception” to the TEXAS TORT

CLAIMS ACT was applicable to Officer Walker’s actions on July 18, 2011, and,

assuming that the exception applies, did Walker’s conduct constitute a reckless

disregard for the safety of all persons. The undisputed evidence creates a disputed

fact issue that Officer Walker failed to act as a reasonably prudent officer at the

time of the collision and that his actions constitute a finding of reckless conduct.


I.     STANDARD OF REVIEW

       A trial court’s ruling on a plea to the jurisdiction is a question of law and

reviewed de novo. 3 A plea to the jurisdiction is a dilatory plea that seeks dismissal

of a case for lack of subject matter jurisdiction. 4 When a plea to the jurisdiction

challenges the pleadings, the court determines if the pleader has alleged facts

that affirmatively demonstrate the court’s jurisdiction to hear the cause rather




3
  Miranda, 133 S.W.3d at 226 (emphasis added); see Subaru of Am., Inc. v. David McDavid
Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); Mayhew v. Town of Sunnydale, 964 S.W.2d 922,
928 (Tex. 1998); Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2
(Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not designated for
publication) (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004)).
4
  Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003).
                                             3
than looking at the claim’s merits.5 Since the plaintiff bears the burden to allege

facts affirmatively demonstrating the trial court’s jurisdiction to hear a case, the

courts construe the pleadings liberally and in the plaintiff’s favor and should

look to the pleader’s intent. 6      The Court assumes the truth of the jurisdictional

facts alleged in the pleadings unless the defendant presents evidence to negative

their existence.7

       However, if a plea to the jurisdiction challenges the existence of

jurisdictional facts, the court will consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised.8 The purpose

of the plea is not to force a plaintiff to preview her case on the merits, but rather, to

establish why the merits of the claims should never be reached. 9 Although the

issues raised by a plea to the jurisdiction often require hearing evidence, a plea

to the jurisdiction does not authorize an inquiry so far into the substance of the

claims presented that the plaintiff is required to put on her case simply to




5
  Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Cantu v.
Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added).
6
  Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d at 446; Nueces County v. Ferguson,
97 S.W.3d 205, 213 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added).
7
  Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
8
  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (emphasis added).
9
  Id. at 554.
                                             4
establish jurisdiction. 10 Whether a determination of subject matter jurisdiction can

be made in a preliminary hearing or should await a fuller development of the

merits of the case must be left to the trial court’s discretion. 11

       When jurisdiction involves the merits of the case, the trial court must

review the evidence to determine whether there is a fact issue.12 This standard

mirrors a summary judgment procedure under Tex. R. Civ. P. 166a(c). 13 That is,

the defendant must first present evidence to show that the Court lacks

subject-matter jurisdiction; if the defendant does so, then the plaintiff must then

show there is a disputed material fact on the jurisdictional issue.14 If the facts are

disputed, the court cannot grant the plea to the jurisdiction and the issue must be

resolved by the finder-of-fact at trial; however, if the evidence is undisputed or if

there is no fact question on the jurisdictional issue, the trial court will rule on the

plea to the jurisdiction as a matter of law. 15          When reviewing a plea to the

jurisdiction in which the pleading requirement is met and evidence has been




10
   Id. (emphasis added).
11
   Id.
12
   Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Elsa v. Gonzales,
325 S.W.3d 622, 625 (Tex. 2010).
13
   Mission Consol., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228.
14
   Id. (emphasis added).
15
   Mission Consol., 372 S.W.3d at 635; University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex.
2010) (emphasis added).
                                              5
submitted to support the plea that implicates the merits of the case, all evidence

favorable to the nonmovant is taken as true and all reasonably inferences and

doubts are resolved in favor of the nonmovant.16 If the evidence submitted

creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. 17


II.   NORMA PROPERLY PLED A STATUTORY WAIVER OF SOVEREIGN
      IMMUNITY

      Sovereign immunity from suit defeats a trial court’s subject matter

jurisdiction unless the state specifically consents to suit.18 In a suit against a

governmental unit, the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity. 19 The TEXAS TORT CLAIMS

ACT provides a limited waiver of governmental immunity if certain conditions are

met. The ACT states:

      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


16
   Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004) (emphasis
added).
17
   Miranda, 133 S.W.3d at 227-28 (emphasis added).
18
   Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
19
   Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
                                            6
                   (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, were
                 it a private person, be liable to the claimant according to Texas
                 law.

TEX. CIV. PRAC. & REM. CODE §101.021. Thus, a governmental unit may be held

liable for the wrongful acts or omissions of its employees under the ACT if they are

acting within the scope of their employment and when the personal injuries or

property damage arises from the operation or use of a motor-driven vehicle or

equipment if the same employee could be held liable to the claimant under Texas

law. 20

          Norma’s Amended Petition specifically alleges that Officer Walker was in

the course and scope of his employment and that he was negligent in the operation

of his police vehicle at that time of the collision. (1 CR 146-154). Moreover, both

Officer Walker and his supervisor, Lieutenant J.C. Hooper (“Lt. Hooper”) testified

that Officer Walker is in the course and scope of his employment with the City at

the time the collision occurred.         (1 CR 179, 1 CR 249).       Additionally, it is

undisputed that the collision arose from Officer Walker’s operation or use of a

motor driven-vehicle. (1 CR 179).



20
     TEX. CIV. PRAC. & REM. CODE §101.021(1).
                                                7
III.   THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY
       BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN
       EMERGENCY.


       The ACT contains exclusions and exceptions to liability that, although a

proper waiver of statutory immunity has properly been pled, nonetheless excuses

the governmental entity’s conduct. Specifically, the ACT excludes claims arising:

          (2) from the action of an employee while responding to an
              emergency call or reacting to an emergency situation if the
              action is in compliance with the laws and ordinances applicable
              to emergency action, or in the absence of such law or
              ordinance, if the action is not taken with conscious indifference
              or reckless disregard for the safety of others.

TEX. CIV. PRAC. & REM. CODE §101.055(2). The City’s plea alleges that Officer

Walker’s conduct is excusable because he was responding to an emergency call.

The evidence, when viewed favorably to Norma, raises a fact issue as to whether

Officer Walker was responding to an emergency.

       The existence of an emergency situation is a matter of fact that

ordinarily should be determined by the jury. 21 The City asserts that since

Walker was operating with lights and sirens at the time the collision occurred that

he was automatically responding to an emergency situation.               Simply because




21
  Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio 1988, no writ)
(emphasis added)
                                             8
Walker decided to activate his lights and sirens while travelling toward the

intersection where the collision occurred does not automatically mean that he was

“responding to an emergency.” In order to succeed on a plea to the jurisdiction,

there can be no issue of material fact regarding the existence of any

emergency and whether the City complied with relevant laws. 22

       In determining whether an emergency situation arises, Courts have

employed a reasonably prudent officer standard and examined the need to

which an officer responds and the risks of the officer’s course of action based

on the officer’s perception of the facts at the time of the event. 23 Need is

determined by factors such as the seriousness of the situation to which the official

responds and what alternative courses of action, if any, are available, to achieve a

comparable result.24 Risk refers to the countervailing public safety concerns; the

nature and severity of harm that the official’s actions could cause (including injury

to bystanders as well as the possibility that an accident would prevent the officials

from reaching the scene of the emergency), the likelihood that any harm would

occur, and whether any risk of harm would be clear to a reasonably prudent



22
   Id. (emphasis added).
23
   Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.) quoting Wadewitz v.
Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); see also Rivas v. City of Houston, 17 S.W.3d 23,
27 (Tex. App. – Houston [14th Dist.] 2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied).
24
   Id.
                                             9
official.25 To counter an emergency vehicle driver’s proof that his actions were

necessary, the injured bystander must prove that no reasonable person in the

driver’s position could have thought the facts justified his acts. 26

      In his deposition, Officer Walker testified that, in light of the results of his

actions, he failed to act as a reasonably prudent officer in course of action based on

his perception of the events at the time they occurred:

             Q      Okay. Do you agree that if you were driving your
                    vehicle a little slower that day, that you could
                    have prevented yourself from losing control and
                    striking my client's vehicle?
             A      I believe if I was driving in a safe and prudent
                    manner that the collision would not have
                    occurred.
             Q      Okay. Do you believe that you could have
                    responded to the call in a safe and prudent manner
                    and still been able to arrive at the location that you
                    were trying to reach?
             A      I -- I don't know.
             Q       (By Mr. De Vera) Okay. Looking back at
                    everything, do you think that -- that the best thing
                    for you to have done at the time was to proceed in
                    a safe and prudent manner so that you could
                    safely and efficiently get to the intersection to lay
                    down the strips, the spike strips?
             A      Yes, sir.
             Q      Okay. Knowing what you know today, would you
                    do things differently?
             A      Yes, sir.

25
  Id.
26
  Id. quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994) (emphasis
added).
                                           10
             Q     Okay.      How would you have done things
                   differently?
             A     I -- I either wouldn't have tried to get to that
                   intersection or I would have went further to a
                   different location further off so I'd have more
                   time to set up the spike strips.
                                       *     *      *
             Q     Do you believe that as a result of violating the
                   rules manual you were not acting as a reasonably
                   prudent police officer should have acted on the
                   day of the collision?
             A     I don't believe I was driving at a reasonable and
                   prudent manner.

(1 CR 184, 186) (emphasis added). Thus, Officer Walker’s own testimony creates

a fact issue as to whether he was responding to an emergency at the time of the

collision.


IV.   ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES,
      OFFICER WALKER FAILED TO COMPLY WITH THE LAW AND
      ORDINANCES APPLICABLE TO EMERGENCY ACTION.


      The City asserts that sovereign immunity is not waived under the ACT

because Officer Walker was responding to an emergency call at the time of the

collision and that his actions did not violate any laws or ordinances applicable to

an emergency situation. Even if the exception applies, Norma’s alleges sufficient

jurisdictional facts in her Amended Petition that actively demonstrate that Officer

Walker failed to act in compliance with the applicable laws or ordinances


                                        11
applicable to an emergency situation at the time of the collision. Moreover, the

undisputed evidence supports these allegations.

      The Texas Supreme Court, in Bland Independent School District v. Blue,

held that a plea to the jurisdiction cannot be used to have require a plaintiff to

prove her entire case in order to establish jurisdiction—so long as a plaintiff

properly pleads that the conduct was reckless, listed the purportedly reckless

conduct and specified the laws applicable, granting a plea to the jurisdiction is

improper:

                   Whether Porter is required to prove in response to
            the City’s plea to the jurisdiction that Dethloff violated
            any of the statutes pleaded by Porter is similar to the
            issue of whether a plaintiff must prove the amount of
            damages alleged in the petition in order to establish
            jurisdiction in a trial court. As the Texas Supreme Court
            noted in Bland, absent a specific allegation that the
            amount was pleaded merely as a sham for the purpose of
            wrongfully obtaining jurisdiction, the plaintiff’s
            allegation of damages in excess of the jurisdictional limit
            suffices to show the amount in controversy and establish
            jurisdiction to the trial court. A plea to the jurisdiction
            cannot be used to require the plaintiff to try her entire
            case in order to show entitlement to damages in excess
            of the trial court’s jurisdictional limit.

                  Similarly, absent an allegation by the City that
            Porter fraudulently alleged violations of sections
            546.005 and 546.001(3) by Dethloff in order to obtain
            jurisdiction in the trial court, Porter cannot be
            required to prove her entire case to demonstrate the

                                        12
              statutory violations by Dethloff in order to establish
              jurisdiction.
                                     *     *     *
                     However, Porter pleaded Dethloff was reckless
              in his actions, listed the purportedly reckless conduct,
              and specified the laws applicable to an emergency
              response with which she alleges Dethloff failed to
              comply. Requiring Porter to carry her ultimate
              burden to prove Dethloff’s conduct met either prong
              of the pleaded allegations in response to the City’s
              plea to the jurisdiction would impermissibly require
              Porter to prove her case on the merits simply to
              establish jurisdiction. Bland Indep. Sch. Dist., 34
              S.W.3d at 554. Although the City’s entitlement to
              immunity pursuant to section 101.055 might be
              established after the case is further developed, Porter is
              not required to prove her case in order to defeat the plea
              to the jurisdiction. Id. 27

       SECTION 101.055(2) of the ACT specifically excludes claims arising from the

action of an employee while responding to an emergency call or reacting to an

emergency situation if the action is in compliance with the laws and ordinances

applicable to emergency action, or in the absence of such a law or ordinance, if the

action is not taken with conscious indifference or reckless disregard for the safety

of others. 28 Like Porter, Norma pled in her Amended Petition that if Officer

Walker was responding to an emergency call that his behavior was not in

compliance with the laws and ordinances applicable to an emergency action or, in

27
   City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no pet.) citing
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (emphasis added).
28
   TEX. CIV. PRAC. & REM. § 101.055(2).
                                             13
the absence of such law or ordinance, with conscious indifference or reckless

disregard for the safety of others. (1 CR 115-119).

      The undisputed evidence establishes that Officer Walker was in the course

and scope of his employment with the City at the time of the collision. (1 CR 179,

1 CR 249).       Additionally, Lt. Hopper identified that the applicable laws and

ordinances that govern Walker’s actions:

             Q       Okay. Fair enough. The uniform division manual,
                     that's the operating manual for the division that
                     you work in and the division that Officer Walker
                     was working in at the time the collision happened.
                     Is that correct?
             A       I think that really applies to the general rules
                     manual. This manual is in place, but I think the
                     general rules manual is more our bible. This
                     document, yes, it does exist and it did exist for us
                     at the time.
             Q       Okay. Other than the general rules manual and
                     this uniform division manual, would there be any
                     other employee manuals or handbooks that would
                     govern the manner in which Officer Walker was
                     to operate his vehicle?
             A       There might be elements in the Texas traffic code
                     that would apply, but other than that, no, sir. I
                     can't think of any others.
             Q       And when you're talking about the Texas traffic
                     code, Lieutenant, just to make sure I'm clear,
                     you're talking about the codified statutes that go
                     over the what the proper rules for operating
                     vehicles for anyone on the Texas roadway?
             A       Yes, sir.
             Q       Is that fair?
             A       Yes, sir.
                                          14
             Q      Okay. And are you talking about specifically the
                    sections of the traffic code that deal with
                    emergency vehicles or are you just speaking more
                    generally about the rules that every vehicle in the
                    roadway has to follow?
             A      Both.

(1 CR 232). The evidence shows that Walker violated not only the specific

portions of the TRANSPORTATION CODE that govern the operation of authorized

emergency vehicles, but that he also violated internal rules and regulations of the

Police Department and the City of Corpus Christi. (1 CR 287-327).


      A.     OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS
             DEPOSITION.

      The Emergency Exception to the ACT does not apply because Officer

Walker violated laws and ordinances applicable to an emergency situation and

expressly admitted liability for causing the collision in his deposition:

             Q      Okay. And so let me just ask you formally for the
                    record, are you assuming responsibility for
                    causing this collision?
             A      Yes, sir.
             Q      Okay. Is there anything that my client
                    Ms. Torres did to cause the collision?
             A      No, sir.
             Q      Is there anything that my client Ms. Torres didn't
                    do to avoid the collision?
             A      No, sir.




                                          15
1 (CR 175). Officer Walker’s testimony alone is sufficient to raise a fact

issue regarding the emergency exception.


      B.     OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE
             TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT.

      The evidence also shows that Officer Walker violated the specific portions

of the TRANSPORTATION CODE that govern the operation of authorized emergency

vehicles. Specifically, Walker specifically admitted that he received a citation

from the investigating officer for unsafe change from a direct course and that he

pled guilty to the charge:

             Q      Okay. And according to -- according to the report
                    for this particular wreck, it says that you received -
                    - you were charged with unsafe change from a
                    direct course. Is that fair?
             A      Yes, sir.
             Q      Okay. And -- and since you were charged as a --
                    an officer and not as an off duty civilian, is there a
                    different process by which officers resolve these
                    kind of citations or are they resolved as if they
                    were – as if you were in a civilian vehicle?
             A      They're resolved the same way.
             Q      Okay. And so how did you resolve this particular
                    citation?
             A      I went to the court and pled guilty and requested
                    the deferred adjudication.




                                          16
(1 CR 165 1 CR 278-280) (emphasis added). The fact that Officer Walker was

cited for violating the TRANSPORTATION CODE is sufficient to raise a fact issue

regarding the emergency exception.


       C.     OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF
              NORMA TORRES.

       In addition to receiving a citation for unsafe change from a direct course, the

investigating officer’s report shows that the collision occurred in Ms. Torres’s lane

(in the direction of oncoming traffic). (1 CR 278-280). The fact that Officer

Walker’s speed was so excessive that it caused him to lose control of his vehicle

and strike another oncoming vehicle raises a fact issue about whether Officer

Walker complied with the laws applicable to emergency situations.

       The El Paso Court of Appeals held that sufficient evidence was presented to

raise a fact issue concerning whether an officer in pursuit of a suspect violated the

laws applicable to an emergency situation.29 In Bonilla, as in this case, the Court

of Appeals found that the applicable statues pertaining to the officer’s actions were

§§ 546.001 and 546.005 of the TRANSPORTATION CODE. The officer is question

ran a red light while pursuing a suspect and the Court held that there was sufficient




29
  Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El Paso 2014,
pet. filed).
                                             17
evidence to raise a fact issue as to whether the officer slowed before entering the

intersection where the collision occurred.

         In this case, SECTION 546.001(3) allows an operator of an authorized

emergency vehicle to exceed the maximum speed limit as long as the operator does

not endanger life or property. 30 Officer Walker testified that his excessive speed in

conjunction with a soft brake caused him to lose control of his vehicle:

                Q      Got it. Okay. And so you're coming around the S
                       curve and are you -- are you intending when it gets
                       to the S curve to continue straight on Agnes
                       toward --
                A      Continue westbound.
                Q      Right. Continue westbound?
                A      Yes, sir.
                Q      Okay. And so when you come around the curve,
                       you're hitting your brakes because of your speed?
                A      Yes, sir.
                Q      Okay. Is it fair to say that -- that the reason that
                       you had to hit your brakes coming around that
                       curve is because you were operating your vehicle
                       over the posted speed limit because of the
                       emergency?
                A      Yes, sir.
                                       *      *     *
                Q      Okay. So basically you're -- you're going
                       through the S curve, you're going to intend on
                       proceeding westbound towards the intersection of
                       Agnes and Port, you hit your brake to reduce
                       your speed, because of the speed you're going


30
     TEX. TRANSP. CODE ANN. §§ 546.001(3) (Vernon 2009) (emphasis added).

                                             18
                        around the curve. The brake is soft and so -- as a
                        result of that your speed does not decrease and
                        that causes you to lose control of the vehicle. Is
                        that fair?
                 A      Yeah.

(1 CR 170-171). Norma Torres testified that the impact occurred in her lane and

caused property damage to her vehicle and bruising to her body:

                 Q      Okay. Tell me in your own words as much detail
                        as you can recall how the accident happened.
                 A      I just know that he did the curve and he was
                        going really fast and I did a turn to the right and
                        we still end up hitting.
                 Q      Okay. How would you describe the impact?
                 A      It was awful. It was awful. I was -- it was awful.
                        It was his car was completely out of control.
                 Q      Was there property damage to your vehicle?
                 A      Yes, sir.
                                         *      *    *
                 Q      Okay. Did you have any cuts?
                 A      I don't -- just bruises.
                 Q      Okay. Where were you bruised?
                 A      In my leg and I don't remember where else. I just
                        remember my leg.
                 Q      Okay. Which leg?
                 A      I think it was the right. 31

The fact that Officer Walker operated his vehicle at such an excessive speed as to

endanger both the life AND property of Norma Torres is sufficient to raise a fact

issue regarding the emergency exception.



31
     Deposition of Norma Torres, page:line 22:17 – 28:18.
                                                19
      D.     AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT
             FOR CAUSING THE COLLISION.


      Additionally, Officer Walker’s actions were reviewed by the City Vehicle

Accident Review Board (VARB) and the collision was found to be a preventable

event and the Board assessed points against his operating record. (1 CR 281-291).

As a result of these findings, the VARB required Officer Walker to attend

counseling sessions and a remedial driver training program. Id.

      Officer Walker testified that he had the ability to appeal the Board’s decision

but elected not to because he accepted responsibility for causing the wreck:

             Q     Okay. And -- and you know that the accident
                   review board allows an appeal from the decision of
                   the board, correct?
             A     Yes, sir.
             Q     Okay. And did you -- did you elect to appeal?
             A     No, sir.
             Q     Okay. Is the reason that you elected not to appeal
                   because you accepted responsibility that the
                   collision was your fault?
             A     Yes, sir.

(1 CR 182). The fact that the City found the collision to be preventable an

assessed a penalty to Officer Walker is sufficient to raise a fact issue regarding the

emergency exception.




                                         20
      E.     OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES.

      As a result of the collision, Officer Walker was cited at the scene for

violating Rule 4.04(B)(3) of the Police Department’s General Rules Manual for

failing to operate his vehicle in a safe and prudent manner. (1 CR 287-291).

Officer Walker admitted being internally disciplined by the Police Department for

failing to operate his vehicle in a safe and prudent manner:

             Q     And can you read for the ladies and gentlemen of
                   the jury what violation 4.04 B3 is?
             A     Yes, sir. "Employees shall operate police vehicles
                   in a safe and prudent manner at all times and will
                   be held accountable for the carelessness or
                   negligence. Improper use or operation of a police
                   vehicle may contribute grounds for disciplinary
                   action."
             Q     Okay. And do you admit that the way that you
                   operated the vehicle on July 18th of 2011 was in
                   violation of 4.04 B3?
             A     Yes, sir.
                                   *      *      *
             Q     What disciplinary action was instituted against
                   you as a result of this violation?
             A     I was written a letter of counsel.

(1 CR 182). The San Antonio Court of Appeals, in City of San Antonio v. Higle,

held that acting in violation of prescribed governmental procedures would prevent




                                         21
the City from raising an immunity defense. 32 Lt. Hopper testified that the City’s

General Rules Manual would govern Officer Walker’s conduct at the time of the

collision. (1 CR 232). The fact that Officer Walker was cited for violating

departmental procedures alone is sufficient to raise a fact issue regarding the

emergency exception.


V.    ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES
      AND NO LAWS OR ORDINANCES GOVERN HIS CONDUCT,
      OFFICER WALKER’S CONDUCT CONSTITUTES CONSCIOUS
      INDIFFERENCE OR RECKLESS DISREGARD FOR THE SAFETY
      OF OTHERS.


       The City asserts immunity has not been waived because no pleadings

establish that the City acted with conscious disregard and no evidence exists that

Officer Walker acted with conscious indifference or reckless disregard for the

safety of others.     CHAPTER 546 of the TRANSPORTATION CODE governs the

operation of authorized emergency vehicles. It condones conduct by operators of

authorized emergency vehicles which would normally violate the CODE when

responding to an emergency call or pursuing an actual or suspected violator of the

law. 33 Additionally, the statute requires the use of audio or visual signals when



32
   City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio 1984, writ
ref’d n.r.e.) (emphasis added).
33
   TEX. TRANSP. CODE ANN. §§ 546.001; TEX. TRANSP. CODE ANN. 546.002(b) (Vernon 2009).
                                            22
proceeding past a red light or stop sign, after slowing for safe operation. 34 There

is no specific statute which authorizes an officer to exceed the maximum speed

to such a degree that they lose control of their vehicle and strike oncoming

traffic.35 Despite condoning normally illegal conduct, the TRANSPORTATION CODE

requires that the operator of an authorized emergency vehicle responding to an

emergency operate the vehicle with appropriate regard for the safety of all persons

and without reckless disregard for the safety of others.36

       The Texas Supreme Court requires a finding of reckless conduct before

liability may be premised upon the conduct of an operator of an emergency vehicle

in an emergency situation. 37 To recover damages resulting from the emergency

operation of an emergency vehicle, a plaintiff must show that the operator has

committed an act that the operator knew or should have known posed a high

degree of risk of serious injury. 38          There is no requirement that the officer

specifically testify that he knew the relevant facts but did not care about the




34
   TEX. TRANSP. CODE ANN. § 546.003 (Vernon 2009) (emphasis added).
35
   While TEX. TRANSP. CODE ANN. § 546.001(3) does allow an authorized emergency vehicle to
exceed a maximum speed limit, it must not endanger life or property. In this case, Walker
testified that his excessive speed caused him to lose control of his vehicle and strike Ms. Torres
in her lane of travel.
36
   TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009).
37
   City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (emphasis added).
38
   Id. at 430 (emphasis added).
                                               23
result. 39 The evidence shows that Walker’s actions at the time of the collision

violated CHAPTER 546 of the TRANSPORTATION CODE:

                 Q      Hold on. Let me just finish my question. That
                        collision itself was one hundred percent
                        completely and totally your fault?
                 A      Yes, sir.
                 Q      Okay. Now, even though you're operating your
                        vehicle with lights and sirens, you acknowledge
                        that the internal regulations of the department as
                        well as the laws of the state of Texas require that
                        you operate your vehicle with due regard to other
                        people on the roadway, correct?
                 A      Yes, sir.
                 Q      Based on what happened in the collision and how
                        the collision occurred, do you believe that you
                        operated your vehicle with due care and due
                        regard on the day of the collision?
                 A      No, sir.
                 Q      Okay. And that's because you lost control of the
                        vehicle coming around the curve, correct?
                 A      Yes, sir.

(1 CR 175). The evidence shows that Officer Walker failed to operate his vehicle

with due regard for the safety of Norma Torres and is sufficient to raise a fact issue

that his conduct violated § 546.005 of the TRANSPORTATION CODE. Accordingly,

the trial court’s ruling on the City’s plea should be REVERSED.




39
     City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006).
                                               24
                           CONCLUSION/PRAYER

      Norma Torres has properly pled a waiver of sovereign immunity under the

TEXAS TORT CLAIMS ACT. Moreover, the evidence presented, when view in the

light most favorable to Norma, establishes fact issues as to whether the emergency

exception applies. Further, the evidence raises fact issues as to whether Officer

Walker properly complied with the laws and ordinances applicable to emergency

actions when he operated his vehicle at an excessive speed and lost control coming

around a curb causing him to collide with oncoming traffic. The evidence also

raises a fact issue as to whether, in the absence of applicable laws or ordinances

governing emergency situations, Officer Walker’s conduct constituted conscious

indifference or reckless disregard for the safety of Norma Torres and the general

public.

      Because a trial court cannot properly grant a plea to the jurisdiction if the

jurisdictional facts are disputed, Appellant respectfully requests that this Court

REVERSE the trial court’s judgment and allow a jury to decide the issue.




                                        25
Respectfully submitted,

LAW OFFICES OF THOMAS J. HENRY
521 Starr Street
Corpus Christi, Texas 78401
Telephone: (361) 985-0600
Facsimile: (361) 985-0601


By: /s/George A. DeVera
      Thomas J. Henry
      State Bar No. 09484210
      George A. DeVera
      State Bar No. 24048431
      ATTORNEYS FOR APPELLANT
      NORMA TORRES




 26
     CERTIFICATE OF COMPLIANCE WITH WORD LIMITATION
       I certify that I have reviewed the Appellee’s Brief and have concluded that
every factual statement made herein is supported by competent evidence included
in the appendix or the record.

       Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify
that the foregoing brief contains 6,449 words (excluding the caption, table of
contents, table of authorities, signature, proof of service, certification, and
certificate of compliance). This is a computer generated document created in
Microsoft Word, using 14-point typeface for all text, except for the footnotes,
which are in 12-point typeface. In making this certificate of compliance, I am
relying on the word count provided by the software used to prepare this document.


                                      /S/ George A. DeVera
                                     GEORGE A. DEVERA
                                     STATE BAR NO. 24048431




                                       27
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the forgoing document has
been forwarded to all counsel of record in the manner indicated below on the 20th
day of April, 2015:

      VIA E-SERVICE
      Mark DeKoch
      City of Corpus Christi
      Legal Department
      1201 Leopard Street
      P.O. Box 9277
      Corpus Christi, Texas 78401
      Telephone: (361) 826-3372
      Facsimile: (361) 826-3239



                                      /s/George A. DeVera
                                     GEORGE A. DEVERA




                                       28
                               APPENDIX

      In compliance with TEX. R. APP. P. 38.1(k), copies of the following

documents are included:

TAB 1………………………………………Order Granting Plea to the Jurisdiction

TAB 2……………………………………………………TEX. TRANSP. CODE § 546

TAB 3…………………………………………………Mejia v. City of San Antonio,
                         89 S.W.3d 611 (Tex. 2002)

TAB 4…………………………………City of Dallas v. Porter, 2002 WL 1773008
                           (Tex. App. – Dallas 2002, no writ.)

TAB 5………………………………....................Bland Indep. Sch. Dist. v. Blue,
                                           34 S.W.3d 547 (Tex. 2000)

TAB 6…………………………….…….Tex. Dep’t of Parks & Wildlife v. Miranda
                                  133 S.W.3d 217 (Tex. 2004)

TAB 7……………………………………………..City of San Antonio v. Higle,
         685 S.W.2d 682 (Tex. App. – San Antonio 1985, writ ref’d n.r.e.)

TAB 8……………………………………Texas Dep’t of Public Safety v. Bonilla,
               2014 WL 2451176 (Tex. App. – El Paso, pet. filed)




                                   29
                                                                                                              Page 1


133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

                                                            tional use statute.


           Supreme Court of Texas.                              Reversed and rendered.
 TEXAS DEPARTMENT OF PARKS AND WILD-
              LIFE, Petitioner,                                  Phillips, C.J., and Hecht, Owen, and Smith, JJ.,
                     v.                                     joined parts I, II, III.A, III.B, III.C.2, III.C.3, III.D,
 Maria MIRANDA and Ray Miranda, Respondents.                and IV of Justice Wainwright's opinion.


                   No. 01–0619.                                   Phillips, C.J., and Hecht and Smith, JJ., joined
                Argued Oct. 30, 2002.                       part III.C.1 of Justice Wainwright's opinion.
                   April 2, 2004.
                                                                    Wallace B. Jefferson, J., filed a dissenting opi-
Background: Visitor to state park and her husband           nion.
sued the Parks and Wildlife Department for personal
injuries visitor sustained when a tree limb fell on her         Scott Brister, J., filed a dissenting opinion in
head. The 38th Judicial District Court, Uvalde County,      which O'Neill and Schneider, J., joined.
Mickey R. Pennington, J., denied Department's plea to
the jurisdiction. Department appealed. The San An-
                                                                                  West Headnotes
tonio Court of Appeals, 55 S.W.3d 648, affirmed.
Review was granted.
                                                            [1] Courts 106         247(7)

Holdings: The Supreme Court, J. Dale Wainwright,
J., held that:                                              106 Courts
(1) in ruling on the plea to the jurisdiction, the trial        106VI Courts of Appellate Jurisdiction
court could consider evidence beyond the allegations               106VI(B) Courts of Particular States
in the pleadings, disapproving of Sullivan v. Wilmer                  106k247 Texas
Hutchins Indep. Sch. Dist., 47 S.W.3d 529, Denton                          106k247(7) k. Review by or certificate
County v. Howard, 22 S.W.3d 113, Tex. Dep't of              to Supreme Court by Court of Civil Appeals of ques-
Mental Health & Mental Retardation v. Pearce, 16            tions where its decision conflicts with or overrules that
S.W.3d 456, Tex. State Employees Union/CWA Local            of another Court of Civil Appeals or that of the Su-
6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61,                preme Court. Most Cited Cases
DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d
654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo             A new decision of a court of appeals “conflicts”
v. State, Office of the Governor, 998 S.W.2d 337, City      with a prior decision of another court of appeals or
of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep.        prior decision of the Supreme Court, as basis for Su-
Sch. Dist. v. Blue, 989 S.W.2d 441, and                     preme Court's jurisdiction over interlocutory appeal
(2) Parks and Wildlife Department did not act with          from the new decision, when the prior and new cases
gross negligence, and thus, Department had sovereign        are so similar that the decision in one case is neces-
immunity under Texas Tort Claims Act and recrea-            sarily conclusive of the decision in the other.
                                                            V.T.C.A., Government Code § 22.001(a)(2).




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                            Page 2


133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

                                                             jurisdiction; disapproving of Sullivan v. Wilmer Hut-
[2] Pleading 302        111.36                               chins Indep. Sch. Dist., 47 S.W.3d 529, Denton
                                                             County v. Howard, 22 S.W.3d 113, Tex. Dep't of
                                                             Mental Health & Mental Retardation v. Pearce, 16
302 Pleading
                                                             S.W.3d 456, Tex. State Employees Union/CWA Local
    302III Responses or Responsive Pleadings in
                                                             6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61,
General
                                                             DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d
        302III(B) Dilatory Pleas and Matter in Ab-
                                                             654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo
atement
                                                             v. State, Office of the Governor, 998 S.W.2d 337, City
          302k111 Decision of Issue, and Proceedings
                                                             of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep.
Thereon
                                                             Sch. Dist. v. Blue, 989 S.W.2d 441..
              302k111.36 k. Scope of inquiry and
matters considered in general. Most Cited Cases
   (Formerly 106k122)                                        [4] States 360     191.4(1)


     The plaintiff's allegations, in the petition, of the    360 States
amount in controversy control for subject matter ju-            360VI Actions
risdiction purposes, unless the party challenging ju-               360k191 Liability and Consent of State to Be
risdiction pleads and proves that the plaintiff's allega-    Sued in General
tions of the amount in controversy were made frau-                     360k191.4 Necessity of Consent
dulently for the purpose of obtaining jurisdiction.                       360k191.4(1) k. In general. Most Cited
                                                             Cases

[3] Pleading 302        111.36
                                                                  Sovereign immunity deprives a trial court of
                                                             subject matter jurisdiction for lawsuits in which the
302 Pleading
                                                             State or certain governmental units have been sued,
    302III Responses or Responsive Pleadings in
                                                             unless the State consents to suit.
General
        302III(B) Dilatory Pleas and Matter in Ab-
atement                                                      [5] States 360     191.1
          302k111 Decision of Issue, and Proceedings
Thereon                                                      360 States
              302k111.36 k. Scope of inquiry and                360VI Actions
matters considered in general. Most Cited Cases                     360k191 Liability and Consent of State to Be
   (Formerly 106k39)                                         Sued in General
                                                                       360k191.1 k. In general. Most Cited Cases
      If the alleged defect in subject matter jurisdiction
does not involve the amount in controversy, the party        States 360       208
alleging the defect by a plea to the jurisdiction is not
required to further allege the pleadings are fraudulent,     360 States
in order for the trial court to have authority to consider      360VI Actions
evidence outside of allegations in pleadings if con-                360k208 k. Pleading. Most Cited Cases
sideration of such additional evidence is necessary for
trial court to determine whether it has subject matter




                             © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                             Page 3


133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

     The State's immunity from liability is an affirma-     General
tive defense, while immunity from suit deprives a                     302III(B) Dilatory Pleas and Matter in Ab-
court of subject matter jurisdiction.                       atement
                                                                       302k104 Plea to the Jurisdiction
[6] Municipal Corporations 268           851                              302k104(1) k. In general. Most Cited
                                                            Cases
268 Municipal Corporations
    268XII Torts                                                Sovereign immunity from suit defeats a trial
        268XII(E) Condition or Use of Public Build-         court's subject matter jurisdiction, and thus is properly
ings and Other Property                                     asserted in a plea to the jurisdiction.
          268k851 k. Parks and public squares and
places. Most Cited Cases                                    [9] Courts 106        39


     The recreational use statute limits a governmental     106 Courts
unit's duty for premises defects, for which sovereign           106I Nature, Extent, and Exercise of Jurisdiction
immunity under the Texas Tort Claims Act is waived,         in General
to that which is owed a trespasser, i.e., not to injure             106I(A) In General
that person willfully, wantonly, or through gross neg-                 106k39 k. Determination of questions of
ligence. V.T.C.A., Civil Practice & Remedies Code §§        jurisdiction in general. Most Cited Cases
75.002(c, d), 101.021, 101.025, 101.058.
                                                                 The trial court must determine at its earliest op-
[7] Negligence 272        273                               portunity whether it has the constitutional or statutory
                                                            authority to decide the case, before allowing the liti-
272 Negligence                                              gation to proceed.
   272V Heightened Degrees of Negligence
       272k273 k. Gross negligence. Most Cited              [10] Courts 106        39
Cases
                                                            106 Courts
     Gross negligence involves two components: (1)              106I Nature, Extent, and Exercise of Jurisdiction
viewed objectively from the actor's standpoint, the act     in General
or omission complained of must involve an extreme                   106I(A) In General
degree of risk, considering the probability and mag-                   106k39 k. Determination of questions of
nitude of the potential harm to others, and (2) the actor   jurisdiction in general. Most Cited Cases
must have actual, subjective awareness of the risk
involved, but nevertheless proceed in conscious in-             Whether a court has subject matter jurisdiction is
difference to the rights, safety, or welfare of others.     a question of law.

[8] Pleading 302        104(1)                              [11] Appeal and Error 30          893(1)

302 Pleading                                                30 Appeal and Error
    302III Responses or Responsive Pleadings in                30XVI Review




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

        30XVI(F) Trial De Novo                                    302III Responses or Responsive Pleadings in
          30k892 Trial De Novo                               General
              30k893 Cases Triable in Appellate                       302III(B) Dilatory Pleas and Matter in Ab-
Court                                                        atement
                  30k893(1) k. In general. Most Cited                   302k111 Decision of Issue, and Proceedings
Cases                                                        Thereon
                                                                            302k111.38 k. Petition, complaint, dec-
     Whether a pleader has alleged facts that affirma-       laration or other pleadings. Most Cited Cases
tively demonstrate a trial court's subject matter juris-
diction is a question of law reviewed de novo.                    When a plea to the jurisdiction challenges the
                                                             pleadings, the court determines if the pleader has
[12] Courts 106        39                                    alleged facts that affirmatively demonstrate the court's
                                                             subject matter jurisdiction to hear the cause, con-
                                                             struing the pleadings liberally in favor of the pleader
106 Courts
                                                             and looking to the pleader's intent.
    106I Nature, Extent, and Exercise of Jurisdiction
in General
        106I(A) In General                                   [14] Pleading 302        111.48
           106k39 k. Determination of questions of
jurisdiction in general. Most Cited Cases                    302 Pleading
                                                                  302III Responses or Responsive Pleadings in
     Whether undisputed evidence of jurisdictional           General
facts establishes a trial court's subject matter jurisdic-           302III(B) Dilatory Pleas and Matter in Ab-
tion is a question of law; however, in some cases,           atement
disputed evidence of jurisdictional facts that also im-                302k111 Decision of Issue, and Proceedings
plicate the merits of the case may require resolution by     Thereon
the finder of fact.                                                         302k111.48 k. Amendments following
                                                             sustaining of pleas. Most Cited Cases

[13] Pleading 302        104(1)
                                                                  If the pleadings do not contain sufficient facts to
                                                             affirmatively demonstrate the trial court's subject
302 Pleading
                                                             matter jurisdiction but do not affirmatively demon-
    302III Responses or Responsive Pleadings in
                                                             strate incurable defects in jurisdiction, the issue is one
General
                                                             of pleading sufficiency, and the plaintiffs should be
        302III(B) Dilatory Pleas and Matter in Ab-
                                                             afforded the opportunity to amend following sustain-
atement
                                                             ing of plea to the jurisdiction.
          302k104 Plea to the Jurisdiction
              302k104(1) k. In general. Most Cited
Cases                                                        [15] Pleading 302        111.48


Pleading 302        111.38                                   302 Pleading
                                                                 302III Responses or Responsive Pleadings in
                                                             General
302 Pleading
                                                                     302III(B) Dilatory Pleas and Matter in Ab-




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

atement                                                     liminary hearing or await a fuller development of the
          302k111 Decision of Issue, and Proceedings        case, mindful that the determination of whether sub-
Thereon                                                     ject matter jurisdiction exists must be made as soon as
               302k111.48 k. Amendments following           practicable.
sustaining of pleas. Most Cited Cases
                                                            [18] Pleading 302        111.36
     If the pleadings affirmatively negate the existence
of subject matter jurisdiction, then a plea to the juris-   302 Pleading
diction may be granted without allowing the plaintiffs          302III Responses or Responsive Pleadings in
an opportunity to amend.                                    General
                                                                    302III(B) Dilatory Pleas and Matter in Ab-
[16] Appeal and Error 30          863                       atement
                                                                      302k111 Decision of Issue, and Proceedings
30 Appeal and Error                                         Thereon
   30XVI Review                                                           302k111.36 k. Scope of inquiry and
        30XVI(A) Scope, Standards, and Extent, in           matters considered in general. Most Cited Cases
General
          30k862 Extent of Review Dependent on                   In a case in which the jurisdictional challenge,
Nature of Decision Appealed from                            relating to subject matter jurisdiction, implicates the
             30k863 k. In general. Most Cited Cases         merits of the plaintiffs' cause of action and the plea to
                                                            the jurisdiction includes evidence beyond the allega-
     If a plea to the jurisdiction challenges the exis-     tions in the pleadings, the trial court reviews the re-
tence of jurisdictional facts, the appellate court con-     levant evidence to determine if a fact issue exists.
siders relevant evidence, beyond the allegations in the
pleadings, submitted by the parties when necessary to       [19] Judgment 228         178
resolve the subject matter jurisdiction issues raised, as
the trial court is required to do.                          228 Judgment
                                                               228V On Motion or Summary Proceeding
[17] Courts 106        39                                          228k178 k. Nature of summary judgment.
                                                            Most Cited Cases
106 Courts
    106I Nature, Extent, and Exercise of Jurisdiction           Purpose of summary judgments is to eliminate
in General                                                  patently unmeritorious claims and untenable defenses.
        106I(A) In General                                  Vernon's Ann.Texas Rules Civ.Proc., Rule 166a.
           106k39 k. Determination of questions of
jurisdiction in general. Most Cited Cases                   [20] Pleading 302        111.39(.5)

     When the consideration of a trial court's subject      302 Pleading
matter jurisdiction requires the examination of evi-            302III Responses or Responsive Pleadings in
dence beyond the allegations in the pleadings, the trial    General
court exercises its discretion in deciding whether the              302III(B) Dilatory Pleas and Matter in Ab-
jurisdictional determination should be made at a pre-




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

atement                                                    which the pleading requirement has been met and
           302k111 Decision of Issue, and Proceedings      evidence has been submitted to support the plea that
Thereon                                                    implicates the merits of the case, the appellate court
               302k111.39 Presumptions and Burden          takes as true all evidence favorable to the nonmovant
of Proof                                                   and indulges every reasonable inference and resolve
                 302k111.39(.5) k. In general. Most        any doubts in the nonmovant's favor.
Cited Cases
                                                           [23] Pleading 302        111.34
     After the State asserts and supports with evidence
that the trial court lacks subject matter jurisdiction,    302 Pleading
based on the State's sovereign immunity, the plaintiff         302III Responses or Responsive Pleadings in
is required, if the facts underlying the merits and        General
subject matter jurisdiction are intertwined, to show               302III(B) Dilatory Pleas and Matter in Ab-
that there is a disputed material fact regarding the       atement
jurisdictional issue.                                                302k111 Decision of Issue, and Proceedings
                                                           Thereon
[21] Appeal and Error 30         893(1)                                 302k111.34 k. Time for trial. Most Cited
                                                           Cases
30 Appeal and Error
   30XVI Review                                                 The scheduling of a hearing on a plea to the ju-
      30XVI(F) Trial De Novo                               risdiction is left to the discretion of the trial court,
         30k892 Trial De Novo                              which is in the best position to evaluate the appropri-
             30k893 Cases Triable in Appellate             ate time frame for hearing such a plea in any particular
Court                                                      case.
               30k893(1) k. In general. Most Cited
Cases                                                      [24] States 360      112.2(6)

    Appellate courts reviewing a challenge to a trial      360 States
court's subject matter jurisdiction review the trial          360III Property, Contracts, and Liabilities
court's ruling de novo.                                           360k112 Torts
                                                                     360k112.2 Nature of Act or Claim
[22] Appeal and Error 30         916(1)                                 360k112.2(6) k. State parks, injuries in.
                                                           Most Cited Cases
30 Appeal and Error
   30XVI Review                                                 Visitor to state park alleged sufficient facts re-
      30XVI(G) Presumptions                                garding Parks and Wildlife Department's gross neg-
         30k915 Pleading                                   ligence to survive a plea to the jurisdiction by the
            30k916 In General                              Department based solely on the pleadings, with the
               30k916(1) k. In general. Most Cited         Department alleging sovereign immunity under the
Cases                                                      Texas Tort Claims Act and recreational use statute, as
                                                           to park visitor's premises defect claim alleging she
    When reviewing a plea to the jurisdiction in           was seriously injured by falling tree limb at camp site;




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

visitor alleged that she specifically asked Depart-        268 Municipal Corporations
ment's employee for recommendation of safe camping             268XII Torts
location, that Department was aware of unpruned,                   268XII(E) Condition or Use of Public Build-
uninspected tree branches creating dangerous defec-        ings and Other Property
tive condition at camp site but failed to alleviate the              268k847 k. Nature and grounds of liability
danger, and that Department consciously and delibe-        of municipality as proprietor. Most Cited Cases
rately failed to warn visitor of the extremely danger-
ous condition, though visitor did not cite specific            Tort Claims Act's scheme of a limited waiver of
evidence that Department had actual knowledge that         immunity from suit does not allow plaintiffs to cir-
tree limb would fall. (Per Wainwright, J., for a plu-      cumvent the heightened standards of a premises defect
rality of the court.) V.T.C.A., Civil Practice & Re-       claim by re-casting the same acts as a claim relating to
medies Code §§ 75.002(c, d), 101.021, 101.025,             the negligent condition or use of tangible property.
101.058.                                                   V.T.C.A., Civil Practice & Remedies Code § 101.022.

[25] States 360      112.2(6)                              *220 Howard G. Baldwin, First Asst. Atty. Gen.,
                                                           Jeffrey S. Boyd, Thompson & Knight, Harry W.
360 States                                                 Deckard, Office of Attorney General, Nelly R. Her-
   360III Property, Contracts, and Liabilities             rera, Office of Attorney General, Julie Caruthers
       360k112 Torts                                       Parsley, Public Utility Com'n, and Lisa Royce Eskow,
          360k112.2 Nature of Act or Claim                 Attorney General's Office, Austin, for Petitioner.
             360k112.2(6) k. State parks, injuries in.
Most Cited Cases                                           Emmett R. Harris, Law Office of R. Emmett Harris,
                                                           Jerry Don Evans, Uvalde, TX, for Respondent.
     Parks and Wildlife Department did not act with
gross negligence, and thus, Department had sovereign       Justice WAINWRIGHT delivered the opinion of the
immunity under Texas Tort Claims Act and recrea-           Court with respect to parts I., II., III.A., III.B., III.C.2.,
tional use statute, as to state park visitor's premises    III.C.3., III.D., and IV., in which Chief Justice
defect claim alleging she was seriously injured by         PHILLIPS, Justice HECHT, Justice OWEN, and Jus-
falling tree limb at camp site; operations and main-       tice SMITH joined, and a plurality opinion with re-
tenance specialist for state park provided affidavit       spect to Part III.C.1., in which Chief Justice PHIL-
opining that tree limb fell because of unpredictable       LIPS, Justice HECHT, and Justice SMITH joined.
and unforeseeable phenomenon known as “sudden                   Maria Miranda sustained injuries after a tree limb
branch drop syndrome,” and there was no evidence           fell on her at Garner State Park in Uvalde County.
that such syndrome created extreme risk of danger or       Maria and her husband Ray sued the Texas Parks and
that Department had actual subjective knowledge of         Wildlife Department,FN1 alleging negligence and *221
that risk but nevertheless proceeded in conscious dis-     gross negligence. The Department filed a plea to the
regard for safety of others. V.T.C.A., Civil Practice &    jurisdiction, to which it attached supporting evidence,
Remedies Code §§ 75.002(c, d), 101.021, 101.025,           and argued that sovereign immunity barred the Mi-
101.058.                                                   randas' claims. The trial court denied the plea to the
                                                           jurisdiction and a unanimous court of appeals af-
[26] Municipal Corporations 268           847              firmed, holding that the trial court could not consider
                                                           evidence in support of the plea because the Depart-




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

ment did not allege that the Mirandas' pleadings were       ated by the Texas Parks and Wildlife Department. The
a sham for the purpose of wrongfully obtaining juris-       Mirandas asked a park ranger to recommend a camp-
diction. 55 S.W.3d 648, 652.                                site that would be safe for children. While standing
                                                            next to a picnic table at the recommended campsite, a
         FN1. The Mirandas originally named the             falling tree branch approximately twelve inches in
         “Texas Department of Parks and Wildlife” as        diameter and fifteen feet long struck Maria on the
         defendant but corrected the name to the            head. As a result of the incident, Maria suffered ex-
         “Texas Parks and Wildlife Department” in           tensive injuries to her head, neck, and spine. Ray
         their third amended petition. Because the          suffered mental anguish and other damages related to
         parties and lower courts retained the original     his wife's injuries.
         style of the case, we retain that style but in
         our opinion refer to the Department by its              On May 7, 1999, the Mirandas filed suit against
         correct name.                                      the Department, alleging negligence and later
                                                            amended their suit to add gross negligence claims.
     In accord with our decision in Bland Independent       With respect to the gross negligence claims, the Mi-
School District v. Blue, 34 S.W.3d 547 (Tex.2000), we       randas alleged that the Department “knew of the
hold that the trial court in this case was required to      dangers of its falling tree branches, failed to inspect,
examine the evidence on which the parties relied to         failed to prune, failed to alleviate or remove the dan-
determine if a fact issue existed regarding the alleged     ger, and consciously and deliberately failed to warn
gross negligence of the Department. Due to the un-          Plaintiffs of the extremely dangerous condition,”
usual confluence of standards erected by the Legisla-       “knew that its property contained hidden, dangerous
ture for waiver of sovereign immunity in the Texas          defect [sic] in that its tree branches which have not
Tort Claims Act and the recreational use statute,           been inspected or pruned regularly fall,” failed “to
plaintiffs must plead gross negligence to establish         make safe the dangerous condition of its campsite
subject matter jurisdiction. Further, if the plaintiffs'    trees,” and “failed to warn or make reasonably safe the
factual allegations are challenged with supporting          dangerous condition of which it was aware.” In addi-
evidence necessary to consideration of the plea to the      tion, the Mirandas alleged that the Department's
jurisdiction, to avoid dismissal plaintiffs must raise at   conduct was “willful, wanton, or grossly negligent.”
least a genuine issue of material fact to overcome the
challenge to the trial court's subject matter jurisdic-          Over a year after the Mirandas filed suit and after
tion. Because the Mirandas failed to raise a genuine        the parties conducted discovery, the Department filed
issue of material fact regarding the alleged gross neg-     a plea to the jurisdiction*222 and motion to dismiss,
ligence of the Department, we conclude that the trial       arguing that the Mirandas' allegations were insuffi-
court lacked subject matter jurisdiction over this          cient to invoke a waiver of the Department's sovereign
lawsuit. Therefore, we reverse the judgment of the          immunity under the standard established in the Tort
court of appeals and render judgment dismissing the         Claims Act and the recreational use statute.FN2 TEX.
case.                                                       CIV. PRAC. & REM. Code §§ 101.001–.109; id. §§
                                                            75.001–.004. The Department attached evidence in
       I. Factual and Procedural Background                 support of its plea. The Mirandas filed a response to
     The Mirandas' third amended petition contains          the Department's plea and their third amended original
the following allegations: In April 1998, the Mirandas      petition. In their response, the Mirandas stated that
and their family were camping and picnicking as             they relied on evidence attached to the Department's
paying guests at Garner State Park, owned and oper-         plea, including written discovery responses from the




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

Department and the deposition the Mirandas took of           tablish subject matter jurisdiction to proceed with the
assistant park manager Craig VanBaarle. At the trial         litigation.
court's hearing on the Department's plea, the parties
addressed the allegations in the Mirandas' third                  After originally dismissing the petition for want
amended original petition. The next day, the trial court     of jurisdiction, we granted the Department's petition
denied the plea. The Department filed this interlocu-        on motion for rehearing. Before we consider the
tory appeal claiming that the trial court erroneously        substantive issues presented, we first determine
denied its plea to the jurisdiction and motion to dis-       whether we have jurisdiction over this interlocutory
miss. Id. § 51.014(a)(8). The court of appeals affirmed      appeal.
the trial court's denial of the plea, stating that the Mi-
randas pled a premises defect cause of action based on
                                                                            II. Conflicts Jurisdiction
gross negligence under the recreational use statute. 55
                                                                  [1] When there is no dissent in the court of ap-
S.W.3d at 652. The court of appeals rejected the De-
                                                             peals, this Court has jurisdiction over interlocutory
partment's argument that there was no evidence to
                                                             appeals only if the court of appeals' decision “holds
support gross negligence, holding that “the trial court
                                                             differently” or conflicts with “a prior decision of
was not authorized to inquire into the substance of the
                                                             another court of appeals or of the supreme court on a
claims because the Department did not specifically
                                                             question of law material to a decision of the case.”
allege that the Mirandas' allegations were pled merely
                                                             TEX. GOV'T CODE 22.001(a)(2); FN3 *223Schein v.
as a sham for the purpose of wrongfully obtaining
                                                             Stromboe, 102 S.W.3d 675, 687 (Tex.2002); Tex.
jurisdiction.” Id. (citing Bland, 34 S.W.3d at 554 and
                                                             Natural Res. Conservation Comm'n v. White, 46
Rylander v. Caldwell, 23 S.W.3d 132, 135
                                                             S.W.3d 864, 867 (Tex.2001). Two decisions conflict
(Tex.App.-BAustin 2000, no pet.)).
                                                             for purposes of establishing our jurisdiction under
                                                             section 22.001(a)(2) when the two cases are so similar
         FN2. The Department also moved for sum-             that the decision in one case is necessarily conclusive
         mary judgment under Texas Rule of Civil             of the decision in the other. Schein, 102 S.W.3d at
         Procedure 166a(b)-(c)and 166a(I). The trial         687–88; White, 46 S.W.3d at 867. “The conflict must
         court denied both motions, but the Depart-          be on the very question of law actually involved and
         ment does not appeal the trial court's denial       determined, in respect of an issue in both cases, the
         of either motion.                                   test being whether one would operate to overrule the
                                                             other in case they were both rendered by the same
      The Department contends that the court of ap-          court.” Christy v. Williams, 156 Tex. 555, 298 S.W.2d
peals erred in relying solely upon the conclusory al-        565, 568–69 (1957) (citation omitted).
legations found in the Mirandas' petition to affirm the
trial courts denial of the Department's plea to the ju-               FN3. The Legislature amended section
risdiction and in disregarding the Department's evi-                  22.001 of the Government Code, effective
dence submitted with its plea. Specifically, the De-                  September 1, 2003. Act of June 11, 2003,
partment contends that gross negligence is a jurisdic-                78th Leg., R.S., Ch. 204 (codified as section
tional prerequisite to the Mirandas' claims and that its              22.001(e) of the Texas Government Code).
evidence affirmatively negates gross negligence. The                  The amendment, which applies to actions
Department further argues that because the Mirandas                   filed on or after September 1, 2003 and does
failed to plead specific facts alleging gross negligence              not govern our jurisdiction in this case, pro-
in their petition or introduce evidence to controvert the             vides that “one court holds differently from
evidence in the Department's plea, they failed to es-                 another when there is inconsistency in their




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         respective decisions that should be clarified      when necessary to resolve the jurisdictional issues
         to remove unnecessary uncertainty in the law       raised. 34 S.W.3d at 555; see also County of Cameron
         and unfairness to litigants.”                      v. Brown, 80 S.W.3d 549, 556–57 (Tex.2002) (con-
                                                            sidering pleadings and limited jurisdictional evidence
     The Department contends that this Court has ju-        in evaluating forseeability element of premises defect
risdiction over its interlocutory appeal because the        claim under the Tort Claims Act); Tex. Dep't of
court of appeals' decision here conflicts with our opi-     Criminal Justice v. Miller, 51 S.W.3d 583, 587
nion in Bland. In Bland, we held that a trial court “may    (Tex.2001) (examining pleadings and limited juris-
consider evidence and must do so when necessary to          dictional evidence to determine whether plaintiff af-
resolve the jurisdictional issues raised.” 34 S.W.3d at     firmatively demonstrated waiver of sovereign im-
555 (emphasis added). While recognizing that “a             munity); White, 46 S.W.3d at 868 (analyzing the facts
dilatory plea does not authorize an inquiry so far into     alleged by the plaintiff and to the extent relevant,
the substance of the claims presented that plaintiffs are   evidence submitted by the parties, in considering
required to put on their case simply to establish juris-    whether plaintiff stated a claim for injuries caused by
diction,” we explained that “because a court must not       “motor-driven equipment” under the Tort Claims
act without determining that it has subject-matter          Act). *224 In Bland, our preclusion of a trial court's
jurisdiction to do so, it should hear evidence as ne-       inquiry behind the facts pled in determining subject
cessary to determine the issue before proceeding with       matter jurisdiction was limited to the jurisdictional
the case.” Id. at 554. “The court should, of course,        amount. 34 S.W.3d at 554. Even this bar could be
confine itself to the evidence relevant to the jurisdic-    lifted, and evidence of the jurisdictional amount con-
tional issue.” Id. at 555.                                  sidered, in circumstances in which an adverse party
                                                            asserts that the amount in controversy was pled as a
                                                            sham to obtain jurisdiction.FN4 Id. That circumstance
     In Bland, we included examples of when relevant
                                                            is not at issue here. Thus, the court of appeals' holding
evidence may be considered in determining whether
                                                            conflicts with the same question of law that we de-
jurisdiction has been established. See id. at 554. We
                                                            cided in Bland, and the opinions cannot stand together.
also observed that when the defendant contends that
                                                            Schein, 102 S.W.3d at 689. This conflict provides the
the amount in controversy falls below the trial court's
                                                            basis for our jurisdiction to consider the merits of the
jurisdictional limit, the trial court should limit its
                                                            plea. See Tex. Gov't Code § 22.001(a)(2).
inquiry to the pleadings. Id. In that situation, we con-
cluded, “the plaintiff's pleadings are determinative
unless the defendant specifically alleges that the                   FN4. The plaintiff's allegations in the petition
amount was pleaded merely as a sham for the purpose                  of the amount in controversy control for ju-
of wrongfully obtaining jurisdiction.” Id.                           risdictional purposes unless the party chal-
                                                                     lenging jurisdiction pleads and proves that
                                                                     the plaintiff's allegations of the amount in
     [2][3] In this case, the court of appeals inaccu-
                                                                     controversy were made fraudulently for the
rately stated and then misapplied Bland's holding. 55
                                                                     purpose of obtaining jurisdiction. See Bland,
S.W.3d at 650–52. The court of appeals held that an
                                                                     34 S.W.3d at 554; Cont'l Coffee Prods. Co. v.
inquiry behind the factual allegations pled in support
                                                                     Cazarez, 937 S.W.2d 444, 449 (Tex.1996);
of subject matter jurisdiction was improper unless the
                                                                     Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263,
Department specifically alleged that the Mirandas'
                                                                     263 (1886). We disapprove of courts of ap-
allegations were pled merely as a sham to wrongfully
                                                                     peals' holdings that require a party to allege
obtain jurisdiction. Id. at 652. This conflicts with our
                                                                     that pleadings, other than the jurisdictional
holding in Bland that a court must consider evidence




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         amount, are fraudulent in order for the trial       Texas Tort Claims Act provides a limited waiver of
         court to consider evidence, when otherwise          sovereign immunity. TEX. CIV. PRAC. &
         necessary, of whether it has jurisdiction over      REM.CODE §§ 101.001–.109. Sovereign immunity
         a case. See, e.g., Sullivan v. Wilmer Hutchins      includes two distinct principles, immunity from suit
         Indep. Sch. Dist., 47 S.W.3d 529, 531               and immunity from liability. Jones, 8 S.W.3d at 638;
         (Tex.App.-Dallas 2000), rev'd on other              Fed. Sign, 951 S.W.2d at 405. Immunity from liability
         grounds, 51 S.W.3d 293 (Tex.2001); Denton           is an affirmative defense, while immunity from suit
         County v. Howard, 22 S.W.3d 113, 117–18             deprives a court of subject matter jurisdiction. Jones, 8
         (Tex.App.-Fort Worth 2000, no pet.); Tex.           S.W.3d at 638; Fed. Sign, 951 S.W.2d at 405. The Tort
         Dep't of Mental Health & Mental Retarda-            Claims Act creates a unique statutory scheme in which
         tion v. Pearce, 16 S.W.3d 456, 460                  the two immunities are co-extensive: “Sovereign
         (Tex.App.-Waco 2000, pet. dism'd w.o.j.);           immunity to suit is waived and abolished to the extent
         Tex. State Employees Union/CWA Local                of liability created by this chapter.” TEX. CIV. PRAC.
         6184 v. Tex. Workforce Comm'n, 16 S.W.3d            & REM.CODE § 101.025(a); State ex rel. State Dep't
         61, 65, 66 (Tex.App.-Austin 2000, no pet.);         of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d
         DalMac Constr. Co. v. Tex. A & M Univ., 35          322, 326 (Tex.2002); Miller, 51 S.W.3d at 587. Thus,
         S.W.3d 654, 655 n. 1 (Tex.App.-Austin               the Department is immune from suit unless the Tort
         1999), rev'd on other grounds, sub nom. Gen.        Claims *225 Act expressly waives immunity. See
         Servs. Comm'n v. Little–Tex Insulation Co.,         TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A)
         Inc., 39 S.W.3d 591 (Tex.2001); Univ. of            (defining a governmental unit to include “all depart-
         Houston v. Elthon, 9 S.W.3d 351, 356                ments” of the state), 101.021, 101.025; White, 46
         (Tex.App.-Houston [14th Dist.] 1999, pet.           S.W.3d at 868.
         dism'd w.o.j.); Curbo v. State, Office of the
         Governor, 998 S.W.2d 337, 341–42                         The Tort Claims Act expressly waives sovereign
         (Tex.App.-Austin 1999, no pet.); City of Sa-        immunity in three areas: “ ‘use of publicly owned
         ginaw v. Carter, 996 S.W.2d 1, 3                    automobiles, premises defects, and injuries arising out
         (Tex.App.-Fort Worth 1999, pet. dism-d              of conditions or use of property.’ ” Brown, 80 S.W.3d
         w.o.j.); Bland Indep. Sch. Dist. v. Blue, 989       at 554 (quoting Tex. Dep't of Transp. v. Able, 35
         S.W.2d 441, 447 (Tex.App.-Dallas 1999),             S.W.3d 608, 611 (Tex.2000)); see TEX. CIV. PRAC.
         rev'd, 34 S.W.3d 547 (Tex.2000).                    & REM CODE § 101.021. Section 101.058 of the Tort
                                                             Claims Act further modifies a governmental unit's
   III. The Department's Plea to the Jurisdiction            waiver of immunity from suit by imposing the limita-
                A. Sovereign Immunity                        tions of liability articulated in the recreational use
      [4][5] In Texas, sovereign immunity deprives a         statute. TEX. CIV. PRAC. & REM.CODE § 101.058
trial court of subject matter jurisdiction for lawsuits in   (“To the extent that Chapter 75 limits the liability of a
which the state or certain governmental units have           governmental unit under circumstances in which the
been sued unless the state consents to suit. Tex. Dep't      governmental unit would be liable under [the Tort
of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999);           Claims Act], Chapter 75 controls.”).
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405
(Tex.1997), superseded by statute on other grounds as            The recreational use statute provides:
stated in Little–Tex Insulation Co., 39 S.W.3d at 593;
Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980);
                                                                 If an owner, lessee, or occupant of real property
Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The
                                                               other than agricultural land gives permission to




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

  another to enter the premises for recreation, the          actual, subjective awareness of the risk involved, but
  owner, lessee, or occupant, by giving the permis-          nevertheless proceed in conscious indifference to the
  sion, does not:                                            rights, safety, or welfare of others.” Louisiana–Pacific
                                                             Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999)
    (1) assure that the premises are safe for that pur-      (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23
  pose;                                                      (Tex.1994)).


     (2) owe to the person to whom permission is                      FN5. The recreational use statute does not
  granted a greater degree of care than is owed to a                  limit the liability of an owner, lessee, or oc-
  trespasser on the premises; or                                      cupant “who has been grossly negligent or
                                                                      has acted with malicious intent or in bad
                                                                      faith.” TEX. CIV. PRAC. & REM.CODE
    (3) assume responsibility or incur liability for any
                                                                      75.002(d).
  injury to any individual or property caused by any
  act of the person to whom permission is granted.
                                                                              B. Standard of Review
                                                                   [8][9] Sovereign immunity from suit defeats a
     Id. § 75.002(c)(1)-(3). Recreational use includes
                                                             trial court's subject matter jurisdiction*226 and thus is
camping and picnicking, the activities in which the
                                                             properly asserted in a plea to the jurisdiction. Jones, 8
Mirandas were engaged at the state park when Maria
                                                             S.W.3d at 637; see also Hosner, 1 Tex. at 769 (re-
was injured. Id. § 75.001(3). As applied to a govern-
                                                             cognizing as appropriate procedure the challenge of a
mental unit, the recreational use statute limits liability
                                                             courts subject matter jurisdiction through a plea to the
even if the person pays to enter the premises. Id. §
                                                             jurisdiction). The trial court must determine at its
75.003(c) (excepting governmental units from the
                                                             earliest opportunity whether it has the constitutional or
chapter's exclusion of landowners who charge a fee
                                                             statutory authority to decide the case before allowing
for recreational use of land).
                                                             the litigation to proceed. Austin & N.W.R. Co. v.
                                                             Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903)
     [6][7] The recreational use statute limits the De-
                                                             (“[T]here can be no doubt that the courts of Texas
partment's duty for premises defects to that which is
                                                             must look to the Constitution of this state, the enact-
owed a trespasser.FN5 Id. The limited duty owed a
                                                             ments of the Legislature, and the common law for
trespasser is not to injure that person willfully, wan-
                                                             their authority to proceed ....);” see also State Bar of
tonly, or through gross negligence. Tex. Utils. Elec.
                                                             Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994) (“As
Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997).
                                                             a general proposition, before a court may address the
Therefore, a governmental unit waives sovereign
                                                             merits of any case, the court must have jurisdiction
immunity under the recreational use statute and the
                                                             over the party or the property subject to the suit, ju-
Tort Claims Act only if it is grossly negligent. TEX.
                                                             risdiction over the subject matter, jurisdiction to enter
CIV. PRAC. & REM.CODE § 75.002(c)-(d); City of
                                                             the particular judgment, and capacity to act as a
Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex.2002);
                                                             court.)”; Gentry v. Bowser, 2 Tex.Civ.App. 388, 21
Timmons, 947 S.W.2d at 193. “[G]ross negligence
                                                             S.W. 569, 570 (Fort Worth 1893, no writ) (“Certainly
involves two components: (1) viewed objectively
                                                             the court has the right to hear the necessary evidence
from the actor's standpoint, the act or omission com-
                                                             to enable it to decide as to whether or not it has power
plained of must involve an extreme degree of risk,
                                                             to try the case it is sought to have it adjudicate,
considering the probability and magnitude of the po-
                                                             whether the allegations disclosing such want of juris-
tential harm to others; and (2) the actor must have
                                                             diction appear in the petition of the plaintiff, or in the




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

plea to the jurisdiction by the defendant.”).                 Id. If the pleadings do not contain sufficient facts to
                                                              affirmatively demonstrate the trial courts jurisdiction
     [10][11][12] Whether a court has subject matter          but do not affirmatively demonstrate incurable defects
jurisdiction is a question of law. Tex. Natural Res.          in jurisdiction, the issue is one of pleading sufficiency
Conservation Comm'n v. IT–Davy, 74 S.W.3d 849,                and the plaintiffs*227 should be afforded the oppor-
855 (Tex.2002). Whether a pleader has alleged facts           tunity to amend. Brown, 80 S.W.3d at 555. If the
that affirmatively demonstrate a trial court's subject        pleadings affirmatively negate the existence of juris-
matter jurisdiction is a question of law reviewed de          diction, then a plea to the jurisdiction may be granted
novo. Likewise, whether undisputed evidence of ju-            without allowing the plaintiffs an opportunity to
risdictional facts establishes a trial court's jurisdiction   amend. Id.
is also a question of law. However, in some cases,
disputed evidence of jurisdictional facts that also im-             [16][17][18] However, if a plea to the jurisdiction
plicate the merits of the case may require resolution by      challenges the existence of jurisdictional facts, we
the finder of fact. See Gates v. Pitts, 291 S.W. 948,         consider relevant evidence submitted by the parties
949 (Tex.Civ.App.-Amarillo 1927, no writ); Gentry,            when necessary to resolve the jurisdictional issues
21 S.W. at 570; see also Valentin v. Hosp. Bella Vista,       raised, as the trial court is required to do. See Bland,
254 F.3d 358, 363 n. 3 (1st Cir.2001) (observing that         34 S.W.3d at 555 (confining the evidentiary review to
in certain situations, the predicate facts can be so          evidence that is relevant to the jurisdictional issue).
inextricably linked to the merits of the controversy          When the consideration of a trial court's subject matter
that the district court may “defer resolution of the          jurisdiction requires the examination of evidence, the
jurisdictional issue until the time of trial”); Cameron       trial court exercises its discretion in deciding whether
v. Children's Hosp. Med. Ctr., 131 F.3d 1167, 1170            the jurisdictional determination should be made at a
(6th Cir.1997) (“[W]hether a district court has subject       preliminary hearing or await a fuller development of
matter jurisdiction is a question for the court, not a        the case, mindful that this determination must be made
jury, to decide, even if the determination requires           as soon as practicable. Id. at 554. Then, in a case in
making factual findings, unless the jurisdictional issue      which the jurisdictional challenge implicates the me-
is inextricably bound to the merits of the case.”); Wil-      rits of the plaintiffs' cause of action and the plea to the
liamson v. Tucker, 645 F.2d 404, 413 n. 6, 416 n. 10          jurisdiction includes evidence, the trial court reviews
(5th Cir.1981) (suggesting that a federal district            the relevant evidence to determine if a fact issue ex-
court's role in determining jurisdictional facts may be       ists. The United States Supreme Court and all of the
more limited in cases in which the jurisdictional attack      federal circuits have authorized federal district courts
implicates the merits of plaintiff's cause of action). In     to consider evidence in deciding motions to dismiss
this case, we address a plea to the jurisdiction in which     for lack of subject matter jurisdiction. See
undisputed evidence implicates both the subject mat-          FED.R.CIV.P. 12(b)(1); Land v. Dollar, 330 U.S. 731,
ter jurisdiction of the court and the merits of the case.     735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209, (1947),
                                                              overruled by implication on other grounds by Larson
     [13][14][15] When a plea to the jurisdiction             v. Domestic & Foreign Commerce Corp., 337 U.S.
challenges the pleadings, we determine if the pleader         682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (observing
has alleged facts that affirmatively demonstrate the          that as a general rule, district courts have authority to
court's jurisdiction to hear the cause. Tex. Ass'n of Bus.    inquire “into the facts as they exist” “by affidavits or
v. Tex. Air Control Bd., 852 S.W.2d 440, 446                  otherwise” as well as the pleadings when determining
(Tex.1993). We construe the pleadings liberally in            whether the court has subject matter jurisdiction).FN6 If
favor of the plaintiffs and look to the pleaders' intent.     the evidence*228 creates a fact question regarding the




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

jurisdictional issue, then the trial court cannot grant              Rule 12(b)(1) motion); Williams v. United
the plea to the jurisdiction, and the fact issue will be             States, 50 F.3d 299, 304 (4th Cir.1995) (“In
resolved by the fact finder. However, if the relevant                ruling on a Rule 12(b)(1) motion, the court
evidence is undisputed or fails to raise a fact question             may consider exhibits outside the plead-
on the jurisdictional issue, the trial court rules on the            ings.”); Moran v. Kingdom of Saudi Arabia,
plea to the jurisdiction as a matter of law.                         27 F.3d 169, 172 (5th Cir.1994) (acknowl-
                                                                     edging a trial court's “authority to consider
         FN6. See, e.g., Harris v. P.A.M. Transp.,                   evidence presented beyond the pleadings ...
         Inc., 339 F.3d 635, 637 n. 4 (8th Cir.2003)                 which may include considering affidavits,
         (acknowledging district court's authority to                allowing further discovery, hearing oral tes-
         consider matters outside the pleadings when                 timony, conducting an evidentiary hearing”);
         subject matter jurisdiction is challenged un-               Herbert v. Nat'l Acad. of Sci., 974 F.2d 192,
         der Rule 12(b)(1)); Johnson v. Apna Ghar,                   197 (D.C.Cir.1992) ( “[W]here necessary,
         Inc., 330 F.3d 999, 1001 (7th Cir.2003)                     the court may consider the complaint sup-
         (observing that when considering a motion                   plemented by undisputed facts evidenced in
         for dismissal for lack of subject matter juris-             the record, or the complaint supplemented by
         diction, “ ‘[t]he district court may properly ...           undisputed facts plus the court's resolution of
         view whatever evidence has been submitted                   disputed facts.”); Lawrence v. Dunbar, 919
         on the issue’ ” (quoting Long v. Shorebank                  F.2d 1525, 1529 (11th Cir.1990) (noting that
         Dev. Corp., 182 F.3d 548, 554 (7th                          “substantial authority” acknowledges the
         Cir.1999))); Sizova v. Nat'l Inst. of Standards             trial court's freedom to consider disputed
         & Tech., 282 F.3d 1320, 1324 (10th                          evidence when deciding a Rule 12(b)(1)
         Cir.2002) (noting district court's “ ‘wide                  motion) (citations omitted); Gould, Inc. v.
         discretion to allow affidavits, other docu-                 Pechiney Ugine Kuhlmann, 853 F.2d 445,
         ments, and a limited evidentiary hearing to                 451 (6th Cir.1988) (“[T]he district court may
         resolve disputed jurisdictional facts under                 consider affidavits, allow discovery, hear
         Rule 12(b)(1)’ ” (quoting Holt v. United                    oral testimony, order an evidentiary hearing,
         States, 46 F.3d 1000, 1003 (10th Cir.1995)));               or even postpone its determination if the
         Valentin, 254 F.3d at 363 (district court has               question of jurisdiction is intertwined with
         “broad authority to order discovery, consider               the merits.”); Mortensen v. First Fed. Sav. &
         extrinsic evidence, and hold evidentiary                    Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)
         hearings in order to determine its own juris-               (acknowledging that “substantial authority”
         diction”); Ass'n of Am. Med. Colls. v. United               allows trial courts to weigh the evidence of
         States, 217 F.3d 770, 778 (9th Cir.2000) (“                 disputed facts when considering a Rule
         ‘district court obviously does not abuse its                12(b)(1) motion); see also 5A Charles Alan
         discretion by looking to ... extra-pleading                 Wright & Arthur R. Miller, Federal Practice
         material’ ” in deciding a Rule 12(b)(1) mo-                 and Procedure § 1364, at 468–469 (2d
         tion to dismiss for lack of subject matter ju-              ed.1990).
         risdiction (quoting St. Clair v. City of Chico,
         880 F.2d 199, 201 (9th Cir.1989))); Maka-                [19][20] We acknowledge that this standard
         rova v. United States, 201 F.3d 110, 113 (2d        generally mirrors that of a summary judgment under
         Cir.2000) (allowing district court to “refer to     Texas Rule of Civil Procedure 166a(c). We adhere to
         evidence outside the pleadings” to resolve a        the fundamental precept that a court must not proceed




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

on the merits of a case until legitimate challenges to its   trum, Inc. v. Martinez, 941 S.W.2d 910, 911
jurisdiction have been decided. This standard accom-         (Tex.1997). We indulge every reasonable inference
plishes this goal and more. It also protects the interests   and resolve any doubts in the nonmovant's favor. Id.
of the state and the injured claimants in cases like this
one, in which the determination of the subject matter              [23] In his dissent JUSTICE JEFFERSON criti-
jurisdiction of the court implicates the merits of the       cizes this standard of review as depriving plaintiffs
parties' cause of action. The standard allows the state      responding to a plea of the procedural protections of a
in a timely manner to extricate itself from litigation if    motion for summary judgment, including a twen-
it is truly immune. However, by reserving for the fact       ty-*229 one day notice period or an adequate time to
finder the resolution of disputed jurisdictional facts       conduct discovery. TEX.R. CIV. P. 166a(c), 166a(i).
that implicate the merits of the claim or defense, we        However, the scheduling of a hearing of a plea to the
preserve the parties' right to present the merits of their   jurisdiction is left to the discretion of the trial court,
case at trial. Similar to the purpose of a plea to the       which is in the best position to evaluate the appropri-
jurisdiction, which is to defeat a cause of action for       ate time frame for hearing a plea in any particular case.
which the state has not waived sovereign immunity            This procedure does not dramatically differ from that
(usually before the state has incurred the full costs of     outlined in Texas Rule of Civil Procedure 120a go-
litigation), the purpose of summary judgments in             verning special appearances. Although Rule 120a
Texas is “ ‘to eliminate patently unmeritorious claims       requires any affidavits to be used at a hearing on a
and untenable defenses.’ ” Casso v. Brand, 776               special appearance to be served at least seven days
S.W.2d 551, 556 (Tex.1989) (quoting City of Houston          before the hearing, it does not specify the length of a
v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5         notice period and is therefore presumably subject to
(Tex.1979)). By requiring the state to meet the sum-         the three-day notice period of Rule 21. TEX.R. CIV.
mary judgment standard of proof in cases like this one,      P. 21. Rule 120a allows the trial court to order a con-
we protect the plaintiffs from having to “put on their       tinuance and allow time for discovery if the devel-
case simply to establish jurisdiction.” Bland, 34            opment of the case requires it. Nothing prevents a trial
S.W.3d at 554. Instead, after the state asserts and          court from doing the same with a plea to the jurisdic-
supports with evidence that the trial court lacks subject    tion where evidence is necessary.
matter jurisdiction, we simply require the plaintiffs,
when the facts underlying the merits and subject
                                                                  Many other procedures in Texas practice ranging
matter jurisdiction are intertwined, to show that there
                                                             from a trial court's rulings on motions to strike inter-
is a disputed material fact regarding the jurisdictional
                                                             vention to the timing of a class certification decision to
issue. See Huckabee v. Time Warner Entm't Co. L.P.,
                                                             even the alteration of the summary judgment notice
19 S.W.3d 413, 420 (Tex.2000); Phan Son Van v.
                                                             periods—also “depend[ ] ... upon the wise exercise of
Pena, 990 S.W.2d 751, 753 (Tex.1999).
                                                             discretion by the trial court.” Union Carbide Corp. v.
                                                             B.D. Moye, 798 S.W.2d 792, 794 (Tex.1990) (Hecht,
     [21][22] Appellate courts reviewing a challenge         J., concurring); see, e.g., TEX.R. CIV. P. 42(c)(1)(A)
to a trial court's subject matter jurisdiction review the    (directing a trial court to determine whether a suit may
trial court's ruling de novo. IT–Davy, 74 S.W.3d at          be maintained as a class action “at an early practicable
855. When reviewing a plea to the jurisdiction in            time”); TEX.R. CIV. P. 166a(c) (“Except on leave of
which the pleading requirement has been met and              court, with notice to opposing counsel, the motion and
evidence has been submitted to support the plea that         any supporting affidavits shall be filed and served at
implicates the merits of the case, we take as true all       least twenty-one days before the time specified for
evidence favorable to the nonmovant. See Sci. Spec-          hearing.”) (emphasis added); Guaranty Fed. Sav.




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

Bank v. Horseshoe Operating Co., 793 S.W.2d 652,            falling on Maria Miranda constitutes an allegation of a
657 (Tex.1990) (observing that the trial court has          condition or use of real property and is an allegation of
broad discretion in ruling on a motion to strike inter-     a premises defect.
vention, even though Rule 60 does not provide explicit
guidelines for the scheduling of a hearing or the                To state a claim under the recreational use statute,
evaluation of evidence). Thus, the Texas civil proce-       the Mirandas must allege sufficient facts to establish
dural scheme entrusts many scheduling and proce-            that the Department was grossly negligent. See TEX.
dural issues to the sound discretion of the trial court,    CIV. PRAC. & REM.CODE §§ 75.002(c)-(d),
subject to appellate review. Of course, Texas practice      101.021, 101.025, 101.058. The Mirandas contend
and rules also allow the parties to request additional      that both their allegations and the evidence presented
time to prepare for certain hearings or to conduct          on the plea establish claims of gross negligence.
discovery upon a showing of sufficient cause, and the       Looking first to the relevant factual allegations in the
court's ruling on such a motion is reviewed for an          third amended petition, the Mirandas claim that (1)
abuse of discretion. See, e.g., TEX.R. CIV. P. 166a(g),     they specifically asked the Department's employee for
247, 251, 252. We note, also, that federal practice does    a recommendation of a safe camping location; (2) at
not prescribe a procedure for the consideration of          the campsite, Maria was struck by a falling tree branch
jurisdictional evidence but instead allows the district     that severely injured her; (3) the unpruned, unins-
courts to tailor a method to suit the requirements of the   pected tree branches created a dangerous, defective
cases before them. Land, 330 U.S. at 735 n. 4, 67 S.Ct.     condition on the premises of which the Department
1009; Moran, 27 F.3d at 172. In any event, the Mi-          was aware; (4) the Department knew of the dangers of
randas do not complain that they had an inadequate          its falling tree branches but failed to inspect, prune,
opportunity to conduct sufficient discovery, nor did        alleviate the dangers, or otherwise make safe the
they request a continuance to do so.                        dangerous conditions of its trees; (5) the Department
                                                            consciously and deliberately failed to warn the Mi-
C. Waiver of Immunity Based on Premises Defects             randas of the extremely dangerous condition; and (6)
             1. The Mirandas' Pleadings                     the Department's conduct was willful, wanton, or
     [24] The Mirandas contend that their pleadings         grossly negligent. A liberal construction of these al-
fall within the Tort Claims Act's waiver of immunity        legations, as required, demonstrates that the Mirandas
for both premises defects and injuries arising out of       stated a claim against the Department for gross neg-
conditions or use of property. The Act provides that a      ligence. This conclusion should not be read as a sug-
state agency is liable for injury and death caused by “a    gestion that the Department has a duty to inspect every
condition or use of tangible personal or real property if   tree in each of the many parks that the Department
the governmental unit would, were it a private person,      manages. Instead, in this case, the Mirandas alleged
be liable to the claimant according to Texas law.”          sufficient facts to survive a plea to the jurisdiction
TEX. CIV. PRAC. & REM.CODE § 101.021(2). The                based solely on the pleadings.
Mirandas' pleadings allege injuries caused by a falling
tree limb, which falls under the definition of real              JUSTICE JEFFERSON'S dissent contends that
property i.e., “ ‘land, and generally whatever is erected   the Mirandas' third amended petition does not state a
or growing upon or affixed *230 to land.’ ” San An-         claim for gross negligence because the allegations are
tonio Area Found. v. Lang, 35 S.W.3d 636, 640               conclusory and do not assert enough specific facts
(Tex.2000) (quoting Chastain v. Koonce, 700 S.W.2d          alleging that the Department had “actual subjective
579, 584 (Tex.1985) (Gonzalez, J., concurring)). The        awareness of the risk involved and proceeded, never-
Mirandas' allegation of an injury caused by a tree limb     theless, with conscious indifference. He suggests that




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

to state a claim the Mirandas should have pled that the
Department had actual knowledge that the branch                  JUSTICE JEFFERSON also contends that the
would fall yet nevertheless instructed Maria to camp        Mirandas are entitled to replead. As a practical matter,
beneath it.” 133 S.W.3d at 242. The pleading hurdle         the Mirandas have already repled to try to cure the
he seeks to erect would be groundbreaking, indeed,          “defects” that JUSTICE JEFFERSON raises. The
extending beyond current requirements under our             Mirandas no doubt filed their third amended petition,
rules of civil procedure and case law. Rules 45 and 47      in which allegations of gross negligence were raised
require that the original pleadings give a short state-     for the first time in this lawsuit, in response to the
ment of the cause of action sufficient to give the op-      Department's plea to the jurisdiction. However, be-
posing party fair notice of the claim involved. TEX.R.      cause the Mirandas' third amended petition satisfies
CIV. P. 45, 47; Paramount Pipe & Supply Co., Inc. v.        the notice pleading requirements of our procedural
Muhr, 749 S.W.2d 491, 494 (Tex.1988); Castleberry           rules, the Mirandas do not need, nor are they entitled
v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666                 to, an opportunity to replead. See TEX.R. CIV. P. 47.
(Tex.1981). Rule 45 does not require that the plaintiff
set out in his pleadings the evidence upon which he
                                                                        2. The Department's Evidence
relies to establish his asserted cause of action. Muhr,
                                                                 [25] The Department challenged the Mirandas'
749 S.W.2d at 494–95. While it is clear that “[t]he
                                                            pleadings and also submitted evidence to controvert
party suing the governmental entity must establish the
                                                            the factual allegations supporting jurisdiction. We
state's consent, which may be alleged either by refer-
                                                            consider the relevant evidence submitted to decide this
ence to a statute or to express legislative permission,”
                                                            jurisdictional challenge. See Bland, 34 S.W.3d at 555.
Jones, 8 S.W.3d at 638, and that “[m]ere reference to
                                                            The Department attached the deposition testimony of
the Tort Claims Act does not establish the state's
                                                            Craig VanBaarle, the assistant park manager for
consent to be sued and thus is not enough to confer
                                                            Garner State Park, to its plea to the jurisdiction.
jurisdiction on the trial court,” Miller, 51 S.W.3d at
                                                            VanBaarle testified that while the park normally in-
587, the Mirandas' pleadings allege sufficient facts to
                                                            spects and maintains its trees, tree limbs are only
bring their claims under the recreational use statute
                                                            pruned or trimmed if they appear to be dead. Ac-
and the Tort Claims Act.
                                                            cording to VanBaarle, the tree limb that fell on Maria
                                                            was living. He testified that both dead and living tree
     *231 Although facts alleged in a petition should       limbs have fallen at various locations in the park. He
not be improperly stretched to state a claim for gross      testified that the park knows that tree limbs can fall
negligence, JUSTICE JEFFERSON'S pleading stan-              and have fallen on approximately twenty occasions.
dard for gross negligence would be virtually imposs-        However, no one had ever been injured by falling tree
ible to meet, even when grossly negligent conduct           limbs. He also testified that the tree limb that injured
occurred, absent an admission of liability. His stan-       Maria Miranda fell from fifty feet above the campsite
dard requires specific factual allegations in an original   and that the park employees would not have been able
petition of what the defendant knew and thought i.e.,       to see the limb clearly without climbing the tree even
its state of mind. His pleading hurdle would require        if the limb had been dead.
discovery into the very extrinsic facts which he be-
moans consideration of in the plea to the jurisdiction.
                                                                 In addition, the Department attached the affidavit
The Mirandas' third amended petition provided suffi-
                                                            of Roy B. Inks, operations and maintenance specialist
cient notice to ascertain the nature and basic issues of
                                                            at Garner State Park. Inks' responsibilities included
the controversy and the evidence that probably would
                                                            supervision of park maintenance including preserva-
be relevant.
                                                            tion and maintenance of trees at campsites. According




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

to his affidavit, Inks inspected the campsite after the     failed to raise a fact question regarding the Depart-
accident. His examination of the tree and the fallen        ment's alleged gross negligence. The Mirandas fall
branch failed to reveal any indication that the branch      short of satisfying the requirements for the Legisla-
was dead, decaying, or in need of pruning. Inks opined      ture's limited grant of a waiver of sovereign immunity
that there was no reason to conclude that the tree          from suit under the applicable statutes. Therefore, the
presented a dangerous or hazardous condition. Inks          trial court lacked subject matter jurisdiction.
further opined that the branch that struck Maria “broke
away from the tree as a result of an unpredictable and                              3. Dissent
unforseeable phenomenon known as ‘sudden branch                   In his dissent, JUSTICE BRISTER takes the view
drop syndrome.’ ” Inks explained that “[i]t would be        that all pleas to jurisdiction based on immunity must
rare for anyone to be able to predict which branches        take the form of two “standard” or “established” mo-
will fall and which ones will not” as a result of this      tions—either special exceptions or motions for sum-
phenomenon. The Mirandas cite the Department's              mary judgment. 133 S.W.3d at 239–40. This approach
evidence as proof that the Department knew about            might be appropriate, if we were starting from scratch.
sudden branch drop syndrome and did nothing about           Given that we are not writing on a blank slate, that
it, thus establishing gross negligence. The Mirandas        pleas have been a useful procedural vehicle in Texas
did not cite any controverting evidence in their re-        for over 150 years, and that use of its counterpart
sponse to the Department's plea.                            (Federal Rule of Civil Procedure 12(b)(1)) to chal-
                                                            lenge subject matter jurisdiction in the federal judicial
     *232 We first examine this evidence to determine       system when evidence is involved has been authorized
whether it establishes that the Department was grossly      by every federal circuit court, the Court declines to
negligent. We have observed that with regard to the         abolish by written opinion such pleas to the jurisdic-
subjective component of gross negligence, it is the         tion.
defendant's state of mind whether the defendant knew
about a peril but nevertheless acted in a way that               The plea to the jurisdiction was included in pro-
demonstrated that he did not care about the conse-          cedural rules promulgated by this Court in 1877 and
quences that separates ordinary negligence from gross       has been used as a procedural vehicle to challenge
negligence. Louisiana–Pacific, 19 S.W.3d at 246–47.         subject matter jurisdiction in trial courts for over a
We search the record for evidence that the Depart-          century and a half. See TEX.R. CIV. P. 85; TEX.
ment's acts or omissions demonstrate that it did not        DIST. CT. R. 7, 47 Tex. 597, 617 (1877); Hosner, 1
care about the consequences to the Mirandas of a            Tex. at 769. In fact, as early as 1893, Texas courts
known extreme risk of danger. The Mirandas fail to          indicated that evidentiary challenges to subject matter
point to any evidence, and the record contains no           jurisdiction raised in pleas to the jurisdiction should be
evidence, that shows that sudden branch drop syn-           considered by trial courts. See, e.g., Gates, 291 S.W. at
drome constitutes an extreme risk of danger or that the     949; Gentry, 21 S.W. at 570. With such a long lineage,
Department had actual, subjective knowledge of that         one wonders why a plea to jurisdiction does not qual-
risk but nevertheless proceeded in conscious disregard      ify as a “standard” or “established” motion. Perhaps a
for the safety of others. Nor is there any evidence that    second mention in the Texas Rules of Civil Procedure
the Department could have taken any reasonable steps        would suffice.
to minimize the dangers of an “unforseeable” and
“unpredictable” phenomenon. We conclude that the
                                                                We decide that refining the rules for considering a
evidence in the record establishes that the Department
                                                            plea supported by evidence is a better approach than
was not grossly negligent and that the Mirandas have
                                                            eliminating the motion. This approach is consistent




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

with precedent, is not disruptive to civil practice going   preting the premises defect provision to further limit
back more than a century, and furthers the legislative      the waiver of immunity for negligent use or condition
purpose of timely adjudicating subject matter juris-        of real property). Other Texas courts have recognized
diction when the immunity and liability facts are the       that to allow plaintiffs to characterize premises defect
same.                                                       claims as claims caused by the negligent condition or
                                                            use of personal or real property would render the
     There is a suggestion in the dissents that con-        Legislature's heightened requirements for premises
firming in this opinion the authority of trial courts to    defect claims meaningless. See, e.g., State v. Estate of
consider evidence in a plea to the jurisdiction is unfair   Horton, 4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no
to the *233 parties in this case. The facts undercut this   pet.) (stating that once a claim is determined to be a
assertion. At the trial court, both parties relied on       premises defect, the claimant is limited to the provi-
extrinsic evidence in briefing the plea, and both parties   sions delineated by the section on premises defects
had extrinsic evidence on file with the court. Fur-         and may not assert a general negligence theory); ac-
thermore, plaintiffs expressly stated in their response     cord Laman v. Big Spring State Hosp., 970 S.W.2d
to the plea that they were relying on “Defendants'          670, 671–72 (Tex.App.-Eastland 1998, pet. denied);
responses to discovery requests, and upon the deposi-       Univ. of Texas Pan Am. v. Valdez, 869 S.W.2d 446,
tion of Craig VanBaarle [the Department's assistant         450 (Tex.App.-Corpus Christi 1993, writ denied);
park manager].” In fact, the Mirandas deposed Van-          Hawley v. State Dep't of Highways and Pub. Transp.,
Baarle months before the Department filed its plea.         830 S.W.2d 278, 281 (Tex.App.-Amarillo 1992, no
There is good reason why Plaintiffs have not argued         writ). Accordingly, we conclude that the Mirandas
unfair surprise. Given Texas precedents and the ac-         have not established a cause of action under the Tort
tions of the parties, there was none.                       Claims Act for condition or use of tangible property
                                                            separate from their premises defect claim.
D. Waiver of Immunity Based on Condition or Use
                 of Tangible Property                                           IV. Conclusion
     [26] The Mirandas assert that their pleadings also          Trial courts should decide dilatory pleas early at
state a cause of action for injuries resulting from a       the pleading stage of litigation if possible. Here, the
condition or use of tangible property. The allegations'     Legislature's mandate is not so simple. By statute,
in the Mirandas third amended petition concern only         waiver of sovereign immunity for recreational use of
the Department's failure to act to reduce risks of fall-    the Department's premises can only be effected by a
ing tree limbs and failure to warn the Mirandas of the      showing that it acted with gross negligence. Due to the
risk of falling tree limbs. These allegations comprise      standard erected (gross negligence), the determination
the elements of their premises defect claim. The Tort       of whether immunity was waived may require con-
Claims Act's scheme of a limited waiver of immunity         sideration of extrinsic facts after reasonable opportu-
from suit does not allow plaintiffs to circumvent the       nity for targeted discovery. To preclude consideration
heightened standards of a premises defect claim con-        of extrinsic facts when necessary to decide a plea to
tained in section 101.022 by re-casting the same acts       the jurisdiction would require a trial on the merits for
as a claim relating to the negligent condition or use of    many cases that do not need it, waste the resources of
tangible property. See State v. Tennison, 509 S.W.2d        the courts and the parties in the case, and *234 involve
560, 562 (Tex.1974) (rejecting the argument that the        state courts in rulings on the merits in cases over
Tort Claims Act “creates two entirely separate              which they have no jurisdiction.
grounds of liability” for negligent use or condition of
real property and premise defect, but instead inter-            For the reasons explained, we conclude that the




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

Department established that it was not grossly negli-
gent and that the Mirandas failed to raise a fact issue          Second, I cannot agree that the Mirandas' plead-
on that point. Thus, the trial court lacked subject         ing has alleged sufficient facts to confer jurisdiction
matter jurisdiction over the action. The judgment of        on the trial court. The Mirandas assert that the De-
the court of appeals is reversed and the Mirandas'          partment was aware that branches fall from trees, but
action dismissed for lack of subject matter jurisdic-       consciously chose not to post warnings. Is that gross
tion.                                                       negligence? No. Texas law does not impose on lan-
                                                            downers a duty to warn trespassers about all con-
Justice JEFFERSON filed a dissenting opinion.               ceivable dangers inherent in nature. What if you add
Justice BRISTER filed a dissenting opinion, in which        the allegation that the Department did not inspect or
Justice O'NEILL and Justice SCHNEIDER joined.               prune trees in Garner State Park? The Court today
                                                            makes clear that the Department has no duty to in-
Justice JEFFERSON, dissenting.                              spect trees in state parks. 133 S.W.3d 242. If there is
     I dissent on two grounds. First, I do not agree that   no duty, a complaint about the failure to inspect or
our precedent requires the Mirandas to produce evi-         prune cannot possibly constitute a gross negligence
dence on all essential elements of their cause of action    pleading sufficient to invoke the courts jurisdiction.
to establish the trial court's jurisdiction. The Court's    But the Mirandas used the words “gross negligence.”
holding is inconsistent with the distinction Bland          Not enough. The Mirandas pleaded no facts even
draws between requiring the plaintiff to prove pre-         remotely suggesting the Department was aware the
liminary facts as a predicate to the trial court's power    limb was about to fall, much less that it would injure
to entertain the merits, and requiring her to present the   Maria.
merits themselves on pain of dismissal. Bland Indep.
School Dist. v. Blue, 34 S.W.3d 547 (Tex.2000).FN1                                      I
                                                                           Bland, in Proper Context
         FN1. I agree that the court of appeals' holding         In deciding a plea to the jurisdiction, the trial
         conflicts with Bland to the extent it holds that   court must consider evidence “when necessary to
         the trial court was prohibited from inquiring      resolve the jurisdictional issues raised.” Bland, 34
         into the merits because “... the Department        S.W.3d at 555. That quote must be read in context. We
         did not specifically allege that the Mirandas      noted that when a defendant challenges an organiza-
         allegations were pled merely as a sham for         tion's standing to sue, the organization must present
         the purpose of wrongfully obtaining juris-         evidence of its nature and purpose before it can pursue
         diction.” 55 S.W.3d 648, 652. Bland does not       its claims—a burden that “does not involve a signifi-
         require that form of defensive pleading as the     cant inquiry into the substance of the claims.” Id. at
         sole gateway through which the trial court         554. Similarly, we *235 observed that a challenge to
         may consider evidence. If that were so, we         personal jurisdiction may “touch on the merits of the
         could not have held that there are limited         case,” but is not aimed at “whether the defendant may
         circumstances in which, even in the absence        be liable as alleged.” Id. at 555. That theme—that a
         of a defendant's pleading that the plaintiff's     plaintiff is not required to litigate the merits to estab-
         pleadings were a sham, the trial court is re-      lish jurisdiction—was emphasized throughout our
         quired to consider evidence. I depart from the     opinion. Id. at 554. We cautioned that “the proper
         Courts holding, however, that this is such a       function of a dilatory plea does not authorize an in-
         case.                                              quiry so far into the substance of the claims presented
                                                            that plaintiffs are required to put on their case simply




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

to establish jurisdiction.” Id.                               judge to judge.


      I interpret Bland to mean that if a plea to the ju-              FN2. The prevailing view appears to be that
risdiction requires the trial court to wade deeply into                the timeline is strictly enforced. See Luna v.
the lawsuit's merits, it is not a valid plea. Yet today the            Estate of Rodriguez, 906 S.W.2d 576, 582
Court immerses itself in the merits by reaching and                    (Tex.App.-Austin 1995, no writ) (“Because
deciding the ultimate issue in the case: “... the evi-                 summary judgment is a harsh remedy, we
dence in the record establishes that the Department                    strictly construe the twenty-one day time
was not grossly negligent and that the Mirandas have                   limit.”). Accord Burns Motors, Inc. v. Gulf
failed to raise a fact question regarding the Depart-                  Ins. Co., 975 S.W.2d 810, 812
ment's alleged gross negligence.” 133 S.W.3d at 221                    (Tex.App.-Corpus Christi 1998) rev'd on
(emphasis added). This holding misapplies Bland                        other grounds, 22 S.W.3d 417 (Tex.2000);
because it permits a defendant, on painfully short                     Martin v. Martin, Martin & Richards, Inc.,
notice and before evidence has been developed, to                      991 S.W.2d 1, 11 (Tex.App.-Fort Worth
force the plaintiff either to present evidence on the                  1997) rev'd on other grounds, 989 S.W.2d
ultimate issue in the lawsuit, or lose the right to a jury             357 (Tex.1998); Bell v. Showa Denko K.K.,
trial on the merits.                                                   899 S.W.2d 749, 759 (Tex.App.-Amarillo
                                                                       1995, writ denied); Stephens v. Turtle Creek
     The Court asserts that its standard “mirrors that of              Apartments, Ltd., 875 S.W.2d 25, 27
a summary judgment....” 133 S.W.3d 228. It is a poor                   (Tex.App.-Houston [14th Dist.] 1994, no
reflection. Our summary judgment rule, unlike the                      writ); Wavell v. Caller–Times Pub. Co., 809
Court's standard, contains procedural safeguards to                    S.W.2d 633, 637 (Tex.App.-Corpus Christi
ensure that the merits are not determined before the                   1991, writ denied); Williams v. City of An-
nonmovant has had an adequate time for discovery                       gleton,      724      S.W.2d      414,    417
and an opportunity to respond. TEX.R. CIV. P.                          (Tex.App.-Houston [1st Dist.] 1987, writ
166a(c) (“Except on leave of court, with notice to                     refd n.r.e.) disapproved of on other grounds,
opposing counsel, the motion and any supporting                        876 S.W.2d 314 (Tex.1994).
affidavits shall be filed and served at least twenty-one
days before the time specified for hearing. Except on             The Court cites a number of federal decisions
leave of court, the adverse party, not later than seven       holding that when jurisdictional facts are intertwined
days prior to the day of hearing may file and serve           with the merits, the trial court, in considering evi-
opposing affidavits or other written response.”);             dence, should either employ the standard applicable to
166a(i) (“After adequate time for discovery, a party          a summary judgment or leave the jurisdictional*236
without presenting summary judgment evidence may              determination to trial. 133 S.W.3d 228; see also 2
move for summary judgment on the ground that there            JAMES WM. MOORE ET AL., MOORE'S FED-
is no evidence of one or more essential elements of a         ERAL PRACTICE § 12.30[3], at 12–37 to 12–38 (3d
claim or defense....)”. As a uniform rule of procedure,       ed.2003). I do not disagree with that proposition, but it
the summary judgment rule leaves little to the imagi-         does not answer a fundamental question. This Court
nation. A party whose claim is subject to adjudication        must decide what procedure governs in Texas when a
on the merits is entitled to advance notice that it must      plea to the jurisdiction is treated like a motion for
present evidence and has an adequate opportunity to           summary judgment.
respond.FN2 The procedure the Court adopts today, in
contrast, will vary from county to county and from                As JUSTICE BRISTER observes, no procedural




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

rule currently requires a trial court to advise the                                   Statute
plaintiff that evidence may or must be presented in              Rather than dismiss the case on the merits under a
opposition to a plea to the jurisdiction, and no rule       summary judgment standard, I would examine the
requires an adequate time for discovery before the          pleadings to determine whether the Mirandas alleged
court dismisses a case on the merits. 133 S.W.3d at         facts sufficient to invoke the trial court's jurisdiction.
237. By default, then, trial courts will turn to Rule 21.   See Tex. Ass'n Bus. v. Tex. Air Control Bd., 852
TEX.R. CIV. P. 21. Presumably, if a trial court's ruling    S.W.2d 440, 446 (Tex.1993) (plaintiff has burden to
comports with Rule 21's minimum procedural re-              allege facts affirmatively demonstrating that the trial
quirements, a dismissal on the merits will survive any      court has subject matter jurisdiction). In my view, the
challenge based on an abuse of discretion standard.         Mirandas' pleading falls short. Just as the Department
We should ask ourselves, then, whether the Rule's           owes no duty to warn trespassers that rattlesnakes may
minimum requirements are adequate when the stakes           strike, it owes no duty to advise statutory trespassers
are no less than a party's ability to present its case on   that tree limbs fall in state parks. The Mirandas did not
the merits.                                                 allege that the Department had so much as an inkling
                                                            that the branch in question would fall. See TEX. CIV.
     Under Rule 21, a plea to the jurisdiction may be       PRAC. & REM CODE § 41.001(7); see also Transp.
served “three days before the time specified for the        Ins. Co. v. Moriel, 879 S.W.2d 10, 21–22 (Tex.1994)
hearing unless otherwise provided by these rules or         (explaining that gross negligence requires at a mini-
shortened by the court.” Id. The rule does not mention      mum that the defendant subjectively “have actual
an adverse party's right to present opposing evidence,      awareness of the extreme risk created by his or her
which may explain why the Mirandas did not con-             conduct”). Rather, she alleges that the Department is
trovert the Department's plea with their own evidence.      generally aware that tree limbs fall, just as it must
Compiling evidence of simple negligence on three            know of countless other natural *237 perils in state
days' notice—evidence that typically requires months        parks. Because the Department owes no duty to warn
of discovery—would be daunting in itself; but where,        trespassers that forces of nature may cause random
as here, a plaintiff must prove gross negligence, her       harm, I would hold, contrary to the Courts conclusion,
ability to contest the Department's jurisdictional plea     that the Mirandas pleading does not invoke the trial
could be essentially non-existent.                          courts jurisdiction.


     The Mirandas had no reason to suspect that a                The Mirandas did not allege that the Department
summary judgment standard applied, requiring them           was subjectively aware of any specific risk of injury.
to controvert the Department's evidence, because the        See id. Instead, they alleged:
Department's plea to the jurisdiction was subject to
Bland. 34 S.W.3d at 554–55 (trial court not authorized        Defendant knew of the dangers of its falling tree
to inquire so far into the substance of the claims pre-       branches, failed to inspect, failed to prune, failed to
sented that plaintiffs are required to put on their case      alleviate or remove the danger, and consciously and
simply to establish jurisdiction). At a minimum, I            deliberately failed to warn Plaintiffs of the ex-
would hold that if a summary judgment standard ap-            tremely dangerous condition. Plaintiffs paid a
plies, the trial court must so advise the parties and         campsite rental fee and specifically asked defendant
employ Rule 166a procedures.                                  to assign them a safe campsite. Defendant knew that
                                                              its property contained hidden, dangerous defect
                      II                                      (sic) in that its tree branches which have not been
 Pleading Requirements Under Recreational Use                 inspected or pruned regularly fall. Defendant did




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

  not warn Plaintiffs of the hidden danger.                 in their pleadings do the Mirandas assert that the De-
                                                            partment was aware of any risk associated with either
  ***                                                       the tree or the campsite below. Instead, they simply
                                                            recast allegations of simple negligence into a claim for
                                                            gross negligence.
  Plaintiffs would show the court that the occurrence
  made the basis of this suit and the resulting damages
  set out below were a direct and proximate result of            We are bound, however, to analyze their claims in
  Defendants negligence and its agents, servants, and       light of the policies underlying the recreational use
  officers, both of commission or omission, or both         statute. The statute exists to encourage landowners to
  separately and collectively, in failing to properly       allow the public to enjoy outdoor recreation on their
  maintain and inspect the campsite where Plaintiffs        property by limiting their liability for personal injury.
  were injured, in failing to properly maintain the         City of Bellmead v. Torres, 89 S.W.3d 611, 617
  campsite in a safe condition and/or in failing to ex-     (Tex.2002) (Hankinson, J. dissenting). To accomplish
  ercise ordinary care to protect Plaintiffs from the       that objective, the Legislature has placed stringent
  danger.                                                   parameters around the duty landowners owe “tres-
                                                            passers.” See TEX. CIV. PRAC. & REM CODE §
                                                            75.002. The duty implicit in the Mirandas pleading,
      The Mirandas' gross negligence allegations
                                                            however, would require*238 the Department to warn
stated:
                                                            all visitors of all perils commonly confronted by hu-
   Plaintiffs would show the court that the occurrences
                                                            man interaction with nature. The scope of that pro-
   made the basis of this suit and the resulting injuries
                                                            posed duty—obligating the Department to post
   and damages set out below were a direct and
                                                            warnings about all naturally occurring dan-
   proximate result of Defendants negligence in failing
                                                            gers—would create such an insurmountable practical
   to make safe the dangerous condition of its campsite
                                                            and economic burden as to frustrate the legislatures
   trees. Defendant's conduct was willful, wanton, or
                                                            intent to encourage landowners to make property
   grossly negligent. Defendant failed to warn or make
                                                            available for recreational use.
   reasonably safe the dangerous condition of which it
   was aware and which Plaintiffs were unaware.
                                                                  Without allegations that the Department was
                                                            aware that the limb would fall and nevertheless in-
     We can accept as true the Mirandas' allegation
                                                            structed Maria to camp below it, the Mirandas have
that the Department knew “its tree branches which
                                                            not pleaded facts sufficient to proceed on their claim
have not been inspected or pruned regularly fall” and
                                                            under the recreational use statute. I do not mean to
did not warn them about that contingency. That
                                                            suggest that merely because the injury is alleged to
pleading, however, is of neutral value in a suit against
                                                            have resulted from a natural condition, the trial court
the Department, which would owe no duty to warn
                                                            is thereby deprived of jurisdiction. For example, the
unless it had actual knowledge that the branch would
                                                            trial courts jurisdiction would be properly invoked by
fall yet nevertheless instructed Maria to camp beneath
                                                            a pleading that the Department told the plaintiff it was
it. See id.; see also Lee Lewis Constr., Inc. v. Harri-
                                                            safe to dive into waters the Department knew were so
son, 70 S.W.3d 778, 785 (Tex.2001) (reiterating that
                                                            shallow that the dive posed a likelihood of serious
gross negligence requires that “the actor must have
                                                            injury, and that the plaintiff was severely injured di-
actual, subjective awareness of the risk involved, but
                                                            ving in reliance on that assurance. Here, by contrast,
nevertheless proceed in conscious indifference to the
                                                            the Mirandas did not plead that the Department di-
rights, safety, or welfare of others.”). Indeed, nowhere
                                                            rected Maria to a campsite knowing that an over-




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

hanging tree branch would likely fall on her and cause       have never been placed on notice that they must cure
serious injury.                                              the jurisdictional defect. It may well be that the facts
                                                             will not lend themselves to a pleading that would
     I understand fully the Courts holding that the          confer jurisdiction, but we are not equipped to make
Mirandas gave “fair notice” that they were pursuing a        that determination at this stage of the proceedings.
gross negligence claim. Fair-notice pleadings, how-
ever, must be viewed in this case through the prism of                                 III
sovereign immunity, which deprives a court of juris-                               Conclusion
diction unless the State has expressly waived immun-              We need not and should not inquire into the ul-
ity. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638       timate merits of this case. I would *239 remand the
(Tex.1999). The plaintiffs' pleadings against the State      cause to the trial court to give the Mirandas an op-
must affirmatively establish jurisdiction to overcome        portunity to amend their petition to plead facts estab-
the contrary presumption. Tex. Dep't of Crim. Justice        lishing jurisdiction.
v. Miller, 51 S.W.3d 583, 587 (Tex.2001)(quoting
Tex. Assn. Bus., 852 S.W.2d at 446). The plaintiff           Justice BRISTER, joined by Justice O'NEILL and
must plead facts that, if true, would establish that the     Justice SCHNEIDER, dissenting.
claims come within an express waiver of sovereign                 The Legislature has provided that state park vis-
immunity before the trial court has jurisdiction to          itors are owed the same duty of care as trespassers; FN1
proceed. Just as mere reference to the Texas Tort            thus, the plaintiffs in this case had to prove the Parks
Claims Act is insufficient to confer jurisdiction, Mil-      and Wildlife Department caused deliberate, wilful, or
ler, 51 S.W.3d at 587, the trial court's jurisdiction is     malicious injury.FN2 All members of the Court agree
not satisfied by mere notice that the plaintiff is pur-      that either their petition or their summary judgment
suing a gross negligence claim. The Mirandas have            evidence fails to do so, though we disagree which.
failed to affirmatively establish the court's jurisdiction
because, even if all of the facts alleged in their
                                                                      FN1. TEX. CIV. PRAC. & REM.CODE §§
pleading were true, those facts would not amount to
                                                                      75.002(c)(2), 75.003(g).
gross negligence and therefore would not establish a
waiver of sovereign immunity under the recreational
                                                                      FN2. Id. §§ 75.002(a)(2), 75.003, 101.022,
use statute.
                                                                      101.058.

     When a plaintiff fails to plead facts establishing
                                                                  The Mirandas alleged Maria suffered severe in-
jurisdiction, the issue is ordinarily one of pleading
                                                             juries caused by the Department's gross negligence;
sufficiency and the plaintiff should be afforded the
                                                             specifically, they alleged the Department knew tree
opportunity to amend. County of Cameron v. Brown,
                                                             limbs could fall, and failed to warn them of that fact or
80 S.W.3d 549, 555 (Tex.2002). A court may grant a
                                                             assign them a campsite where none would. I have
plea to the jurisdiction without affording an opportu-
                                                             grave doubts whether such facts could possibly con-
nity to amend only when the pleadings “affirmatively
                                                             stitute gross negligence—natural conditions usually
negate” the existence of jurisdiction, a circumstance
                                                             cannot be unreasonably dangerous (much less wan-
not presented here. Id. In this case, however, the trial
                                                             ton),FN3 and trespassers do not have to be warned of
court overruled the Departments plea to the jurisdic-
                                                             what everyone should know.FN4 Nor does the Parks
tion, concluding implicitly that the Mirandas plead-
                                                             Department appear to have a duty to provide camp-
ings were sufficient to confer jurisdiction, and the
                                                             sites safely away from trees; FN5 indeed, one has to ask
court of appeals affirmed. Consequently, the Mirandas




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

whether anyone would want to use such “parks” if it
did.FN6                                                             FN7. The OXFORD ENGLISH DICTIO-
                                                                    NARY (1989) defines “white elephant” as:
         FN3. See Johnson County Sheriff's Posse,
         Inc. v. Endsley, 926 S.W.2d 284, 287                         a. A rare albino variety of elephant which
         (Tex.1996) (holding rock in dirt arena did not               is highly venerated in some Asian coun-
         create unreasonably dangerous condition).                    tries. b. fig. A burdensome or costly pos-
                                                                      session (from the story that the kings of
         FN4. Cf. County of Cameron v. Brown, 80                      Siam were accustomed to make a present
         S.W.3d 549, 558 (Tex.2002) (holding dark-                    of one of these animals to courtiers who
         ness caused by failed streetlights was not                   had rendered themselves obnoxious, in
         open and obvious hazard precluding recovery                  order to ruin the recipient by the cost of its
         by licensee because it could not be seen from                maintenance). Also, an object, scheme,
         entrance to causeway).                                       etc., considered to be without use or value.


         FN5. See TEX. CIV. PRAC. & REM.CODE                     Pleas to the jurisdiction are nothing new. In his
         § 75.002(c)(1) (providing landowners who          Commentaries on the Laws of England, Blackstone
         grant permission for recreational use do not      lists them as a category of dilatory pleas that (along
         assure that the premises are safe for that        with pleas of disability and abatement) deny the *240
         purpose).                                         propriety of the remedy rather than the injury.FN8 One
                                                           hundred years ago, this Court addressed a variety of
         FN6. See Tex. Home Mgmt., Inc. v. Peavy, 89       matters as pleas to the jurisdiction, including objec-
         S.W.3d 30, 33 (Tex.2002) (holding question        tions based on personal jurisdiction,FN9 subject-matter
         of legal duty is question of law requiring        jurisdiction,FN10 dominant jurisdiction,FN11 venue,FN12
         balance of factors such as risk, utility, con-    capacity,FN13 and conflict of laws.FN14
         sequences of the duty, and other relevant in-
         dividual and social interests).                            FN8. 3 WILLIAM BLACKSTONE,
                                                                    COMMENTARIES ON THE LAWS OF
     Faced with what appears to be an insupportable                 ENGLAND 301–03 (1768).
allegation like the gross-negligence pleading here,
litigants normally have two options: (1) demand more                FN9. See, e.g., Rice v. Peteet, 66 Tex. 568, 1
specific facts by special exception, or (2) demand                  S.W. 657, 657 (1886).
more specific facts by motion for summary judgment.
Instead, the Department filed three motions, including              FN10. See, e.g., McIlhenny Co. v. Todd, 71
a “plea to the jurisdiction”—the white elephant FN7 of              Tex. 400, 9 S.W. 445, 446 (1888) (objecting
current Texas motion practice. By use of this plea, the             that amount at issue fell below court's juris-
Department was able to force the trial judge (and                   dictional limits); Juneman v. Franklin, 67
ultimately this Court) to make an ad hoc decision                   Tex. 411, 3 S.W. 562, 562 (1887) (objecting
whether our jurisdiction should be determined by                    that forcible entry and detainer action was
reference to pleadings or evidence. Because it should               not filed in justice court).
be litigants rather than judges making that choice, I
respectfully dissent.
                                                                    FN11. See, e.g., Cleveland v. Ward, 116 Tex.




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         1, 285 S.W. 1063, 1072 (1926), disapproved                  any other matter, with affidavits served seven
         on other grounds, Walker v. Packer, 827                     days before the hearing).
         S.W.2d 833, 842 (Tex.1992); Grathaus v.
         Witte, 72 Tex. 124, 11 S.W. 1032, 1032                  Case law as well as rule amendments have con-
         (1888).                                            tributed to the trend away from the common-law plea
                                                            to the jurisdiction. For example, we have held that a
         FN12. See, e.g., Pecos & N.T. Ry. Co. v.           complaint based on dominant jurisdiction in another
         Thompson, 106 Tex. 456, 167 S.W. 801, 801          court must be raised by plea in abatement in the
         (1914); Baines v. Jemison, 86 Tex. 118, 23         second court, or it is waived.FN17 Again, though this
         S.W. 639, 640 (1893); Watson v. Baker, 67          complaint could be characterized as a plea to the ju-
         Tex. 48, 2 S.W. 375, 375–76 (1886).                risdiction, a more specific motion and procedure has
                                                            rendered the common-law term obsolete.
         FN13. See, e.g., Brown v. Gay, 76 Tex. 444,
         13 S.W. 472, 472–73 (1890).                                 FN17. Mower v. Boyer, 811 S.W.2d 560, 563
                                                                     n. 2 (Tex.1991); Wyatt v. Shaw Plumbing
         FN14. See, e.g., Tex. & P. Ry. Co. v. Ri-                   Co., 760 S.W.2d 245, 247 (Tex.1988).
         chards, 68 Tex. 375, 4 S.W. 627, 629 (1887).
                                                                 But pleas to the jurisdiction have enjoyed a recent
     Since then, there has been a steady shift away         resurgence in the field of governmental immunity. For
from the common-law forms of pleading to the more           many years, governmental units were not very partic-
specific motion practice set out in the rules of civil      ular about the vehicle for asserting immunity, raising
procedure. For example, a defendant objecting to            it sometimes by—
venue today must file a motion to transfer that com-
plies with the form requirements of Rule 86 and the           • general demurrer; FN18
deadlines of Rule 87.FN15 Similarly, a nonresident
objecting to personal jurisdiction must file a special               FN18. See, e.g., State v. Hale, 136 Tex. 29,
appearance that meets the requirements of Rule                       146 S.W.2d 731, 735 (1941); Herring v.
120a.FN16 In substance, these motions could still be                 Houston Nat'l Exch. Bank, 113 Tex. 264, 253
categorized as “pleas to the jurisdiction;” but in form,             S.W. 813, 814 (1923); Stephens v. Tex. & P.
they must comply with the current rules of civil pro-                Ry. Co., 100 Tex. 177, 97 S.W. 309, 310
cedure.                                                              (1906); Thomson v. Baker, 90 Tex. 163, 38
                                                                     S.W. 21, 22 (1896).
         FN15. TEX.R. CIV. PROC. 86 (requiring
         unverified motion that is filed first and states     • special demurrer; FN19
         counties of improper, proper, or mandatory
         venue); TEX.R. CIV. PROC. 87 (requiring
                                                                     FN19. See, e.g., Thomson, 38 S.W. at 22.
         45–days' notice of hearing, 30–days' notice
         of respondents affidavits, and 7–days' notice
                                                              *241 • special exception; FN20
         of movants affidavits).

                                                                     FN20. See, e.g., Duhart v. State, 610 S.W.2d
         FN16. TEX.R. CIV. PROC. 120a (requiring
                                                                     740, 741 (Tex.1980); Dir. of Dep't of Agric.
         sworn motion that is filed and heard before




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         & Env't v. Printing Indus. Ass'n of Tex., 600       construed, as it is an exception to the general rule that
         S.W.2d 264, 265 (Tex.1980); Stephens, 97            interlocutory orders are not appealable.FN25
         S.W. at 310.
                                                                      FN24. TEX. CIV. PRAC. & REM.CODE §
  • plea to the jurisdiction; FN21                                    51.014(a)(8).


         FN21. See, e.g., Fed. Sign v. Tex. S. Univ.,                 FN25. Bally Total Fitness Corp. v. Jackson,
         951 S.W.2d 401, 403 (Tex.1997), superseded                   53 S.W.3d 352, 355 (Tex.2001).
         by statute on other grounds as stated in Gen.
         Servs. Comm'n v. Little–Tex Insulation Co.,              As a result, almost overnight a “plea to the juris-
         Inc., 39 S.W.3d 591, 593 (Tex.2001); Lowe           diction” became the motion of choice for asserting
         v. Tex. Tech Univ., 540 S.W.2d 297, 298             immunity; FN26 indeed, some appellate courts have
         (Tex.1976); State v. Lain, 162 Tex. 549, 349        refused to consider any other.FN27 This development
         S.W.2d 579, 580 (1961); Griffin v. Hawn,            exalts form over substance. For example, before the
         161 Tex. 422, 341 S.W.2d 151, 152 (1960);           Legislature's amendment, one governmental entity
         Short v. W.T. Carter & Bro., 133 Tex. 202,          unsuccessfully asserted immunity by means of a
         126 S.W.2d 953, 955 (1938).                         summary judgment and special exceptions; imme-
                                                             diately after the effective date, the entity filed the same
  • plea in abatement; FN22 or                               objection as a “plea to jurisdiction”—and prevailed.
                                                             FN28


         FN22. See, e.g., Duhart v. State, 610 S.W.2d
         740, 741 (Tex.1980); Lowe, 540 S.W.2d at                     FN26. See, e.g., Texas Natural Res. Con-
         298; Griffin v. Hawn, 161 Tex. 422, 341                      servation Comm'n v. IT–Davy, 74 S.W.3d
         S.W.2d 151, 152 (1960); W.D. Haden Co. v.                    849, 852 (Tex.2002); Little–Tex Insulation
         Dodgen, 158 Tex. 74, 308 S.W.2d 838, 838                     Co., Inc., 39 S.W.3d at 594; McClain v. Univ.
         (1958); Cobb v. Harrington, 144 Tex. 360,                    of Tex. Health Ctr. at Tyler, 119 S.W.3d 4, 5
         190 S.W.2d 709, 710 (1945); Short v. W.T.                    (Tex.App.-Tyler 2000, pet. denied); Dallas
         Carter & Bro., 133 Tex. 202, 126 S.W.2d                      County Cmty. Coll. Dist. v. Bolton, 990
         953, 955 (1938).                                             S.W.2d 465, 466 (Tex.App.-Dallas 1999, no
                                                                      pet.); Alamo Cmty. Coll. Dist. v. Obayashi
  • summary judgment.FN23                                             Corp., 980 S.W.2d 745, 746 (Tex.App.-San
                                                                      Antonio 1998, pet. denied); Tex. Parks &
                                                                      Wildlife Dept. v. Garrett Place, Inc., 972
         FN23. See, e.g., Overton Mem'l Hosp. v.
                                                                      S.W.2d 140, 142 (Tex.App.-Dallas 1998, no
         McGuire, 518 S.W.2d 528, 528 (Tex.1975)
                                                                      pet.); Tex. Parks & Wildlife Dep't v. Calla-
         (per curiam); Tex. Dept. of Corr. v. Herring,
                                                                      way, 971 S.W.2d 145, 147 (Tex.App.-Austin
         513 S.W.2d 6, 7 (Tex.1974).
                                                                      1998, no pet.).

     In 1997, the Legislature amended the Civil Prac-
                                                                      FN27. See, e.g., Thomas v. Long, 97 S.W.3d
tices and Remedies Code to allow interlocutory ap-
                                                                      300, 302–03 (Tex. App.-Houston [14th Dist.]
peals “from an interlocutory order ... [that] grants or
                                                                      2003, pet. granted) (refusing interlocutory
denies a plea to the jurisdiction by a governmental
                                                                      appeal of denial of summary judgment based
unit.” FN24 We have held this section must be strictly




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         on lack of subject matter jurisdiction as no
         order granted or denied a plea to the juris-            In Bland Independent School District v. Blue,FN30
         diction); Baylor Coll. of Med. v. Tate, 77        we attempted to bring some order to this resurgence by
         S.W.3d 467, 472 (Tex.App.-Houston [1st            setting guidelines for handling such pleas. But due to
         Dist.] 2002, no pet.) (refusing interlocutory     the broad range of issues a plea to the jurisdiction
         appeal because trial court's order was sum-       might address, that was not easy to do. As we pointed
         mary judgment based on immunity from lia-         out in several examples, consideration of some pleas
         bility rather than plea to the jurisdiction       should not go beyond the pleadings, but consideration
         based on immunity from suit).                     of others must.FN31 When necessary, trial courts must
                                                           consider evidence relating to the jurisdictional facts,
         FN28. Lamar Univ. v. Doe, 971 S.W.2d 191,         but should not consider evidence relating to the me-
         193 (Tex.App.-Beaumont 1998, no pet.).            rits,FN32 even though the two are sometimes the same.
                                                           Nor could we be specific about when pleas should be
      For several reasons, we should put a stop to this    decided, leaving it to the trial court's discretion
resurgence of common-law pleadings in immunity             whether to address the issue at a preliminary hearing
cases. First, it is fraught with uncertainty. Despite      or after fuller development of the merits.FN33
hundreds of haphazardly-numbered rules, only once
do the Texas Rules of Civil Procedure mention pleas                 FN30. 34 S.W.3d 547 (Tex.2000).
to the jurisdiction, and then only in a rule regarding
permissible parts of an answer rather than permissible              FN31. Id. at 555.
motions.*242 FN29 There is no rule—no case and no
code—that specifies the form, deadlines, or eviden-
                                                                    FN32. Id.
tiary requirements for pleas to the jurisdiction gener-
ally.
                                                                    FN33. Id. at 554.

         FN29. TEX.R. CIV. PROC. 85:
                                                                The examples given in Bland certainly provided
                                                           more procedural guidance than existed before. But
           The original answer may consist of mo-
                                                           without considering all possible pleas to the jurisdic-
           tions to transfer venue, pleas to the juris-
                                                           tion, we could not prescribe more definitive rules;
           diction, in abatement, or any other dilatory
                                                           until all those disputes come before us, we should
           pleas; of special exceptions, of general
                                                           probably not try. In the meantime, it will often be
           denial, and any defense by way of avoid-
                                                           unclear what the trial court should consider, or when it
           ance or estoppel, and it may present a
                                                           should do so, until the plea is decided (or perhaps even
           cross-action, which to that extent will
                                                           later on appeal). To some observers, this may appear
           place defendant in the attitude of a plain-
                                                           to be drawing up the rules after the game has been
           tiff. Matters in avoidance and estoppel may
                                                           played.FN34
           be stated together, or in several special
           pleas, each presenting a distinct defense,
                                                                    FN34. See id. at 555 (rejecting plaintiffs'
           and numbered so as to admit of separate
                                                                    demand for remand for full evidentiary
           issues to be formed on them.
                                                                    hearing because they did not contest evi-
                                                                    dence at original plea to the jurisdiction
           (Emphasis added).
                                                                    hearing).




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

                                                                     “motion to dismiss” when it was reversed).
     From almost any vantage point, the resurgence of
pleas to the jurisdiction creates problems in immunity           For plaintiffs, the problems created by the resur-
cases. For governmental entities, it results in unne-       gence of pleas to the jurisdiction are even more acute.
cessary repetition. In this case, the Parks and Wildlife    Defendants uncertain about how to present an im-
Department could not be sure whether the trial court        munity defense can simply try a little of everything;
would consider evidence necessary, so it filed three        plaintiffs, by contrast, may lose their case if they guess
motions—a no-evidence motion for summary judg-              wrong. In this case, for example, the Mirandas did not
ment, a traditional motion for summary judgment, and        attach any evidence to their responses to the various
a plea to the jurisdiction. But as counsel for the De-      motions. The lower courts agreed they did not need to,
partment admitted at the hearing, “all three relate to      but if we hold otherwise, then the Mirandas will learn
the same set of issues.”                                    three years too late that they should have presented
                                                            evidence at the jurisdictional hearing.
     Such repetition is unnecessary for interlocutory
review. Nothing in the Civil Practice and Remedies               From a trial judge's vantage point, pleas to the
Code suggests the Legislature intended to specify a         jurisdiction create uncertainty, not just about the rules
form motions had to take for that purpose, rather than      to be applied but about the role of the judge. This case
their substance. Indeed, the opposite is suggested by       is one of many in which immunity from suit under the
the Legislature's selection of a common-law term            Texas Tort Claims Act is coextensive with immunity
applicable to a broad category of motions, rather than      from liability.FN36 As a result, deciding the jurisdic-
a term pointing to any particular motion in the current     tional question bears a strong resemblance to deciding
rules of civil procedure. It has long been our practice     the merits.
to consider the substance of motions rather than their
form; FN35 nothing in the legislative history *243                   FN36. See TEX. CIV. PRAC. &
suggests the interlocutory appeal statute was intended               REM.CODE § 101.025(a) (waiving immun-
to be an exception to that rule.                                     ity to suit to the extent of liability under
                                                                     chapter 101), § 101.021 (creating govern-
         FN35. See, e.g., Speer v. Stover, 685 S.W.2d                mental liability for specified acts resulting
         22, 23 (Tex.1985) (per curiam) (considering                 from negligence, premises conditions, and
         plea to jurisdiction even though misnamed                   use of property to the extent private persons
         plea in abatement); see also TEX.R. CIV.                    would be liable).
         PROC. 71 (stating “[w]hen a party has mis-
         takenly designated any plea or pleading, the            In these circumstances, it is difficult for Texas
         court, if justice so requires, shall treat the     judges to detect the line between jurisdictional ques-
         plea or pleading as if it had been properly        tions they must decide before going further and lia-
         designated”). Some courts themselves appear        bility questions they cannot decide without usurping
         to use the possible terms for immunity mo-         the function of the jury. Here, the Mirandas convinced
         tions interchangeably. See, e.g., State v. Ex-     the lower courts that whether their pleadings were
         ecutive Condos., Inc., 673 S.W.2d 330,             supported by any evidence was a question solely for
         331–32 (Tex.App.-Corpus Christi 1984, writ         the jury. But that is not true if they raised no material
         refused n.r.e.) (referring to immunity motion      facts that could establish a waiver of immunity.FN37
         as “plea to the jurisdiction” when it was filed,
         “plea in abatement” when it was denied, and




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

         FN37. See TEX.R. CIV. PROC. 166a(c).
                                                                     FN40. See, e.g., Dallas Area Rapid Transit v.
     By contrast, returning to standard motions as the               Whitley, 104 S.W.3d 540, 542 (Tex.2003)
vehicles for asserting governmental immunity would                   (sovereign immunity asserted by plea to the
clarify what the jurisdictional hearing will be like and             jurisdiction and motion for summary judg-
simplify many procedural questions. For decades,                     ment); County of Cameron v. Brown, 80
governmental units have asserted immunity by special                 S.W.3d 549, 553 (Tex.2002) (sovereign
exceptions FN38 or motions for summary judgment.FN39                 immunity asserted by plea to the jurisdiction
In many cases (including this one), they still do so                 and special exceptions).
today.FN40 Relying on standard procedural *244 mo-
tions would eliminate many questions about dead-                     FN41. See, e.g., Tex. Dep't of Corr. v. Her-
lines, forms, and evidence. It would make government                 ring, 513 S.W.2d 6, 9–10 (Tex.1974) (re-
entities rather than trial judges decide whether the                 versing summary judgment based on im-
jurisdictional challenge is directed to the plaintiff's              munity as plaintiff was not allowed oppor-
pleadings or the underlying facts. If a governmental                 tunity to replead).
unit chooses wrong,FN41 it may always try again. But
the plaintiff is not required to guess what rules or
                                                                 Returning to pre-resurgence practice would not
procedures the trial judge might apply.
                                                            change the incidence of governmental immunity. As
                                                            we recently held, if a plea to the jurisdiction is directed
         FN38. See, e.g., John G. & Marie Stella            only to the plaintiff's pleadings, we construe them in
         Kenedy Mem'l Found. v. Mauro, 921 S.W.2d           the plaintiff's favor and allow an opportunity to amend
         278, 281 (Tex.App.-Corpus Christi 1995,            unless they affirmatively negate jurisdiction.FN42 This
         writ denied); Tex. Dep't of Corr. v. Winters,      is, of course, identical to the rules governing special
         765 S.W.2d 531, 532 (Tex.App.-Beaumont             exceptions.FN43 And when governmental entities wish
         1989, writ denied); Martine v. Bd. of Re-          to rely on evidence, any questions of fact that affect
         gents, State Senior Colleges of Tex., 578          jurisdictional issues must be settled by the jury,FN44 the
         S.W.2d 465, 469 (Tex.Civ.App.-Tyler 1979,          same standard that applies to summary judgments.
         no writ); Harrison v. Bunnell, 420 S.W.2d
         777, 778 (Tex.Civ.App.-Austin 1967, no
                                                                     FN42. Cameron, 80 S.W.3d at 555; Tex.
         writ); State v. McDonald, 220 S.W.2d 732,
                                                                     Dep't of Transp. v. Ramirez, 74 S.W.3d 864,
         732 (Tex.Civ.App.-Texarkana 1949, writ
                                                                     867 (Tex.2002).
         refused); Porter v. Langley, 155 S.W. 1042,
         1043 (Tex.Civ.App.-Dallas 1913, writ re-
                                                                     FN43. See Brown, 80 S.W.3d at 559; Her-
         fused).
                                                                     ring, 513 S.W.2d at 9–10.

         FN39. See, e.g., Ho v. Univ. of Tex. at Ar-
                                                                     FN44. See, e.g., Brown, 80 S.W.3d at 556
         lington, 984 S.W.2d 672, 681–83
                                                                     (holding foreseeability issue raised by plea to
         (Tex.App.-Amarillo 1998, pet. denied);
                                                                     the jurisdiction presented fact question for
         Russell v. Tex. Dep't of Human Res., 746
                                                                     jury).
         S.W.2d 510, 513 (Tex.App.-Texarkana 1988,
         writ denied); Gay v. State, 730 S.W.2d 154,
         159 (Tex.App.-Amarillo 1987, no writ).                  Nor can it be argued that courts exceed their ju-
                                                            risdiction by requiring immunity pleas to be brought




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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
(Cite as: 133 S.W.3d 217)

in standard motions according to settled rules of pro-      used to raise such issues.FN47 We should stop making
cedure. As we stated shortly after the rules of civil       the assumption*245 that the Legislature intended
procedure were enacted:                                     something different for pleas of governmental im-
                                                            munity.
  Since [the trial court] had the power to sustain the
  demurrers and grant the motions, it had the power to               FN47. See Baker v. Monsanto Co., 111
  overrule them. The jurisdiction of a court must be                 S.W.3d 158, 159 (Tex.2003) (per curiam)
  determined, not upon the court's action in deciding                (asserting limitations by summary judg-
  the questions presented in a case, but upon the                    ment); City of Port Arthur v. Tillman, 398
  character of the case itself. Jurisdiction is the power            S.W.2d 750, 751 (Tex.1965) (asserting li-
  to decide, and not merely the power to decide cor-                 mitations by special exception).
  rectly.FN45
                                                                 Accordingly, I would reverse and remand for (1)
         FN45. Martin v. Sheppard, 145 Tex. 639,            the Parks and Wildlife Department to specify whether
         201 S.W.2d 810, 812–13 (1947).                     its plea to the jurisdiction is a challenge to the plead-
                                                            ings (by special exception) or the evidence (by sum-
     Of course, returning to established procedural         mary judgment), (2) the Mirandas to respond in com-
motions will not remove all difficulties with issues of     pliance with the rules of civil procedure, and (3) the
governmental immunity. Judges of goodwill and in-           lower courts to address the governmental immunity
tellect will still disagree about whether a particular      issue in accordance with the usual rules governing
pleading is sufficiently specific, as JUSTICES JEF-         disposition and review of those motions.
FERSON and WAINWRIGHT do here. Governmen-
tal units may incur unnecessary discovery costs and         Tex.,2004.
delays unless judges agree to hear summary judgment         Texas Dept. of Parks and Wildlife v. Miranda
motions on jurisdictional matters as early in the case      133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386
as they might hear a plea to the jurisdiction. And ap-
pellate courts must still distinguish between immunity      END OF DOCUMENT
from suit (as to which an interlocutory appeal will lie)
and immunity from liability (as to which it will
not).FN46 But simplification of our procedures should
not be rejected because we cannot simplify every-
thing.


         FN46. See Tex. Dep't of Transp. v. Jones, 8
         S.W.3d 636, 638–39 (Tex.1999).


     If the Texas Legislature mandated interlocutory
review of “pleas in bar asserting limitations” (a de-
velopment devoutly to be wished against), few would
suggest such review was available only for motions
entitled “Plea in Bar” instead of the summary judg-
ment or special exception forms that have long been




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