                             NUMBER 13-10-00670-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

CITY OF MCALLEN,                                                                Appellant,

                                             v.

MICHAEL RENE CORPUS,                                                           Appellee.


                On appeal from the County Court at Law No. 6
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Rodriguez
       Appellant City of McAllen (the City) challenges the trial court's denial of its plea to

the jurisdiction and motion to dismiss in this Texas Tort Claims Act (TTCA) case brought

by appellee Michael Rene Corpus. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021

(Vernon 2011). By one issue, the City argues that the trial court erred in denying its plea
to the jurisdiction because Corpus failed to plead facts alleging a waiver of the City's

governmental immunity. We reverse and render.

                                    I. BACKGROUND

      Corpus pleaded the following facts in his amended petition:

              On or about May 6, 2009, [Corpus] was seriously injured as a result
      of actions undertaken by an employee of [the City]. Namely, on said date,
      McAllen Animal Control Officer, Roberto Mata, responded to a bee call
      initiated by [Corpus]. Upon arriving at [Corpus]'s location, [Corpus]
      requested that Mr. Mata follow him to the location where the bees were
      located. Mr. Mata refused and insisted that [Corpus] accompany him in his
      animal control vehicle to the location. Mr. Mata's vehicle was equipped
      with animal/pest control devices. Two animal control vehicles arrived at
      the complained[-]of area, one operated by Mr. Mata and the other operated
      by another animal control officer.

              When they arrived at the area, Mr. Mata, armed with his protective
      clothing and gear, approached the hive while [Corpus] remained in [the
      City]'s vehicle. At no time was the animal control vehicle that Mr. Mata was
      operating turned off. The motor was running at all times. [Corpus] was
      instructed to remain in the vehicle for his safety. After Mr. Mata located the
      hive, Mr. Mata began spraying the bees which caused the bees to become
      agitated. Then Mr. Mata either in an attempt to seek refuge or to retrieve
      another animal/pest control device recklessly opened the vehicle door to his
      unit thereby allowing the bees to enter the vehicle and attack [Corpus], who
      was not wearing or given protective gear/clothing. Mr. Mata was using
      and/or operating his vehicle in a manner in which the vehicle was intended
      to be operated.

            As a result of the operation or use of [the City]'s motor-driven vehicle
      created by [the City]'s employee, Roberto Mata, [Corpus] received
      hundreds of bee stings that required him to seek medical attention.
      [Corpus] was caused to suffer considerable personal injuries.

Corpus alleged the following specific negligent act: "Failing to use and/or operate the

motor vehicle as a person of ordinary prudence would have maintained under the same

or similar circumstances . . . ." Corpus prayed for damages in the form of past and future

medical care and expenses, pain and suffering, and mental anguish.

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       The City filed its plea to the jurisdiction and motion to dismiss based on Corpus's

pleadings alone, arguing that Corpus failed to plead facts waiving the City's governmental

immunity under the TTCA because (1) the negligent actions he pled did not involve

Mata's operation or use of a motor vehicle, and (2) there is no nexus between the

operation or use of a motor vehicle by Mata, if any, and Corpus's injuries. Corpus

responded to the City's plea. Neither the City nor Corpus incorporated evidence into

their plea or response. After a hearing, the trial court denied the City's plea to the

jurisdiction. This accelerated, interlocutory appeal followed. See id. § 51.014(a)(8)

(Vernon 2008) (permitting the accelerated appeal of an interlocutory order "grant[ing] or

den[ying] a plea to the jurisdiction by a governmental unit").

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action

without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction

over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129

S.W.3d 804, 807 (Tex. App.–Corpus Christi 2004, no pet.). Subject matter jurisdiction is

a question of law; therefore, an appellate court reviews de novo a trial court's ruling on a

plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.

       Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may

be properly asserted in a jurisdictional plea. Miranda, 133 S.W.3d at 225-26. In a suit

against a governmental unit, the plaintiff must affirmatively demonstrate the court's

jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley,
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104 S.W.3d 540, 542 (Tex. 2003). When a trial court's decision concerning a plea to the

jurisdiction is based on the plaintiff's petition, we accept as true all factual allegations in

the petition to determine if the plaintiff has met this burden. Id.; Morris, 129 S.W.3d at

807. We examine the pleader's intent and construe the pleading in plaintiff's favor.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Dep't of Transp. v.

Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). A plea to the jurisdiction may be

granted without allowing the plaintiff to amend the pleading if the pleading affirmatively

negates the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at

867.

       Under the doctrine of governmental immunity, a municipality is immune from tort

liability from its own acts or the acts of its agents, unless the TTCA clearly and

unambiguously waives immunity. City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.

1998). Relevant to this case, the TTCA waives immunity for property damage, personal

injury, and death caused by the wrongful act or omission or negligence of an employee

acting within the scope of his employment if the injury rises from operating or using a

motor vehicle and the employee would be personally liable to the claimant according to

Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). "Operation" refers to

"doing or performing of a practical work"; "use" is defined in the context of this statute as

"put[ting] or bring[ing] into action or service; [] employ[ing] for or apply to a given purpose."

LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (citations

omitted); see Starkey v. Andrews, 104 S.W.3d 626, 629 (Tex. App.–Tyler 2003, no pet.).

The supreme court has interpreted the "arises from" requirement to mean that the

vehicle's use "must have actually caused the injury."           Whitley, 104 S.W.3d at 543
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(internal quotations omitted). This causal nexus is not satisfied by the mere involvement

of a vehicle nor by an operation or use that "does no more than furnish the condition that

makes the injury possible." Id. (internal quotations omitted); see City of Kemah v. Vela,

149 S.W.3d 199, 204 (Tex. App.–Houston [14th Dist.] 2004, pet. denied); Gill v. Tex.

Dep't of Criminal Justice, 3 S.W.3d 576, 581 (Tex. App.–Houston [1st Dist.] 1999, no

pet.).

                                        III. DISCUSSION

         By its sole issue, the City argues that the trial court erred in denying its plea to the

jurisdiction because Corpus's petition failed to allege facts waiving the City's

governmental immunity under the TTCA. Specifically, the City argues that the negligent

act alleged by Corpus does not amount to the use or operation of a motor-vehicle as

contemplated by section 101.021(1) and that the facts alleged do not show the requisite

causal nexus because the presence of the animal control vehicle did no more than furnish

the condition that made Corpus's injuries possible. We agree.

         Corpus states in his amended petition that "[a]s a result of the [negligent] operation

or use of [the City]'s motor-driven vehicle . . . [by Mata], [Corpus] received hundreds of

bee stings . . . [and] . . . was caused to suffer considerable personal injuries." It is not

enough, however, to merely state that the negligent act involved a motor-vehicle or that

the use of the motor-vehicle caused the plaintiff's injury. See Los Fresnos Consol.,

Indep. Sch. Dist. v. Southworth, 156 S.W.3d 910, 915 (Tex. App.–Corpus Christi 2005,

pet. denied) (citing Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

2001)) ("Mere reference to the TTCA does not establish consent to be sued and is

therefore insufficient to confer jurisdiction on the trial court."). Instead, we look to the
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substance of the complained-of actions, as alleged by the plaintiff in his petition. See id.

(holding that we "must consider the particular facts of the case before us to determine

whether" the claim alleged by the plaintiff falls within the limited scope of the TTCA's

waiver of governmental immunity) (citation omitted). And the facts alleged here by

Corpus belie his bald statement that his injuries were caused by Mata's use or operation

of the animal control truck.

       In his amended petition, Corpus alleged that Mata "recklessly opened" the door of

the animal control truck "thereby allowing the bees to enter the vehicle and attack

[Corpus]." We do not believe the opening of the truck door amounts to the vehicle doing

or performing a practical work nor does opening the door bring the truck into action or

service. See LeLeaux, 835 S.W.2d at 51. Rather, it is plain from the alleged facts that

the truck was stationary and operating, at most, as a shelter for Corpus and Mata; as

such, it was not in use or operation as a vehicle. See Starkey, 104 S.W.3d at 629

(reasoning that the bus from which a disabled student fell when school employees

attempted to load him was not being used or operated within the meaning of the TTCA

where it was merely the setting of the injury).

       Further, the facts alleged by Corpus affirmatively negate that his injuries arose

from that alleged use. As noted above, the animal control truck was not in operation; it

was parked. Corpus was injured when the bees entered the cab of the truck where he

happened to be sitting. Although we do not condone Mata opening the truck door and

exposing a passenger not wearing protective gear to agitated bees, we nonetheless

cannot conclude that Corpus's injuries resulted from the operation or the use of the truck.

See Vela, 149 S.W.3d at 204 (holding that the stationary police car in which the plaintiff
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was sitting did not cause her injuries when it was rear-ended by another car); Gill, 3

S.W.3d at 581 (holding that the prisoner plaintiff's injury did not result from the use or

operation of the prison truck in which prisoner just happened to be standing when a tree

stump rolled onto his leg). Under the facts of this case, the animal control truck did no

more than furnish the condition that made Corpus's injuries possible. See Whitley, 104

S.W.3d at 543.

       Because Corpus failed to allege facts showing that his injury arose from Mata's

operation or use of a motor-vehicle, he failed to plead a waiver of the City's governmental

immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); see also Whitley, 104

S.W.3d at 542. And based on the facts alleged, we conclude that the defect in Corpus's

pleading is incurable. The negligent act alleged by Corpus—which involves the truck

only as the site of the injury—affirmatively negates the existence of a cause of action that

would waive the City's immunity and confer jurisdiction on the trial court. See Brown, 80

S.W.3d at 555; Ramirez, 74 S.W.3d at 867. The City's sole issue is sustained.

                                     IV. CONCLUSION

       We reverse the order of the trial court and render judgment granting the City's plea

to the jurisdiction and dismissing Corpus's claims with prejudice.




                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the
19th day of May, 2011.




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