DISSENT and Opinion Filed August 27, 2020




                                         In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                 No. 05-19-01141-CV

                    CITY OF SAGINAW, TEXAS, Appellant
                                  V.
                         BRANDON CRUZ, Appellee

                On Appeal from the 160th Judicial District Court
                             Dallas County, Texas
                     Trial Court Cause No. DC-18-19227

                           DISSENTING OPINION
               Before Justices Schenck, Partida-Kipness, and Nowell
                      Dissenting Opinion by Justice Schenck
      I regret that I am unable to join the majority in its conclusion to affirm the

denial of the City’s plea to the jurisdiction.

      The majority cites Bland Independent School District v. Blue for the general

proposition that the purpose of a plea to the jurisdiction is to “defeat a cause of action

without regard to whether the claims asserted have merit.” 34 S.W.3d 547, 554 (Tex.

2000). Bland was a taxpayer standing case. As we have noted in the past, standing

and other general jurisdiction challenges are quite different from jurisdictional

challenges under the Texas Tort Claims Act, which makes the waiver of immunity
to suit “co-extensive with liability.” City of Dallas v. E. Vill. Ass’n, 480 S.W.3d 37,

46 (Tex. App.—Dallas 2015, pet. denied).

      I believe the Texas Supreme Court and this Court have thus adopted a

different scope of inquiry in these cases, see Texas Department of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004), because the Texas Tort Claims Act

waives immunity from suit but only “to the extent of liability created by [the

Act].” E. Vill. Ass’n, 480 S.W.3d at 46 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.025(a)). The Texas Tort Claims Act expressly waives sovereign immunity in

three areas: “use of publicly owned automobiles, premises defects, and injuries

arising out of conditions or use of property.” Miranda, 133 S.W.3d at 224. Texas

courts have held that where a special defect exists, the State owes the same duty to

warn as a private landowner owes to an invitee, one that requires the State to use

ordinary care to protect an invitee from a dangerous condition of which the owner is

or reasonably should be aware. See Reyes v. City of Laredo, 335 S.W.3d 605, 606–

07 (Tex. 2010) (per curiam). Accordingly, the immunity waiver under the Texas

Tort Claims Act is intertwined with the merits of a claim under that act. Id.

      In this case, the record contains no evidence of the nature of the defect, actual

knowledge of the defect, how long the defect existed, or that a reasonable inspection

would have discovered the defect. Thus, the majority opinion appears to conclude

the City is strictly liable for the alleged defect that caused appellee’s injuries. Cf.

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000) (holding

                                         –2–
constructive knowledge in premises cases can be established by showing condition

existed long enough for owner or occupier to have discovered it upon reasonable

inspection); Tex. Dep’t of Transp. v. Jackson, 528 S.W.3d 598, 608 (Tex. App.—El

Paso 2017, pet. denied).

      Because I disagree with the majority’s conclusion, I respectfully dissent.




                                          /David J. Schenck/
                                          DAVID J. SCHENCK
                                          JUSTICE

191141DF.P05




                                        –3–
