                          NUMBER 13-10-00076-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

ROBINSON MARTINEZ,                                                      Appellant,

                                         v.

THE STATE OF TEXAS, HIDALGO COUNTY
POLITICAL SUBDIVISION, AGENT OF THE
STATE AND/OR GOVERNMENT UNIT, JOSEPH
ORENDAIN AND RENE GUERRA IN THEIR
INDIVIDUAL AND/OR OFFICIAL CAPACITY,                                   Appellees.


                  On appeal from the 92nd District Court
                       of Hidalgo County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      In this pro se appeal, appellant Robinson Martinez challenges the trial court's

dismissal of his lawsuit against appellees the County of Hidalgo, Rene Guerra, and
Joseph Orendain.1 By one issue, Martinez argues his due process rights were violated

when the trial court granted appellees' plea to the jurisdiction because Martinez did not

receive adequate notice of the plea and hearing on the plea. We affirm.

                                             I. BACKGROUND

          In May 2009, Martinez filed suit against appellees, bringing various causes of

action in connection with the alleged breach of a plea bargain agreement between

Martinez and Orendain, a Hidalgo County prosecutor.                       Martinez alleged that, in

exchange for his guilty plea to a manslaughter charge, Orendain agreed, in relevant part,

that Martinez would be sentenced to ten years' incarceration and that Martinez would

receive "back time jail credit from time of arrest and/or detainer." Martinez alleged that

Orendain reneged on the agreement by filing "a motion in court Denying Plaintiff jail

credit."2

          Martinez then alleged the following causes of action against Orendain: (1) breach

of contract; (2) fraud; (3) violation of due process under the Fourteenth Amendment, see

U.S. CONST. amend XIV; (4) violation of article 42.03, section 2 of the code of criminal

procedure, see TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2 (Vernon Supp. 2010)

(providing that trial judge "shall give the defendant credit on the defendant's sentence for

the time that the defendant has spent . . . in jail for the case . . . from the time of his arrest

and confinement until his sentence by the trial"); and (5) violation of section 104.002 of


          1
           The full style for appellees is as follows: The State of Texas, Hidalgo County Political
Subdivision, Agent of the State and/or Government Unit, Joseph Orendain and Rene Guerra in their
Individual and/or Official Capacity.
          2
              Neither the plea bargain agreement nor the motion allegedly filed by Orendain appear in the
record.
                                                      2
the civil practices and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 104.002

(Vernon 2005) (providing that the State is responsible for damages related to the conduct

of a public servant if "the damages arise out of a cause of action for deprivation of a right,

privilege, or immunity secured by the constitution or laws of this state or the United

States"). 3     Against Hidalgo County, Martinez alleged the following cause of action:

"failure to[] properly[] instruct, supervise, control, and discipline[]" Orendain. Against

Guerra, the Hidalgo County District Attorney, Martinez alleged a cause of action of

"supervisor liability" in connection with the actions of Orendain.4

        On October 21, 2009, Martinez filed a letter with the trial court stating that his

address had changed because he had been transferred to the Texas Department of

Criminal Justice's Telford Unit in New Boston, Texas, and asking the court to "forward all

correspondence to [his] new address and notify [him] of any response since the time

[he's] been in tran[sit] so that [he] can respond back." Martinez did not serve this change

of address letter on appellees; instead, he asked the trial court "to also notify the parties in

interest."

        On October 30, 2009, appellees filed a plea to the jurisdiction and motion to

dismiss Martinez's suit, arguing that the trial court lacked jurisdiction over all of Martinez's

causes of action because Martinez's claims: were barred by governmental immunity;


        3
          Martinez also stated a cause of action titled "Negligence" against Orendain, but the allegations
under that title involved "acts . . . done inten[tionally] and knowingly" and breach of contract. This cause of
action involved nothing in addition to the intentional tort (fraud) and breach of contract action already
alleged by Martinez, and we therefore will not consider it as a properly pled cause of action for negligence.
       In his petition, Martinez alleged his fraud claim against Orendain in Orendain's individual capacity.
The remainder of Martinez's claims were brought against Orendain in Orendain's official capacity.
        4
            Martinez alleged his claim against Guerra in Guerra's individual capacity.
                                                      3
were barred by official, prosecutorial, and/or qualified immunity; and/or failed to state a

legally cognizable cause of action. Appellees served their plea and motion on Martinez

at his old unit in Cotulla, Texas. On November 4, 2009, the trial court set the plea and

motion for hearing on November 10, 2009; the court sent the hearing notice to Martinez's

old unit in Cotulla, as well. The trial court held the hearing, at which appellees presented

argument, and granted appellees' plea to the jurisdiction and motion to dismiss on

November 16, 2009. The order granting the plea and motion stated that "[t]his judgment

is final, disposes of all claims and all parties and is appealable."5 Martinez claims that he

did not receive his copy of the plea and motion or the hearing-setting notice until

November 27, 2009. This appeal followed.

                                             II. DISCUSSION

        By one issue, Martinez argues that the trial court violated his due process rights by

granting appellees' plea to the jurisdiction and dismissing Martinez's claims because he

had no notice of the plea and motion to dismiss or the hearing on those pleadings. Even

if we assume that the trial court failed to give Martinez proper notice, however, we still

conclude that Martinez's due process rights were not violated because his petition wholly

failed to invoke the jurisdiction of the court.

        Whether a trial court has subject-matter jurisdiction is a threshold inquiry that can

be addressed by the court sua sponte and at any time. See In re G.S.G., 145 S.W.3d
        5
          After the trial court's dismissal of the case, Martinez filed a "Motion for Reinstatement and
Request for Hearing" under Texas Rule of Civil Procedure 165a(3). The record reflects that the trial court
took no action on Martinez's motion, and it was therefore overruled by operation of law. See TEX. R. CIV. P.
165a(3). By a second issue, Martinez argues that the trial court erred in denying his motion to reinstate.
However, rule 165a governs only dismissals for want of prosecution, whereas the dismissal here was based
on lack of subject-matter jurisdiction. See generally TEX. R. CIV. P. 165a. Because a motion to reinstate
under rule 165a was unavailable to Martinez under the ruling in this case, the trial did not err in denying it.
Martinez's second issue is overruled.
                                                      4
351, 353 (Tex. App.–Houston [14th Dist.] 2004, no pet.) (citing Tex. Ass'n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)); see also Skylane West Ltd. v. Harris

County Appraisal Dist., No. 14-08-00507-CV, 2009 WL 4913256, at *5 n.4 (Tex.

App.–Houston [14th Dist.] Dec. 22, 2009, no pet.) (mem. op.) (noting that a trial court can

"consider lack of subject-matter jurisdiction, even sua sponte, at any time"). In fact, a

trial court can make this inquiry and dismiss a case for lack of subject-matter jurisdiction

without the involvement of the parties. See Webb v. Voga, 316 S.W.3d 809, 812 (Tex.

App.–Dallas 2010, no pet.) (holding that a court must ascertain subject-matter jurisdiction

even if the parties have not questioned it); see also Skylane, 2009 WL 4913256, at *5 n.4

(noting that the trial court properly granted a plea to the jurisdiction before one of the

plaintiffs was even added to the case because the trial court was entitled to consider

subject-matter jurisdiction sua sponte and at any time). As a result, we believe it is

irrelevant if a plaintiff does not have notice of a plea to the jurisdiction or hearing on that

plea when notice would not alter the circumstance of the plea— i.e., that the plaintiff failed

to allege facts and causes of action conferring jurisdiction on the court. See Link v.

Wabash R.R. Co., 370 U.S. 626, 632 (1962) (holding that not "every order entered

without notice" and a hearing necessarily offends due process and that "[t]he adequacy of

notice and hearing . . . turns, to a considerable extent, on the knowledge" a party may

have "of the consequences of his own conduct"); see also Kimmel v. Cooper, No.

03-01-00333-CV, 2002 WL 246425, at *2 (Tex. App.–Austin Feb. 22, 2002, no pet.)

(mem. op., not designated for publication) (holding that a plaintiff's due process rights

were not violated by the trial court's granting of a plea to the jurisdiction without giving the


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plaintiff notice of the hearing because a hearing would not have changed the fact that the

plaintiff's pleadings failed to allege facts waiving immunity). Thus, the relevant inquiry for

this Court is whether the trial court had jurisdiction over Martinez's claims against

appellees and, accordingly, whether the plea to the jurisdiction had merit.

            A. Claim Against Hidalgo County: Governmental Immunity

       Martinez brought a cause of action against Hidalgo County for its alleged "failure

to[] properly[] instruct, supervise, control, and discipline[]" Orendain.       However, a

governmental entity—here, Hidalgo County—is immune from suit unless that immunity is

waived, and absent that waiver, a trial court is deprived of subject-matter jurisdiction.

See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). "'[T]he

waiver of governmental immunity is a matter addressed to the Legislature.'" City of

LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995) (quoting Guillory v. Port of Houston

Auth., 845 S.W.2d 812, 813 (Tex. 1993)). And the Legislature must waive governmental

immunity by clear and unambiguous language.            Id.   We must therefore determine

whether the Legislature has by clear and unambiguous language waived immunity for the

failure-to-supervise claim made in this case against Hidalgo County.

       In his pleadings, Martinez identifies no such waiver of immunity in the statutes of

this State. See Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002)

(holding that a plaintiff bears the burden of alleging facts which affirmatively demonstrate

the trial court's jurisdiction); Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807

(Tex. App.–Corpus Christi 2004, no pet.) (same). And in our research, we have likewise




                                              6
found no waiver of immunity for the sort of failure-to-supervise claim alleged by Martinez.6

Thus, Martinez's petition affirmatively negates jurisdiction over his claim against Hidalgo

County, and we cannot conclude that the trial court erred in granting the plea to the

jurisdiction as to Hidalgo County without giving Martinez an opportunity to amend. See

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (holding that 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); Ramirez, 74 S.W.3d at 867

(same).

   B. Claims against Orendain and Guerra: Absolute Prosecutorial Immunity

        "[G]overnment officials or actors have absolute immunity when the complained[-]

of activities were intimately associated with the judicial phase of the criminal process."

Clawson v. Wharton County, 941 S.W.2d 267, 271 (Tex. App.–Corpus Christi 1996, writ

denied). "'The duties of the prosecutor in his role as advocate for the State involve

actions preliminary to the initiation of a prosecution and actions apart from the


        6
           Martinez does not bring suit against Hidalgo County under the Texas Torts Claim Act (TTCA) or
otherwise allege negligence against Hidalgo County in its failure to supervise Orendain. However, if we
were to liberally construe Martinez's allegations as such, Texas courts uniformly hold that a plaintiff's
allegations that a government employer negligently failed to supervise an employee do not waive immunity
under the TTCA because such allegations do not fall within the limited scope of the TTCA's waiver
provision. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 2005) (waiving immunity from suit to
the extent of liability for personal injury or death caused by a governmental employee's negligent use of a
motor-driven vehicle or motor-driven equipment; the condition or use of real property; or the condition or
use of tangible personal property); see, e.g., Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, No.
14-10-00282, 2010 WL 4950546, at *3 (Tex. App.–Houston [14th Dist.] Dec. 7, 2010, no pet.) (holding that
there is no waiver of immunity under the TTCA for injuries proximately caused by, among other things, the
negligent failure to supervise); Eastland County Coop. Dispatch v. Poyner, 64 S.W.3d 182, 198 (Tex.
App.–Eastland 2001, pet. denied) (holding that the sheriff and police chief's failure to train, supervise, and
perform background checks did not implicate the use of tangible personal or real property, for purposes of
waiver of sovereign immunity under the TTCA); Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481,
484 (Tex. App.–Beaumont 1995, no writ) (holding that the plaintiff's allegations of the hospital's negligent
failure to supervise a treating physician did not come within any of the categories in which governmental
immunity is waived under the TTCA).
                                                      7
courtroom.'" Id. at 272 (quoting Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976)).

Thus, those acts that are undertaken by the prosecutor in preparing for the initiation of

judicial proceedings or for trial and which occur in the course of his or her role as an

advocate for the State are entitled to the protections of absolute immunity.        Id.   A

defendant properly raises absolute immunity in a plea to the jurisdiction. See Salazar v.

Morales, 900 S.W.2d 929, 934 (Tex. App.–Austin 1995, no writ) (affirming trial court's

granting of defendant's plea to the jurisdiction based on absolute immunity); see also

Warren v. McClennan County Judiciary, No. 10-09-00274-CV, 2010 WL 2869817, at *3

(Tex. App.–Waco July 14, 2010, no pet.) (mem. op.) (same).

       Martinez alleged various causes of action against Orendain and Guerra in their

official and individual capacities, but all of the claims were based on decisions made by

Orendain and Guerra during the plea bargaining process of their criminal prosecution of

Martinez for manslaughter.     All of the claims were based on the same nucleus of

facts—that Orendain allegedly reneged on his plea agreement with Martinez regarding

the jail credit Martinez would receive toward his sentence. Thus, all of Martinez's claims

flow from Orendain and Guerra's roles as the State's advocates during the criminal

prosecution. See Clawson, 941 S.W.2d at 272. It is irrelevant whether the claims were

brought against Orendain and Guerra in their official or individual capacities. See id. at

273 ("[A]bsolute immunity [is] effective against all claims regardless of whether they are

lodged against the individual possessing it in his official or personal capacity."). As

prosecutors, both Orendain and Guerra had absolute immunity from suit arising out of

such a situation. Martinez's petition therefore affirmatively negates jurisdiction over the


                                            8
claims related to the plea bargain. See County of Cameron, 80 S.W.3d at 555. The trial

court did not err in denying appellees' plea to the jurisdiction in this regard. See Salazar,

900 S.W.2d at 934.

                                     III. CONCLUSION

       In sum, because all of Martinez's claims were barred by governmental and

prosecutorial immunity, we conclude the trial court did not have jurisdiction and appellees'

plea was therefore meritorious. No amendments or further pleading could have cured

the jurisdictional defects. See County of Cameron, 80 S.W.3d at 555. As such, it is

irrelevant that Martinez did not receive appellees' plea to the jurisdiction and motion to

dismiss or notice of the hearing on those pleadings until after the trial court issued its

ruling and dismissed the case; because the plea to the jurisdiction had merit, the granting

of the plea did not deprive him of due process. See Link, 370 U.S. at 632; see also

Kimmell, 2002 WL 246425, at *2. Martinez's issue is overruled. We affirm the trial

court's judgment dismissing Martinez's case for lack of jurisdiction.



                                                                NELDA V. RODRIGUEZ
                                                                Justice

Delivered and filed the
10th day of March, 2011.




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