Guadalupe-Blanco River Author. v. Pitonyak, 13-01-778-CV.

CourtCourt of Appeals of Texas
Citation84 S.W.3d 326
Docket NumberNo. 13-01-778-CV.,13-01-778-CV.
PartiesGUADALUPE-BLANCO RIVER AUTHORITY, Appellant, v. Paul J. PITONYAK, Jr., et al., Appellees.
Decision Date25 July 2002
84 S.W.3d 326
Paul J. PITONYAK, Jr., et al., Appellees.
No. 13-01-778-CV.
Court of Appeals of Texas, Corpus Christi.
July 25, 2002.

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Barbara E. Roberts, Kevin D. Jewell, Magenheim, Bateman & Helfand, William S. Helfand, Magenheim, Bateman, Robinson,

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Wrotenbery & Helfand, Houston, for appellant.

David C. Griffin, Luis A. Martinez, Houston, Marek & Griffin, Mike L. Crane, McManus & Crane, William Q. McManus, Victoria, for appellees.



Opinion by Justice CASTILLO.

This is an interlocutory appeal from the denial of a plea to the jurisdiction.1 In three issues, appellant Guadalupe-Blanco River Authority("GBRA") asserts that the trial court erred in denying the plea to the jurisdiction because appellees2 failed to allege any claims which fall within the waiver provisions of the Texas Tort Claims Act.3 We reverse.


GBRA is a conservation and reclamation district created by the State of Texas as a governmental agency in 1933 to oversee the waters of Hays, Comal, Guadalupe, Caldwell, Gonzales, DeWitt, Victoria, Kendall, Refugio and Calhoun counties. Act of May 21, 1975, 64th Leg. R.S., Ch. 433, 1975 Tex. Gen. Laws 1149, 1149. Among the public duties of GBRA are the conservation and development of the navigation of inland waters, and the control, storing, preservation and distribution of the waters of rivers and streams contained therein. Id.

Among the waters within the jurisdiction of the GBRA is Goff Bayou. Within Goff Bayou, GBRA maintains a saltwater barrier which prevents saltwater from entering the fresh waters of the diversion system and also serves to release excess fresh water out of the bayou. The saltwater barrier is an unmanned concrete and steel structure which connects the bayou with one of the bays of the Gulf of Mexico. It operates by use of radial, or retainer, gates4 which face the opposing force of the water and are hinged so they can be raised outside the water. They can be raised off the bottom of the channel to allow water to flow beneath them. When the gates are closed, the saltwater is prevented from migrating upstream. The gates are opened to release flood waters.

On October 20, 1997, Paul Pitonyak and Carl Holcomb drowned in Goff Bayou. Appellees filed suit against GBRA,5 citing the Texas Tort Claims Act. GBRA filed a

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plea to the jurisdiction, which was denied by the trial court, and this appeal ensued.

Standard of Review

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction. TEX.CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2002). A plea to the jurisdiction is the vehicle by which a party contests the trial court's authority to determine the subject matter of the cause of action. State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). A governmental unit may properly challenge a trial court's subject matter jurisdiction by filing a plea to the jurisdiction since absent the state's consent to suit a trial court has no subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999).

The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). A trial court must not weigh the merits of the case, but instead consider only the pleadings and evidence pertinent to the jurisdictional question. County of Cameron v. Brown, 80 S.W.3d 549, 555-556, 45 Tex. Sup.Ct. J. 680 (Tex. 2002) (citing Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001) and Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). In doing so, the trial court must construe the plaintiffs pleadings liberally in favor of jurisdiction, Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989), and must take all factual allegations pled as true, unless the defendant pleads and proves that the allegations were fraudulently made in order to confer jurisdiction. Cont. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper. Peek, 779 S.W.2d at 804-05; City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex.App.-Austin 1998, no pet.). However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court. Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960). If the plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing. Brown, at 559; Peek, 779 S.W.2d at 804-05. On appeal, because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). To determine whether the plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. White, 46 S.W.3d at 868. Like the trial court, we must construe the pleadings in the plaintiffs favor and look to the pleader's intent. Brown, at 559. Our task is not to determine the merits of the case but rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court. Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.-Corpus Christi 2001, pet. denied).

Issues Presented

In the present case, GBRA asserts that the trial court lacks subject matter jurisdiction

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over appellees' claims because appellees' petition does not assert a claim which is cognizable under the Texas Tort Claims Act. Specifically, GBRA claims that the trial court erred in denying the plea to the jurisdiction because: 1) governmental immunity barred appellees' claims and had not been waived by the Texas Tort Claims Act; 2) the saltwater barrier was not defective;6 and 3)no cause of action exists under section 11.050 of the Texas Water Code.7

As the issues are interrelated and all are some variant of the argument that the trial court erred in denying the plea to the jurisdiction because appellees' pleadings did not raise a claim cognizable under the Texas Tort Claims Act, we will address them jointly as we consider the question of the trial court's jurisdiction in the instant case.

Sovereign Immunity

Sovereign immunity, unless waived, protects the State of Texas from lawsuits for damages absent legislative consent. Gen. Servs. Comm'n. v. Little Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Sovereign immunity derives from the principle that the sovereign may not be sued in its courts without its consent. Tex. Workers' Comp. Comm'n v. Garcia, 862 S.W.2d 61, 72 (Tex.App.-San Antonio 1993), rev'd on other grounds, 893 S.W.2d 504 (Tex.1995). Sovereign immunity encompasses two principles-immunity from suit and immunity from liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). Immunity from liability protects the State from judgments, even where there is an express consent on the part of the Legislature to permit a suit. Id. Immunity from liability is an affirmative defense that must be pled or else it is waived. Jones, 8 S.W.3d at 638 (citing Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex.1988)). Immunity from suit, on the other hand, bars a suit against the State unless the State expressly gives consent to the suit. Fed. Sign, 951 S.W.2d at 405. Immunity from suit then deprives a trial court of subject matter jurisdiction over the governmental agency, even if liability is undisputed. Travis Co. v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 247, 45 Tex. Sup.Ct. J. 623 (Tex. 2002)(citing Jones, 8 S.W.3d at 638).

Subject matter jurisdiction is never presumed and cannot be waived. Tex. Ass'n of Bus., 852 S.W.2d at 443-44. Since a governmental unit is protected from suit by sovereign immunity, pleadings in a suit against a governmental unit must affirmatively demonstrate, either by reference to a statute or express legislative permission, that the legislature consented to the suit. Jones, 8 S.W.3d at 638. Absent the State's consent to suit, the trial court has no jurisdiction. Id.

The Texas Tort Claims Act and Waiver of Sovereign Immunity

As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex.1994). Whether a particular claim falls into an exception from the general doctrine of sovereign immunity is entirely dependent on the statutory language. Dallas County Mental Health &

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Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998).

The Texas Tort Claims Act provides that governmental units are 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

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a...

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