Harris County v. Sykes

Decision Date28 May 2004
Docket NumberNo. 02-1014.,02-1014.
Citation136 S.W.3d 635
CourtTexas Supreme Court
PartiesHARRIS COUNTY, Texas and Carl Borchers, Petitioners, v. Faye SYKES, Individually and a/n/f of Trenard Battle, Respondents.

Kevin D. Jewell, Chamberlain Hrdlicka White Williams & Martin, Casey Todd Wallace and Michael A Stafford, Harris County Atty., Michael R. Hull, Harris County Attorney's Office, Houston, for Petitioner.

Okon J. Usoro, Okon J. Usoro, P.C., Houston, for Respondent.

Chief Justice PHILLIPS delivered the opinion of the Court, in which Justice HECHT, Justice OWEN, Justice JEFFERSON, Justice SMITH, and Justice WAINWRIGHT joined.

This case raises two issues. First, we address whether an order granting a governmental unit's plea to the jurisdiction should be with or without prejudice when the claimant has failed to state a claim that is cognizable under the Texas Tort Claims Act. Regardless of the answer, we must then decide whether such a dismissal is a judgment for the purposes of section 101.106 of the Texas Tort Claims Act, that would bar a plaintiff from proceeding against governmental agents for claims arising from the same subject matter. See Tex. Civ. Prac. & Rem.Code § 101.106. The court of appeals held that a dismissal pursuant to a plea to the jurisdiction is a dismissal without prejudice, and as such, not a judgment under the Texas Tort Claims Act. 89 S.W.3d 661, 670. We hold that such a dismissal is with prejudice because it fully and finally adjudicates whether the claims that were asserted, or that could have been asserted, come within the Texas Tort Claims Act's waiver of sovereign immunity. We further hold that such a dismissal is a judgment under section 101.106 of the Texas Tort Claims Act. Accordingly, we modify the judgment of the court of appeals to render judgment dismissing the plaintiff's claims with prejudice and render judgment that the plaintiff take nothing.

I

George Sykes and his wife, Faye, brought this suit for injuries Mr. Sykes allegedly sustained in the Harris County jail. While incarcerated there, Mr. Sykes was assigned to a bed next to an inmate who was infected with tuberculosis. The Sykeses claimed that the county was negligent in failing to quarantine the infected inmate and in failing to warn Mr. Sykes of the inmate's infection. Several months after filing suit, Faye Sykes filed a suggestion informing the trial court of her husband's death. At the same time, she filed a motion, on which the trial court apparently never ruled, requesting that Trenard Battle, Mr. Sykes's minor son, be added as a plaintiff and that the estate of George Sykes be substituted in the place of her late husband.

Asserting governmental immunity from suit, Harris County filed a plea to the jurisdiction arguing that the Legislature has not waived immunity from suits like the Sykes's. Sykes responded that immunity was waived by the Texas Tort Claims Act because her husband's injuries arose out of the condition or use of property. Tex. Civ. Prac. & Rem.Code § 101.021. Specifically, Sykes argued that the words "housed," "room," and "sleeping space" in their pleadings all connote use of the tangible personal or real property that caused Mr. Sykes's injury and eventual death.

By amended petition, Sykes added Carl Borchers, the major of the Harris County jail, as a defendant both individually and in his official capacity. The trial court subsequently granted Harris County's plea to the jurisdiction and dismissed Sykes's claims against Harris County with prejudice. Borchers then moved for summary judgment, urging that the trial court's dismissal of Harris County entitled him to derivative immunity under section 101.106 of the Texas Tort Claims Act. See id. § 101.106; Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995). The trial court granted Borchers's motion and signed an order that Sykes take nothing.

Sykes appealed, arguing that the trial court erred in granting the plea to the jurisdiction and dismissing her claims against Harris County because the Texas Tort Claims Act waives immunity when a condition or use of tangible personal property causes injury. See Tex. Civ. Prac. & Rem.Code § 101.021. Sykes also argued that the trial court further erred in granting Borchers's motion for summary judgment because Harris County's dismissal was not a judgment for purposes of section 101.106. See id. § 101.106. The court of appeals affirmed the trial court's dismissal of Harris County, holding that Sykes's amended petition did not affirmatively plead facts sufficient to confer jurisdiction on the trial court. 89 S.W.3d at 667. But the court decided that, in granting the plea to the jurisdiction, the trial court could only dismiss the suit without prejudice, which did not qualify as a judgment under section 101.106 of the Texas Tort Claims Act. 89 S.W.3d at 668. Accordingly, the court of appeals reversed Carl Borchers's summary judgment and remanded the case to the trial court. We granted Carl Borchers and Harris County's petition for review.

II

Sovereign immunity from suit defeats a trial court's subject matter jurisdiction unless the state expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003) (recognizing that sovereign immunity and governmental immunity are distinct concepts although courts often use the terms interchangeably). The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met. See Tex. Civ. Prac. & Rem.Code §§ 101.021, 101.025.1

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Because governmental immunity from suit defeats a trial court's jurisdiction, it may be raised by such a plea. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Jones, 8 S.W.3d at 639. Whether a court has subject matter jurisdiction is a legal question. State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). If the trial court denies the governmental entity's claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that an interlocutory appeal may be brought. See Tex. Civ. Prac. & Rem.Code § 51.014; San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245 n. 3 (Tex.2004). However, if the court grants the plea to the jurisdiction, as the trial court did in this case, the plaintiff may take an appeal once that judgment becomes final. See Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000).

A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action upon which the trial court has jurisdiction. See Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960) (citing Lone Star Fin. Corp. v. Davis, 77 S.W.2d 711, 715 (Tex.App.-Eastland 1934, no writ)). This was such a case. After Harris County filed its plea to the jurisdiction, Sykes amended her petition to state with greater particularity the theory that Harris County waived governmental immunity by placing Mr. Sykes in the same room with, and assigning him a bed near, an inmate infected with tuberculosis. The trial court dismissed Sykes's claims, and the court of appeals agreed that "any effect that the room's walls and Sykes's bed had on Sykes's alleged exposure to tuberculosis is too attenuated to constitute a waiver of immunity under the [Texas Tort Claims Act]." 89 S.W.3d at 667 (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)).2

The court of appeals disagreed with the trial court, however, on whether such a dismissal should be with or without prejudice. In general, a dismissal with prejudice is improper when the plaintiff is capable of remedying the jurisdictional defect. See Dahl v. State, 92 S.W.3d 856, 862 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex.App.-Corpus Christi 2001, pet. denied); Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d 292, 295 (Tex. App.-Houston [14th Dist.] 1997, writ denied). The court of appeals in this case relied on Bell to hold that Sykes's claims should have been dismissed without prejudice. In so doing, the court ruled contrary to a line of decisions stating that dismissal with prejudice is appropriate when a trial court lacks subject matter jurisdiction because of the sovereign immunity bar. See Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 231 (Tex.App.-Corpus Christi 2001, no pet.); City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.); City of Cleburne v. Trussell, 10 S.W.3d 407, 409 (Tex.App.-Waco 2000, no pet.); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.); Hampton v. Univ. of Tex.-M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Lamar Univ. v. Doe, 971 S.W.2d 191, 197 (Tex.App.-Beaumont 1998, no pet.); Jones v. City of Stephenville, 896 S.W.2d 574, 577 (Tex.App.-Eastland 1995, no writ); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 740 (Tex.App.-Austin 1994, writ denied). We granted Borchers and Harris County's petition to resolve this conflict.

If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a...

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