Johnson v. Texas Department of Corrections, Civ. A. No. 73-H-1278.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: NOEL
• Citation: 373 F. Supp. 1108
• Parties: Shirley JOHNSON, Plaintiff, v. TEXAS DEPARTMENT OF CORRECTIONS et al., Defendants.
• Decision Date: 11 April 1974
• Docket Number: Civ. A. No. 73-H-1278.

373 F. Supp. 1108

Shirley JOHNSON, Plaintiff,
v.
TEXAS DEPARTMENT OF CORRECTIONS et al., Defendants.

Civ. A. No. 73-H-1278.

United States District Court, S. D. Texas, Houston Division.

April 11, 1974.

J. Jerry Merchant of Merchant, Barfield & Poff, Amarillo, Tex., for plaintiff.

John L. Hill, Atty. Gen. of Tex., Jack Sparks, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM AND ORDER

NOEL, District Judge.

This is a tort action arising out of the fatal crash of a Texas Department of

373 F. Supp. 1109

Corrections airplane into the crest of a Colorado mountain. An escaped prisoner, William Perry Johnson, who was being transferred following his capture in the State of Oregon, and the two pilots of the aircraft lost their lives in the crash. The prisoner's widow (whom he had allegedly married in Oklahoma after his escape from prison) brings this action against the Texas Department of Corrections (hereinafter referred to as TDC) and the Executrix and Administratrix of the estates of the deceased pilots. Jurisdiction is predicated upon 28 U.S.C. § 1332. Recently, plaintiff entered into a stipulation dismissing all parties from the suit except the TDC

Defendant TDC has filed a motion to dismiss or, in the alternative, a motion for summary judgment. As grounds for said motion, defendant proffers five separate reasons why the instant complaint may not be maintained. Defendant's primary contention for dismissal is founded upon the right of a State (or its agencies) not to be sued without the consent of the State—the familiar doctrine of sovereign immunity.

However, before the Court can investigate whether the TDC may invoke sovereign immunity or whether it has been waived under state law, the jurisdiction of this Court must be clearly demonstrated. There is never a presumption in favor of federal jurisdiction, but rather the basis for such jurisdiction must be affirmatively evidenced by the party invoking it. Grace v. American Central Ins. Co., 109 U.S. 278, 3 S.Ct. 207, 27 L.Ed. 932 (1883). The obvious reason for the rule is that the United States District Court is a court of limited jurisdiction, simply "a creatures of statute possessing only such jurisdiction as the statutes expressly confer, and this jurisdiction must always affirmatively appear." LeMieux v. Tremont Lumber Co., 140 F.2d 387, 389 (5th Cir. 1944). The prerequisites to the exercise of jurisdiction are specifically defined. They are conditions which must be met by the party seeking jurisdiction in his favor. He must in his pleading allege the...