Texas Dept. of Transp. v. Ramirez, 03-00-00594-CV.

• Decision Date: 05 April 2001
• Docket Number: No. 03-00-00594-CV.,03-00-00594-CV.
• Citation: 72 S.W.3d 376
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Cecilia M. RAMIREZ, Individually, as Next Friend of Cynthia Cecilia Ramirez and Melinda Amanda Ramirez, Minors; and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased; Ruben Armando Ramirez, Jr., Individually and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased; and Rene Ramirez, Individually and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased, Appellees.
• Court: Texas Court of Appeals

72 S.W.3d 376

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Cecilia M. RAMIREZ, Individually, as Next Friend of Cynthia Cecilia Ramirez and Melinda Amanda Ramirez, Minors; and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased; Ruben Armando Ramirez, Jr., Individually and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased; and Rene Ramirez, Individually and as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased, Appellees.

No. 03-00-00594-CV.

Court of Appeals of Texas, Austin.

April 5, 2001.

Rick Thompson, David B. Strain, Office of the Attorney General, Austin, for appellant.

Price Ainsworth, Francis Y. Pan, Spivey & Ainsworth, P.C., Austin, for appellees.

Before ABOUSSIE, C.J., YEAKEL and PATTERSON, JJ.

JAN P. PATTERSON, Justice.

After a fatal automobile collision on Interstate Highway 35, family members of Ruben Ramirez, Sr. ("appellees") brought a negligence action against the Texas Department of Transportation ("the Department"), asserting a premises defect claim under the Texas Tort Claims Act ("the Act").¹ The Department brings this interlocutory appeal from a district court order denying its plea to the jurisdiction. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp.2001). In three issues, the Department argues that its sovereign immunity under the Act was not waived because (i) appellees did not sufficiently state a defective condition of the highway; (ii) the Department cannot be held liable for failing to install safety features; and (iii) appellees did not allege an act after January 1, 1970 that caused the collision. We affirm the district court's judgment.

Background

On the morning of February 14, 1998, Ruben Ramirez, Sr. was traveling southbound in the far west lane of Interstate Highway 35. Just north of the Slaughter Lane overpass in South Austin, at approximately 7:50 a.m., Ramirez's automobile was struck head-on after Maria Vasquez lost control of her car. Prior to the accident, Vasquez had been traveling northbound on the highway when she collided with a vehicle in an adjacent lane. Vasquez's car crossed the grassy median separating the north and southbound lanes of the highway as well as two lanes of oncoming southbound traffic before it collided with Ramirez's automobile. As a result of the impact, Ramirez was pronounced dead at the scene of the collision approximately thirty minutes later.

On May 26, 1999, appellees brought this suit against the Department, asserting a single cause of action for negligence under section 101.022(a) of the Act. Id. § 101.022(a) (West 1997). The Department filed its original answer on June 25, 1999. Subsequently, on June 28, 2000, the Department filed a motion to dismiss for lack of jurisdiction and a motion for summary judgment. After a hearing, the district court denied both motions. The Department appeals the district court's judgment denying its motion to dismiss for lack of jurisdiction.

Standard of Review

A plea to the jurisdiction contests the district court's authority to determine the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.—Austin 1998, no pet.). Thus, a plea to the jurisdiction is properly employed to present a bar to subject matter jurisdiction. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.1999). As subject matter jurisdiction presents a question of law, we review a district court's order denying a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

We examine a plaintiff's good faith factual allegations to determine whether the district court has jurisdiction. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949); see Bland Indep. Sch. Dist., 34 S.W.3d at 554. In reviewing a plea to the jurisdiction, we may look beyond the pleadings and are required to do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist., 34 S.W.3d at 555. The nature of the issues raised in the plea determines the scope of the court's focus beyond the pleadings. Id.

The plaintiff bears the burden of pleading facts that show the district court has subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Unless the defendant pleads and proves that the plaintiff's allegations were fraudulently made to confer jurisdiction, they are accepted as true. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996). Absent the face of the petition affirmatively demonstrating a lack of jurisdiction, the district court must liberally construe the allegations in the petition in favor of the plaintiff and in favor of jurisdiction. Texas Ass'n of Bus., 852 S.W.2d at 446; Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989).

In this case, the Department asserts governmental immunity from suit in its plea to the jurisdiction, arguing in part that the petition does not state a claim under the Act. Because this argument, if correct, has jurisdictional consequences for claims brought under the Act, the Department properly asserted its challenge to the sufficiency of the petition in a plea to the jurisdiction. See Jones, 8 S.W.3d at 637 (reversing court of appeals for affirming the denial of the Department's plea without first determining whether Jones's pleadings stated a claim under the Texas Tort Claims Act); Brown v. City of Houston, 8 S.W.3d 331, 334 (Tex.App.—Waco 1999, pet. denied) (court did not err in sustaining plea to the jurisdiction because no viable cause of action was alleged under section 101.021 of the Act). The question before us is whether appellees' petition alleged facts that bring their action within the Act and thus confer jurisdiction on the district court.

DISCUSSION

Sovereign Immunity and the Texas Torts Claim Act

The doctrine of sovereign immunity protects the State² from lawsuits for damages unless waived and consists of two basic principles of law—immunity from liability and immunity from suit. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997); Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970). While immunity from liability does not affect a court's jurisdiction to hear a case, immunity from suit bars an action against the State unless the State expressly consents to the suit. Federal Sign, 951 S.W.2d at 405; Missouri Pac. R.R. Co., 453 S.W.2d at 813.

"The courts of our state require clear and unambiguous legislative expression before they will hold that sovereign immunity has been waived." Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex.2000). The supreme court recently confirmed that courts of this state should defer to the Texas Legislature's delineation of the boundaries of sovereign immunity. General Servs. Comm'n v. Little-Tex Insulation Co., 44 Tex.Sup.Ct.J. 397, 399, 39 S.W.3d 591, 595 (Tex.2001). In other words, establishing when and to what extent sovereign immunity from suit should be waived is solely within the realm of the Legislature. Id.; Federal Sign, 951 S.W.2d at 409.

A party suing a governmental entity must establish the State's consent, which may be alleged either by reference to a statute or to express legislative permission. Jones, 8 S.W.3d at 637; Missouri Pac. R.R. Co., 453 S.W.2d at 814. Here, in order for their claim to survive, appellees must demonstrate that they have stated a claim for which the Legislature has waived governmental immunity from suit.

In Texas, governmental entities are immune from tort liability unless the Legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). The Texas Tort Claims Act contains an express waiver of the State's immunity from suit under certain circumstances. Tex.Civ.Prac. & Rem.Code Ann. § 101.025 (West 1997) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."). When immunity has been expressly waived by the Legislature, the court must determine the scope of the waiver from the language of the statute. Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989).

The Legislature did not intend the waiver of sovereign immunity in the Act to be complete. Bossley, 968 S.W.2d at 341-42 (discussing the history of the passage of the Act); City of LaPorte v. Barfield, 898 S.W.2d 288, 299 (Tex.1995) ("[O]nly causes of action and remedies authorized by the Texas Tort Claims Act are permitted."). But the supreme court has stated that waiver under the Act should be liberally construed to effectuate its purposes. Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex.1989). Any exercise of liberal construction of the Act, however, must still abide by the supreme court's directive, "Arguments for applications of the Act that would essentially result in its waiver becoming absolute must therefore be rejected as contrary to the Act's fundamental purpose." Bossley, 968 S.W.2d at 342.

The express waiver of the Act only permits a district court to exercise jurisdiction when a plaintiff sufficiently pleads a claim for which liability has been established under the Act. Jones, 8 S.W.3d at 639; City of Midland v. Sullivan, 33 S.W.3d 1, 10 (Tex.App.-El Paso 2000, pet. filed); Prairie View A & M Univ. v. Mitchell, 27 S.W.3d 323, 327 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). The Texas Supreme Court has outlined the following two-step analysis to determine whether a governmental entity has waived sovereign immunity from suit under the Act:

[I]f a claim is barred by immunity, but immunity is waived under sections 101.021-.022 of the Act, action is still prohibited if the claim falls within [an] exception. If, however, a claim is not barred by immunity, neither the waiver of immunity by the Act, nor the exceptions to that waiver, are...