Panel B: Day, Holman, and Gardner, JJ.
The opinion of the court was delivered by: Dixon W. Holman, Justice
FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
Appellants Kathy Mogayzel, Karen Roop, and Christi Callender appeal from the trial court's decision to grant a motion to dismiss their case for lack of jurisdiction. In their sole point, Appellants argue that the trial court erred in granting the motion to dismiss on grounds that Appellants' claims are barred by the sovereign immunity of the State and the Texas Department of Transportation ("TxDOT"). We affirm.
Factual and Procedural Background
On June 14, 1999, Andrew Mogayzel ("Andy"), who was Kathy Mogayzel's husband, was driving westbound on interstate highway 20 ("I- 20") in the city of Arlington with his mother-in-law, Nancy Mogayzel ("Nancy"), and his son, Zach. Andy somehow lost control of the car, perhaps due to a tire blowout, and hit the guardrail on the outer lane of westbound I-20. When he attempted to steady the vehicle, he over- corrected, causing him to spin and cross over the grassy median separating the westbound lanes from the eastbound lanes of I-20 where his car struck other vehicles in the eastbound lanes. Nancy and Andy were instantly killed when one of the cars in an eastbound lane impacted their car head on. Zach also died after being thrown from the vehicle and run over by an oncoming car. Members of Appellant Callender's family, who were traveling in one of the eastbound lanes, were also injured in the accident.
The Callenders first brought suit against the Mogayzels, Ana Perez Morris, who was another motorist involved in the accident, and TxDOT. Subsequently, however, Appellants Mogayzel and Roop moved to consolidate their claims with Appellant Callender's claims against TxDOT. Pursuant to an agreed order, Mogayzel's and Roop's claims against TxDOT were consolidated with Appellant Callender's claims on July 7, 2000. After the trial court granted Appellees' motion to dismiss, Appellant Callender's separate claims against Appellant Mogayzel were severed pursuant to an agreed joint motion so that they could appeal the trial court's judgment dismissing their cases against TxDOT for lack of jurisdiction.
Liability Under the Tort Claims Act
As governmental entities, Appellees are immune from both suit and liability unless the Texas Tort Claims Act (the "Act") waives that immunity. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.025 (Vernon 1997). In their motion to dismiss for lack of jurisdiction, Appellees asserted that sovereign immunity was not waived because its acts or omissions were "discretionary." See id. § 101.056 (providing that sovereign immunity is not waived when the act or omission complained of is a discretionary function of the State). The trial court, apparently agreeing that the discretionary functions exception applied, granted the motion to dismiss Appellants' case on September 21, 2000.
Appellants, however, rely on section 101.060 of the Act, which provides an exception to governmental sovereign immunity in certain situations, even where governmental acts or omissions are "discretionary":
(a) This chapter does not apply to a claim arising from:
(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;
(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice . . .
(b) The signs, signals, and warning devices referred to in this section are those used in connection with hazards normally connected with the use of the roadway.
(c) This section does not apply to the duty to warn of special defects such as excavations or roadway obstructions. Id. § 101.060.
Here, Appellants argue, section 101.060(a)(2) waives sovereign immunity for Appellees, which, if true, means that the trial court had subject matter jurisdiction over the case and erred in granting Appellees' motion to dismiss.
Subject matter jurisdiction is determined by whether the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Governmental immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). Whether a trial court has subject matter jurisdiction, however, is a question ...