Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 31st District Court Hemphill County, Texas
Trial Court No. 7030, Honorable Steven Ray Emmert, Presiding
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
T. Campbell Justice.
the City of Canadian, Texas, brings this interlocutory appeal
from an order denying its plea to the
jurisdiction. The City contends it is immune from the
suit for damages brought by appellee Jenny Klein as next
friend of her minor son, E.K. We find that Klein's suit
has not invoked a waiver of the City's governmental
immunity from suit, will reverse the order of the trial court
and will render judgment dismissing the suit for want of
an afternoon in July 2011, thirteen-year-old E.K. was
swimming at the City's public swimming pool. One of the
lifeguards on duty was seventeen-year-old C.D. The pool
manager on duty was Shannon Burns. The pool had posted rules
forbidding, among other things, more than one person on the
diving board at a time and "horseplay." Burns was
aware of the pool rules and was trained by the Red Cross.
on a break from his lifeguard duties that day, C.D. was
"double bouncing" swimmers from the diving board.
The parties' descriptions of the practice of "double
bouncing" are similar. The City's description reads:
"double bouncing involves two individuals on a diving
board, wherein one is a bouncer, and one is the diver. The
diver stands at the pool end of the board, and the bouncer
stands several feet behind. Together they bounce downward,
and the additional weight creates additional upward spring,
allowing the diver to get some extra height on his jump. The
bouncer remains on the board, and the diver jumps into the
evidence shows pool manager Burns was aware that double
bouncing sometimes took place at the pool and did not object
as long as the participants were not young children. On this
afternoon, that evidence shows, Burns observed that divers
were double bouncing and made no effort to stop C.D. from
doing so. E.K. joined in, but was injured during his turn on
the board with C.D. Klein's pleadings allege E.K. and the
diving board collided, causing his patella tendon to snap,
dislocating his knee cap and breaking a small bone. His
treatment required surgery and a six-month convalescence.
City presents two issues. First, it challenges the trial
court's order denying its plea to the jurisdiction.
Second, it contends the trial court erred by overruling its
objections to an affidavit offered by Klein. We need discuss
only the City's first issue.
court's subject-matter jurisdiction may be challenged
through a plea to the jurisdiction. Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004); Bland Ind. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). Whether a court lacks
subject-matter jurisdiction is a question of law that we
review de novo. State v. Holland, 221 S.W.3d 639,
642 (Tex. 2007); Miranda, 133 S.W.3d at 226. When
the pleadings are challenged, we consider the allegations in
favor of the plaintiff to determine if the plaintiff alleged
facts affirmatively demonstrating the jurisdiction of the
trial court to hear the case. Miranda, 133 S.W.3d at
226. To the extent relevant to the issue of jurisdiction, we
also consider any evidence received by the trial court.
Blue, 34 S.W.3d at 555; Texas Tech Univ. v
Ward, 280 S.W.3d 345, 348 (Tex. App.-Amarillo 2008, pet.
denied). In our review of evidence bearing on the
jurisdictional issue, we take as true all evidence favorable
to the plaintiff, and indulge every reasonable inference and
resolve any doubts in the plaintiff's favor. City of
El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). If
there is no question of fact as to the jurisdictional issue,
a trial court must rule on the plea to the jurisdiction as a
matter of law. Id.
immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from
lawsuits and liability for money damages." Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655
(Tex. 2008); Reata Constr. Corp. v. City of Dallas,
197 S.W.3d 371, 374 (Tex. 2006). Sovereign and governmental
immunities encompass two distinct principles, immunity from
suit and immunity from liability. Miranda, 133
S.W.3d at 224. Immunity from liability is an affirmative
defense subject to waiver, but immunity from suit deprives a
court of subject-matter jurisdiction. Id.; see Rusk State
Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (immunity
from suit implicates courts' subject-matter
jurisdiction). Thus, trial courts lack
subject-matter jurisdiction to adjudicate suits for damages
against subdivisions of state government, like
municipalities, absent a valid statutory or constitutional
waiver of governmental immunity. Suarez v. City of Texas
City, 465 S.W.3d 623, 631 (Tex. 2015).
Texas Tort Claims Act contains a legislatively-granted,
limited waiver of sovereign immunity. Tex. Civ. Prac. &
Rem. Code Ann. §§ 101.001-.109 (West 2011 &
Supp. 2016). The Tort Claims Act's waiver provides:
governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of
an employee acting ...