Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 430th District Court of Hidalgo County,
Justices Rodriguez, Contreras, and Benavides
an appeal from the trial court's denial of a plea to the
jurisdiction filed by appellant La Joya Independent School
District (the District). Appellee Tanya Gonzalez,
individually and as next friend of Josue Rogelio Uranga, a
deceased minor, sued the District after an accident that
resulted in Uranga's death. By three issues, the District
contends the trial court erred in denying its plea to the
jurisdiction because: (1) it did not receive timely notice of
the claim as required by the Texas Tort Claims Act (TTCA);
(2) there was no operation or use of a motor vehicle and
therefore no waiver of immunity under the TTCA; and (3) there
was no causal nexus between any alleged operation or use of a
motor vehicle and Uranga's death. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.021, .101 (West,
Westlaw through 2017 1st C.S.). We affirm.
alleged the following in her live petition. On October 23,
2012, a District school bus driven by District employee
Salvador Rodriguez Jr. stopped at a designated bus stop at
the intersection of Santos Ramirez Street and U.S. Expressway
83 in La Joya, Texas. Uranga, a 13-year-old student who was
usually picked up at that location, was not at the bus stop,
and the bus departed. Rodriguez turned the bus into the
crossover between the expressway's main lanes, but when
he saw Uranga approaching the bus stop on foot, Rodriguez
stopped the bus and activated its flashing warning lights.
Gonzalez claims the bus's flashing warning lights
signaled to Uranga that it was safe to cross the expressway.
As Uranga crossed the expressway, he was struck by a vehicle
driven by Jaime Venecia; Uranga died at the scene. Gonzalez
sued Venecia and the District. As to the District, Gonzalez
alleged that Rodriguez, while in the course and scope of his
employment, acted negligently by failing to follow protocols
and procedures for the safe loading of students "by
creating a non-designated bus stop" and activating the
bus's flashing lights. Gonzalez alleged that Uranga's
death was proximately caused by Rodriguez's wrongful acts
and omissions, and that the District was vicariously liable.
District filed a plea to the jurisdiction arguing that it was
immune to suit as a governmental entity and that its immunity
was not waived by the TTCA because: (1) the accident did not
arise out of the operation or use of a motor vehicle; and (2)
Gonzalez failed to provide the District with notice as
required under the statute. See id. § 101.101.
The District attached no evidence in support of its plea. In
response, Gonzalez argued that Rodriguez's actions of
driving the bus into the crossover, stopping it there, and
activating its flashing warning lights were affirmative acts
involving the operation or use of a vehicle, and the
District's immunity was therefore waived. See
id. § 101.021. Further, although Gonzalez conceded
that no written notice had been provided to the District, she
asserted that the District had actual notice of her claim.
two hearings, the trial court denied the District's plea
to the jurisdiction. This accelerated interlocutory appeal
followed. See id. § 51.014(a)(8) (West, Westlaw
through 2017 1st C.S.) (allowing a governmental unit to
immediately appeal an interlocutory order denying a plea to
the parties filed their initial briefs, we noted that the
jurisdictional evidence before the trial court included a
video recording containing conversations in Spanish, but that
the recording was not part of the appellate record.
Therefore, we abated the appeal and remanded for
supplementation of the appellate record with a transcription
and translation of the recording. The supplemental record was
filed with this Court on August 3, 2017, the parties filed
supplemental briefs, and we reinstated the appeal.
Standard of Review
to the jurisdiction is a dilatory plea used to defeat a cause
of action without regard to whether the claims asserted have
merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000). The plea challenges the trial
court's subject matter jurisdiction. Id.;
see Tex. Dep't of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999).
plaintiff has the initial burden to plead facts affirmatively
showing that the trial court has jurisdiction. Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993); Univ. of N. Tex. v. Harvey,
124 S.W.3d 216, 220 (Tex. App.-Fort Worth 2003, pet. denied).
Whether a trial court has subject matter jurisdiction and
whether the pleader has alleged facts that affirmatively
demonstrate the trial court's subject matter jurisdiction
are questions of law that we review de novo. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004); Tex. Nat. Res. Conservation
Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
We construe the pleadings liberally in favor of the pleader,
look to the pleader's intent, and accept as true the
factual allegations in the pleadings. See Miranda,
133 S.W.3d at 226, 228.
plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted
by the parties when necessary to resolve the jurisdictional
issues raised, even when the evidence implicates the merits
of the cause of action. Id. at 227; Blue,
34 S.W.3d at 555; see City of Waco v. Kirwan, 298
S.W.3d 618, 622 (Tex. 2009). If the evidence is undisputed or
fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a
matter of law. Miranda, 133 S.W.3d at 228. But if
the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the fact issue will be resolved
by the fact finder. Id. at 227-28. In considering
the evidence, we take as true all evidence favorable to the
non-movant and indulge every reasonable inference and resolve
any doubts in the non-movant's favor. Id.
defendant cannot simply deny the existence of jurisdictional
facts and force the plaintiff to raise a fact issue. See
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193,
207 (Tex. 2002). In other words, a defendant may not advance
a "no-evidence" plea to the jurisdiction. See
id.; cf. Tex.R.Civ.P. 166a(i) (allowing for
no-evidence motion for summary judgment).
doctrine of sovereign immunity provides that "no state
can be sued in her own courts without her consent, and then
only in the manner indicated by that consent." Tooke
v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)
(citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)).
Governmental immunity operates like sovereign immunity to
afford similar protection to subdivisions of the State such
as school districts. Harris Cty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004).
TTCA waives governmental immunity for, among other things,
claims of "property damage, personal injury, and death
proximately caused by the wrongful act or omission or the
negligence of an employee acting within his scope of
employment" if "the property damage, personal
injury, or death arises from the operation or use of a
motor-driven vehicle or motor-driven equipment." Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). The
TTCA also includes a notice provision which must be complied
with in order for jurisdiction to be properly invoked.
See id. § 101.101; Tex. Gov't Code Ann.
§ 311.034 (West, Westlaw through 2017 1st C.S.)
("Statutory prerequisites to a suit, including the
provision of notice, are jurisdictional requirements in all
suits against a governmental entity.").
District contends by its first issue that the trial court
erred in denying its plea to the jurisdiction because it was
not provided with notice of Gonzalez's claim.
the TTCA, a governmental entity "is entitled to receive
notice of a [TTCA] claim against it . . . not later than six
months after the day that the incident giving rise to the
claim occurred." Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(a). The notice must "reasonably describe
. . . (1) the damage or injury claimed; (2) the time and
place of the incident; and (3) the incident."
Id. But this formal notice requirement "do[es]
not apply if the governmental unit has actual notice that
death has occurred, that the claimant has received some
injury, or that the claimant's property has been
damaged." Id. § 101.101(c). The Texas
Supreme Court held in Cathey v. Booth that
"actual notice" in this context means that the
governmental unit has "knowledge of (1) a death, injury,
or property damage; (2) the governmental unit's alleged
fault producing or contributing to the death, injury, or
property damage; and (3) the identity of the parties
involved." 900 S.W.2d 339, 341 (Tex. 1995); see
Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of
Arancibia, 324 S.W.3d 544, 548-59 (Tex.
2010). To satisfy the second requirement for
actual notice, a governmental unit must have "knowledge
that amounts to the same notice to which it is entitled by
section 101.101(a), " which "includes subjective
awareness of its fault, as ultimately alleged by the
claimant, in producing or contributing to the claimed
injury." Tex. Dep't of Crim. Justice v.
Simons, 140 S.W.3d 338, 347 (Tex. 2004). "Fault, as
it pertains to actual notice, is not synonymous with
liability; rather it implies responsibility for the injury
claimed." Estate of Arancibia, 324 S.W.3d at
550. Although actual notice is a fact question when evidence
is disputed, in some instances, actual notice can be
determined as a matter of law. See Simons, 140
S.W.3d at 348.
notice may be imputed to the governmental entity by an agent
or representative who receives notice of the Cathey
elements and who is charged with a duty to investigate the
facts and report them to a person of sufficient
authority." Univ. of Tex. Health Sci. Ctr. at
Houston v. McQueen, 431 S.W.3d 750, 755 (Tex.
App.-Houston [14th Dist.] 2014, no pet.) (citing Univ. of
Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330
S.W.3d 335, 339-40 (Tex. App.-San Antonio 2010, no pet.)).
That is, actual notice "is not limited to only a
particular government official or employee, such as a
director of risk management." McQueen, 431
S.W.3d at 755 (citations omitted).
Pleadings and Evidence
live petition, Gonzalez alleged that the District "had
actual notice of [her] claim . . . in that the District was
aware of [Uranga]'s death, the time and place of his
death, the facts surrounding the incident, [and] that their
fault contributed to [Uranga]'s death, such that written
notice would not be required." Gonzalez specifically
asserted that the District was "notified of an auto
pedestrian accident involving a [District] student and
appeared at the scene the morning of the incident and
conducted their own investigation through its Police
Department and assisted the other authorities" and that,
"[t]hrough [the District]'s Police Department's
investigation and assistance, [the District] had knowledge of
all the details surrounding the incident, including the death
of its student [Uranga], the parties involved, as well as
knowledge that [the District] was subjectively aware of its
fault that contributed to the accident . . . ." Gonzalez
further asserted that the District's "subjective
awareness of fault occurred when" Rodriguez underwent a
mandatory post-accident drug test the day of the accident,
was suspended without pay that same day, and later resigned;
and she contended that drug testing and suspension without
pay is required under District policies only when there is a
preponderance of evidence that a District-owned vehicle
contributed to an accident.
asserted the same arguments in her response to the
District's plea to the jurisdiction. Her response was
accompanied by evidence including two incident reports
regarding the accident-one prepared by a La Joya Police
Department officer and a second report prepared by two
District police officers-neither of which attributes fault to
also attached a copy of a District employee handbook dated
2013 which included a section regarding "Accidents
Involving District-Owned Vehicles." That section states
in relevant part as follows:
All accidents involving District-owned vehicles occurring
within the District's boundaries will be investigated by
the District police department. All accidents involving
District-owned vehicles outside the District's boundaries
will be reported to proper law enforcement for investigation.
Drug testing for the driver of a District-owned vehicle is
mandated if there is a preponderance of the evidence that the
District-owned vehicle contributed to the accident. Drug
testing for the driver of a District-owned vehicle will not
be mandated if there is a preponderance of the evidence that
the District-owned vehicle did not contribute to the
accident. (Preponderance of the evidence will be assessed by
the employee's immediate supervisor after speaking to the
law enforcement officer investigating the accident). Drug
testing is mandated if it is unclear if the driver of a
District-owned vehicle ...