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Texas Southern University v. Mouton

Court of Appeals of Texas, Fourteenth District

January 11, 2018

TEXAS SOUTHERN UNIVERSITY, Appellant
v.
JACQUELINE MOUTON, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF BRENT RANDALL, Appellee

         On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2016-00573

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.

          OPINION

          Martha Hill Jamison Justice.

         Tragically, college freshman Brent Randall was killed on the Texas Southern University (TSU) campus. His death resulted from gunshot wounds inflicted by a nonstudent. Randall's mother, Jacqueline Mouton, individually and on behalf of her son's estate, filed suit against TSU. TSU brings this interlocutory appeal challenging the trial court's denial of TSU's plea to the jurisdiction and motion to dismiss based on governmental immunity.[1] Concluding that Mouton failed to allege a waiver of TSU's governmental immunity and Mouton's pleadings affirmatively negate the existence of the trial court's jurisdiction, we reverse the trial court's order and render judgment dismissing Mouton's claims against TSU.

         Background

         Randall was outside his dormitory on his way to class when he was shot and killed. The evening before, another shooting occurred in the parking lot of the same dormitory.[2] Mouton filed suit against TSU for negligence and gross negligence. She alleged that TSU's agents, representatives, and employees failed to use reasonable care in warning parents and students of the risks of harm on campus, in providing adequate security, and in taking steps to detect, prevent, and intervene in criminal activities on campus.

         TSU filed a plea to the jurisdiction and motion to dismiss all of Mouton's claims on the basis of governmental immunity. Mouton responded that TSU's immunity was waived under the Texas Tort Claims Act (the Act) for personal injury or death caused by a condition or use of tangible personal or real property.[3] After a hearing, the trial court denied the motion "to afford [Mouton] an opportunity to amend her pleadings to affirmatively demonstrate [the trial court's] jurisdiction" and gave Mouton 30 days to amend her petition. Contending that Mouton's petition affirmatively negates jurisdiction, TSU filed its notice of interlocutory appeal before

         Mouton amended her petition.

         Discussion

         In two issues, TSU argues that its immunity from suit has not been waived and thus the trial court lacks subject matter jurisdiction over the claims against TSU.[4]A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); City of Deer Park v. Hawkins, No. 14-13-00695-CV, 2014 WL 953427, at *2 (Tex. App.-Houston [14th Dist.] Mar. 11, 2014, pet. denied) (mem. op.). 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, 637 (Tex. 1999); Hawkins, 2014 WL 953427, at *2. We review de novo a plea questioning the trial court's jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Hawkins, 2014 WL 953427, at *2.

         TSU is a governmental unit under the Act. See, e.g., Ogueri v. Tex. S. Univ., No. 01-10-00228-CV, 2011 WL 1233568, at *3 (Tex. App.-Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.); City of Houston v. Chemam, No. 01-08-01005-CV, 2010 WL 143476, at *6 (Tex. App.-Houston [1st Dist.] Jan. 14, 2010, no pet.) (mem. op.). A unit of state government such as TSU is immune from suit unless the State consents. Dimas v. Tex. State Univ. Sys., 201 S.W.3d 260, 264 (Tex. App.- Houston [14th Dist.] 2006, no pet.) (citing Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Id. We construe the pleadings in favor of the plaintiff and look to the pleader's intent. Id. (citing Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989)). Unless the petition affirmatively demonstrates that no cause of action exists or that plaintiff's recovery is barred, the trial court is required to give the plaintiff an opportunity to amend before granting a motion to dismiss. Id.

         Here, TSU has challenged Mouton's pleadings. In its pleadings challenge, TSU argues that the plaintiff has not alleged facts that, if proven, constitute a valid claim over which there is jurisdiction. See City of Magnolia 4A Econ. Dev. Corp. v. Smedley, No. 16-0718, 2017 WL 4848580, at *3 (Tex. Oct. 27, 2017) (per curiam) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. If the plea, however, challenges the existence of jurisdictional facts, then we consider evidence submitted by the parties. Id. TSU argued in its plea that Mouton's pleadings fail to invoke the trial court's jurisdiction. Accordingly, we review Mouton's pleadings to determine if her claims fall within a waiver of immunity under the Act. See Dimas, 201 S.W.3d at 264 (noting reviewing court only reviews evidence submitted by parties "to the extent that is relevant to the jurisdictional issue"); see also Smedley, 2017 WL 4848580, at *3-4 (discussing difference between plea challenging pleadings, requiring review based on pleadings, and plea challenging existence of jurisdictional facts, requiring review based on evidence).

         Section 101.021(2) of the Act provides that a state governmental unit is liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(2). Allegations involving the condition of real property constitute allegations of premises defects, subject to heightened pleading requirements as discussed below. See Miranda, 133 S.W.3d at 230; Annab v. Harris Cnty., 524 S.W.3d 793, 802 (Tex. App.-Houston [14th Dist] 2017, pet. filed).

         TSU argues that Mouton's allegations do not establish a nexus between Randall's injury and the use or condition of TSU's personal or real property; in other words, TSU contends that Randall's death was not proximately caused by the use or condition of TSU's property and thus TSU's immunity has not been waived under the Act on that basis. Mouton argued below that she alleged a use and condition of personal or real property, specifically that TSU's security equipment and systems were used, misused, and lacked an integral safety component, which resulted in Randall's death. But we conclude that Mouton has not alleged sufficient facts to show that Randall's injuries were proximately caused by such use or condition.

         Texas courts have consistently required a nexus between the use or condition of property and the injury. Dimas, 201 S.W.3d at 265-66 (citing Whitley, 104 S.W.3d at 543, Tex. Dep't. of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001), and Dallas Cnty. Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998)). This nexus requires more than mere involvement of property; rather, the condition or use must actually have caused the injury. ...


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