Appeal from the 165th District Court Harris County, Texas
Trial Court Cause No. 2016-00573
consists of Chief Justice Frost and Justices Jamison and
Hill Jamison Justice.
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. 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.
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. 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.
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. 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
amended her petition.
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.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.
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.
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).
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).
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.
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. ...