Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
CITY OF HIDALGO, TEXAS AND THE CITY OF HIDALGO, TEXAS MUNICIPAL FACILITIES CORPORATION, Appellants,
MARY LEAH HODGE, Appellee.
appeal from the 332nd District Court of Hidalgo County,
Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
ROGELIO VALDEZ, CHIEF JUSTICE.
the City of Hidalgo (the "City") and City of
Hidalgo Texas Municipal Facilities Corporation
("CHMFC") appeal the trial court's denial of
their plea to the jurisdiction. By two issues, appellants
contend that the trial court should have granted their plea
to the jurisdiction because appellee, Mary Leah Hodge, failed
to raise a material issue of fact necessary to confer
jurisdiction on the trial court. We affirm.
concert event outside of the State Farm Arena during an
annual event called Borderfest, Hodge stepped into a hole and
was injured. Hodge sued the City and CHMFC under a premises
liability theory. Claiming immunity, appellants sought
dismissal of the claim via a plea to the jurisdiction. The
trial court denied the plea. This interlocutory appeal
followed. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West, Westlaw through 2017 1st C.S.).
Standard of Review
purpose of a plea to the jurisdiction is 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). A challenge to the trial
court's subject matter jurisdiction is a question of law
that we review de novo. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The plaintiff first bears the burden to plead facts
establishing jurisdiction. Id. We will, when
necessary, consider relevant evidence submitted by the
parties to resolve the jurisdictional dispute. Id.
at 227 (citing Bland Indep. Sch. Dist., 34 S.W.3d at
555). However, we will consider only the evidence relevant to
the jurisdictional question. Bland Indep. Sch.
Dist., 34 S.W.3d at 555. "[I]f the relevant
evidence is undisputed or fails to raise a fact question on
the jurisdictional issues, the trial court rules on the plea
to the jurisdiction as a matter of law."
Miranda, 133 S.W.3d at 228.
as true all evidence favorable to the non-movant and indulge
every reasonable inference and resolve any doubts in favor of
the non-movant. City of Waco v. Kirwan, 298
S.W.3d 618, 622 (Tex. 2009). In the plea to the jurisdiction
context, a defendant cannot simply deny the existence of
jurisdictional facts and force the plaintiff to raise a fact
issue. Mission Consol. Indep. Sch. Dist. v. Garcia,
314 S.W.3d 548, 553- 554 (Tex. App.-Corpus Christi 2010)
rev'd in part on other grounds, 372 S.W.3d 629,
645 (Tex. 2012).
the Legislature expressly waives it, local governmental
entities have absolute immunity from suit. Tex. Parks
& Wildlife Dep't v. Sawyer Trust, 354 S.W.3d
384, 388 (Tex. 2011). When the legislature provides for a
waiver of immunity from suit, it must do so with clear and
unambiguous language, and any ambiguity must be resolved in
favor of retaining immunity. Tooke v. City of Mexia,
197 S.W.3d 325, 328-29, 333 (Tex. 2006); Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).
governmental unit is immune from suit unless the [Texas] Tort
Claims Act [("TTCA")] expressly waives immunity,
which it does in, " among other situations, suits
involving premises defects. See Sampson v. Univ. of Tex.
at Austin, 500 S.W.3d 380, 384 (Tex. 2016). Section
101.021(2) of the TTCA "waives governmental immunity for
personal injuries caused by a condition on property 'if
the governmental unit would, were it a private person, be
liable to the claimant according to Texas law.'"
City of El Paso v. Viel, 523 S.W.3d 876, 891 (Tex.
App.-El Paso 2017, no pet.) (quoting Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2) (West, Westlaw through 2017
1st C.S.)). Generally, for such conditions, a governmental
unit owes only the duty that a private person owes to a
licensee on private property. Id. (citing Tex. Civ.
Prac. & Rem. Code Ann. § 101.022(a) (West, Westlaw
through 2017 1st C.S.)). However, "[i]f the claimant
pays for use of the premises, the City's duty is elevated
to that owed to an invitee." Id. (citing
City of Dallas v. Davenport, 418 S.W.3d
844, 847 (Tex. App.-Dallas 2013, no pet.)).
At common law, a licensee is defined as a person who, for his
or her own convenience, pleasure, or benefit, enters the
premises with the express or implied permission of the owner.
To a licensee, a premises owner owes a duty not to injure
"by willful, wanton or grossly negligent conduct, and
that the owner use ordinary care either to warn a licensee
of, or to make reasonably safe, a dangerous condition of
which the owner is aware and the licensee is not."
At common law, an invitee is a person who enters the premises
of another in answer to an express or implied invitation from
the owner or occupier for their mutual benefit. To an
invitee, a landowner owes "a duty to make safe or warn
against any concealed, unreasonably dangerous conditions of
which the landowner is, or reasonably should be, aware but
the invitee is not." An invitee need only prove that the
owner knew or reasonably should have known of a dangerous