Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 4 of Nueces County,
Chief Justice Contreras and Justices Benavides and Longoria
CONTRERAS CHIEF JUSTICE.
the City of Corpus Christi (the City), appeals the trial
court's denial of its plea to the jurisdiction. Appellees
Marie Muller and Dean Muller filed suit against the City
after Marie suffered injuries when she stepped into a pothole
in the City Hall parking lot. By one issue, the City argues
that the trial court erred when it denied its plea. We
was employed by the City through a temporary staffing agency,
and she worked at City Hall in Corpus Christi, Texas. Around
8:00 a.m. on or about October 13, 2015, Marie parked in the
City Hall parking lot and began to walk towards City Hall to
report for work. During her walk through the parking lot,
Marie stepped into a pot hole, fell, and suffered injuries.
She brought suit against the City under a premises liability
theory pursuant to the Texas Tort Claims Act (TTCA), and her
husband, Dean, brought a claim for loss of consortium.
City filed a plea to the jurisdiction arguing that the City
was Marie's employer and that, because Marie's injury
occurred in the course and scope of her employment,
Marie's remedy was limited solely to the benefits under
the workers' compensation insurance offered by the City.
The City's plea, however, did not address how Marie's
injuries occurred within the course and scope of her
employment. More specifically, the City never alleged in its
plea or introduced any evidence in support thereof that it
implicitly or directly intended, authorized, or instructed
Marie to use the parking lot as her access route to work.
Appellees filed a response to the City's plea and argued
that Marie's injuries did not occur in the course and
scope of her employment, and, therefore, Marie was not
subject to the exclusive remedy of workers' compensation
insurance. After a hearing, the trial court denied the
City's plea. This interlocutory appeal followed.
See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (allowing immediate appeal of an interlocutory
order denying a plea to the jurisdiction by a governmental
Standard of Review
to the jurisdiction is a dilatory plea that seeks to dismiss
a cause for lack of subject-matter jurisdiction. Harris
Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its
purpose 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). We review
the disposition of a jurisdictional plea de novo. Suarez
v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).
The plaintiff has the burden to allege facts that
affirmatively demonstrate the trial court's jurisdiction
to hear a case. Tex. Dep't of Transp. v.
Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We construe the
pleadings liberally in favor of the plaintiff and look to the
pleader's intent. Ryder Integrated Logistics, Inc. v.
Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015) (per
curiam). If the pleadings generate a fact question regarding
the jurisdictional issue, a court cannot sustain the plea to
the jurisdiction. Ryder, 453 S.W.3d at 927. If
jurisdictional facts are disputed, we consider any evidence
submitted by the parties to the trial court. Blue,
34 S.W.3d at 555.
immunity defeats subject-matter jurisdiction in suits against
subdivisions of the State, such as the City, unless that
immunity has been clearly and unambiguously waived by the
legislature. See Sykes, 136 S.W.3d at 638.
Governmental immunity encompasses both immunity from
liability and immunity from suit. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.
2004). The TTCA waives governmental immunity for a
governmental entity, like the City, for personal injuries
caused by a condition of real property. Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2); see Miranda, 133
S.W.3d at 224; Jefferson Cty. v. Farris, 569 S.W.3d
814, 823 (Tex. App.-Houston [1st Dist.] 2018, pet. filed)
(per curiam) (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 101.025(a)). However, "[a] governmental unit that
has workers' compensation insurance or that accepts the
workers' compensation laws of this state is entitled to
the privileges and immunities granted by the workers'
compensation laws of this state to private individuals and
corporations." Tex. Civ. Prac. & Rem. Code Ann.
§ 101.028. The Texas Workers Compensation Act (TWCA)
states that "[r]ecovery of workers' compensation
benefits is the exclusive remedy of an employee covered by
workers' compensation insurance coverage . . . for . . .
a work-related injury sustained by the employee." Tex.
Labor Code Ann. § 408.001(a); see City of Bellaire
v. Johnson, 400 S.W.3d 922, 922 (Tex. 2013) (per
curiam); see also City of Dallas v. Salyer, No.
05-12-00701-CV, 2013 WL 3355027, at *2-3 (Tex. App.-Dallas
July 1, 2013, no pet.) (mem. op.). Therefore, if the
exclusive remedy bar provided by the TWCA applies to an
employee's claim against his city employer, then the
city's governmental immunity is not waived. City of
Bellaire, 400 S.W.3d at 924; see Durhart v.
State, 610 S.W.2d 740, 743 (Tex. 1980) (noting that, in
adopting the TTCA and providing workers' compensation
coverage for state employees, the state retains its immunity
and provides its employees an alternate remedy through
workers compensation insurance).
the TWCA, an injury is compensable and subject to the
exclusive remedy bar if it "arises out of and in the
course and scope of employment . . . ." Tex. Lab. Code
Ann. § 401.011(10); Berrelez v. Mesquite Logistics
USA, Inc., 562 S.W.3d 69, 74 (Tex. App.-San Antonio
2018, no pet.); Apollo Enters., Inc. v. ScripNet,
Inc., 301 S.W.3d 848, 852 (Tex. App.-Austin 2009, no
pet.). Section 401.011(12) of the TWCA defines the
"[c]ourse and scope of employment" as "an
activity of any kind or character that has to do with and
originates in the work, business, trade, or profession of the
employer and that is performed by an employee while engaged
in or about the furtherance of the affairs or business of the
employer." Tex. Lab. Code Ann. § 401.011(12). The
long-standing rule is that to be considered within the course
and scope of employment, the employee's injury must
"(1) relate to or originate in, and (2) occur in the
furtherance of, the employer's business."
Leordeanu v. Am. Prot. Ins., 330 S.W.3d 239, 241
(Tex. 2010); see Am. Cas. Co. of Reading Pa. v.
Bushman, 480 S.W.3d 667, 673-74 (Tex. App.-San Antonio
2015, no pet.); Tex. Workers' Comp. Ins. Fund v.
Rodriguez, 953 S.W.2d 765, 768 (Tex. App.- Corpus
Christi-Edinburg 1997, pet. denied) ("Course and scope
of employment is not limited to the exact moment when the
employee reports for work, the moment when the employee's
labors are completed, or to the place where work is