Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-CI-10253 Honorable Antonia Arteaga, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Liza A. Rodriguez, Justice
Elena D. Chapa, Justice.
City of San Antonio appeals the trial court's order
denying its plea to the jurisdiction, asserting it has
governmental immunity from the suit filed against it by Elena
Herrera. We reverse the trial court's order and render
judgment dismissing Herrera's suit for lack of
Herrera sued the City for damages she suffered as a result of
a fall in a City owned and operated parking garage.
Herrera's petition alleged that in January 2016, she
"was exiting an elevator and fell as a result of the
unreasonably dangerous condition created by the curb and ramp
leading to the parking area." She alleged the City
negligently created the dangerous condition, allowed it to
exist, and failed to warn about the condition. The City
answered, pleading, among other things, governmental immunity
and the defenses and immunities to which it is entitled under
Chapter 101 of the Texas Civil Practice and Remedies code
(The Texas Tort Claims Act).
than a year later, the City filed its plea to the
jurisdiction, alleging Herrera failed to plead a valid waiver
of governmental immunity and that her premises liability
claim, as articulated in her petition and discovery
responses, arose out of the City's exercise of its
discretionary powers, for which the City retains its immunity
pursuant to section 101.056 of the Act. See Tex.
Civ. Prac. & Rem. Code § 101.056. Herrera filed an
amended petition, in which she alleged the City's
immunity from her premises liability claim is waived by
section 101.021 of the Act. See id. § 101.021.
She also filed a response to the City's plea, attaching
evidence. After a hearing, the trial court signed an order
denying the plea to the jurisdiction, and the City filed this
interlocutory appeal. See id. § 51.014(a)(8).
from suit defeats a trial court's subject matter
jurisdiction and is properly raised in a plea to the
jurisdiction. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether the
trial court has jurisdiction over a case is a question of law
we review de novo. City of Elsa v. Gonzalez, 325
S.W.3d 622, 625 (Tex. 2010). When reviewing a trial
court's ruling on a challenge to its jurisdiction, we
consider the plaintiff's pleadings and factual
assertions, as well as any evidence in the record that is
relevant to the jurisdictional issue. Id.; Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2000). When the plea to the jurisdiction challenges the
sufficiency of the pleadings, we construe the pleadings
liberally in favor of the plaintiff, look to the
pleader's intent, and determine if the pleader has
alleged facts affirmatively demonstrating the court's
jurisdiction. Id. When the plea to the jurisdiction
challenges the existence of jurisdictional facts that are not
intertwined with the merits of the case, we decide the
jurisdictional issue as a matter of law if the jurisdictional
facts are undisputed. Worsdale v. City of Killeen,
No. 18-0329, 2019 WL 2479177, at *6 (Tex. June 14, 2019);
City of San Antonio v. Rocha, No. 04-18-00367-CV,
2018 WL 6517169, at *2 (Tex. App.-San Antonio Dec. 12, 2018,
no pet.) (mem. op.). If those facts are disputed, we defer to
the trial court's express or implied factual
determinations that are supported by sufficient evidence.
the common law, the City is immune from suit and liability
for damages arising from the performance of its governmental
functions unless that immunity is waived by the legislature.
Id. at *3. Because the City's operation of a
parking garage is a governmental function, the City is
generally immune from a suit arising from its operation of
the garage. See Tex. Civ. Prac. & Rem. Code
§ 101.0215(a)(25). In the Texas Tort Claims Act, the
legislature waived that immunity for certain premise defect
claims. See id. §§ 101.021(2), 101.022(a),
101.025. However, the legislature excepted from the waiver
and preserved immunity for claims based on the governmental
unit's discretionary functions. See Tarrant Reg'l
Water Dist. v. Johnson, 572 S.W.3d 658, 662 (Tex. 2019);
Tex. Civ. Prac. & Rem. Code § 101.056. Section
Tort Claims Act] does not apply to a claim based on:
(1) the failure of a governmental unit to perform an act that
the unit is not required by law to perform; or
(2) a governmental unit's decision not to perform an act
or on its failure to make a decision on the performance or
nonperformance of an act if the law leaves the performance or
nonperformance of the ...