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Barnes v. Harris County

Court of Appeals of Texas, Fourteenth District

October 24, 2019

DARYL BARNES, Appellant
v.
HARRIS COUNTY, TEXAS, CHRIS DANIEL, WILLIE FRAZIER, DEE THOMAS, STAN STEWART, MARIA DE LA ROSA, AND DERYK FIELDS, Appellees

          On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 2016-14432

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          Margaret "Meg" Poissant, Justice.

         Appellant Daryl Barnes filed suit for claims apparently arising from events occurring in May 2009 and later. Defendants Harris County, Texas Chris Daniel, Willie Frazier, Dee Thomas, Stan Stewart, Maria De La Rosa, and Deryk Fields (collectively "appellees") moved to dismiss the suit. The trial court granted the motion. Appellant filed a pro se notice of appeal.[1]

         Appellees' titled their motion as a "Motion to Dismiss Baseless Cause of Action Pursuant to Rule 91A." The motion alleged the claims filed against them had no basis in law or in fact. See Tex. R. Civ. P. 91a. Appellees also asserted they were protected from suit by governmental immunity. Specifically, appellees argued none of appellant's claims fall within the Texas Tort Claims Act's ("TTCA") limited waiver of immunity. Further, appellees claimed appellant's suit is a collateral attack on a final judgment signed September 4, 2014.

         Initially, we note the portion of the motion claiming immunity is, in fact, a plea to the jurisdiction. Generally, we consider a motion based on its substance not its title. Sierra Club v. Tex. Comm'n on Env'l. Quality, 188 S.W.3d 220, 222 (Tex. App.-Austin 2005, no pet.). A plea to the jurisdiction is not necessarily a particular procedural vehicle. Texas Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). It is the substance of the argument-that the suit should be dismissed for want of jurisdiction-and not the vehicle used that is determinative. Id. Immunity from suit defeats a trial court's subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Vill. of Tiki Island v. Premier Tierra Holdings Inc., 555 S.W.3d 738, 744 (Tex. App.-Houston [14th Dist.] 2018, no pet.). Thus, we treat appellant's claim that it is immune from suit as a plea to the jurisdiction. Simons, 140 S.W.3d at 349.

         Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Lone Star Coll. Sys. v. Immigration Reform Coal. of Tex. (IRCOT), 418 S.W.3d 263, 267 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). We construe motions to dismiss for lack of jurisdiction as pleas to the jurisdiction. See id. Our analysis of a plea to the jurisdiction begins with a review of the pleadings to determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiffs, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Id. The allegations found in the pleadings may affirmatively demonstrate or negate the court's jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). Here, appellees' motion to dismiss stands on the pleadings. Accordingly, we cannot affirm the trial court's ruling for lack of subject-matter jurisdiction if appellant has alleged facts that affirmatively demonstrate the trial court's jurisdiction over his claims. See Kirwan, 298 S.W.3d at 622.

         Appellant filed his suit under the TTCA. His suit is against a governmental unit and its employees. Appellant's pleadings are related to those employees' official duties. A governmental unit must waive its governmental immunity from suit before a claimant can proceed on a claim against it. Prairie View A.&M Univ. v. Brooks, 180 S.W.3d 694, 705 (Tex. App-Houston [14th Dist.] 2005, no pet.). Government employees are entitled to official immunity when sued in their individual capacity for official acts. Alamo Workforce Dev., Inc. v. Vann, 21 S.W.3d 428, 434 (Tex. App.-San Antonio 2000, no pet.). Governmental immunity from suit defeats a trial court's subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1997) (per curiam). Thus, appellant was required to plead facts that affirmatively demonstrated immunity was waived as to the defendants named in this suit.

         There are no facts in appellant's pleadings demonstrating waiver of immunity. On appeal, appellant does not argue the trial court could not have dismissed his tort claims on that basis. By failing to challenge one possible ground of the trial court's ruling, appellant has waived any error by the trial court in dismissing his claims. See Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 790-91 (Tex. App.-Dallas 2012, pet. denied); Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681-82 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also Davison v. Plano Indep. Sch. Dist., No. 05-12-01308-CV, 2014 WL 1018212, at *5 (Tex. App.-Dallas Feb. 20, 2014, no pet.) (mem. op.) ("Because [appellant] d[id] not challenge the sustaining of the jurisdictional plea on the ground that her claims did not allege a waiver of immunity under the TTCA, she ... waived any error by the trial court in dismissing her tort claims against appellees, and the decision to dismiss her tort claims must be affirmed.").

         Appellant makes several complaints of procedural errors:

• Did the trial court err in allowing the motion to dismiss to be heard after the sixty-day period provided for in Rule 91a.3(a)?[2]
• Did the trial court err in granting the motion to dismiss in violation of Rule 91a.3(b)?[3]
• Did the trial court err in allowing the motion to dismiss to be filed without verification as required by Rule 93?

         Having upheld the trial court's ruling as a plea to the jurisdiction, it is unnecessary to address appellant's complaints that the ...


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