Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2016-14432
consists of Justices Christopher, Hassan, and Poissant.
Margaret "Meg" Poissant, Justice.
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.
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,
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.
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.
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.
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.").
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)?
• Did the trial court err in granting the motion to
dismiss in violation of Rule 91a.3(b)?
• Did the trial court err in allowing the motion to
dismiss to be filed without verification as required by Rule
upheld the trial court's ruling as a plea to the
jurisdiction, it is unnecessary to address appellant's
complaints that the ...