Jose Romero and Margarita Romero, Individually and ANF of IXXXXX RXXXXX, IXXXXX RXXXXX and MXXXXXXX RXXXXX, Minors v. Harris County, Texas ( 2021 )

Reversed and Remanded and Memorandum Opinion filed November 9, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00904-CV
JOSE ROMERO AND MARGARITA ROMERO, INDIVIDUALLY AND
ANF OF IXXXXX RXXXXX, IXXXXX RXXXXX AND MXXXXXXX
RXXXXX, MINORS, Appellants
V.
HARRIS COUNTY, TEXAS, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2018-62256
MEMORANDUM OPINION
In one issue appellants, Jose Romero and Margarita Romero, challenge the
trial court’s order granting appellee’s Harris County’s plea to the jurisdiction. We
hold that plaintiffs’ Original Petition pled facts and allegations sufficient to show
waiver of governmental immunity and that Harris County failed to introduce any
evidence in support of its official immunity defense. Therefore, we reverse and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Romeros were involved in a car collision with Harris County Deputy
Candace Miles and sued Harris County for personal injuries. In their live petition,
they allege that the car Miles was driving was one of the County’s law
enforcement vehicles, that the crash was caused by Miles while she was acting
within the course and scope of her employment with the County, and that the “acts
for which Defendant has been sued gave rise to a waiver of immunity from suit and
from liability under section[] 101.021(1) of the Texas Civil Practice & Remedies
Code.”
The County filed an answer and promptly sought dismissal of the lawsuit by
filing a plea to the jurisdiction. The plea alleges facts describing Miles’ conduct
leading up to the collision, stating that she was responding to a priority one family
disturbance, assessed her best route, and looked both ways before making a U-
Turn. The plea was based on the County’s contention that Miles would avoid
personal liability by asserting official immunity.
Following an oral hearing (for which there is no reporter’s record), the court
issued an order granting the plea.1 The Romeros filed a motion for new trial
combined with a late response to the plea to the jurisdiction. The court denied that
motion and this appeal followed.
II. ISSUES AND ANALYSIS
A plea to the jurisdiction questioning the trial court’s jurisdiction raises a
question of law that we review de novo. City of Houston v. Collins, 515 S.W.3d
467, 471 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The standard of review
for a plea to the jurisdiction “generally mirrors that of a summary judgment under
1
Although, the order states that the court considered “all responses and replies thereto,”
our record contains no response filed prior to the court’s order.
2
Texas Rule of Civil Procedure 166a(c).” Id. citing Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
The jurisdictional question in this case relates to governmental immunity;
governmental immunity from suit defeats a court’s subject matter jurisdiction.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
Sovereign Immunity
Under the common law doctrine of sovereign immunity, the state is immune
from suit, which means that it cannot be sued without its consent. See City of
Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Governmental units in the
state enjoy the same type of immunity, although their immunity is termed
“governmental immunity.” See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d
371, 374 (Tex. 2006). The County is a governmental unit, and thus, cannot be sued
absent a waiver of its governmental immunity. See Harris County v. Annab, 547
S.W.3d 609, 613 (Tex. 2018).
One such waiver can be found under the Texas Tort Claims Act, which
provides that a governmental unit is liable for the tort of an employee, if the tort
arises out of the operation of a motor vehicle and “the employee would be
personally liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.
Code § 101.021(1). The County argued in its plea to the jurisdiction that Deputy
Miles was entitled to official immunity, and thereby the Romeros could not
establish that Miles “would be personally liable to [them] according to Texas law.”
Derivative Official Immunity
A governmental employee cannot be subject to personal liability if she is
protected under the common law doctrine of official immunity. See DeWitt v.
Harris County, 904 S.W.2d 650, 653 (Tex. 1995). The doctrine is born out of “the
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necessity of public officials to act in the public interest with confidence and
without the hesitation that could arise from having their judgment continually
questioned by extended litigation.” See Ballantyne v. Champion Builders, Inc., 144
S.W.3d 417, 424 (Tex. 2004). In a suit such as this, an employee’s official
immunity therefore becomes relevant to the liability of his employer: a
governmental unit “is vicariously liable for the acts of its employees only to the
extent its employees are not entitled to official immunity.” See K.D.F. v. Rex, 878
S.W.2d 589, 597 (Tex. 1994). Official immunity is an affirmative defense that
protects a governmental employee from personal liability and, in doing so,
preserves a governmental employer’s sovereign immunity from suit for vicarious
liability. Tex. Dep’t of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642–43 (Tex.
2015). Some courts have referred to this as a derivative official immunity. Texas
courts treat pleas to the jurisdiction by governmental entities asserting derivative
official immunity under these circumstances to the same evidentiary burden as a
movant moving for summary judgment on an affirmative defense. See id.In this appeal, the Romeros fire just one shot: they argue that the County
failed to present any evidence in support of its plea to the jurisdiction; that the
order granting that motion was not supported by evidence. The County seeks to
deflect by pointing to the Romeros’ pleadings arguing that the Romeros were
required to plead facts negating Deputy Miles’s official immunity affirmative
defense. In this regard, both parties accurately point to what is not in the record.
The Romeros argue that there is no proof in the record offered by the County in
support of its plea, and we find none. No evidence is attached to the motion or
subsequently filed in support of the motion. Neither party disputes that there was
an oral hearing or the fact that we have no record of that hearing, and neither party
on appeal attempts to suggest that any particular evidence was offered at that
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hearing. The County correctly asserts the Romeros’ petition did not plead facts
negating two of the three elements of Deputy Miles’s official immunity affirmative
defense. We now consider the legal significance of the parties’ respective points
on appeal.
The jurisdictional allegations in the live pleadings are not deficient
Appellate review as to subject-matter jurisdiction generally begins with
review of the pleadings, and although the County did not squarely challenge the
Romeros’ pleadings in the trial court as it does now, we will uphold the trial
court’s dismissal if its ruling would be proper based on our independent review of
the Romeros’ petition. See City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.
2013) (explaining that all courts bear the affirmative obligation to review issues of
subject matter jurisdiction even if not raised by the parties). The pleader must
allege facts that affirmatively demonstrate the court’s jurisdiction to hear the case.
Tex. Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).
Reviewing a challenge to the pleadings, we construe the pleadings liberally
in favor of the plaintiffs and look to the pleaders’ intent. Miranda, 133 S.W.3d at
226. If the pleadings do not contain sufficient facts to affirmatively demonstrate
the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects
in jurisdiction, the issue is one of pleading sufficiency and the trial court should
afford the plaintiffs the opportunity to amend. Miranda, 133 S.W.3d at 226–27. If
the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiffs an opportunity to
amend. Id. at 227.
In the context of establishing jurisdiction over a governmental entity through
a legislative waiver, “mere reference to, or recitation of, provisions of the TTCA in
pleadings does not confer jurisdiction on the trial court. Tex. Dep’t. of Criminal
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Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The pleading must show,
through the facts alleged and reference to statute, that immunity from suit has been
waived. See Leatherwood v. Prairie View A & M Univ., 01-02-01334-CV, 2004
WL 253275, at *4 (Tex. App.—Houston [1st Dist.] Feb. 12, 2004, no pet.); See
Hardin County Cmty. Supervision & Corr. Dep’t v. Sullivan, 106 S.W.3d 186, 188
(Tex. App.—Austin 2003, pet. denied).
The Romeros’ petition sets out a suit solely naming the County as a
defendant, but naming Miles as an employee for whose acts the County is liable.
The Petition includes a section entitled “Jurisdiction and Venue” which alleges the
following:
The Court has subject matter jurisdiction over this matter
because the amount in controversy exceeds the minimum
jurisdictional limit of the Court. Jurisdiction of this Honorable Court
is invoked in accordance with the laws of the State of Texas, Civil
Practice & Remedies Code, Title 5, Chapter 101, et esq. of the Texas
Revised Civil Statues Annotated, commonly referred to as the Texas
Tort Claims Act, and all other applicable laws. Compliance with all
conditions precedent to the filing of this cause against HARRIS
COUNTY, TEXAS have been fulfilled.
Defendant, HARRIS COUNTY, TEXAS, is a “governmental
unit” and was such on the day of the incident made the basis of this
lawsuit under Title 5, Chapter 101 of the Texas Civil Practice and
Remedies Code. At the time of the incident giving rise to this lawsuit,
CANDACE MILES, an employee of HARRIS COUNTY, TEXAS,
was operating a Harris County law enforcement vehicle in the course
and scope of MILES’ employment with HARRIS COUNTY, TEXAS
and MILES was performing a governmental function for Defendant at
all times relevant to this lawsuit.
The acts for which Defendant has been sued gave rise to a
waiver of immunity from suit and from liability under sections [sic]
101.021(1) of the Texas Civil Practice & Remedies Code. Defendant
has no valid exceptions to waiver of immunity from liability in this
case under Title 5, Chapter 101 of the Texas Civil Practice &
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Remedies Code.
In separate sections entitled “Factual Background” and “Negligence”, the Romeros
allege various facts relating to Miles’s alleged negligence and allege that “[the
County] is liable for MILES’ negligence.”
The Romeros’ petition does not contain any specific statement tracking the
language of subsection (B) of 101.021(1) of the Texas Civil Practice and Remedies
Code; the petition does not specifically allege that Deputy Miles “would be
personally liable to the claimant according to Texas law.” Though such a
statement may be preferable, the Romeros’ reference to section (1), implicitly
includes reference to subsections (A) and (B), which we conclude is a sufficiently
specific reference to the relevant legislative waiver of governmental immunity. See
City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 11–12 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (finding sufficiently specific reference of
legislative waiver where the plaintiff cited a subchapter of the Government Code
that contained only one section providing a waiver of immunity); but see Nguyen v.
SXSW Holdings, Inc., 580 S.W.3d 774, 783 (Tex. App.—Houston [14th Dist.]
2019, pet. denied)(plaintiff’s pleadings did not expressly invoke 101.021(2), and
mere passing references to the Tort Claims Act are not sufficient by themselves to
confer jurisdiction on the trial court).
It does not concern us that Romeros’ pleading fails to provide what the
County demands—language affirmatively negating the elements of Deputy Miles’s
official immunity affirmative defense. The County has not provided, and we
cannot find, any authority requiring that the Romeros affirmatively negate the
official immunity defense or any other affirmative defense that would preclude
Deputy Miles from being personally liable under Texas law. Moreover, upon
review of the record, we cannot find any language in the petition that affirmatively
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concedes each element of the County’s affirmative defense or that affirmatively
negates the jurisdiction invoked under section 101.021(1). Tex. Civ. Prac. & Rem.
Code.
There are no jurisdictional facts to support an order granting the County’s plea to
the jurisdiction based on derivative official immunity
To prevail on its plea to the jurisdiction, the County had the initial burden of
negating the existence of jurisdictional facts and of conclusively establishing that
the trial court lacked subject-matter jurisdiction. Harris County v. Avila, 14-18-
00182-CV, 2019 WL 1030332, at *1 (Tex. App.—Houston [14th Dist.] Mar. 5,
2019, no pet.) citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
227 (Tex. 2004). If that burden was satisfied, the burden then shifted to the
Romeros to present evidence sufficient to raise a genuine issue of material fact
regarding the jurisdictional issue. Id. This standard essentially mirrors that of a
traditional motion for summary judgment. Id.Therefore, to prove the official immunity defense, and negate an essential
jurisdictional fact under section 101.021(1)(b), the County had the burden of
establishing the following essential elements: (1) the deputy was acting within the
scope of her employment, (2) the deputy was performing a discretionary duty, and
(3) the deputy was acting in good faith. See City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994). The record contains no evidence in support of any
of these elements. In the absence of any evidence supporting their defense, the
County failed to satisfy its burden of establishing the derivative official immunity
defense. The Romeros were therefore not required to respond to the County’s
motion.2
2
Although Harris County Local Rule 3.3.2 allows a trial court to consider a party’s failure to file
a response to a motion as a representation of no opposition, the court’s order recites
consideration of a “response”, suggesting this rule was not applied. Moreover, subject-matter
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III. CONCLUSION
The Romeros adequately pled jurisdictional facts sufficient to confer
jurisdiction on the trial court. The County’s plea to the jurisdiction contained no
evidence to support its affirmative defense and therefore did not operate to shift the
burden back to the Romeros to provide evidence negating Miles’ potential official
immunity affirmative defense. We therefore reverse the court’s order granting the
County’s plea to the jurisdiction, and remand for further proceedings.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
jurisdiction cannot be given or taken away by consent and cannot be waived by the parties. Univ.
of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010). The granting of the County’s the plea on
such basis would also be inconsistent with the burden shifting rules applicable to pleas to the
jurisdiction under Miranda and the rules promulgated by the supreme court. Centennial Ins. Co.
v. Commercial Union Ins. Companies, 803 S.W.2d 479, 482 (Tex. App.—Houston [14th Dist.]
1991, no writ) (“No court in Texas is authorized or empowered to enact or amend rules of civil
procedure that would be inconsistent with the rules promulgated by the supreme court.”)
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