In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-24-00037-CV

___________________________

On Appeal from the 481st District Court

Denton County, Texas

Trial Court No. 21-0866-16

Before Kerr, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Wallach

CITY OF DENTON, Appellant

V. 

ANGELA RAGAS, Appellee
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MEMORANDUM OPINION

Angela Ragas (Ragas) fell while crossing a street in Denton, Texas, and sued the 

City of Denton (City) seeking damages for her personal injuries. Ragas alleged that

there was a defect in the street’s pavement that proximately caused her fall, that the

defect was a “special defect,” and that City was negligent in maintaining the street. 

Alternatively, Ragas alleged that the defect was an ordinary premises defect, that City 

had actual knowledge of its existence, and that City failed to warn her of its existence 

or remedy the condition. City raised governmental immunity as a defense and moved 

to dismiss the case due to lack of subject matter jurisdiction. The trial court denied

City’s motion to dismiss for lack of subject matter jurisdiction, and this interlocutory 

appeal ensued. We hold that Ragas’ claims are barred by governmental immunity, and 

we will reverse the judgment of the trial court and dismiss the case for want of subject 

matter jurisdiction.

I. Background

On the morning of November 15, 2019, Ragas walked her granddaughter to 

her school bus stop. It was early morning, just before 7 a.m. Ragas recalled that it was 

cool but “d[id not] recall [the pavement] being wet.” There was a streetlight nearby,

but Ragas did not recall if it was working at the time of the incident. While returning 

home from the bus stop, Ragas crossed the street in the vicinity of 1520 Mosscreek 

Drive, a residential street in City near Highway 377, also known as Fort Worth Drive.

Ragas’ foot got caught in a hole or crack (the defect) in the street, causing her to fall 
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and fracture her left elbow. It is undisputed that she did not pay a fee to use the road 

in question.

Pictures of the defect taken shortly after the incident are below.

Ragas described the defect in her response to City’s plea to the jurisdiction as a “large 

hole that covered a significant portion of Moss Creek[1] Drive,” “contained loose

rocks and dirt,” had a “jagged and uneven” surface, and was “deep enough for her 

foot to become stuck and cause her to fall.” She believed that the defect had been 

caused by heavy trucks using the street for nearby construction work.

Rogelio San Miguel, who had worked for City for thirty-two years, was City’s 

Field Services Supervisor for the street department. He testified that his duties 

included responding to reports, calls, and complaints of hazardous conditions on 

1

Throughout the record, the street name is spelled alternatively as “Mosscreek” 

and “Moss Creek.”
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roadways and sidewalks and repairing them. According to San Miguel, on December 

4, 2019, City received a service request from Ragas through its online public 

engagement platform known as Engage Denton. She reported that she had fallen on 

November 15, 2019 due to a hole in the street at 1516 Mosscreek Drive. San Miguel 

testified that the condition reported to be a hole (see photos above) was

approximately two to four inches wide and one to two inches deep and had been 

caused by normal deterioration from weather and vehicles passing through the area.

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Regarding notice to City of the defect in the street, San Miguel testified from

his knowledge as well as a review of City’s records for this location that City had not 

generated any service requests or received any calls, reports, or complaints from Ragas 

or anyone else regarding a hole or crack in the road at 1516 Mosscreek Drive between 

November 15, 2016 and November 15, 2019. He testified that City does not have a 

formal policy, ordinance, or directive mandating that City employees visually inspect 

roads and sidewalks for defects. Rather, City primarily relies on reports, calls, and 

2

Ragas objected to San Miguel’s statements about the dimensions of the hole as 

conclusory and lacking foundation and also objected that City failed to show that the 

statements were within his personal knowledge. Tex. R. Evid. 602. The trial court 

never ruled on these objections. Assuming they are substantive objections, which we 

do, they may be presented on appeal without a ruling. Seim v. Allstate Tex. Lloyds, 

551 S.W.3d 161, 166 (Tex. 2018). Even so, they are without merit as San Miguel’s 

testimony stated that his measurements were “[b]ased on [his] observation,” he was 

the supervisor for City’s street department, and he had been employed by City for 

thirty-two years. See Montez v. Bailey Cnty. Elec. Co-op, 397 S.W.2d 108, 111 (Tex. 

App.—Amarillo 1965, writ ref’d n.r.e.).
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complaints submitted through the Engage Denton online platform and on support 

staff to address and resolve any reported defects on roadways and sidewalks.

Sara Bonehill, City’s claims administrator for the Office of Risk Management,

testified that her duties include processing and resolving incidents reported through 

Engage Denton. She explained that all online complaints or verbal calls for City 

services for hazardous conditions are processed through the Engage Denton system 

and routed to the appropriate City departments for handling. She testified that she is 

the records custodian for Engage Denton; that she made a diligent search of the 

system’s records for calls, reports, or complaints from Ragas and anyone else for holes 

or cracks in the road at or near Mosscreek Drive (as well as for non-operable 

streetlights in the area) between November 15, 2016 and November 15, 2019; and 

that none were there.

Ragas never reported the defect in the road prior to her fall. She also was not 

aware of anyone else having reported it to City prior to her fall, nor did she have any 

evidence that City had actual or constructive knowledge of the defect before her fall.

II. Standards of Review

Governmental immunity is properly asserted in a plea to the jurisdiction, and 

we review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks 

& Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In City of Wichita Falls v. 

Preston, we summarized the standards of review in reviewing a plea to the jurisdiction 

as follows,
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A plea to the jurisdiction challenges whether a plaintiff has alleged facts 

that affirmatively demonstrate the trial court’s jurisdiction to hear the 

case. Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) 

(stating that a plea to the jurisdiction’s purpose generally is to defeat an 

action “without regard to whether the claims asserted have merit”) 

(quoting Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). Whether a 

trial court has subject matter jurisdiction and whether a plaintiff has 

alleged facts that affirmatively demonstrate that jurisdiction are questions 

of law that we review de novo. Miranda, 133 S.W.3d at 226. We consider 

relevant evidence submitted by the parties when necessary to resolve the 

jurisdictional issues. Id. at 227.

The standard of review for a plea to the jurisdiction generally 

mirrors that of summary judgment under Rule of Civil Procedure 

166a(c). Id. at 228. When the jurisdictional challenge implicates the 

merits of the plaintiff’s cause of action and the plea to the jurisdiction 

includes evidence, the trial court reviews the relevant evidence to 

determine if a fact issue exists. Id. at 227. If the evidence creates a fact 

question regarding the jurisdictional issue, then the trial court cannot 

grant the plea to the jurisdiction, and the fact issue will be resolved by 

the factfinder. Id. at 227–28. However, if the relevant evidence is 

undisputed or fails to raise a fact question on the jurisdictional issue, the 

trial court should rule on the plea to the jurisdiction as a matter of law. 

Id. at 228.

Accordingly, after the governmental entity asserts that the trial 

court lacks subject matter jurisdiction and supports that assertion with 

evidence, a plaintiff is required, “when the facts underlying the merits 

and subject matter jurisdiction are intertwined, to show that there is a 

disputed material fact regarding the jurisdictional issue.” Id. When 

reviewing a plea to the jurisdiction in which the pleading requirement 

has been met and evidence has been submitted to support the plea that 

implicates the merits of the case, we take as true all evidence favorable to 

the nonmovant and indulge every reasonable inference and resolve any 

doubts in the nonmovant’s favor. Id.

No. 02-22-00265-CV, 2023 WL 2033775, at *1–2 (Tex. App.—Fort Worth Feb. 16, 

2023, no pet.) (mem. op.). In this case, the plea to the jurisdiction challenges the 

existence of jurisdictional facts.
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III. Analysis

City presents two issues. The first generally asserts that the trial court erred in 

denying its plea to the jurisdiction. The second specifically contends that there is no

subject matter jurisdiction under the Texas Tort Claims Act (TTCA) because the 

record conclusively establishes that (1) the crack in the road was not a special defect, 

(2) Ragas was a licensee, (3) the crack was open and obvious and known to Ragas,

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and (4) City did not have prior actual or constructive knowledge of the crack.

Governmental immunity protects a city when it exercises discretionary powers 

of a public nature involving judicial or legislative functions. City of Tyler v. Likes, 

962 S.W.2d 489, 501 (Tex. 1997). A municipality is generally immune from suit and 

liability for torts arising from the exercise of its governmental functions, except for 

the limited waiver provided by the TTCA. Tex. Bay Cherry Hill, L.P. v. City of Fort 

Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.). Maintenance of 

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The “open and obvious” argument was not presented to the trial court. So, 

Ragas argues that it was waived. Ragas cites Texas Rule of Appellate Procedure

33.1(a)(1) and three cases in her brief. See Tex. R. App. P. 33.1(a)(1). Only one of 

those cases deals with an issue involving a jurisdictional argument being made for the 

first time on appeal. In Obasogie v. Harris County Hospital District, No. 14-19-00316-CV,

2021 WL 1184913, at *4 (Tex. App.—Houston [14th Dist.] March 30, 2021, pet. 

denied) (mem. op.), the court actually rejected the argument that a new jurisdictional 

argument on governmental immunity could not be addressed for the first time on 

appeal. Curiously, Ragas references footnote 3 in that opinion, which dealt with an 

issue of ultra vires acts being improperly raised for the first time on appeal. See id. at 

*3 n.3. City contends the “open and obvious” argument is part of its jurisdictional 

challenge and may be asserted for the first time on appeal. Regardless, we need not 

decide whether the defect was open and obvious based on our disposition of the case. 

See Tex. R. App. P. 47.1.
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city streets is a governmental function. Tex. Civ. Prac. & Rem. Code Ann. 

§ 101.0215(a)(4). Hence, City may be sued and be held liable for damages only if City’s 

immunity is waived under the TTCA. See Kownslar v. City of Houston, 654 S.W.3d 472, 

475–76 (Tex. App.—Houston [14th Dist.] 2022, pet. denied).

Ragas’ claim is based on premises liability. The TTCA provides a limited waiver 

of immunity for premises liability. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)

(providing that the governmental unit is liable for personal injury and death caused by 

a condition or use of tangible personal or real property if the governmental unit 

would, were it a private person, be liable to the claimant according to Texas law). 

Section 101.022 sets out the governmental unit’s duties of care. Id. § 101.022. 

Subsection (a) provides that in claims arising from premises defects, the governmental 

unit owes the duty to the claimant that a private person owes to a licensee on private 

property unless the claimant paid for the use of the property. Id. § 101.022(a); City of 

Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997). Generally, the duty a landowner 

owes a licensee is not to injure the licensee through willful, wanton, or grossly 

negligent conduct. City of Grapevine, 946 S.W.2d at 843. An exception to the general 

rule is that when the landowner has knowledge of a dangerous condition that the 

licensee does not have, the landowner has a duty either to warn the licensee or to 

make the condition reasonably safe. Id.

If the condition is a “special defect,” the City owes the claimant the same duty 

that a private landowner owes an invitee. Id.; see also Tex. Civ. Prac. & Rem. Code
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Ann. § 101.022(b). That duty requires the landowner to use ordinary care to reduce or 

eliminate an unreasonable risk of harm created by a condition of the premises of 

which the owner is or reasonably should be aware. City of Grapevine, 946 S.W.2d at 843.

Likewise, if the claimant paid for the use of the property, the claimant is owed the 

duty owed to an invitee. City of Fort Worth v. Posey, 593 S.W.3d 924, 927 (Tex. App.—

Fort Worth 2020, no pet.).

The existence of a special defect is a question of law, which we review de novo.

City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). The TTCA does not define the 

term “special defects” but states that they include “excavations or obstructions on 

highways, roads, or streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). Thus, 

our Supreme Court has held that “special defects” include other defects of the same 

kind or class as the two specifically mentioned in the TTCA. City of Denton v. Paper, 

376 S.W.3d 762, 765 (Tex. 2012). Based on the photographs in the record and the

testimony, we conclude that the defect in this case is not a special defect but more like 

the defects found to be ordinary premises defects in other cases. See id. at 765–66; City 

of Dallas, 258 S.W.3d at 622; City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) 

(per curiam).

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Having determined that the defect was not a special defect, City owed Ragas 

the duty owed to a licensee on private property, i.e., not to injure her through willful, 

4

Since Ragas did not pay for use of the roadway, she is not entitled to treatment 

as an invitee under that theory.
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wanton, or grossly negligent conduct. See City of Grapevine, 946 S.W.2d at 843. Absent 

willful, wanton, or grossly negligent conduct, a licensee must prove the following 

elements to establish a breach of duty: (1) a condition of the premises created an 

unreasonable risk of harm to the licensee; (2) the owner actually knew of the 

condition; (3) the licensee did not actually know of the condition; (4) the owner failed 

to exercise ordinary care to protect the licensee from danger; and (5) the owner’s 

failure was a proximate cause of injury to the licensee. Sampson v. Univ. of Texas at

Austin, 500 S.W.3d 380, 391 (Tex. 2016) (citing State Dep’t of Highways & Pub. Transp. v.

Payne, 838 S.W.2d 235, 237 (Tex. 1992)).

In this case, Ragas did not plead that City acted with willful, wanton, or grossly 

negligent conduct, only that City had actual knowledge of the defect and Ragas did 

not, that such defect constituted an unreasonably dangerous condition, and that City

failed to exercise ordinary care in remedying the defect or warning Ragas. City 

established that it relied on its online Engage Denton platform for notification of 

problems by the public or its staff and that reports made to City were recorded in this 

system and handled through the system by assigning appropriate City departments to 

investigate and respond to complaints. City also established that it conducted a 

diligent search of its system and that no records were found of complaints or reports 

of street defects or lighting problems in the area for three years prior to the incident. 

Ragas brought forth no evidence that City had actual knowledge of the defect.

Therefore, City conclusively established that an essential element of Ragas’ cause of 
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action, i.e., City’s actual knowledge of a dangerous condition at the time of the 

incident, was lacking and that City was entitled to dismissal of Ragas’ claim for lack of 

subject matter jurisdiction. See City of Austin v. Rangel, 184 S.W.3d 377, 385 (Tex. 

App.—Austin 2006, no pet.); see also Univ. of Texas at Austin v. Hayes, 327 S.W.3d 113, 

117 (Tex. 2010). We sustain City’s two issues.

IV. Conclusion

Having sustained City’s issues, we reverse the trial court’s “Order Denying 

Defendant’s Plea to the Jurisdiction” and dismiss the case for want of subject matter 

jurisdiction. See Hayes, 327 S.W.3d at 118; City of Austin, 184 S.W.3d at 385.

/s/ Mike Wallach

Mike Wallach

Justice

Delivered: May 16, 2024