Affirmed and Memorandum Opinion filed October 24, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00329-CV

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

MEMORANDUM OPINION

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 
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(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.

1 Demeatrice Goff was also a plaintiff in the suit. However, Goff did not sign Barnes’ notice 

of appeal or file her own notice of appeal and therefore is not a party to this appeal. See Tex. R. 

App. P. 9.1(b) (“A party not represented by counsel must sign any document that the party 

files[.]”); see also Paselk v. Rabun, 293 S.W.3d 600, 606 (Tex. App.—Texarkana 2009, pet. 

denied) (“While a layperson has the right to represent themselves, a layperson does not have the 

right to represent others.”). 
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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 
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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?

2 Rule 91a.3(a) provides that a motion to dismiss must be “filed within sixty days after the 

first pleading containing the challenged cause of action is served on the movant” Tex. R. Civ. P. 

91a.3(a).

3 Rule 91a.3(b) states that a motion to dismiss must be filed at least 21 days before the 

motion is heard. Tex. R. Civ. P. 91a.3(b).
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Having upheld the trial court’s ruling as a plea to the jurisdiction, it is unnecessary 

to address appellant’s complaints that the trial court failed to comply with Rule 91a. 

In his brief under this issue, appellant also argues, “The defendants Notice of 

Hearing what he referred to as defendants second amended Notice of Hearing was 

filed amended notice of March 20th 2018 giving the plaintiffs in the cause of action 

three days’ notice to respond.” [sic] The record before this court does not contain a 

notice filed March 20, 2018. There are no record references or citations to authority 

that would support a determination by this court that the trial court erred or that any 

error is reversible. See Tex. R. App. 38.1(i). Accordingly, this contention is waived.

Lastly, appellant assertsthe motion to dismiss had to be verified in accordance 

with Rule 93. See Tex. R. App. P. 93(1). Rule 93(a) provides:

A pleading setting up any of the following matters, unless the truth of 

such matters appear of record, shall be verified by affidavit.

1. That the plaintiff has not legal capacity to sue or that the defendant 

has not legal capacity to be sued.

Id. Appellant’s brief argues:

93(1) That the plaintiffs has not legal capacity to be sued or that the 

defendant has not legal capacity to be sued. The defendants in their 

Motion to Dismiss argue the Governmental/ Corporate entitiy that is 

Harris County has immunity there by setting the argument in motion as 

to Harris Counties the Governmental/ Corporate entitiy has legal 

capacity to be sued ...a question of law [sic]

Appellant’s argument, as we understand it, is that appellees’ assertion of 

immunity is a pleading that “the defendant has not legal capacity to be sued.” 

Appellant cites no authority, and we are aware of none, equating capacity with 

immunity. See Tex. R. App. 38.1(i). Capacity is a party’s legal authority to go into 

court and prosecute or defend a suit. Davis v. City of Houston, 869 S.W.2d 493, 494 

n. 1 (Tex. App.—Houston [1st Dist.] 1994, writ denied). Lack of capacity to sue or 
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be sued must be challenged via verified plea in the trial court, or it is waived. Pledger 

v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988). The failure to file a verified denial 

does not waive immunity as an affirmative defense when the record affirmatively 

demonstrates the government’s assertion that immunity protects the defendant from 

suit. Petta v. Rivera, 923 S.W.2d 678, 684 (Tex. App.—Corpus Christi 1996, writ 

denied); accord Texas S. Univ. v. Araserve Campus Dining Servs. of Tex., Inc., 981 

S.W.2d 929, 935 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (concluding 

TSU did not waive its right to assert immunity when its answer and plea to the 

jurisdiction stated the court was without jurisdiction absent a showing of waiver of 

the doctrine of sovereign immunity). Appellant’s complaint is overruled.

In light of our determination, it is unnecessary to address appellant’s 

remaining issues. The judgment of the trial court is affirmed.

/s/ Margaret “Meg” Poissant

Justice

Panel consists of Justices Christopher, Hassan, and Poissant.