COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ROBERTO D I AZ , J R., I

NDI VI DUAL L Y AND AS NEX T FRI END OF ROBERT C. DI AZ , A MI NOR, Appellant,

v. THE CANUTI L L O I

NDEPENDEN T SCHOOL DI STRI CT, Appellee

. § § § § § § § No. 08-07-00357- CV

Appea l from 171st District Court of El Paso County , Texas (TC # 2007-212)

O P I N I O N Roberto Diaz, J r., individually and as next frie nd of Robert C. D iaz, a ppeals from an order
g ranting a plea to the jurisdiction filed by the Canutillo I ndepende nt School Dis t ri ct. At issue is whether neg lige nt parking constitutes the use or opera tion of a motor vehicle as contemplated by the Texas Tort Claims Act. On these fa cts, we c onclude it does not.
F ACTUAL SUMMA RY Diaz f iled a neg lige nce cause of action alleg ing that his son, Rober t C. Diaz, was se riously injured while play ing touch football on a play g round owned by CI SD. Diaz alleg ed that Robert was injured when he ran into a parke d vehicle which had been neg lige ntly p ar k ed b y an unknown employ ee “in the are a of the school play g round.” Robert’s rig ht ey e is blind as a result of the injury

. CI SD filed a plea to the jurisdiction asser ting that it is immune from Diaz’s persona l injury claims beca

use the motor vehicle was not b ei n g “used” or “oper ated” and mere ly furnished the condition that made the injury possible. CI SD attache d Diaz’s answe rs to a reque st for admissionsestablishing that the motor vehicle was empty , parke d, and stationary , with the eng ine diseng ag ed.

Diaz filed a response but did not tender evidenc e. The trial court g rante d the plea to the jurisdiction and dismissed Diaz’s claims. This appea l follows.

WAIVER OF SCHOOL DISTRICT’S S OVEREIGN IMM UNITY Diaz challeng es the trial court’s ruling by three issues. First, he arg ues that we should only look to the pleading s to deter mine if he sufficie ntly alleg ed a waiver of sovere ign immunit y . Second, he contends that the act of parking a motor vehicle constitutes use or opera tion of a motor vehicle. Third, he maintains that his pleading s sufficie ntly state a nexus betwee n the alleg ed neg lige nt act and the child’s injuries. Standard of Review
I n his first issue, Diaz clai m s t h at we can look only to the pleading s in revie wing the trial court’s ruling on the plea to the jurisdiction. We disag ree . A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Indepe ndent School District v. Blue , 34 S.W .3d 547, 554 (Tex. 2000). Whether a court has subject matter jurisdiction is a question of law which we revie w de novo . Texas Departme nt of Parks & W ildlif e v. Mi r anda , 133 S.W .3d 217, 226 (Tex. 2004). Simi larly , whether undisputed evidenc e of jurisdictional fac ts establishes a trial court’s jurisdiction is a question of law subject to de novo revie w. Id

. I f the rele vant evidenc e is undisputed or fails to raise a fac t question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as

a matter of law. Id

. at 228. Th i s s t an d ard g ener ally mirrors that of a summary judgme nt under
T E X .R.C I V .P. 166a(c)

. Id

. When a plea to the jurisdiction challeng es the pleadi ng s, we deter mine if the pleade r has alleg ed fac ts that aff

irmativ el y d em o n strate the court' s jurisdiction to hear the cause . Id. at 226.
Howeve r, if a plea to the jurisdiction challeng es the exis tence of jurisdictional fac ts , we co n s i d errele vant evidenc e submitt ed by the parties when nece ssary to resolve the jurisdictional issues raised,

as the trial court is require d to do. Id. at 227. I n this case , the rele vant evidenc e submitt ed in

connec tion with CI SD’s plea is undisputed. Contrary to Diaz’s asser tion, our revie w is not restric ted to his pleading s. We overrule I ssue One. Use or Ope ration of a Motor Vehicle and the Nexus Re quirement
I n Texas, sovere ign immunit y deprive s a trial court of subject matter jurisdiction for lawsuits in which the state or cer

tain g overnme ntal units have been sued unless the state conse n t s to suit.
Texas Departme nt of P arks & W ildlif e v. Miranda , 133 S.W .3d 217, 224 (Tex. 2004); Texas Departme nt of Transport ation v. Jones , 8 S.W .3d 636, 638 (Tex.1999). The Texas Tort Claims Act provides a limit ed wa i v er of sovere ign immunit y . T E X .C I V .P R A C .&R E M .C O D E AN N
. §§ 101.001-.109 (Ve rnon 2005 and Ver non Supp. 2 0 0 9 ). Sovereig n immunit y includes two distinct principles, im munit y from liability and im munity from sui t. Miranda , 133 S.W .3d at 224; Jones , 8 S.W .3d at 638. I mmunity from liability is an aff irmative d efense, while immunit y from suit deprive s a court of subject matter jurisdiction. Miranda , 133 S.W .3d at 224. The Tort Claims Act

cre ates a unique statutory scheme in which the two immunit ies are co-e x tensi v e: “S overe ign immunit y to suit is waived and abolished to the extent of liability cre ated by this chapte r.” Miranda , 133 S.W .3d at 224, quoting T E X .C I V .P R A C .&R E M .C O D E AN N
. § 101.025(a)

. Thus, CI SD is immune from suit unless the Tort Claims Act expressly waives immunit y . See T E X .C I V .P R A C .&R E M .C O D E AN N
. §§ 101.001(3)( B) (def ining a g overnme ntal unit to include a political subdivision of this state, including a

ny school district). Section 101.021 provides that: A g overnme ntal unit in the state is liable for:(1) proper ty damag e, persona l injury , and death proxi mately cause d by the wrong ful act or omission or the neg lige nce of an employ ee acting within h i s scope of employ ment if: (A) the proper

ty damag e, persona l injury , or death arises from the opera tion or use of a motor-dr iven vehicle or motor-drive n equipment; and (B ) the employ ee would be personal l y liable to the claimant acc ording to Texas law; and (2) persona l injury and death so cause d by a condition or use of tang ible persona l or rea l proper

ty if the g overnme ntal unit would, wer e it a private person, be liable to the claimant ac cording to Texas law.
T E X .C I V .P R A C .&R E M .C O D E AN N . § 101.021. But the Tort Claims Act also provide s: “Except as
to motor vehicles, th i s chapte r does not apply to a school district or to a junior colleg e district.”
T E X .C I V .P R A C .&R E M .C O D E AN N
. § 101.051. Thus, a school district is immune f rom tort liability

u n l es s a personal i njury arises out of t he use or operation of a motor vehicle. The term “u s e” h as been define d to mean “to put or bring into action or service ; to employ for or apply to a given purpose.” LeLeaux v. Hamshire-Fa n n et t Indepe ndent School District , 835 S.W .2d 49, 51 (Tex. 1992). The te rm “ope ration” is def ined to mean “ a doing or per forming of a pr actica l work.” Id. The phrase “ar ises from” require s a nexus betwee n the injury negl i gen t l y cause d by a g overnme ntal employ ee and the opera tion or use of a motor-driven vehicle or piece of equipment.
LeLeaux , 835 S.W .2d at 51. This require s more than mere involvement of the proper ty

. Dallas Area Rapid Transit v. W

hitley , 104 S.W .3d 540, 543 (Tex. 2003). The vehicle’s use or o p er at i on must have actua lly cause d the injury

. Id. The opera tion or use of the motor vehicle does not cause injury if it merely

furnishes the c ondition that makes the injury possible. Id. Diaz rea dily

admits that his sui t is based on a sc hool district employ ee’ s neg lige nt parking or plac ement of the motor vehicle in que stion. Neverthe less, he conte nds that parking nece ssarily constitutes use or opera tion of a motor vehicle beca use it is inhere nt to its use and o p er ati on. I nsupport of this arg ument, he direc ts us to Employe rs Mutual Casualty Company v. St. Paul Insurance

Company , 154 S.W .3d 910 (Tex.App.--Da llas 2005, no pet.). There , a “cr ash truck” which car ried the cra sh barr ier and flashing arr ow board was located at the rea r of a road- work convoy . The driver stopped the cra sh truck near the cre st of a hill while waiting for the trucks in fron t o f it to start climbing the next hill. The cra sh truck was rea r-e nded while it wa s stopped but still running

. The issue on appea l w as whether insurance cover ag e was excluded by the provision that the policy did
not cover bodily injury , proper

ty damag e, or me dical expenses re sulting fr om the use or ope ration of any auto owned or opera ted by any protec ted person. Employ ers arg ued that the cra sh truck was b eing used as a st eel barrica de, not as an auto. Id. at 914. The Dallas Court of Ap p ea l s h el d t h at whether the truck was stopped was not deter minative of whether it was being used or opera ted as an
auto. Id. at 915. The cra sh truck was transporting th e d ri v er, the cra sh barr ier, and the flashing

arr ow board at the time of the acc ident. The driver was in the truck, the eng ine was running , and the driver was waiting to drive over the cre st of the hill when the acc ident occur red. Id. The truck was
not mere ly the place wher e the acc ident occur red; instead it was the truck’s prese nce on the roadw ay and the dr iver’s de cision to stop the truck in the left lane of fa st-moving tra ffic tha t resulted in the

acc ident. Id. Employe rs is c lear ly distinguishable beca use it did not involve the Tort Claims Act.
Fur ther, the undisputed evidenc e her e demonstra tes that the motor vehicle was not being opera ted by any one at the time of

Robert’s injury

. Citi ng Finnigan v. Blanco County , 670 S.W .2d 313 (Tex.App.--Austin 1984, no writ), Diaz also contends that a motor vehicle can be used or opera ted even when it is unoccupie d. I n Finnigan , a deputy sheriff parke d his patrol car

near the jail’s exercise y ard a

nd left the motor running while he went inside. The deputy knew the jail’s only prisoner had acc ess to the ex er ci s e y ard. The prisoner escape d, g ot into the car, and fled the are a. The ge t-awa y vehicle was t hen invol ved in afata l collision afte r the office rs g ave chase

. The court of appea ls held that the use or opera tion of a

m o t o r- d ri ven vehicle involves the transporta tion of a person from one place to another and

neces sarily includes stopping the vehicle and leaving the motor running

. Id. at 316. Finnigan is

rea dily distinguishable be cause the motor vehicle was not running at the time of Rober t’s injury

. Diaz next sug g ests that the neg li g e n t p la c e me nt of the vehicle can constitute use or opera tion.
I n Dallas Area Rapid Transit v. W i l l i s , 163 S.W .3d 814 (Tex.App.--Da llas 2005, pet. denied) , a woman fell as she exit ed a bus. She filed sui t alleg ing that the bus driver was neglig ent i n failing
to proper ly stop the bus close enoug h to the curb for her to exit safe ly

. The Dallas Court of Appea ls held that the use or opera tion of a motor vehicle involves the transporta tion of individuals from one location to another and such transporta tion nece ssarily includes the act of stopping the vehicle. Id.
at 817. The evidenc e established that the bus was transporting passeng ers and the driver was in the bus when the acc ident occur red. Id. Be cause the plaintiff’s pleading s alleg ed that the driver took the aff irmative ac tion of parking the bus in a wa y that may have c ontributed to her acc ident, the cour t of appe als found the plea dings suf ficient to state a

cause of ac tion unde r the Tort Claims Ac t. Id. The DART case is fac tually differ ent beca use the bus was being opera ted or used at the moment of the pl aintiff’s injury

and the a ccide nt directly arose from that opera tion or use. Fur ther, the act of the plaintiff exit ing the bus is an inhere nt part of the bus’s function of transporting people from one location to another

. Diaz next contends t h at t h er e is no require ment that the injury and the neg lige nce be contempora

neous. I n Elgin Indepe ndent School District v. R.N. , 191 S.W .3d 263 (Tex.App.--Austin 2006, no pet.), a five-y ear -old child wa s l ef t aslee p on a school bus and the bus was locked. The child rema ined on the bus for sever al hours. The Austin Court of Appe als held that while the bus driver’ s failure to unl oad the child was a failure of supervision rathe r t han a “use or opera tion” ofthe bus, the driver’ s action in locking the door constituted a use of the vehicle. Id

. at 2 7 2

. Di az

rea sons that if locking a b u s i s use or opera tion, then so is parking a vehicle. Elgin can be distinguished because the child was insi de the bus and the neg lige nce had a direc t impact on her. More importantly , Elgin was a pleading s-only

case . Finally , Diaz maintains that an injury can arise out of the use or opera tion of a motor vehicle which is stationary , parke d, turned off, and unoccu p i ed

. He cites Tarrant County v. Engli sh , 989 S.W .2d 368 (Tex.App.--F ort Worth 1998, pet. denied) in support of this arg ument. Tarr ant County purportedly spilled diesel fuel while prepa ring trucks to haul asphalt. The diesel fuel migr ated onto the plaintiff’s proper

ty and he sued for damag es. The county arg ued there was no nexus betwee n the
opera tion of the trucks and the damag e to the plaintiff’s proper ty beca use the trucks wer e not in use when the diesel fuel was applied. The court of appea ls disag ree d, holding that the trucks wer e in use beca use they wer e being prepa red to transport and rele ase asphalt onto county roads. Id. at 375-76.
Her e, CI SD’s vehicle w as not being prepa red f or use or opera tion.
We turn now to the authorities cited by CI SD. I n LeLeaux v. Hamshire-Fanne tt Indepe ndent School District , 835 S.W .2d 49 (Tex. 1992), a student who had trave led to a band contest in a school bus enter ed the parke d and empty school bus throug h the rea r emer g ency door. She stood up in the d o o rw ay and st ruck her head on the door fra me. Emphasizing t hat t he bus was parked and n o t i n
opera tion, the Supreme Court held that the student’s injury did not arise out of the opera tion or use of the school bus. Id. at 52. The bus was nothing more than the place wher e the student happene d to injure herse lf. Id. at 51.
I n Texas Departme nt of

Public S a fe ty v
. G r is h a m , 2 3 2 S. W. 3 d 8 2 2 (Tex.App.--Houston [14t h Dist.] 2007, no pet.), the plaintiff was trave ling in the rig ht la ne of a r oad whe n he appr oache d the

scene of an acc ident. A vehicle involved in the acc ident was partially obstructing the left lane anda DPS cruiser was parke d on the rig ht shoulder of the roadw ay with its emer g ency lights activate d.

The plaintiff chang ed into the left lane and struck the disab l ed v eh i cl e. The Four teenth Court of App eals held that sovere ign immunit y was not waived beca use the DPS cruiser did not actua lly cause the plaintiff’s injury ; it mere ly furnished the condition that made the plaintiff’s injury possible. Id. at 827.
I n City of Kemah v. Vela , 149 S.W .3d 199 (Tex.App.--Houston [14t h Di s t

. ] 2004, pet. denied) , a police office r made a traff ic stop and parke d behind the plaintiff’s car in a left-turn lane. The office r place d the plaintiff in the back seat of the patrol car . A second police office r parke d his patrol car behind the first and activate d his e merg ency lights. A truc k subsequently drove into the back of the second p at ro l ca r wh ich in turn struck the first patrol car injuring the plaintiff. The plaintiff alleg ed that his injuries arose from the neg lige nt parking of the patrol car s i n the turning lane. The Four

teenth Court of Appea ls deter mined that the plaintiff’s injuries did not arise from the

u s e o r opera tion of the patrol car s and that the parking of the patrol car s mere ly furnished th e condition that made the injuries possible. Id. at 204-05.
We rec og n i z e t h at these authorities are inhere ntly fac t specific and often courts must fit
square peg s into round holes. But the undisputed evidenc e submitt ed by CI SD established that the
motor vehicle was parke d and the eng ine was diseng ag ed. I t was in no way being used when Robert

ran into it and trag ically injured his ey e. We conclude that it was not being used or opera ted within the meaning of those terms under the Texas Tort Claim s Ac t

. S ee L eL eaux , 835 S.W .2d at 51 (def ining use and opera tion). The vehicle only furnished the condition that made the injury possible. See Texas Departme nt of Public Safety v. Grisham , 232 S.W .3d at 827; City of Kemah v. Vela , 149 S.W .3d at 204-05. We overr ule I ssues Two and T h re e an d aff irm the judgme nt of the trial court below.Fe bruar

y 3, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.