## NUMBER 13 -22-00040-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

THE CITY OF CORPUS CHRISTI , TEXAS Appellant,

v.

AUDREY NICKERSON , Appellee.

On appeal from the County Court at Law No. 2 of Nueces C ounty, Texas.



## MEMORANDUM OPINION

Before Justices Tijerina, Silva , and Peña

Memorandum Opinion by Justice Silva

A ppellant the City of Corpus Christi , Texas (the City) challenges the trial court ’s

denial of its plea to the jurisdiction seeking to dismiss appellee Audrey Nickerson’s

negligence suit. Nickerson , an employee with the City, filed suit against the City after she

was struck in the back with a John Deere tractor front loader bucket, which was being2 operated by a coworker while they were both in the course and scope of their employment

with the City . By a single consolidate d issue

, the City argues that Nickerson failed to

establish a waiver of the City’s immunity because Nickerson’s claims are barred under

the Texas Workers Compensation Act (TWCA)

. See T EX

. G OV ’ T C ODE A NN

. § 311.034;

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 101.054. We reverse and render.

I. S TANDARD OF R EVIEW AND A PPLICABLE L AW
Subject matter jurisdiction is essential to a court ’s authority to decide a case. Teal

Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass ’n

, 593 S.W.3d 324,

331 (Tex. 2020) (citing Bland Indep. Sch. Dist. v. Blue

, 34 S.W.3d 547, 553

– 54 (Tex.

2000)). Whether a trial court has subject matter jurisdiction is a question of law that we

review de novo. Sw. Elec. Power Co. v. Lynch

, 595 S.W.3d 678, 682 (Tex. 2020) (citing

Tex. Dep ’t of Parks & Wildlife v. Miranda

, 133 S.W.3d 217, 226 (Tex. 2004)).

Sovereign immunity protects the State and its agencies from lawsuits for money
damages and deprives a trial court of subject matter jurisdiction over a plaintiff ’s claims.

Mission Consol. Indep. Sch. Dist. v. Garcia

, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).

Governmental immunity offers the same protections for political subdivisions of the State,

including municipalities. Id. ; see City of San Antonio v. Maspero

, 640 S.W.3d 523, 528

(Tex. 2022) ; Tex. Dep ’t of Fam . & Protective Servs . v. Parra

, 503 S.W.3d 646, 660 (Tex.

App.

— El Paso 2016, pet. denied).

To prevail on an assertion of governmental immunity, the governmental defendant

“ may challenge the pleadings, the existence of jurisdictional facts, or both. ” Alamo Heights

Indep. Sch. Dist. v. Clark

, 544 S.W.3d 755, 770 (Tex. 2018). When a plea to the3 jurisdiction challenges jurisdictional facts, our review mirrors that of a traditional summary
judgment motion. Maspero

, 640 S.W.3d at 528 (citing Mission Consol. Indep. Sch. Dist.

v. Garcia

, 372 S.W.3d 629, 635 (Tex. 2012))

. To that end, “ all the evidence is reviewed

in the light most favorable to the plaintiff to determine whether a genuine issue of material

fact exists.” Town of Shady Shores v. Swanson

, 590 S.W.3d 544, 550 (Tex. 2019); see
Maspero

, 640 S.W.3d at 528

– 29 (“ [W]e take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant ’s favor. ” ). “A genuine issue exists if ‘ the evidence is such that a reasonable

jury could find that fact in favor of the non

- moving party. ’” Smith v. Mosbacker

, 94 S.W.3d

292, 294 (Tex. App.

— Corpus Christi

– Edinburg 2002, no pet.) (quoting Moore v. K Mart

Corp.

, 981 S.W.2d 266, 269 (Tex. App.

— San Antonio 1998, pet. denied)). “ Material facts

are those facts which ‘ affect the outcome of the suit under the governing law. ’” Id. (quoting

Moore

, 981 S.W.2d at 269). If “ the pleadings and evidence generate a ‘fact question on
jurisdiction, ’ dismissal on a plea to the jurisdiction is improper, ” and the fact issue will be

resolved at trial by the factfinder. Maspero

, 640 S.W.3d at 529 (citing Univ. of Tex. at

Austin v. Hayes

, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam)). “ However, ‘ if the

evidence is undisputed or fails to raise a fact question, ’ the plea must be granted. ” Id.

(quoting Hayes

, 327 S.W.3d at 116).

“ In certain circumstances, the [Texas Torts Claims Act (TTCA)] waives the

immunity that would otherwise bar suit against a governmental unit and an employee

sued in his official capacity. ” Molina v. Alvarado , 463 S.W.3d 867, 870 (Tex. 2015); see

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 101.025. Specifically, § 101

. 021 of the TTCA4 estab lishes the requirements for holding a governmental unit liable for an employee ’s

negligent use or operation of a motor

- driven vehicle or motor

- driven equipment . T EX

. C IV

.
P RAC

. & R EM

. C ODE A NN . § 101

. 021 (1). As relevant here, “[c] ourts have held that a motor

driven backhoe qualifies as ‘ motor

- driven equipment ’ allowing for the application of the

limited exception to immunity provided by the TTCA. ” City of Monahans v. Sw. Bell Tel.

Co. , 656 S.W.3d 738, 748 (Tex. App.

— El Paso 2022, no pet.); see also City of Alton v.
Sharyland Water Supply Corp. , 145 S.W.3d 673, 679 (Tex. App.

— Corpus Christi

– Edinburg 2004, no pet.) (mem. op.) ( concluding the city ’ s use of “ backhoes ” constituted

use of motor

- driven equipment under the TTCA ).

Governmental i mmunity otherwise waived by the TTCA , however, remains subject

to the applicability of t he TWCA . Under the TWCA , “ [r]ecovery of workers ’ compensation

benefits is the exclusive remedy of an employee covered by workers ’ compensation

insurance coverage

. . . for

. . . a work

- related injury sustained by the employee. ” T EX

.
L AB

. C ODE A NN . § 408.001(a); see Wausau Underwriters Ins. Co. v. Wedel , 557 S.W.3d

554, 556 (Tex. 2018); City of Bellaire v. Johnson , 400 S.W.3d 922, 922 (Tex. 2013) (per

curiam); see also City of Dallas v. Salyer , No. 05

- 12

- 00701

- CV, 2013 WL 3355027, at

*2

– 3 (Tex. App.

— Dallas July 1, 2013, no pet.) (mem. op.). “ Therefo re, if a governmental

unit is immune from liability by having provided workers ’ compensation, it is likewise

immune from suit. ” Jefferson County v. Farris , 569 S.W.3d 814, 823 (Tex. App.

— Houston

[1st Dist.] 2018, pet. denied) (per curiam) (citing Johnson , 400 S.W.3d at 924 ); see Maxim

Crane Works, L.P. v. Zurich Am. Ins. Co. , 642 S.W.3d 551, 555 (Tex. 2022) ( “ The TWCA

provides that recovery of workers ’ compensation benefits is a covered employee ’ s5 exclusive remedy against his employer and co

- employees for work

- related injury

. ” ); see

also Mariscal v. McCarthy Bldg. Cos

., Inc. , No. 13

- 19

- 00211

- CV, 2021 WL 1133608, at

*4 (Tex. App.

— Corpus Christi

– Edinburg Mar. 25, 2021, pet. denied) (mem. op.) ( “ [I]f an

employer subscribes to workers ’ compensation insurance benefits, and is then sued by a

covered employee, the employer may ‘ assert the statutory exclusive remedy defense

against the tort claims of its employees for job related injuries ’ and generally cannot be

held liable in tort for those injuries

. ” (quoting HCBeck, Ltd. v. Rice , 284 S.W.3d 349, 350

(Tex. 2009)) ). “ But an employee may still seek damages from a liable third party in

addition to receiving workers ’- compensation benefits. ” Wedel , 557 S.W.3d at 556

.
II . D ISCUSSION

It is undisputed that the City is a governmental unit

. See T EX

. C IV

. P RAC

. & R EM

.
C ODE A NN . § 101.021. Additionally, the pleadings and evidence show that Nickerson was
injured by a coworker operating motor

- driven equipment in the course and scope of his

employment

. See id

. As a result, Nickerson’s claim meets the first two requirements of

§ 101

. 021 of the TTCA

. See id. § 101

. 021 (1), (A) . Even so, the City contends that its

immunity is not waived because it cannot be liable to Nickerson since she received

worker ’ s compensation benefits pursuant to the TWCA

. 1 See T EX

. L AB

. C ODE A NN

. § 408.001(a). Thus, the City argues, TWCA ’s exclusive remedies provision bars the

governmental immunity waiver otherwise afforded by the TTCA, and Nickerson’ s suit

must be dismissed

. See id. Nickerson meanwhile asserts that the City has improperly

1 The parties do not dispute that Nickerson claimed and received worker ’ s compensation benefits

.6 affixed its TWCA exclusive remedy argument to its plea to the jurisdiction when the

appropriate vehicle is an affirmative defense

- based summary judgment motion.

The question of w hether TWCA ’s exclusive remedy provision can be address ed in

a municipality ’s p lea to a jurisdiction has already been resolved by this Court . In City of

Corpus Christi v. Muller

, we reviewed the interplay between the TTCA and TWCA on an
appeal of the trial court’s denial of the City ’s plea to the jurisdiction. No. 13

- 18

- 00443

- CV,

201 9 WL 2384162, at *2 (Tex. App.

— Corpus Christi

– Edinburg June 6, 2019, no pet.)

(mem. op.) . We concluded that if the TWCA applies, it acts as a bar to the waiver of the

City ’ s immunity under the TTCA

. Id. ; see Johnson , 400 S.W.3d at 924 (providing that s uit

for injury from the operation of a motor

- driven vehicle would have waived sovereign

immunity but for the exclusive remedy bar provided by the TWCA)

. In accordance with

Muller , we conclude that because Nickerson received workers ’ compensation insurance

coverage for a work

- related injury she sustained, the TWCA applies in this instance

— barring waiver of the City ’ s immunity under the TTCA. See Johnson , 400 S.W.3d at 924;

Farris , 569 S.W.3d at 823 ; see also Muller , 2019 WL 2384162, a t *2

. Therefore, the trial

court erred in denying the City ’ s plea to the jurisdiction on this basis.

Alternatively , Nickerson advocates for the application of Political Subdivision Law,

codified under Chapter 504 of the Texas Labor Code, as an independent avenue for

waiver of the City ’ s immunity . Specifically, Nickerson argues “ [w]orkers ’ compensation

provisions enumerated under § 504.002 that are inconsistent with Ch[apt er] 504 are

excluded from and given no effect for tort claims actions brought by governmental unit

employees, including § 408.001. ” However, the supreme court has unequivocally held7 that nothing in Chapter 504 “ waives sovereign immunity or creates a new cause of action. ”

Manbeck v. Austin Indep. Sch. Dist. , 381 S.W.3d 528, 530 (Tex. 2012) ( noting that

Political Subdivisions Law is “ too internally inconsistent ” to satisfy the requirement that a

waiver of governmental immunity must be clear and unambiguous to be upheld) ; see T EX

.
L AB

. C ODE A NN . § 504.053; Parra , 503 S.W.3d at 657 n.9 (observing that the Texas

Supreme Court has already determined whether a waiver of immunity exists

independently under Political Subdivision Law and held that the existence of § 504.053(e)

prohibits such interpretation); Ellis v. Dall. Area Rapid Transit , No. 05

- 18

- 00521

- CV, 2019

WL 1146711, at *3 (Tex. App.

— Dallas Mar. 13, 2019, pet. denied) (mem. op.) (observing

that amendments under Political Subdivision Law have yet to “ alter the express directive

found in [§] 504.053(e), that ‘ [n]othing in this chapter waives sovereign immunity or

creates a new cause of action ’” ); Dep ’t of Aging & Disability Servs . v. Powell , No. 13

- 10

-

00126

- CV, 2011 WL 2090247, at *3 (Tex. App.

— Corpus Christi

– Edinburg May 26, 2011,

pet. denied) (mem. op.) (observing the same).

After reviewing the pleadings, the City ’ s plea to the jurisdiction, and the evidence

submitted therewith, we conclude that the City has shown that the trial court lacked

subject

- matter jurisdiction. We sustain the City ’ s sole issue.

III. C ONCLUSION

We reverse the trial court ’ s order denying the City’s plea to the jurisdiction and

render judgment dismissing Nickerson ’s claims against the City for want of jurisdiction.8 CLARISSA SILVA Justice

Delivered and filed on the 4th d ay of January, 2024.