REVERSED AND RENDERED; Opinion Filed March 1, 2021

In the

Court of Appeals

Fifth District of Texas at Dallas 

No. 05-20-00636-CV

CITY OF DALLAS, Appellant

V.

SERENA MARIE DE GARCIA, Appellee

On Appeal from the 191st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-05374

MEMORANDUM OPINION

Before Justices Myers, Osborne, and Carlyle

Opinion by Justice Carlyle

The City of Dallas appeals the trial court’s order denying its plea to the 

jurisdiction. We reverse and render judgment dismissing Serena Marie de Garcia’s 

claims against the City. Because the legal issues are settled, we issue this 

memorandum opinion. See TEX. R. APP. P. 47.4.

Ms. de Garcia suffered injuries when she tripped over a piece of metal pipe 

protruding from a sidewalk she alleges is owned or controlled by the City. She sued 

the City for premises liability, and later amended her petition to include the Texas 

Department of Transportation (TxDOT) as a defendant. The City filed a plea to the 

jurisdiction contending it is immune from suit both because it is not responsible for 
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maintaining the sidewalk and because it was unaware of the sidewalk’s defective 

condition at the time of Ms. de Garcia’s injury. In support of its plea, the City 

provided evidence of a contract it has with TxDOT which, according to the City, 

shows TxDOT is responsible for maintaining the sidewalk. TxDOT filed a response 

denying responsibility under the contract and is not a party to this appeal.

At the hearing on the plea, the trial court expressed its belief that, because 

there was a factual dispute as to who, between the City and TxDOT, was responsible

for maintaining the sidewalk, there was also a factual dispute as to who would have 

received notice of the hazardous condition. After the hearing, the court entered an 

order denying the City’s plea without specifying any reasons for doing so, which it 

was empowered to do. The City contends the trial court erred by denying the plea 

because the evidence established the City lacked actual knowledge of the sidewalk’s 

hazardous condition regardless of who wasresponsible for maintaining the sidewalk.

We review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “In a suit against a governmental unit, 

the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a 

valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 

542 (Tex. 2003). Ms. de Garcia brought claims under the Texas Tort Claims Act

(TTCA), which waives immunity for personal injuries caused by the condition of 

real property if a governmental unit would, were it a private person, be liable under 
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Texas law. City of Dallas v. Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 

2013, no pet.) (citing TEX. CIV. PRAC. & REM. CODE § 101.021(2)).

For purposes of this appeal, the City does not dispute that it owed Ms. de 

Garcia a duty as the party responsible for the sidewalk. And Ms. de Garcia concedes

both that she did not pay to access the sidewalk and that the protruding pipe was not 

a “special defect” under the TTCA. See TEX. CIV. PRAC. & REM.CODE § 101.022(a), 

(b); see also City of Dallas v. Freeman, No. 05-18-00961-CV, 2019 WL 3214152, at 

*3–5 (Tex. App.—Dallas July 17, 2019, no pet.) (mem. op.) (explaining the 

difference between ordinary and special defects, concluding that a three-inch 

difference in elevation between a sidewalk and an abutting curb was not a special 

defect under the TTCA). The City therefore owed Ms. de Garcia “only the duty that 

a private person owes to a licensee on private property.” Id. § 101.022(a). That duty 

requires an owner to “use ordinary care either to warn a licensee of, or to make 

reasonably safe, a dangerous condition of which the owner is aware and the licensee 

is not.” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016) (quoting 

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).

Ms. de Garcia does not allege the City’s conduct was willful, wanton, or 

grossly negligent. Thus, to maintain her claims under the TTCA, she must prove the 

City actually knew about the sidewalk’s dangerous condition at the time of her 

injury. Id. “Actual knowledge, rather than constructive knowledge of the dangerous 

condition is required,” and “[h]ypothetical knowledge will not suffice.” Id. at 
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392 (quoting State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974)). Accordingly, if 

the evidence establishes that the City lacked actual knowledge of the sidewalk 

hazard, then immunity is not waived, and the City’s plea must be granted. Id. at 391–

92.

Because the City’s challenge is based on evidence purporting to negate the 

basis for the trial court’s jurisdiction, the City’s burden is similar to that of a movant 

for summary judgment. Id. (citing Miranda, 133 S.W.3d at 227–28). The City has 

the initial burden of presenting evidence sufficient to negate jurisdiction. If it meets 

that burden, the burden shifts to Ms. de Garcia to demonstrate a factual dispute on 

the jurisdictional issue. Id. at 391–92. In determining whether either party satisfied 

its burden, we take as true all evidence favorable to Ms. de Garcia, drawing every 

reasonable inference and resolving all doubts in her favor. Id. “Although there is no 

one test for determining actual knowledge that a condition presents an unreasonable 

risk of harm, courts generally consider whether the premises owner has received 

reports of prior injuries or reports of the potential danger presented by the condition.” 

Id. at 392 (quoting Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 

2008) (per curiam)). 

With respect to whether the City was aware of the sidewalk’s defective 

condition, the City provided an affidavit from Sheila Gray, a records custodian for 

its 311 Customer Service Center. She explained that the 311 Customer Service 

Center maintains records concerning reports of any allegedly hazardous conditions 
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within the City. Based on a diligent search of those records, Ms. Gray testified the 

City did not receive any reports of a dangerous condition on the sidewalk in the two 

years before Ms. de Garcia’s injury.

Binding precedent in this court—where we have held that evidence similar to 

the City’s, testimony stating that a governmental unit did not receive reports of a

hazardous condition in the two years before the injury—requires us to conclude the 

City’s evidence is sufficient to demonstrate a lack of actual knowledge. See City of 

Dallas v. Kennedy, No. 05-19-01299-CV, 2020 WL 3286515, at *3 (Tex. App.—

Dallas June 18, 2020, no pet.) (mem. op.); Freeman, 2019 WL 3214152, at *5–6.

Thus, the City having met its initial burden, the burden shifted to Ms. de Garcia to 

demonstrate a fact issue as to whether the City had actual knowledge. See Sampson, 

500 S.W.3d at 391–92.

Ms. de Garcia points to no direct evidence of the City’s knowledge. As she 

argued below, Ms. de Garcia argues the City must have been aware of the dangerous 

condition because it appeared the protruding pipe was part of a sign that had been 

removed from the sidewalk. She extrapolates that, because the City allegedly owned 

the sidewalk, it must have been responsible for removing the sign. And because the 

City removed the sign, she argues, it must have known it left a piece of pipe 

protruding.

Although circumstantial evidence can be used to establish actual knowledge, 

evidence that merely raises a suspicion that the governmental unit had actual
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knowledge is insufficient. See id. at 394. There is no record evidence suggesting the

City, rather than a third party, removed whatever sign was once located on the 

sidewalk. And we cannot reasonably infer the City removed the sign based solely on 

the fact that it owned or controlled the property. Thus, we cannot infer the City had 

actual knowledge of the condition created by the sign’s removal. See id.

Because Ms. de Garcia failed to point to any evidence suggesting the City had 

actual knowledge of the sidewalk’s dangerous condition at the time of her injury, the 

City’s evidence was sufficient to negate jurisdiction under the TTCA. See Kennedy, 

2020 WL 3286515, at *3; Freeman, 2019 WL 3214152, at *5–6. We reverse the trial 

court’s order denying the City’s plea and render judgment dismissing Ms. de 

Garcia’s claims for lack of jurisdiction.

200636F.P05

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CITY OF DALLAS, Appellant

No. 05-20-00636-CV V.

SERENA MARIE DE GARCIA, 

Appellee

On Appeal from the 191st Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-19-05374.

Opinion delivered by Justice Carlyle. 

Justices Myers and Osborne 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is REVERSED and judgment is RENDERED that:

Serena Marie de Garcia’s claims against the City of Dallas are 

dismissed for lack of jurisdiction.

It is ORDERED that appellant City of Dallas recover its costs of this appeal 

from appellee Serena Mareie de Garcia.

Judgment entered this 1st day of March, 2021.