NUMBER 13-21-00341-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

CITY OF CEDAR PARK, Appellant,

v.

JUAN DELAPENA, INDIVIDUALLY

AND AS NEXT FRIEND OF C.D.L.P,

A MINOR; AND KORINA DELAPENA,

INDIVIDUALLY AND ON BEHALF OF

THE ESTATE OF C.D., A DECEASED MINOR, Appellees.

 

On appeal from the 201st District Court

of Travis County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Justice Benavides

In this case involving the tragic drowning of a young child at a public pool, the City 
2

of Cedar Park (City) appeals from the denial of its plea to the jurisdiction. In what we 

construe as a single issue, the City contends that the circumstances of this case fall 

outside the Texas Tort Claims Act’s (TTCA) limited waiver of immunity.1 We reverse and

render a judgment of dismissal for want of jurisdiction.

2

I. BACKGROUND

On June 4, 2019, High Hopes Summer Camp took its campers to Buttercup Pool, 

which is owned and operated by the City. One of those campers was Catiana, a six-yearold girl with autism and Down Syndrome, who could not swim. Catiana’s parents, 

appellees Juan and Korina Delapena, had multiple conversations with camp staff about 

Catiana’s inability to swim. The staff assured them that Catiana would be taken care of 

and that there was no need for them to provide a life jacket for Catiana because one 

would be available at the pool. 

Buttercup Pool’s written safety policy requires camps to actively supervise 

campers with at least one camp counselor for every ten campers. Under the policy, if a 

camp does not have enough counselors present to satisfy this requirement, the camp 

should be denied entry to the pool. Some evidence in the record suggests that, on the 

day in question, High Hopes Summer Camp was admitted to the pool with only ten 

1 This appeal was transferred to us from the Third Court of Appeals in Austin pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) 

(delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer 

cases from one court of appeals to another at any time that there is “good cause” for the transfer).

2 Although the law favors the City in this case, we caution City’s counsel that ad hominem attacks 

on opposing counsel are neither welcome nor persuasive. See Antonin Scalia & Bryan A. Garner, Making 

Your Case: The Art of Persuading Judges 34–35 (2008).
3

counselors available to supervise 112 campers.3

According to an eyewitness, three lifeguards were on duty, and although there was 

a bin full of lifejackets available for campers to use, none of the campers were wearing 

lifejackets. According to one of the campers, Catiana entered the pool while camp staff 

had their backs turned to the campers. A lifeguard noticed Catiana in distress, but by the 

time Catiana was pulled from the water, she was unresponsive. Catiana died the next 

day.

The Delapenas originally filed a friendly suit against High Hopes Summer Camp. 

They subsequently amended their petition to bring survival and wrongful death claims 

against the City, as well as a bystander claim on behalf of Catiana’s sister, who witnessed

Catiana’s drowning. They alleged the City was negligent in: (1) operating the pool without 

an adequate number of qualified lifeguards; (2) failing to provide Catiana with an available

life jacket; and (3) negligently implementing the City’s pool safety policy.

The City filed a plea to the jurisdiction arguing that the Delapenas failed to allege 

a valid waiver of immunity under the TTCA. The City also submitted jurisdictional 

evidence, including copies of the City’s written rules and policies concerning the operation 

of Buttercup Pool and a document the City referred to as the “Cedar Park Aquatics Safety 

Plan,” which is a report authored by a risk management consultant prior to the incident. 

The City also submitted evidence from the Cedar Park Police Department’s investigation, 

including reports, diagrams, witness statements, and bodycam video taken by responding 

officers.

3 Other evidence in the record suggests that there were twelve counselors present.
4

The Delapenas filed a response to the plea and submitted their own jurisdictional 

evidence, including a copy of a “Texas Health and Human Services Commission ChildCare Licensing Investigation Report.” Citing multiple acts and omissions, the report

concluded by a preponderance of the evidence that the camp’s director breached the duty 

of care owed to Catiana and that his “negligence result[ed] in the death of [a] child in his 

care.” In particular, the report found that the director placed camp counselors in positions 

where they could not monitor the shallow end of the pool. According to the report, the 

director then “released” some children, including Catiana, into the shallow end without life 

jackets, even though these children had not taken swim tests and the Delapenas had 

informed the camp that Catiana could not swim.

The trial court denied the plea to the jurisdiction, and this interlocutory appeal 

ensued. See TEX. CIV. PRAC. & REM. CODE. ANN. § 51.014(a)(8).

II. STANDARD OF REVIEW & APPLICABLE LAW

Subject matter jurisdiction is essential to a court’s authority to decide a case. In re 

Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (original proceeding) (per curiam) (citing Tex. 

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial 

court has subject matter jurisdiction is a question of law we review de novo. Sampson v. 

Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

Sovereign immunity is a common-law doctrine that protects the State and its 

agencies from lawsuits for money damages and deprives a trial court of subject matter 

jurisdiction over the 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 
5

for the State’s political subdivisions, including its cities. Dohlen v. City of San Antonio, 

643 S.W.3d 387, 392 (Tex. 2022) (first citing Hillman v. Nueces County, 579 S.W.3d 354, 

357 (Tex. 2019); and then citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 

n.3 (Tex. 2003)). By design, immunity shields public treasuries from mistakes made by

government officials and employees. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 

2006). “[I]mmunity thus protects the public as a whole by preventing potential disruptions 

of key government services that could occur when government funds are unexpectedly 

and substantially diverted by litigation.” Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 

117, 121 (Tex. 2015).

On the other hand, protecting the public fisc is cold comfort for an injured person

barred from the judicial remedies that would otherwise be available to them had the 

complained-of-acts been committed by a private person. See id.; Bacon v. Tex. Hist.

Comm’n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.) (noting that “sovereign 

immunity generally shields our state government’s improvident acts—however 

improvident, harsh, unjust, or infuriatingly boneheaded these acts may seem” (internal 

quotation marks and citation omitted)). Consequently, courts “defer to the Legislature in 

waiving immunity because it is in a better position to weigh the conflicting public policy 

interests associated with subjecting the government to liability.” Dohlen, 643 S.W.3d at

392 (citing Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432–33 (Tex. 

2016)).

The TTCA provides a limited waiver of immunity for certain tort claims against 

governmental entities, including claims for “personal injury and death so caused by a 
6

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.” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2). This waiver encompasses “two distinct tort causes of 

action: one arising from tangible personal property and one arising from a premises

defect.” Sampson, 500 S.W.3d at 385 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 230 (Tex. 2004)). A plaintiff’s claim must be one or the other, but it 

cannot be both. Id. (citing Miranda, 133 S.W.3d at 233).

It is the plaintiff’s initial burden to plead facts that affirmatively demonstrate the trial 

court’s subject matter jurisdiction, and we review this question as a matter of law. City of 

Austin v. Leggett, 257 S.W.3d 456, 461 (Tex. App.—Austin 2008, pet. denied) (citing 

Miranda, 133 S.W.3d at 226). We construe the pleadings liberally, accept the plaintiff’s 

allegations as true, and look to the plaintiff’s intent. See id. (citing Miranda, 133 S.W.3d 

at 226). If the pleadings are deficient but do not demonstrate an incurable defect, then 

the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity 

to amend their pleadings. Id. (citing Miranda, 133 S.W.3d at 226–27). Conversely, if it 

becomes clear that the plaintiff cannot allege a viable waiver of immunity, then the suit 

should simply be dismissed. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 

(Tex. 2007).

A governmental defendant may challenge the existence of jurisdictional facts and 

support its argument with evidence. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 

755, 770 (Tex. 2018). In such instances, the analysis “mirrors that of a traditional 

summary judgment.” Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) 
7

(quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)).

When a governmental entity establishes the absence of a jurisdictional fact, the burden 

shifts to the plaintiff to raise a genuine issue of material fact for the jury to resolve; 

otherwise, the trial court should rule on the jurisdictional question as a matter of law. 

Miranda, 133 S.W.3d at 228. “[I]n evaluating the parties’ evidence, we take as true all 

evidence favorable to the nonmovant and indulge every reasonable inference and resolve 

any doubts in the nonmovant’s favor.” City of San Antonio v. Maspero, 640 S.W.3d 523, 

528–29 (Tex. 2022) (citing Miranda, 133 S.W.3d at 228).

III. ANALYSIS

The City contends that the Delapenas’ pleadings and the jurisdictional record do 

not support a waiver of immunity. The Delapenas respond that they have alleged two

valid claims under the TTCA, and they stress that neither claim is a premises defect claim.

They first allege that “the City negligently used real property by operating Buttercup [P]ool

in violation of its own adopted safety policies.” They describe this claim as both a failure 

to implement policy and a negligent activity.

Their second claim is based on the City’s failure to provide Catiana with a life jacket

even though these safety devices were available for her use. The Delapenas contend 

that this claim falls within the integral safety component doctrine articulated in cases like 

Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex. 1989).

Finally, in the alternative, the Delapenas ask for an opportunity to amend their 

pleadings to allege a premises defect claim based on evidence “that the City has [since]

placed a lifeguard chair directly over where Catiana drowned.” We address each theory 
8

of liability and whether it fits within the TTCA’s waiver of immunity.

4

A. Negligent Implementation of Policy

Negligent implementation of policy is a recognized theory of liability against a 

governmental entity based on a government employee’s inadvertent failure to carry out

his employer’s established policy. Maspero, 640 S.W.3d at 533. However, a claim for 

negligent implementation of policy is not an independent ground for waiver of immunity.

Id. Instead, to overcome immunity, such a claim must still fall within the parameters of a 

statutory waiver. Id. To that end, in order to waive immunity for a negligent implementation 

claim, the plaintiff’s injury or death must be “caused by a condition or use of tangible 

personal or real property.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).

Here, the Delapenas allege that City employees violated the City’s pool safety 

policy by admitting the camp into the pool without the requisite number of counselors to 

adequately supervise the campers. Under the policy, a camp without the requisite ratio of 

counselors to campers should be denied entrance to the pool.

However, “information” within the City’s pool safety policy “is not tangible personal 

property, since it is an abstract concept that lacks corporeal, physical, or palpable 

qualities.” See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (citing 

Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994)).

4

In their live pleading, the Delapenas also alleged a claim against the City for negligent 

supervision, which they have implicitly abandoned on appeal. See Tex. Dep’t of Fam. & Protective Servs.

v. Atwood, 176 S.W.3d 522, 528 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (noting that “negligent 

supervision by DFPS are not actionable against DFPS because negligent supervision claims do not 

constitute a premise defect or the condition or use of property claim and thus, the [TTCA] does not waive 

sovereign immunity for such claims” (citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 

2001))).
9

“[S]imply reducing [the policy] to writing on paper does not make the information ‘tangible 

personal property.’” Id. (first citing Dallas County v. Harper, 913 S.W.2d 207–08 (Tex.

1995); and then citing York, 871 S.W.2d at 179). For example, “the information in an 

emergency room procedures manual is not tangible personal property.” Id. at 581 (citing 

Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)). Therefore, “while instructional manuals 

can be seen and touched, the Legislature has not waived immunity for negligence 

involving the use, misuse, or non-use of the information they contain.” Id. (citing York, 

871 S.W.2d at 179). Accordingly, this allegation does not give rise to a claim under the 

TTCA for negligent use of tangible personal property. See id.

B. Negligent Activity

But rather than using tangible personal property, the Delapenas allege that “the 

City negligently used real property by operating Buttercup [P]ool in violation of its own 

adopted safety policies.” According to the Delapenas, the City was “using” Buttercup Pool 

within the meaning of § 101.021(2) “because it was employing [the pool] for a given 

purpose—as a destination and attraction for day care facilities.” And they insist that their 

claim alleges a negligent activity instead of a premises defect.5

The City responds that, within the confines of the TTCA’s waiver of immunity, 

claims based on a use or condition of real property are limited to premises defects, and 

5 Premises defects and negligent activities are distinct theories of liability under the common law. 

Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016) (first citing Clayton W. Williams, Jr., 

Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); and then citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 

(Tex. 1992)). “[N]egligent activity encompasses a malfeasance theory based on affirmative, 

contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a 

nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Id. (quoting 

De Lago Partners v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)).
10

the Delapenas have not stated a premises defect claim under the Recreational Use 

Statute, which we discuss in more detail below. We agree with the City that the TTCA 

does not waive immunity for a claim based on negligent use of real property separate and 

apart from premises liability. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974) 

(rejecting the argument that the TTCA “creates two entirely separate grounds of liability” 

for negligent use or condition of real property and a premises defect, but instead 

interpreting the premises defect provision to further limit the waiver of immunity for 

negligent use or condition of real property); see Sampson, 500 S.W.3d at 385 (explaining 

“that a claim for a condition or use of real property is a premises defect claim under the 

[TTCA]”); see also Miranda, 133 S.W.3d at 233 (“Texas courts have recognized that to 

allow plaintiffs to characterize premises defect claims as claims caused by the negligent 

condition or use of personal or real property would render the Legislature’s heightened 

requirements for premises defect claims meaningless.” (collecting cases)). Thus, any 

claim based on the negligent use of Buttercup Pool must sound in premises liability. See

Sampson, 500 S.W.3d at 385; Tennison, 509 S.W.2d at 562.

In any event, “we look to the true nature of the dispute” rather than the plaintiff’s 

characterization of the claims. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 

S.W.3d 506, 513 (Tex. 2019). Here, the true nature of the Delapenas’ claim is that City 

employees failed to act when, instead of enforcing the City’s policy and denying the camp 

admission, they granted the camp access to the premises without ensuring campers

would be adequately supervised by camp counselors.

Generally, a failure to perform some act does not constitute a “use” of property. 
11

Univ. of Tex. Med. Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 389–90 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.) (“[A] state entity’s failure to act does not invoke 

the [TTCA’s] limited waiver of immunity.”); see, e.g., Dallas Cnty. Mental Health & Mental 

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (“The real substance of 

plaintiffs’ complaint is that Roger’s death was caused, not by the condition or use of 

property, but by the failure of Hillside’s staff to restrain him once they learned he was still 

suicidal. The [TTCA] does not waive Dallas County MHMR’s immunity from such a 

complaint.”).

Because the gravamen of the Delapenas’ first claim is the misuse or non-use of 

information in the City’s policy, we conclude that this claim is not actionable under the 

TTCA.

C. Integral Safety Component Doctrine

With their second claim, the Delapenas allege that the City failed to provide 

Catiana with an available lifejacket. Although the TTCA waives immunity for the negligent 

“use” of tangible personal property, “mere non-use” of tangible personal property is not 

actionable under the TTCA. McKenzie, 578 S.W.3d at 513 (citing Kerrville State Hosp. v. 

Cowan, 128 S.W.3d 244, 246 (Tex. 2004)); see TEX. CIV. PRAC. & REM. CODE ANN. § 

101.021(2). The distinction between “use” and “non-use” has not always been an easy 

one to draw, and the Delapenas rely on a series of cases described by the Supreme Court 

of Texas as “the outer bounds of what we have defined as use of tangible personal 

property.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996).

One of those cases has some obvious parallels to this case. In Robinson, 
12

employees from a state mental health center took a patient swimming, and despite 

knowing that he suffered from epileptic seizures that could cause him to lose 

consciousness, the employees failed to equip that patient with an available life preserver. 

780 S.W.2d at 169. The patient drowned, and his family sued the health center claiming 

its failure to provide a life preserver constituted a condition or use of tangible personal 

property. Id. The supreme court found that because the health center “was responsible 

for patients being dressed in appropriate swimming attire,” the center’s failure to also 

furnish the patient with an available life preserver constituted a negligent use of tangible 

personal property. Id. at 171. Seeking to square cases like Robinson with the TTCA’s 

“use” requirement, the supreme court has since explained that “[t]he precedential value 

of these cases is . . . limited to claims in which a plaintiff alleges that a state actor has 

provided property that lacks an integral safety component and that the lack of this integral 

component led to the plaintiff’s injuries.” Clark, 923 S.W.2d at 585.

The Delapenas contend that this case is analogous to Robinson because the City 

failed to provide Catiana with an available life jacket. However, unlike Robinson, there is 

no allegation or evidence to suggest that the City provided any equipment, such as 

swimming attire, to Catiana or the other campers. See 780 S.W.2d at 169. Instead, the 

Delapenas argue that the City “provided the use of Buttercup [P]ool but failed to offer an 

integral safety component” in the form of a life jacket.

While a life jacket is certainly a safety device, we do not agree that a life jacket is 

a “component” of a pool. See Clark, 923 S.W.2d at 585. Regardless, the integral safety 

component doctrine is limited to negligent “use of tangible personal property.” Id.; see, 
13

e.g., Robinson, 780 S.W.2d at 169 (providing swimming attire without a life preserver); 

Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (providing a football uniform 

without a knee brace); Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) 

(per curiam) (providing a hospital bed without bed rails). As the Delapenas acknowledge, 

Buttercup Pool is real property, not tangible personal property; therefore, its “use” cannot 

serve as the basis for an integral safety component claim. See Clark, 923 S.W.2d at 585. 

Stated differently, the Delapenas cannot tie the non-use of the life jacket to the “use” of 

the premises; to do so would run contrary to the supreme court’s admonition that a claim 

cannot “be both a premises defect claim and a claim relating to a condition or use of 

tangible property.” Sampson, 500 S.W.3d at 385 (citing Miranda, 133 S.W.3d at 233).

We conclude that the Delapenas have not stated a claim under the integral safety 

component doctrine. Instead, they have stated a claim for “mere non-use” of tangible 

personal property that is not actionable under the TTCA. See McKenzie, 578 S.W.3d at 

513 (citing Cowan, 128 S.W.3d at 246).

D. Opportunity to Replead

In the event we find the Delapenas have not alleged a valid waiver of immunity, 

they ask that we remand the case so that they may amend their pleadings to allege a 

premises defect claim. According to them, “[e]vidence before the trial court indicates that 

Buttercup [P]ool may have lacked a sufficient number of lifeguard stands, which thus 

operated to create an unsafe condition.” They point to a witness who testified that she 

“saw a new lifeguard chair in the middle of the pool where somebody would have been 

able to see where that little kiddo drowned.”
14

Under the TTCA, “if a claim arises from a premise defect, the governmental unit 

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

property, unless the claimant pays for the use of the premises.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(a). But when a premises defect claim involves a recreational 

activity, such as swimming, the Recreational Use Statute further limits the premises 

owner’s liability by imposing a specialized duty to “refrain from gross negligence, or from 

acting with malicious intent or in bad faith.” See id. §§ 75.001(3)(C) (defining “recreation” 

to include swimming), 75.002(d) (establishing duty of care); City of Waco v. Kirwan, 298 

S.W.3d 618, 623 (Tex. 2009) (“[A]lthough the recreational use statute references a 

trespasser standard, it actually creates a specialized standard of care, one not exactly 

consistent with the common-law trespasser standard.” (citing State v. Shumake, 199 

S.W.3d 279, 286–87 (Tex. 2006))). Gross negligence is defined as “an act or omission 

involving subjective awareness of an extreme degree of risk, indicating conscious 

indifference to the rights, safety, or welfare of others.” Kirwan, 298 S.W.3d at 623 (quoting 

Shumake, 199 S.W.3d at 287). “[W]hat separates ordinary negligence from gross 

negligence is the defendant’s state of mind; in other words, the plaintiff must show that 

the defendant knew about the peril, but his acts or omissions demonstrate that he did not 

care.” La.–Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex. 1999) (first citing 

Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex. 1985); and then citing Burk 

Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981)).

“[A] defendant may be liable for gross negligence only to the extent that it owed 

the plaintiff a legal duty.” Kirwan, 298 S.W.3d at 623 (collecting cases). Under the 
15

Recreational Use Statute, 

landowners owe a duty to warn or protect recreational users when artificial 

conditions create dangerous conditions that are not open and obvious, but 

[they] have no duty to warn or protect against conditions that are open or 

inherent, and thus obvious, regardless of whether such conditions are 

naturally or artificially created.

Suarez v. City of Texas City, 465 S.W.3d 623, 627 (Tex. 2015) (collecting cases). For 

example, in Shumake, the plaintiffs alleged that a hidden man-made culvert created a 

powerful undertow that caused their nine-year-old daughter to drown in a state park. 199 

S.W.3d at 281. The supreme court concluded that the plaintiffs had stated a claim for 

gross negligence under the Recreational Statute, in part, because the powerful undertow 

created by the hidden man-made culvert represented a latent defect that was not open 

and obvious.6Id. at 288.

Here, the Delapenas have not alleged, or suggested on appeal, that the pool itself 

contained a latent defect, and there is no evidence in the record to support such a 

conclusion. See, e.g., id. at 281; City of El Paso v. Collins, 483 S.W.3d 742, 755 (Tex. 

App.—El Paso 2016, no pet.) (malfunctioning drain concealed by cloudy pool water was 

a latent defect), overruled on other grounds by Town of Shady Shores v. Swanson, 590 

S.W.3d 544, 550–51 & n.8 (Tex. 2019); City of Houston v. Cavazos, 811 S.W.2d 231, 

231 (Tex. App.—Houston [14th Dist.] 1991, writ dism’d) (fifteen-foot drop-off concealed 

by murky water constituted a latent defect). Moreover, we agree with the City that the 

6 The plaintiffs further alleged that, despite receiving several recent reports of near drownings in 

the same area, the Parks Department failed to make the culvert safer or warn of the danger. State v. 

Shumake, 199 S.W.3d 279, 281(Tex. 2006). The supreme court concluded that this allegation satisfied the 

requirement that the Parks Department was subjectively aware of an extreme degree of risk but failed to 

act. Id. at 288.
16

Delapenas have failed to identify any condition, artificial or otherwise, at Buttercup Pool 

that was not open or inherent to swimming.

Rather, the Delapenas only contend that the City failed to take an additional step 

to protect swimmers from the natural perils of swimming at its pool. See Mullens v. Binsky, 

130 Ohio App.3d 64, 719 N.E.2d 599, 604 (10th Dist. 1998) (concluding that the risk of 

drowning at a pool “is an open and obvious condition”); cf. Suarez, 465 S.W.3d at 634 

(acknowledging that there are “risks inherently associated with open-water swimming”).

Even if we assume such a duty existed, the record affirmatively negates a finding that the 

City was consciously indifferent to swimmer safety.

The record in this case reflects that, prior to Catiana’s death, the City hired a risk 

management consultant to evaluate the City’s operation of Buttercup Pool. The 

consultant’s report, written approximately six weeks before the incident, specifically found 

that Buttercup Pool’s use of two lifeguard stands, one covering the deep end of the pool 

and the other covering the shallow end, was adequate to safely monitor all swimmers in 

the pool. The Delapenas have not suggested there were any prior incidents at Buttercup 

Pool that would undermine the City’s reliance on the consultant’s report. See Shumake, 

199 S.W.3d at 281, 288 (concluding that plaintiffs stated a claim for gross negligence, in 

part, because the Parks Department received several recent reports of near drownings 

but failed to act).

The record also shows, as previously mentioned, that the City had developed 

safety rules and policies, including a specific policy regarding procedures for camps

visiting the pool. Additionally, the City employed trained lifeguards, and provided life 
17

jackets for swimmers to use.7 These acts, among others, demonstrate that the City was 

consciously aware of the natural dangers associated with swimming and undertook 

substantial affirmative steps to ameliorate those dangers.

The Delapenas’ proposed claim—that the City created an unsafe condition by 

placing two, instead of three, lifeguard stands around the pool—is internally inconsistent 

with the idea that the City was consciously indifferent to the safety of swimmers. At most,

the claim concerns an alleged error in judgment, which cannot support a finding of gross 

negligence. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 791 (Tex. 2001) 

(Hecht, J., concurring) (“‘Gross negligence’ means more than momentary 

thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care 

as to establish that the act or omission in question was the result of actual conscious 

indifference to the rights, welfare, or safety of the persons affected by it.”); see also

Kirwan, 298 S.W.3d at 627 (explaining that “some evidence of simple negligence is not 

evidence of gross negligence” (quoting Lee Lewis Const., 70 S.W.3d at 785)).

Consequently, remanding the case for further pleading would be inappropriate. See

Koseoglu, 233 S.W.3d at 840.

E. Summation

We sympathize with the Delapenas and acknowledge that the lines drawn by the

Legislature—waiving immunity in some cases, but not in others—often lead to unjust 

results for those injured by the malfeasance of government employees. See Hillman v. 

7 According to an investigation conducted by the Cedar Park Police Department, the Buttercup 

Pool staff were not informed by High Hopes Summer Camp that any of the campers needed lifejackets. 

The investigation also suggests that there was a miscommunication amongst camp staff regarding which 

campers needed lifejackets.
18

Nueces County, 579 S.W.3d 354, 361 (Tex. 2019) (“We are not blind to the truism that, 

‘just as immunity is inherent to sovereignty, unfairness is inherent to immunity.’” (quoting 

City of Galveston v. State, 217 S.W.3d 466, 480 n.38 (Tex. 2007) (Willett, J., dissenting)));

Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 160 (Tex. 2010) (Willett, J. 

concurring) (“As litigants often discover, in the Legislature a deal is sometimes a raw 

deal.”). The TTCA has been routinely criticized by jurists for its difficult application and 

arbitrary outcomes. See Sampson, 500 S.W.3d at 386–87 (collecting cases calling on the 

Legislature to amend the TTCA); Robinson, 780 S.W.2d at 175 (Hecht, J., dissenting) (“I 

confess that not all the consequences of construing ‘use’ to exclude ‘non-use’ seem 

entirely sensible.”). Nevertheless, until the Legislature sees fit to redraw those lines, we

are duty bound “to interpret and apply the statute as written.” Sampson, 500 S.W.3d at 

387 (quoting Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015)). Because 

the circumstances of this case do not fall within the TTCA’s limited waiver of immunity, 

the trial court erred in denying the City’s plea to the jurisdiction.

IV. CONCLUSION

We reverse and render a judgment of dismissal for want of jurisdiction.

GINA M. BENAVIDES

Justice

Delivered and filed on the

17th day of November, 2022.