COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-15-00205-CV 

ARTHUR DELGADO, JR. APPELLANT

V. 

RIVER OAKS POLICE 

DEPARTMENT AND CITY OF 

RIVER OAKS 

 APPELLEES

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 236-277180-15 

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MEMORANDUM OPINION1

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Appellant Arthur Delgado, Jr., pro se, filed this interlocutory appeal 

challenging the trial court’s orders sustaining the pleas to the jurisdiction and the 

special exceptions filed by Appellees River Oaks Police Department (the Police 

Department) and City of River Oaks (the City). See Tex. Civ. Prac. & Rem. Code 

 1See Tex. R. App. P. 47.4. 
2 

Ann. § 51.014(a)(8) (West Supp. 2016) (authorizing interlocutory appeal from 

order granting or denying a plea to the jurisdiction filed by a governmental unit). 

We affirm. 

Delgado sued the City and the Police Department for claims arising from 

his arrest for driving while intoxicated on April 10, 2013.2 Specifically, Delgado 

alleged that after his arrest, he was subjected to an involuntary blood draw 

without a warrant in violation of his Constitutional rights. Delgado alleged only 

negligence per se claims against the City and the Police Department, claiming 

that they were negligent in failing to keep abreast of the law and in allowing 

police officers to violate the law. 

The City and the Police Department answered, denied Delgado’s 

allegations, and asserted affirmative defenses. The City and the Police 

Department filed pleas to the jurisdiction and special exceptions wherein the City 

asserted sovereign immunity and the Police Department asserted that it lacked 

capacity to be sued because it is not a separate jural entity subject to suit. The 

trial court sustained the pleas to the jurisdiction and the special exceptions and 

dismissed Delgado’s negligence per se claims with prejudice. Delgado has 

appealed. 

 2Delgado also sued an unknown arresting officer employed by the Police 

Department. The record does not reflect that the unknown arresting officer was 

served with citation, nor does it reflect that he entered an appearance in this 

case. He is not a party to this appeal. 
3 

In parts of his first and second issues, Delgado complains that the trial 

court erred by sustaining the City’s and the Police Department’s pleas to the 

jurisdiction and dismissing his negligence claims without affording him the 

opportunity to amend his pleadings. As pointed out by the City and the Police 

Department, Delgado does not challenge the trial court’s findings that his 

negligence per se claim against the City was barred by governmental immunity 

and that his negligence per se claim against the Police Department should be 

dismissed because the Police Department lacks the capacity to be sued. Nor 

does he cite to any legal authority for holding that there was error in these 

findings. He has therefore waived any complaint on appeal regarding these 

findings by the trial court. See Tex. R. App. P. 38.1(f), (i). 

Delgado argues that the trial court should have given him the opportunity 

to amend his pleadings to add additional claims based on violations of federal 

law and his Constitutional rights before dismissing his negligence per se claims. 

He does not contend that, nor does he articulate how, any amendment would 

have cured the jurisdictional defects alleged in the pleas to the jurisdiction. See 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004) 

(explaining that if the pleadings do not contain sufficient facts to affirmatively 

demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate 

incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the 

plaintiff should be afforded an opportunity to amend). After the City and the 

Police Department filed their pleas to the jurisdiction, Delgado did not request an 
4 

opportunity to amend his pleadings to add federal statutory and Constitutional 

claims nor did he attempt to amend his pleadings. Accordingly, we conclude 

Delgado waived his complaint that the trial court should have afforded him the 

opportunity to amend his pleadings. See Tex. R. App. P. 33.1(a); Robinson v. 

Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.] 

2009, pet. denied) (holding plaintiff waived right to cure any jurisdictional defects 

by amendment when he did not respond to plea to the jurisdiction with additional 

jurisdictional facts reflecting a live controversy, did not request an opportunity to 

replead, and did not attempt to replead); Gray v. City of Galveston, No. 14-03-

00298-CV, 2003 WL 22908145, at *2 (Tex. App.—Houston [14th Dist.] Dec. 11, 

2003, no pet.) (mem. op.) (“[A]ppellant did not request an opportunity to amend in 

the trial court, so she has waived any complaint that she has been denied this 

opportunity.”). We therefore overrule Delgado’s complaint that the trial court 

erred by sustaining the City’s and the Police Department’s pleas to the 

jurisdiction and dismissing his negligence per se claims without giving him the 

opportunity to amend his pleadings to add federal statutory and Constitutional 

claims. 

 We do not address Delgado’s complaints regarding the trial court’s orders 

sustaining the City’s and the Police Department’s special exceptions in the 

remaining portions of this two issues because a trial court’s rulings on special 

exceptions are not subject to review by interlocutory appeal. See Harris Cty. 

Flood Control Dist. v. Adam, 56 S.W.3d 665, 670 n.8 (Tex. App.—Houston [14th 
5 

Dist.] 2001, pet. dism’d w.o.j) (citing McCamey v. Kinnear, 484 S.W.2d 150, 

153 (Tex. App.—Beaumont 1972, writ ref’d n.r.e.)); see also Tex. Civ. Prac. & 

Rem. Code Ann. § 51.014(a). We therefore overrule Delgado’s two issues and 

affirm the trial court’s orders sustaining the City’s and the Police Department’s 

pleas to the jurisdiction. 

/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. 

DELIVERED: November 23, 2016