NUMBER 13-22-00420-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

THE CITY OF EDINBURG, Appellant,

v.

MARIBEL REYNA, Appellee.

 

On appeal from the 92nd District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Longoria and Silva

Memorandum Opinion by Chief Justice Contreras

Appellee Maribel Reyna filed a premises liability suit against appellant the City of 

Edinburg alleging that a dangerous condition on a public sidewalk caused her to trip, fall, 

and injure herself. The City filed a plea to the jurisdiction, which the trial court denied. By 

its sole issue, the City appeals the trial court’s denial of its plea, arguing that Reyna failed 
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to provide the necessary evidence to waive its immunity under the Texas Torts Claims 

Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(8), 101.021, 101.022, 

101.025. We reverse and render judgment granting the plea and dismissing the case.

I. BACKGROUND

The underlying alleged trip and fall incident occurred on May 2, 2017. According 

to her deposition testimony, Reyna worked at the Hidalgo County Courthouse at the time 

of the incident. On the morning of May 2, Reyna parked her vehicle on the street and 

“was on [her] way to go into the courthouse.” Reyna stated that she “had crossed the 

street from where [she] was parked” and was “walking into the courthouse” when she 

“stepped in an uneven sidewalk, and . . . fell.” A map was admitted as an exhibit at 

Reyna’s deposition indicating where she parked and where she tripped. The following 

pictures of the sidewalk were also admitted:

 

Reyna testified that she had previously walked on the same sidewalk and that, at 

those times, it “was not in perfect condition” and was uneven. She stated that prior to her 

fall, courthouse employees “would all just kind of comment to just everybody, like . . .
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other employees” about the condition of the sidewalks surrounding the courthouse, but 

she never filed a complaint concerning the sidewalks.

On April 26, 2019, Reyna filed suit. The City filed its answer on May 24, 2019. On 

July 22, 2021, the City filed its “plea to the jurisdiction, or in the alternative, motion for 

summary judgment.” In its plea, the City argued that: (1) Reyna failed to prove that it had 

actual knowledge of the alleged dangerous condition of the sidewalk; (2) Reyna had 

knowledge of the alleged dangerous condition of the sidewalk; and, therefore, (3) its 

immunity was not waived under the TTCA. In her response to the City’s plea, Reyna 

stated that she raised a genuine issue of material fact concerning both the dangerous 

condition of the sidewalk and the City’s knowledge thereof, but she provided no additional

evidence of either.

The trial court heard arguments on the City’s plea on December 16, 2021. On June 

13, 2022, the trial court signed an order denying the City’s plea. The court signed an 

amended order denying the City’s plea on September 7, 2022. On September 14, 2022, 

the City filed its notice of accelerated appeal.

II. PLEA TO THE JURISDICTION

A. Standard of Review & Applicable Law

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 
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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 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 for political subdivisions of the State, 

including municipalities. Id. “Governmental units are immune from suit unless immunity is 

waived by state law.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). 

“Because governmental immunity is jurisdictional, it is properly raised through a plea to 

the jurisdiction . . . .” Id.; see Miranda, 133 S.W.3d at 228.

The party suing a governmental unit bears the burden of affirmatively showing a 

waiver of immunity. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 

506, 512 (Tex. 2019). “To determine whether the party has met this burden, we may 

consider the facts alleged by the plaintiff and the evidence submitted by the parties.” Id.

(citing Tex. Nat. Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001)).

To prevail on a claim of 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 the jurisdiction challenges 

the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate 

the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. We will liberally 

construe the pleadings and look to the pleader’s intent. Id. “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 plaintiff should be afforded 
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the opportunity to amend. Id. If the pleadings affirmatively negate jurisdiction, then the 

plea may be granted without affording the plaintiff this opportunity. Id. at 227.

When a plea to the 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).

The TTCA waives governmental immunity for, among other things, “personal 

injury . . . caused by a condition . . . of . . . real property if the governmental unit would, 
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were it a private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021. Generally, for such conditions, a governmental unit owes 

only the duty that a private person owes to a licensee on private property. Id.

§ 101.022(a). That duty requires that “a landowner not injure a licensee by willful, wanton 

or grossly negligent conduct, and that the owner 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, 385 

(Tex. 2016) (quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 

237 (Tex. 1992)). “Actual knowledge, rather than constructive knowledge of the 

dangerous condition is required.” Id. at 392 (quoting State v. Tennison, 509 S.W.2d 560, 

562 (Tex. 1974)). “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.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 

2008) (per curiam). “Awareness of a potential problem is not actual knowledge of an 

existing danger.” Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam).

If, however, the plaintiff pays for the use of the relevant premises, or if the 

dangerous condition constitutes a “special defect,” the governmental unit owes a 

heightened duty owed to an invitee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a), 

(b); City of Dallas v. Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.). 

While a licensee must prove a landowner’s actual knowledge of the dangerous condition

to succeed on a premises liability claim, an invitee must prove only that the landowner 
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“knew or should have known about the condition.” Davenport, 418 S.W.3d at 847

(emphasis added). Additionally, while a licensee must prove she lacked knowledge of the

dangerous condition to establish liability, an invitee need not prove as much. Payne, 838 

S.W.2d at 237.

B. Analysis

As an initial matter, we note that Reyna approaches the City’s arguments on 

appeal as a challenge to the sufficiency of her pleadings. See Miranda, 133 S.W.3d at 

226. She argues that she “may rely solely on her pleading allegations to prevail in a 

challenge to the jurisdiction of the trial court and she is not required to come forward with 

admissible evidence to establish [a] premises defect.” And were this Court to nonetheless

hold in the City’s favor, Reyna argues she should be given the opportunity to amend her 

pleadings to cure any jurisdictional defect.

While the City’s brief does state in a footnote that Reyna failed to explicitly plead 

that the sidewalk at issue constituted a special defect, the City’s primary contention 

concerns the jurisdictional fact of its actual knowledge—or lack thereof—of the alleged 

dangerous condition.1 And, as here, when “a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we consider relevant evidence submitted by the parties 

when necessary to resolve the jurisdictional issues raised, as the trial court is required to 

do.” Id. at 227. In this case, that requires a determination of whether the City would be 

1 The City focuses its arguments on its lack of actual knowledge of the purported dangerous 

condition of the sidewalk but does not contend that the sidewalk was not a dangerous condition. See State 

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

“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”) (emphasis added). Because it is otherwise dispositive, we 

focus our analysis where the City does.
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liable for premises defect “were it a private person.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021. We now undertake that analysis.

1. The City Did Not Owe Reyna the Duty Owed to An Invitee

Reyna contends on appeal that the City owed her the heightened duty of an invitee 

because (i) the relevant sidewalk condition constituted a special defect, and (ii) the trial 

court could have taken judicial notice that she paid for the use of the sidewalk by paying

to park on the street, as the parking meter was adjacent to the sidewalk. Accordingly, she 

argues that she must prove only that the City should have known of the purported 

dangerous sidewalk condition to maintain her suit. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.022(a); Davenport, 418 S.W.3d at 847. We disagree.

i. The Sidewalk’s Condition Is Not a Special Defect

The sidewalk’s condition in this case is not a special defect. While not defined in 

the statute, the TTCA likens special defects to “excavations or obstructions on highways, 

roads, or streets.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b); see Denton County v. 

Beynon, 283 S.W.3d 329, 331 (Tex. 2009); Tex. Dep’t of Transp. v. Ramirez, 566 S.W.3d 

18, 23 (Tex. App.—San Antonio 2018, pet. denied). “A condition must therefore be in the 

same class as an excavation or obstruction on a roadway to constitute a special defect.”

Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012) (per curiam) (citing 

Beynon, 283 S.W.3d at 331–32). Sidewalk defects may be in that class because 

sidewalks are “sufficiently related to the street.” City of Austin v. Rangel, 184 S.W.3d 377, 

383 (Tex. App.—Austin 2006, no pet.); see also City of Austin v. Furtado, No. 03-21-

00083-CV, 2021 WL 6194365, at *3 (Tex. App.—Austin Dec. 31, 2021, pet. denied)
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(“Defects on a sidewalk may be within the class because a sidewalk is sufficiently related 

to a roadway.”) (cleaned up). But “the class of special defects contemplated by the statute 

is narrow.” Perches, 388 S.W.3d at 655 (quoting Hayes, 327 S.W.3d at 116). “[C]onditions 

can be special defects ‘only if they pose a threat to the ordinary users of a particular 

roadway.’” Hayes, 327 S.W.3d at 116 (quoting Beynon, 283 S.W.3d at 331). Texas’

“special-defect jurisprudence turns on the objective expectations of an ‘ordinary user’ who 

follows the ‘normal course of travel.’” Id. (quoting Beynon, 283 S.W.3d at 332). “Whether 

a condition is a special defect is a question of law.” Id.

The supreme court and other Texas courts have held in multiple cases that uneven 

sidewalks and street surfaces of the type displayed in this case, or worse, do not 

constitute special defects under the TTCA. See, e.g., City of Denton v. Paper, 376 S.W.3d 

762, 765 (Tex. 2012) (per curiam) (concluding that sunken area in street, which “varied 

from two inches to a few inches more at its deepest point,” was not a special defect); City 

of Dallas v. Reed, 258 S.W.3d 620, 621 (Tex. 2008) (per curiam) (“[W]e conclude that a 

two-inch variance in elevation between traffic lanes is not a special defect.”); City of El 

Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam) (concluding that a “‘worn 

or depressed area [of a sidewalk] . . . approximately 3 feet by 6 feet in size with a depth 

of 3 inches, at its lowest point[]’” was not a special defect); City of Grapevine v. Roberts, 

946 S.W.2d 841, 843 (Tex. 1997) (per curiam) (“Construing a partially cracked and 

crumbled sidewalk step to be an excavation or obstruction grossly strains the definitions 

of those conditions. As a matter of law, a partially cracked and crumbled sidewalk step is 

not a defect of the same kind or class as the excavations or obstructions the [TTCA]
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contemplates.”); City of Richardson v. Justus, 329 S.W.3d 662, 664 (Tex. App.—Dallas 

2010, no pet.) (holding that “a vertical separation in the sidewalk of at least three inches”

was not a special defect); see also City of Dallas v. Monroy, No. 05-22-00012-CV, 2022 

WL 4363836, at *4 (Tex. App.—Dallas Sept. 21, 2022, no pet.) (mem. op.) (holding that 

sunken portion of sidewalk “appearing to measure from a few inches to possibly 5 to 6 

inches in height or depth” and adjacent hole in sidewalk were not special defects).

Here, the sunken portion of the sidewalk that Reyna complains of appears to 

measure about 1/4 to 2 inches in depth.2 While she argues on appeal that the defect was 

a “hole” in the sidewalk, the only evidence of the defect is Reyna’s testimony that the 

sidewalk was uneven with “a gap between the . . . two pieces of cement where they come 

together” and the above pictures of the sidewalk. Based on Reyna’s testimony and the 

sidewalk pictures, we conclude the sidewalk is neither in the same class as an excavation 

or obstruction, nor an unusual danger to sidewalk users. See Justus, 329 S.W.3d at 666; 

Hayes, 327 S.W.3d at 116; Bernal, 986 S.W.2d at 611 (noting in part that photographs of 

the sidewalk’s condition “establish that the area where the accident occurred was merely 

an eroded place in the flat surface of the sidewalk, certainly no more unexpected and 

unusual a danger than was the eroded step in Roberts[, 946 S.W.2d at 841]” and 

concluding “[a]s a matter of law[ that] the sidewalk’s condition was not a special defect”).

Indeed, Reyna testified that it was generally known among her colleagues that the 

sidewalks surrounding the courthouse were not in perfect condition. An ordinary user of 

a sidewalk known to be uneven at points would expect certain parts of the sidewalk to be 

2 Besides the photos, the parties neither presented evidence nor stipulated to the depth of the 

sidewalk’s uneven portion.
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uneven and, in the normal course of travel, would take the attendant precautions. See 

Hayes, 327 S.W.3d at 116. Consequently, Reyna has not presented a viable special 

defect claim to classify her as an invitee.

ii. Reyna Did Not Pay to Use the Sidewalk

Similarly, we reject Reyna’s argument that the trial court could have taken judicial 

notice that she paid to use the sidewalk. See TEX. R. EVID. 201(c); TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(a). Reyna never raised this theory with the trial court, and she has 

provided no evidence or testimony that she did, in fact, pay to park on the morning of May 

2, 2017. In any event, under the TTCA, “invitee status requires payment of a specific fee 

for entry onto and use of public premises.” Davenport, 418 S.W.3d at 847 (brackets 

omitted). A fee that merely relates to the premises is not sufficient under the TTCA to 

constitute payment for use of the premises. Id. at 848. As applied here, even assuming 

Reyna paid to park on the street, her payment was not made for the use of the sidewalk 

on which she tripped—which, per her testimony and the map of the surrounding area

admitted at her deposition, was located across the street and down the block from her

vehicle. And Reyna has provided no argument or authority providing how the sidewalk 

could have otherwise been considered paid-for. See TEX. R. APP. P. 38.1(i). We thus 

conclude that Reyna was not an invitee on a theory of payment for use of the sidewalk.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a).

Given our conclusions, the City owed Reyna only the duty owed to licensees. Thus, 

Reyna was required to present evidence that the City had actual knowledge of the alleged 

dangerous condition of the sidewalk. See id.; Sampson, 500 S.W.3d at 385.
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2. Reyna Provided No Evidence of the City’s Actual Knowledge of the

Sidewalk’s Condition

As noted, the duty owed to a licensee requires that “a landowner not injure a 

licensee by willful, wanton or grossly negligent conduct, and that the owner 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, 500 S.W.3d at 385 (quoting 

Payne, 838 S.W.2d at 237). Actual knowledge of the alleged dangerous condition is

required. Id. at 392. And in determining whether a landowner has 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.” Aguilar, 251 S.W.3d at 513. In this case, Reyna bears the 

burden to present evidence raising a fact issue on the jurisdictional facts in question. See 

Swanson, 590 S.W.3d at 552; McKenzie, 578 S.W.3d at 512.

The record contains no evidence that the City had actual knowledge of the

condition of the sidewalk. While Reyna testified that certain employees would discuss the 

condition of the sidewalks surrounding the courthouse, she stated that she never made a 

formal complaint and presented no evidence of a complaint made by anybody else. See

Aguilar, 251 S.W.3d at 513. Reyna has not met her burden of presenting evidence raising 

a fact issue that the City had actual knowledge of the sidewalk’s condition in this case.

As the City highlights, Reyna also testified that she knew of the sidewalk’s 

condition before her trip and fall accident. And a landowner only owes a duty to warn a 

licensee of “a dangerous condition of which the owner is aware and the licensee is not.”

See Sampson, 500 S.W.3d at 385 (emphasis added).
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For the reasons stated above, Reyna has failed to present evidence supporting a 

case of premises liability and creating a fact issue on jurisdiction, and the City’s immunity 

was, therefore, not waived. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; Sampson, 

500 S.W.3d at 385. Consequently, the trial court erred by denying the City’s plea to the 

jurisdiction. See Bernal, 986 S.W.2d at 611. We sustain the City’s sole issue on appeal.

The City’s lack of knowledge of the sidewalk’s condition, and Reyna’s knowledge 

of the same, are jurisdictional facts negating jurisdiction, and these defects are incurable 

by amendments to Reyna’s pleadings. Accordingly, Reyna is not entitled to an opportunity 

to amend her pleadings. See Miranda, 133 S.W.3d at 226–27.

III. CONCLUSION

We reverse the trial court’s judgment and render judgment granting the City’s plea 

to the jurisdiction and dismissing Reyna’s suit.

DORI CONTRERAS 

Chief Justice

Delivered and filed on the

9th day of February, 2023.