NO. 13-14-00506-CV

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

Norma Torres

Appellant

vs.

City of Corpus Christi

Appellee

On appeal from Cause No. 2011-CCV-62438-4 

County Court at Law Number 4 of Nueces County, Texas

Honorable James Klager, Presiding Judge

APPELLANT’S BRIEF 

 LAW OFFICES OF THOMAS J. HENRY

 Thomas J. Henry

State Bar No. 09484210

George A. DeVera

State Bar No. 24048431

 521 Starr Street

Corpus Christi, Texas, 78401

Telephone: (361) 985-0600

Fax: (361) 985-0601

Email: gadevera-svc@tjhlaw.com

Counsel for AppellantNorma Torres

ORAL ARGUMENT REQUESTED

ACCEPTED

13-14-00506-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

4/22/2015 3:39:34 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/22/2015 3:39:34 PM DORIAN E. RAMIREZ Clerk
IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s order appealed from, 

and the names and addresses of all trial and appellate counsel:

1. Appellant-Plaintiff is Norma Torres.

2. Trial and appellate counsel for Appellate-Defendant City of Corpus 

Christi is Corpus Christi City Attorney, Mark DeKoch, P.O. Box 9277, 

1201 Leopard Street, Corpus Christi, Texas, 78401. 

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL......................................................... i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iv

STATEMENT OF THE CASE............................................................................ vii

STATEMENT REGARDING ORAL ARGUMENT...........................................x

ISSUE PRESENTED............................................................................................. xi

Was sovereign immunity properly waived pursuant to § 101.021 of the 

TEXAS TORT CLAIMS ACT for the personal injuries proximately caused by 

the negligence of Officer Walker?.................................................................... xi

STATEMENT OF FACTS......................................................................................1

SUMMARY OF THE ARGUMENT .....................................................................2

ARGUMENT............................................................................................................3

I. STANDARD OF REVIEW ........................................................................3

II. NORMA PROPERLY PLED A STATUTORY WAIVER OF 

SOVEREIGN IMMUNITY.................................................................................6

III. THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY 

BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN 

EMERGENCY. ....................................................................................................8

IV. ASSUMING THE EMERGENCY SITUATION EXCEPTION 

APPLIES, OFFICER WALKER FAILED TO COMPLY WITH THE 

LAW AND ORDINANCES APPLICABLE TO EMERGENCY 

ACTION............................................................................................................11

ii
A. OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS 

DEPOSITION. ....................................................................................................15

B. OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE 

TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT. .....................16

C. OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF 

NORMA TORRES...............................................................................................17

D. AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT 

FOR CAUSING THE COLLISION. .......................................................................20

E. OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES.................21

V. ASSUMING THE EMERGENCY SITUATION EXCEPTION 

APPLIES AND NO LAWS OR ORDINANCES GOVERN HIS 

CONDUCT, OFFICER WALKER’S CONDUCT CONSTITUTES 

CONSCIOUS INDIFFERENCE OR RECKLESS DISREGARD FOR THE 

SAFETY OF OTHERS......................................................................................22

CONCLUSION/PRAYER.................................................................................25

iii
TABLE OF AUTHORITIES

Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)................. 5, 6, 16

Cantu v. Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no 

pet.).............................................................................................................................4

City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) ...............................28

City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no 

pet.)...........................................................................................................................16

City of Elsa v. Gonzales, 325 S.W.3d 622, 625 (Tex. 2010).....................................6

City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994)...................12

City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006).......................28

City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio 

1984, writ ref’d n.r.e.)..............................................................................................26

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)................8

Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.).............11

Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003).......................................4

Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2 

(Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not 

designated for publication) ........................................................................................3

iv
Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 928 (Tex. 1998) ..........................3

Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio 

1988, no writ)...........................................................................................................11

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)........

......................................................................................................................... vii, 6, 7

Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App. – Corpus Christi 

2003, no pet.) .............................................................................................................4

Rivas v. City of Houston, 17 S.W.3d 23, 27 (Tex. App. – Houston [14th Dist.] 

2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied).......................................12

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 

2002) ..........................................................................................................................3

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)....4

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004).

.......................................................................................................................... passim

Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El 

Paso 2014, pet. filed)................................................................................................21

Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).................7

University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)................................7

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); ...............................11

v
Statutes

TEX. CIV. PRAC. & REM. CODE §101.021(1)..............................................................7

TEX. CIV. PRAC. & REM. CODE §101.021...................................................................7

TEX. CIV. PRAC. & REM. CODE §101.055(2)........................................................8, 14

TEX. TRANSP. CODE ANN. § 546.002(b)...................................................................24

TEX. TRANSP. CODE ANN. § 546.003 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009)...............................................24

TEX. TRANSP. CODE ANN. § 546.001 .......................................................................24

TEX. TRANSP. CODE ANN. § 546.001(3) (Vernon 2009)..........................................19

vi
STATEMENT OF THE CASE

Appellant Norma Torres (“Norma”) was severely injured in a collision with 

Officer Robert Walker (“Officer Walker”) on July 18, 2011, when he lost control 

of his police vehicle while attempting to assist in a high-speed chase. As a result 

of her injuries, Norma requires an L4-5laminectomy and discectomy with surgical 

stabilization and fusion. It is undisputed that Officer Walker was acting in the 

course and scope of his employment with Appellee the City of Corpus Christi 

(“City”). 

The City filed a plea to the jurisdiction asserting that the trial Court lacked 

subject matter jurisdiction because immunity was not waived under the TEXAS 

TORT CLAIMS ACT (“Act”) because Officer Walker was responding to an 

emergency call and properly complied with the laws and ordinances applicable to 

emergency action. Alternatively, the City argued that Officer Walker did not act 

with conscious indifference or reckless disregard for Norma’s safety. 

The trial court erroneously held that Norma failed to raise a fact issue 

establishing subject matter jurisdiction despite the fact that the Texas Supreme 

Court has held that disputed facts must be resolved at trial by a jury.1

 Moreover, if 

1 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Texas Dep’t of 

Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 228 (Tex. 2004). 

vii

 
this Court properly takes all evidence favorable to Norma as true and resolves all 

reasonable inferences and doubts in her favor, then the only proper holding is to 

allow a jury to determine whether Officer Walkers actions were taken in proper 

compliance with the laws and ordinances applicable to emergency actions or 

whether his actions were consciously indifferent to or in reckless disregard of 

Norma’s safety.2

 By this brief, Norma respectfully requests that the Court reverse

the trial court’s ruling that immunity was not properly waived under the TEXAS 

TORT CLAIMS ACT.

Appellant filed suit in County Court at Law Number 4 of Nueces County, 

Texas, on November 23, 2011, alleging that the City was liable to Norma pursuant 

to § 101.021 of the CIVIL PRACTICE & REMEDIES CODE because Officer Walker 

committed wrongful acts or omissions while acting in the course and scope of his 

employment with the City while operating a motor-driven vehicle and would be 

personally liable to Norma under Texas Law. (1 CR 5-12). On June 18, 2013, the 

City filed a plea to the jurisdiction asserting that the trial court lacked subject 

matter jurisdiction over this case. (1 CR 18-23). In response to the City’s plea, 

Norma filed an Amended Petition on July 19, 2013 and a Response with evidence 

on July 22, 2013. (1 CR 114-122, 1 CR 124-141). 

2 Miranda, 133 S.W.3d at 227-28. 

viii

 
The first hearing on the Plea was held on July 22, 2013. (1 RR 1-16). At the 

request of the trial court judge, both parties filed additional briefings with evidence 

for the court on their positions (1 CR 328-333, 1 CR 424-439). On June 16, 2014, 

the Court granted the City’s plea and rendered a take nothing judgment against 

Norma. Subsequently, Norma filed a Motion for Reconsideration and Motion for 

New Trial on July 15, 2014. (1 CR 441-449). The Court heard Norma’s Motion 

for Reconsideration and Motion for New Trial on August 27, 2014 (2 RR 1-35). 

The trial court denied Norma’s Motion for Reconsideration and Motion for New 

Trial on August 27, 2014. (1 CR 530). 

ix
STATEMENT REGARDING ORAL ARGUMENT

Oral argument would give the Court a more complete understanding of the 

facts and legal issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The 

facts in the instant case require additional explanation in order to fully understand 

the chronology of events. Therefore, the decisional process would be significantly 

aided by having counsel present to explain why the facts do or do not support 

Appellant’s contentions. See TEX. R. APP. P. 39.1(d). Accordingly, Appellee

respectfully requests the Court grant oral argument.

x
ISSUE PRESENTED

There is a single issue to be resolved by the Court in this appeal:

Was sovereign immunity properly waived pursuant to § 101.021 of the TEXAS 

TORT CLAIMS ACT for the personal injuries proximately caused by the 

negligence of Officer Walker? 

xi
STATEMENT OF FACTS

On July 18, 2011, Officer Walker, an employee of the Corpus Christi Police 

Department, lost control of his police car while traveling westbound on the 2500 

block of Laredo in excess of the posted speed limit and collided with Norma 

Torres in the eastbound lane of traffic. As a result of the collision, Officer Walker 

was cited for unsafe change from a direct course. (1 CR 54-56). Additionally, he 

was cited by the Police Department for violating § 4.04(B)(3) of the General Rules 

Manual and disciplined by his supervising officer. (1 CR 221-223, 272-277). 

Norma sustained serious personal injuries as a result of the collision which require 

a laminectomy and discectomy with surgical stabilization and fusion at L4-5 to 

address. (1 CR 108). 

1
SUMMARY OF THE ARGUMENT

The trial court’s ruling in its August 27, 2014 order should be reversed 

because the evidence presented by Norma creates a jurisdictional fact issue that a 

jury must resolve as to whether the immunity has properly been waived under the 

TEXAS TORT CLAIMS ACT. Subject Matter Jurisdiction over this case exists for four

reasons. 

First, Norma properly pled a statutory waiver of sovereign immunity in her 

live pleading before this Court. 

Second, the Emergency Situation Exception (“Exception”) to the ACT does 

not apply because the City failed to prove that Officer Walker was responding to 

an emergency. 

Third, Officer Walker admitted that he failed to act as a reasonably prudent 

officer while assisting in apprehending a stolen vehicle. 

Fourth, assuming the exception applies, whether Officer Walker’s conduct 

during the collision was reckless is a fact question for the jury. 

The trial court’s August 27, 2014 order should be REVERSED. 

2
ARGUMENT

At issue is whether or not the “Emergency Exception” to the TEXAS TORT 

CLAIMS ACT was applicable to Officer Walker’s actions on July 18, 2011, and,

assuming that the exception applies, did Walker’s conduct constitute a reckless 

disregard for the safety of all persons. The undisputed evidence creates a disputed 

fact issue that Officer Walker failed to act as a reasonably prudent officer at the 

time of the collision and that his actions constitute a finding of reckless conduct. 

I. STANDARD OF REVIEW

A trial court’s ruling on a plea to the jurisdiction is a question of law and 

reviewed de novo.

3

 A plea to the jurisdiction is a dilatory plea that seeks dismissal 

of a case for lack of subject matter jurisdiction.4

 When a plea to the jurisdiction 

challenges the pleadings, the court determines if the pleader has alleged facts 

that affirmatively demonstrate the court’s jurisdiction to hear the cause rather 

3 Miranda, 133 S.W.3d at 226 (emphasis added); see Subaru of Am., Inc. v. David McDavid 

Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 

928 (Tex. 1998); Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2 

(Tex. App. – Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op., not designated for 

publication) (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 

2004)). 

4 Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2003). 

3

 
than looking at the claim’s merits.5

 Since the plaintiff bears the burden to allege 

facts affirmatively demonstrating the trial court’s jurisdiction to hear a case, the 

courts construe the pleadings liberally and in the plaintiff’s favor and should 

look to the pleader’s intent.6

 The Court assumes the truth of the jurisdictional 

facts alleged in the pleadings unless the defendant presents evidence to negative 

their existence.7

 

However, if a plea to the jurisdiction challenges the existence of 

jurisdictional facts, the court will consider relevant evidence submitted by the 

parties when necessary to resolve the jurisdictional issues raised.8

 The purpose 

of the plea is not to force a plaintiff to preview her case on the merits, but rather, to 

establish why the merits of the claims should never be reached.9

 Although the 

issues raised by a plea to the jurisdiction often require hearing evidence, a plea 

to the jurisdiction does not authorize an inquiry so far into the substance of the 

claims presented that the plaintiff is required to put on her case simply to 

5 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Cantu v. 

Perales, 97 S.W.3d 861, 862-63 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added). 

6 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d at 446; Nueces County v. Ferguson, 

97 S.W.3d 205, 213 (Tex. App. – Corpus Christi 2003, no pet.) (emphasis added). 

7 Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). 8 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (emphasis added). 

9 Id. at 554. 

4

 
establish jurisdiction.10 Whether a determination of subject matter jurisdiction can 

be made in a preliminary hearing or should await a fuller development of the 

merits of the case must be left to the trial court’s discretion.11 

When jurisdiction involves the merits of the case, the trial court must 

review the evidence to determine whether there is a fact issue.12 This standard 

mirrors a summary judgment procedure under Tex. R. Civ. P. 166a(c).13 That is, 

the defendant must first present evidence to show that the Court lacks 

subject-matter jurisdiction; if the defendant does so, then the plaintiff must then 

show there is a disputed material fact on the jurisdictional issue.14 If the facts are 

disputed, the court cannot grant the plea to the jurisdiction and the issue must be 

resolved by the finder-of-fact at trial; however, if the evidence is undisputed or if 

there is no fact question on the jurisdictional issue, the trial court will rule on the 

plea to the jurisdiction as a matter of law.15 When reviewing a plea to the 

jurisdiction in which the pleading requirement is met and evidence has been 

10 Id. (emphasis added). 

11 Id. 12 Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see Mission 

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Elsa v. Gonzales, 

325 S.W.3d 622, 625 (Tex. 2010). 13 Mission Consol., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228. 14 Id. (emphasis added). 

15 Mission Consol., 372 S.W.3d at 635; University of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 

2010) (emphasis added). 

5

 
submitted to support the plea that implicates the merits of the case, all evidence 

favorable to the nonmovant is taken as true and all reasonably inferences and 

doubts are resolved in favor of the nonmovant.16 If the evidence submitted 

creates a fact issue as to jurisdiction, then it is for the fact-finder to decide.17 

II. NORMA PROPERLY PLED A STATUTORY WAIVER OF SOVEREIGN 

IMMUNITY

Sovereign immunity from suit defeats a trial court’s subject matter 

jurisdiction unless the state specifically consents to suit.18 In a suit against a 

governmental unit, the plaintiff must affirmatively demonstrate the court’s 

jurisdiction by alleging a valid waiver of immunity.19 The TEXAS TORT CLAIMS 

ACT provides a limited waiver of governmental immunity if certain conditions are 

met. The ACT states: 

A governmental unit in the state is liable for:

(1)Property damage, personal injury, and death proximately 

caused by the wrongful act or omission or the negligence of an 

employee acting within his scope of employment if:

(A) The property damage, personal injury, or death 

arises from the operation or use of a motor-driven 

vehicle or motor-driven equipment; and 

16 Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004) (emphasis 

added). 

17 Miranda, 133 S.W.3d at 227-28 (emphasis added). 18 Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). 19 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). 

6

 
(B) The employee would be personally liable to the 

claimant according to Texas law; and 

(2)Personal injury and death so caused by a condition or use of 

tangible personal or real property if the governmental unit, were 

it a private person, be liable to the claimant according to Texas 

law. 

TEX. CIV. PRAC. & REM. CODE §101.021. Thus, a governmental unit may be held 

liable for the wrongful acts or omissions of its employees under the ACT if they are 

acting within the scope of their employment and when the personal injuries or 

property damage arises from the operation or use of a motor-driven vehicle or 

equipment if the same employee could be held liable to the claimant under Texas 

law.20 

Norma’s Amended Petition specifically alleges that Officer Walker was in 

the course and scope of his employment and that he was negligent in the operation 

of his police vehicle at that time of the collision. (1 CR 146-154). Moreover, both 

Officer Walker and his supervisor, Lieutenant J.C. Hooper (“Lt. Hooper”) testified 

that Officer Walker is in the course and scope of his employment with the City at 

the time the collision occurred. (1 CR 179, 1 CR 249). Additionally, it is 

undisputed that the collision arose from Officer Walker’s operation or use of a 

motor driven-vehicle. (1 CR 179). 

20 TEX. CIV. PRAC. & REM. CODE §101.021(1). 

7

 
III. THE EMERGENCY SITUATION EXCEPTION DOES NOT APPLY 

BECAUSE OFFICER WALKER WAS NOT RESPONDING TO AN 

EMERGENCY.

The ACT contains exclusions and exceptions to liability that, although a 

proper waiver of statutory immunity has properly been pled, nonetheless excuses 

the governmental entity’s conduct. Specifically, the ACT excludes claims arising:

(2)from the action of an employee while responding to an 

emergency call or reacting to an emergency situation if the 

action is in compliance with the laws and ordinances applicable 

to emergency action, or in the absence of such law or 

ordinance, if the action is not taken with conscious indifference 

or reckless disregard for the safety of others. 

TEX. CIV. PRAC. & REM. CODE §101.055(2). The City’s plea alleges that Officer 

Walker’s conduct is excusable because he was responding to an emergency call. 

The evidence, when viewed favorably to Norma, raises a fact issue as to whether 

Officer Walker was responding to an emergency. 

The existence of an emergency situation is a matter of fact that 

ordinarily should be determined by the jury.21 The City asserts that since 

Walker was operating with lights and sirens at the time the collision occurred that 

he was automatically responding to an emergency situation. Simply because 

21 Meijia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex. App. – San Antonio 1988, no writ)

(emphasis added)

8

 
Walker decided to activate his lights and sirens while travelling toward the 

intersection where the collision occurred does not automatically mean that he was 

“responding to an emergency.” In order to succeed on a plea to the jurisdiction, 

there can be no issue of material fact regarding the existence of any 

emergency and whether the City complied with relevant laws.22 

In determining whether an emergency situation arises, Courts have 

employed a reasonably prudent officer standard and examined the need to 

which an officer responds and the risks of the officer’s course of action based 

on the officer’s perception of the facts at the time of the event.23 Need is 

determined by factors such as the seriousness of the situation to which the official 

responds and what alternative courses of action, if any, are available, to achieve a 

comparable result.24 Risk refers to the countervailing public safety concerns; the 

nature and severity of harm that the official’s actions could cause (including injury 

to bystanders as well as the possibility that an accident would prevent the officials 

from reaching the scene of the emergency), the likelihood that any harm would 

occur, and whether any risk of harm would be clear to a reasonably prudent 

22 Id. (emphasis added). 

23 Gwynn v. Tobin, 2003 WL 21554331 (Tex. App. – Austin 2003, no pet.) quoting Wadewitz v. 

Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); see also Rivas v. City of Houston, 17 S.W.3d 23, 

27 (Tex. App. – Houston [14th Dist.] 2000), supp. on reh’g 19 S.W.3d 901 (2000, pet. denied). 24 Id. 

9

 
official.25 To counter an emergency vehicle driver’s proof that his actions were 

necessary, the injured bystander must prove that no reasonable person in the 

driver’s position could have thought the facts justified his acts.26 

In his deposition, Officer Walker testified that, in light of the results of his 

actions, he failed to act as a reasonably prudent officer in course of action based on 

his perception of the events at the time they occurred:

Q Okay. Do you agree that if you were driving your

vehicle a little slower that day, that you could 

have prevented yourself from losing control and 

striking my client's vehicle?

A I believe if I was driving in a safe and prudent

manner that the collision would not have 

occurred.

Q Okay. Do you believe that you could have 

responded to the call in a safe and prudent manner 

and still been able to arrive at the location that you 

were trying to reach?

A I -- I don't know.

Q (By Mr. De Vera) Okay. Looking back at

everything, do you think that -- that the best thing 

for you to have done at the time was to proceed in 

a safe and prudent manner so that you could 

safely and efficiently get to the intersection to lay 

down the strips, the spike strips?

A Yes, sir.

Q Okay. Knowing what you know today, would you 

do things differently?

A Yes, sir.

25 Id. 26 Id. quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994) (emphasis 

added). 

10

 
Q Okay. How would you have done things

differently?

A I -- I either wouldn't have tried to get to that

intersection or I would have went further to a 

different location further off so I'd have more 

time to set up the spike strips.

* * *

Q Do you believe that as a result of violating the

rules manual you were not acting as a reasonably 

prudent police officer should have acted on the 

day of the collision?

A I don't believe I was driving at a reasonable and

prudent manner.

(1 CR 184, 186) (emphasis added). Thus, Officer Walker’s own testimony creates 

a fact issue as to whether he was responding to an emergency at the time of the 

collision. 

IV. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES, 

OFFICER WALKER FAILED TO COMPLY WITH THE LAW AND 

ORDINANCES APPLICABLE TO EMERGENCY ACTION.

The City asserts that sovereign immunity is not waived under the ACT

because Officer Walker was responding to an emergency call at the time of the 

collision and that his actions did not violate any laws or ordinances applicable to 

an emergency situation. Even if the exception applies, Norma’s alleges sufficient 

jurisdictional facts in her Amended Petition that actively demonstrate that Officer 

Walker failed to act in compliance with the applicable laws or ordinances 

11
applicable to an emergency situation at the time of the collision. Moreover, the 

undisputed evidence supports these allegations. 

The Texas Supreme Court, in Bland Independent School District v. Blue, 

held that a plea to the jurisdiction cannot be used to have require a plaintiff to 

prove her entire case in order to establish jurisdiction—so long as a plaintiff 

properly pleads that the conduct was reckless, listed the purportedly reckless 

conduct and specified the laws applicable, granting a plea to the jurisdiction is 

improper:

Whether Porter is required to prove in response to 

the City’s plea to the jurisdiction that Dethloff violated 

any of the statutes pleaded by Porter is similar to the 

issue of whether a plaintiff must prove the amount of 

damages alleged in the petition in order to establish 

jurisdiction in a trial court. As the Texas Supreme Court 

noted in Bland, absent a specific allegation that the 

amount was pleaded merely as a sham for the purpose of 

wrongfully obtaining jurisdiction, the plaintiff’s 

allegation of damages in excess of the jurisdictional limit 

suffices to show the amount in controversy and establish 

jurisdiction to the trial court. A plea to the jurisdiction 

cannot be used to require the plaintiff to try her entire 

case in order to show entitlement to damages in excess 

of the trial court’s jurisdictional limit. 

Similarly, absent an allegation by the City that 

Porter fraudulently alleged violations of sections 

546.005 and 546.001(3) by Dethloff in order to obtain 

jurisdiction in the trial court, Porter cannot be 

required to prove her entire case to demonstrate the 

12
statutory violations by Dethloff in order to establish 

jurisdiction.

* * *

However, Porter pleaded Dethloff was reckless 

in his actions, listed the purportedly reckless conduct, 

and specified the laws applicable to an emergency 

response with which she alleges Dethloff failed to 

comply. Requiring Porter to carry her ultimate

burden to prove Dethloff’s conduct met either prong 

of the pleaded allegations in response to the City’s 

plea to the jurisdiction would impermissibly require 

Porter to prove her case on the merits simply to 

establish jurisdiction. Bland Indep. Sch. Dist., 34 

S.W.3d at 554. Although the City’s entitlement to 

immunity pursuant to section 101.055 might be 

established after the case is further developed, Porter is 

not required to prove her case in order to defeat the plea 

to the jurisdiction. Id.

27 

SECTION 101.055(2) of the ACT specifically excludes claims arising from the 

action of an employee while responding to an emergency call or reacting to an 

emergency situation if the action is in compliance with the laws and ordinances 

applicable to emergency action, or in the absence of such a law or ordinance, if the 

action is not taken with conscious indifference or reckless disregard for the safety 

of others.28 Like Porter, Norma pled in her Amended Petition that if Officer 

Walker was responding to an emergency call that his behavior was not in 

compliance with the laws and ordinances applicable to an emergency action or, in 

27 City of Dallas v. Porter, 2002 WL 1773008 at *3-4 (Tex. App. – Dallas 2002, no pet.) citing 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (emphasis added). 

28 TEX. CIV. PRAC. & REM. § 101.055(2). 

13

 
the absence of such law or ordinance, with conscious indifference or reckless 

disregard for the safety of others. (1 CR 115-119). 

The undisputed evidence establishes that Officer Walker was in the course 

and scope of his employment with the City at the time of the collision. (1 CR 179, 

1 CR 249). Additionally, Lt. Hopper identified that the applicable laws and 

ordinances that govern Walker’s actions:

Q Okay. Fair enough. The uniform division manual,

that's the operating manual for the division that 

you work in and the division that Officer Walker 

was working in at the time the collision happened. 

Is that correct?

A I think that really applies to the general rules

manual. This manual is in place, but I think the

general rules manual is more our bible. This 

document, yes, it does exist and it did exist for us 

at the time.

Q Okay. Other than the general rules manual and

this uniform division manual, would there be any 

other employee manuals or handbooks that would 

govern the manner in which Officer Walker was 

to operate his vehicle?

A There might be elements in the Texas traffic code

that would apply, but other than that, no, sir. I 

can't think of any others.

Q And when you're talking about the Texas traffic

code, Lieutenant, just to make sure I'm clear, 

you're talking about the codified statutes that go 

over the what the proper rules for operating 

vehicles for anyone on the Texas roadway?

A Yes, sir.

Q Is that fair?

A Yes, sir.

14
Q Okay. And are you talking about specifically the

sections of the traffic code that deal with 

emergency vehicles or are you just speaking more 

generally about the rules that every vehicle in the 

roadway has to follow?

A Both. 

(1 CR 232). The evidence shows that Walker violated not only the specific 

portions of the TRANSPORTATION CODE that govern the operation of authorized 

emergency vehicles, but that he also violated internal rules and regulations of the 

Police Department and the City of Corpus Christi. (1 CR 287-327). 

A. OFFICER WALKER ADMITTED CAUSING THE COLLISION IN HIS 

DEPOSITION. 

The Emergency Exception to the ACT does not apply because Officer 

Walker violated laws and ordinances applicable to an emergency situation and 

expressly admitted liability for causing the collision in his deposition:

Q Okay. And so let me just ask you formally for the 

record, are you assuming responsibility for 

causing this collision?

A Yes, sir.

Q Okay. Is there anything that my client

Ms. Torres did to cause the collision?

A No, sir.

Q Is there anything that my client Ms. Torres didn't 

do to avoid the collision?

A No, sir.

15
1 (CR 175). Officer Walker’s testimony alone is sufficient to raise a fact 

issue regarding the emergency exception. 

B. OFFICER WALKER RECEIVED A CITATION FOR VIOLATING THE 

TRANSPORTATION CODE AND PLED GUILTY IN OPEN COURT. 

The evidence also shows that Officer Walker violated the specific portions 

of the TRANSPORTATION CODE that govern the operation of authorized emergency 

vehicles. Specifically, Walker specifically admitted that he received a citation 

from the investigating officer for unsafe change from a direct course and that he 

pled guilty to the charge:

Q Okay. And according to -- according to the report 

for this particular wreck, it says that you received -

- you were charged with unsafe change from a 

direct course. Is that fair?

A Yes, sir.

Q Okay. And -- and since you were charged as a --

an officer and not as an off duty civilian, is there a 

different process by which officers resolve these 

kind of citations or are they resolved as if they 

were – as if you were in a civilian vehicle?

A They're resolved the same way.

Q Okay. And so how did you resolve this particular

citation?

A I went to the court and pled guilty and requested

the deferred adjudication.

16
(1 CR 165 1 CR 278-280) (emphasis added). The fact that Officer Walker was 

cited for violating the TRANSPORTATION CODE is sufficient to raise a fact issue 

regarding the emergency exception. 

C. OFFICER WALKER’S SPEED ENDANGERED THE LIFE AND PROPERTY OF 

NORMA TORRES. 

In addition to receiving a citation for unsafe change from a direct course, the 

investigating officer’s report shows that the collision occurred in Ms. Torres’s lane 

(in the direction of oncoming traffic). (1 CR 278-280). The fact that Officer 

Walker’s speed was so excessive that it caused him to lose control of his vehicle 

and strike another oncoming vehicle raises a fact issue about whether Officer 

Walker complied with the laws applicable to emergency situations. 

The El Paso Court of Appeals held that sufficient evidence was presented to 

raise a fact issue concerning whether an officer in pursuit of a suspect violated the 

laws applicable to an emergency situation.29 In Bonilla, as in this case, the Court 

of Appeals found that the applicable statues pertaining to the officer’s actions were 

§§ 546.001 and 546.005 of the TRANSPORTATION CODE. The officer is question 

ran a red light while pursuing a suspect and the Court held that there was sufficient 

29 Texas Dep’t of Public Safety v. Bonilla, 2014 WL 2451176 at *4-6 (Tex. App. – El Paso 2014, 

pet. filed). 

17

 
evidence to raise a fact issue as to whether the officer slowed before entering the 

intersection where the collision occurred. 

In this case, SECTION 546.001(3) allows an operator of an authorized 

emergency vehicle to exceed the maximum speed limit as long as the operator does 

not endanger life or property.30 Officer Walker testified that his excessive speed in 

conjunction with a soft brake caused him to lose control of his vehicle: 

Q Got it. Okay. And so you're coming around the S

curve and are you -- are you intending when it gets 

to the S curve to continue straight on Agnes 

toward --

A Continue westbound.

Q Right. Continue westbound?

A Yes, sir.

Q Okay. And so when you come around the curve,

you're hitting your brakes because of your speed?

A Yes, sir.

Q Okay. Is it fair to say that -- that the reason that 

you had to hit your brakes coming around that 

curve is because you were operating your vehicle 

over the posted speed limit because of the 

emergency?

A Yes, sir.

* * *

Q Okay. So basically you're -- you're going

through the S curve, you're going to intend on

proceeding westbound towards the intersection of 

Agnes and Port, you hit your brake to reduce 

your speed, because of the speed you're going 

30 TEX. TRANSP. CODE ANN. §§ 546.001(3) (Vernon 2009) (emphasis added). 

18

 
around the curve. The brake is soft and so -- as a 

result of that your speed does not decrease and 

that causes you to lose control of the vehicle. Is 

that fair?

A Yeah. 

(1 CR 170-171). Norma Torres testified that the impact occurred in her lane and 

caused property damage to her vehicle and bruising to her body:

Q Okay. Tell me in your own words as much detail 

as you can recall how the accident happened. 

A I just know that he did the curve and he was

going really fast and I did a turn to the right and 

we still end up hitting. 

Q Okay. How would you describe the impact? 

A It was awful. It was awful. I was -- it was awful. 

It was his car was completely out of control. 

Q Was there property damage to your vehicle? 

A Yes, sir.

* * *

Q Okay. Did you have any cuts? 

A I don't -- just bruises. 

Q Okay. Where were you bruised? 

A In my leg and I don't remember where else. I just 

remember my leg. 

Q Okay. Which leg? 

A I think it was the right.31

The fact that Officer Walker operated his vehicle at such an excessive speed as to 

endanger both the life AND property of Norma Torres is sufficient to raise a fact 

issue regarding the emergency exception. 

31 Deposition of Norma Torres, page:line 22:17 – 28:18. 

19

 
D. AN INDEPENDENT REVIEW BOARD FOUND OFFICER WALKER AT FAULT 

FOR CAUSING THE COLLISION.

Additionally, Officer Walker’s actions were reviewed by the City Vehicle 

Accident Review Board (VARB) and the collision was found to be a preventable 

event and the Board assessed points against his operating record. (1 CR 281-291). 

As a result of these findings, the VARB required Officer Walker to attend 

counseling sessions and a remedial driver training program. Id. 

Officer Walker testified that he had the ability to appeal the Board’s decision 

but elected not to because he accepted responsibility for causing the wreck:

Q Okay. And -- and you know that the accident 

review board allows an appeal from the decision of 

the board, correct?

A Yes, sir.

Q Okay. And did you -- did you elect to appeal?

A No, sir.

Q Okay. Is the reason that you elected not to appeal 

because you accepted responsibility that the

collision was your fault?

A Yes, sir.

(1 CR 182). The fact that the City found the collision to be preventable an 

assessed a penalty to Officer Walker is sufficient to raise a fact issue regarding the 

emergency exception. 

20
E. OFFICER WALKER VIOLATED DEPARTMENTAL ORDINANCES. 

As a result of the collision, Officer Walker was cited at the scene for 

violating Rule 4.04(B)(3) of the Police Department’s General Rules Manual for 

failing to operate his vehicle in a safe and prudent manner. (1 CR 287-291). 

Officer Walker admitted being internally disciplined by the Police Department for 

failing to operate his vehicle in a safe and prudent manner:

Q And can you read for the ladies and gentlemen of

the jury what violation 4.04 B3 is?

A Yes, sir. "Employees shall operate police vehicles 

in a safe and prudent manner at all times and will 

be held accountable for the carelessness or 

negligence. Improper use or operation of a police 

vehicle may contribute grounds for disciplinary 

action."

Q Okay. And do you admit that the way that you 

operated the vehicle on July 18th of 2011 was in 

violation of 4.04 B3?

A Yes, sir.

* * *

Q What disciplinary action was instituted against 

you as a result of this violation?

A I was written a letter of counsel. 

(1 CR 182). The San Antonio Court of Appeals, in City of San Antonio v. Higle, 

held that acting in violation of prescribed governmental procedures would prevent 

21
the City from raising an immunity defense.32 Lt. Hopper testified that the City’s 

General Rules Manual would govern Officer Walker’s conduct at the time of the 

collision. (1 CR 232). The fact that Officer Walker was cited for violating 

departmental procedures alone is sufficient to raise a fact issue regarding the 

emergency exception. 

V. ASSUMING THE EMERGENCY SITUATION EXCEPTION APPLIES

AND NO LAWS OR ORDINANCES GOVERN HIS CONDUCT, 

OFFICER WALKER’S CONDUCT CONSTITUTES CONSCIOUS 

INDIFFERENCE OR RECKLESS DISREGARD FOR THE SAFETY 

OF OTHERS.

The City asserts immunity has not been waived because no pleadings 

establish that the City acted with conscious disregard and no evidence exists that 

Officer Walker acted with conscious indifference or reckless disregard for the 

safety of others. CHAPTER 546 of the TRANSPORTATION CODE governs the 

operation of authorized emergency vehicles. It condones conduct by operators of 

authorized emergency vehicles which would normally violate the CODE when 

responding to an emergency call or pursuing an actual or suspected violator of the 

law.

33 Additionally, the statute requires the use of audio or visual signals when 

32 City of San Antonio v. Higle, 685 S.W.2d 682, 686-87 (Tex. App. – San Antonio 1984, writ 

ref’d n.r.e.) (emphasis added). 33 TEX. TRANSP. CODE ANN. §§ 546.001; TEX. TRANSP. CODE ANN. 546.002(b) (Vernon 2009). 

22

 
proceeding past a red light or stop sign, after slowing for safe operation.

34 There 

is no specific statute which authorizes an officer to exceed the maximum speed 

to such a degree that they lose control of their vehicle and strike oncoming 

traffic.35 Despite condoning normally illegal conduct, the TRANSPORTATION CODE

requires that the operator of an authorized emergency vehicle responding to an 

emergency operate the vehicle with appropriate regard for the safety of all persons 

and without reckless disregard for the safety of others.

36 

The Texas Supreme Court requires a finding of reckless conduct before 

liability may be premised upon the conduct of an operator of an emergency vehicle 

in an emergency situation.

37 To recover damages resulting from the emergency 

operation of an emergency vehicle, a plaintiff must show that the operator has 

committed an act that the operator knew or should have known posed a high 

degree of risk of serious injury.38 There is no requirement that the officer 

specifically testify that he knew the relevant facts but did not care about the 

34 TEX. TRANSP. CODE ANN. § 546.003 (Vernon 2009) (emphasis added). 

35 While TEX. TRANSP. CODE ANN. § 546.001(3) does allow an authorized emergency vehicle to 

exceed a maximum speed limit, it must not endanger life or property. In this case, Walker 

testified that his excessive speed caused him to lose control of his vehicle and strike Ms. Torres 

in her lane of travel. 

36 TEX. TRANSP. CODE ANN. § 546.005 (Vernon 2009). 37 City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (emphasis added). 

38 Id. at 430 (emphasis added). 

23

 
result.39 The evidence shows that Walker’s actions at the time of the collision 

violated CHAPTER 546 of the TRANSPORTATION CODE:

Q Hold on. Let me just finish my question. That 

collision itself was one hundred percent 

completely and totally your fault?

A Yes, sir.

Q Okay. Now, even though you're operating your

vehicle with lights and sirens, you acknowledge 

that the internal regulations of the department as 

well as the laws of the state of Texas require that 

you operate your vehicle with due regard to other 

people on the roadway, correct?

A Yes, sir.

Q Based on what happened in the collision and how

the collision occurred, do you believe that you 

operated your vehicle with due care and due 

regard on the day of the collision?

A No, sir.

Q Okay. And that's because you lost control of the

vehicle coming around the curve, correct?

A Yes, sir.

(1 CR 175). The evidence shows that Officer Walker failed to operate his vehicle 

with due regard for the safety of Norma Torres and is sufficient to raise a fact issue 

that his conduct violated § 546.005 of the TRANSPORTATION CODE. Accordingly, 

the trial court’s ruling on the City’s plea should be REVERSED. 

39 City of San Antonio v. Hartman, 201 S.W.3d 667. 672 (Tex. 2006). 

24

 
CONCLUSION/PRAYER

Norma Torres has properly pled a waiver of sovereign immunity under the 

TEXAS TORT CLAIMS ACT. Moreover, the evidence presented, when view in the 

light most favorable to Norma, establishes fact issues as to whether the emergency 

exception applies. Further, the evidence raises fact issues as to whether Officer 

Walker properly complied with the laws and ordinances applicable to emergency 

actions when he operated his vehicle at an excessive speed and lost control coming 

around a curb causing him to collide with oncoming traffic. The evidence also 

raises a fact issue as to whether, in the absence of applicable laws or ordinances 

governing emergency situations, Officer Walker’s conduct constituted conscious 

indifference or reckless disregard for the safety of Norma Torres and the general 

public. 

Because a trial court cannot properly grant a plea to the jurisdiction if the 

jurisdictional facts are disputed, Appellant respectfully requests that this Court 

REVERSE the trial court’s judgment and allow a jury to decide the issue. 

25
Respectfully submitted,

LAW OFFICES OF THOMAS J. HENRY

521 Starr Street

Corpus Christi, Texas 78401

Telephone: (361) 985-0600

Facsimile: (361) 985-0601

By: /s/George A. DeVera

Thomas J. Henry

State Bar No. 09484210

George A. DeVera

State Bar No. 24048431

ATTORNEYS FOR APPELLANT

NORMA TORRES

26
CERTIFICATE OF COMPLIANCE WITH WORD LIMITATION

I certify that I have reviewed the Appellee’s Brief and have concluded that 

every factual statement made herein is supported by competent evidence included 

in the appendix or the record. 

Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify 

that the foregoing brief contains 6,449 words (excluding the caption, table of 

contents, table of authorities, signature, proof of service, certification, and 

certificate of compliance). This is a computer generated document created in 

Microsoft Word, using 14-point typeface for all text, except for the footnotes, 

which are in 12-point typeface. In making this certificate of compliance, I am 

relying on the word count provided by the software used to prepare this document. 

 /S/ George A. DeVera

GEORGE A. DEVERA

STATE BAR NO. 24048431

27
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing document has 

been forwarded to all counsel of record in the manner indicated below on the 20th

day of April, 2015:

VIA E-SERVICE 

Mark DeKoch

City of Corpus Christi

Legal Department

1201 Leopard Street

P.O. Box 9277

Corpus Christi, Texas 78401

Telephone: (361) 826-3372

Facsimile: (361) 826-3239

 /s/George A. DeVera

GEORGE A. DEVERA

28
APPENDIX

In compliance with TEX. R. APP. P. 38.1(k), copies of the following 

documents are included:

TAB 1.............................................Order Granting Plea to the Jurisdiction

TAB 2............................................................TEX. TRANSP. CODE § 546

TAB 3.........................................................Mejia v. City of San Antonio, 

89 S.W.3d 611 (Tex. 2002)

TAB 4.......................................City of Dallas v. Porter, 2002 WL 1773008

(Tex. App. – Dallas 2002, no writ.)

TAB 5........................................................Bland Indep. Sch. Dist. v. Blue, 

34 S.W.3d 547 (Tex. 2000)

TAB 6.........................................Tex. Dep’t of Parks & Wildlife v. Miranda

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

TAB 7.....................................................City of San Antonio v. Higle, 

685 S.W.2d 682 (Tex. App. – San Antonio 1985, writ ref’d n.r.e.)

TAB 8..........................................Texas Dep’t of Public Safety v. Bonilla, 

2014 WL 2451176 (Tex. App. – El Paso, pet. filed)

29
































Page 1

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

Supreme Court of Texas.

TEXAS DEPARTMENT OF PARKS AND WILDLIFE, Petitioner,

v.

Maria MIRANDA and Ray Miranda, Respondents.

No. 01–0619.

Argued Oct. 30, 2002.

April 2, 2004.

Background: Visitor to state park and her husband 

sued the Parks and Wildlife Department for personal 

injuries visitor sustained when a tree limb fell on her 

head. The 38th Judicial District Court, Uvalde County, 

Mickey R. Pennington, J., denied Department's plea to 

the jurisdiction. Department appealed. The San Antonio Court of Appeals, 55 S.W.3d 648, affirmed. 

Review was granted.

Holdings: The Supreme Court, J. Dale Wainwright, 

J., held that:

(1) in ruling on the plea to the jurisdiction, the trial 

court could consider evidence beyond the allegations 

in the pleadings, disapproving of Sullivan v. Wilmer 

Hutchins Indep. Sch. Dist., 47 S.W.3d 529, Denton 

County v. Howard, 22 S.W.3d 113, Tex. Dep't of 

Mental Health & Mental Retardation v. Pearce, 16 

S.W.3d 456, Tex. State Employees Union/CWA Local 

6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61,

DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 

654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo 

v. State, Office of the Governor, 998 S.W.2d 337, City 

of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep. 

Sch. Dist. v. Blue, 989 S.W.2d 441, and

(2) Parks and Wildlife Department did not act with 

gross negligence, and thus, Department had sovereign 

immunity under Texas Tort Claims Act and recreational use statute.

Reversed and rendered.

Phillips, C.J., and Hecht, Owen, and Smith, JJ., 

joined parts I, II, III.A, III.B, III.C.2, III.C.3, III.D, 

and IV of Justice Wainwright's opinion.

Phillips, C.J., and Hecht and Smith, JJ., joined 

part III.C.1 of Justice Wainwright's opinion.

Wallace B. Jefferson, J., filed a dissenting opinion.

Scott Brister, J., filed a dissenting opinion in 

which O'Neill and Schneider, J., joined.

West Headnotes

[1] Courts 106 247(7)

106 Courts

106VI Courts of Appellate Jurisdiction

106VI(B) Courts of Particular States

106k247 Texas

106k247(7) k. Review by or certificate 

to Supreme Court by Court of Civil Appeals of questions where its decision conflicts with or overrules that 

of another Court of Civil Appeals or that of the Supreme Court. Most Cited Cases

A new decision of a court of appeals “conflicts”

with a prior decision of another court of appeals or 

prior decision of the Supreme Court, as basis for Supreme Court's jurisdiction over interlocutory appeal 

from the new decision, when the prior and new cases 

are so similar that the decision in one case is necessarily conclusive of the decision in the other. 

V.T.C.A., Government Code § 22.001(a)(2).

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

[2] Pleading 302 111.36

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.36 k. Scope of inquiry and 

matters considered in general. Most Cited Cases

(Formerly 106k122)

The plaintiff's allegations, in the petition, of the 

amount in controversy control for subject matter jurisdiction purposes, unless the party challenging jurisdiction pleads and proves that the plaintiff's allegations of the amount in controversy were made fraudulently for the purpose of obtaining jurisdiction.

[3] Pleading 302 111.36

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.36 k. Scope of inquiry and 

matters considered in general. Most Cited Cases

(Formerly 106k39)

If the alleged defect in subject matter jurisdiction 

does not involve the amount in controversy, the party 

alleging the defect by a plea to the jurisdiction is not 

required to further allege the pleadings are fraudulent, 

in order for the trial court to have authority to consider 

evidence outside of allegations in pleadings if consideration of such additional evidence is necessary for 

trial court to determine whether it has subject matter 

jurisdiction; disapproving of Sullivan v. Wilmer Hutchins Indep. Sch. Dist., 47 S.W.3d 529, Denton 

County v. Howard, 22 S.W.3d 113, Tex. Dep't of 

Mental Health & Mental Retardation v. Pearce, 16 

S.W.3d 456, Tex. State Employees Union/CWA Local 

6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61,

DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 

654, Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo 

v. State, Office of the Governor, 998 S.W.2d 337, City 

of Saginaw v. Carter, 996 S.W.2d 1, and Bland Indep. 

Sch. Dist. v. Blue, 989 S.W.2d 441..

[4] States 360 191.4(1)

360 States

360VI Actions

360k191 Liability and Consent of State to Be 

Sued in General

360k191.4 Necessity of Consent

360k191.4(1) k. In general. Most Cited 

Cases

Sovereign immunity deprives a trial court of 

subject matter jurisdiction for lawsuits in which the 

State or certain governmental units have been sued, 

unless the State consents to suit.

[5] States 360 191.1

360 States

360VI Actions

360k191 Liability and Consent of State to Be 

Sued in General

360k191.1 k. In general. Most Cited Cases

States 360 208

360 States

360VI Actions

360k208 k. Pleading. Most Cited Cases

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

The State's immunity from liability is an affirmative defense, while immunity from suit deprives a 

court of subject matter jurisdiction.

[6] Municipal Corporations 268 851

268 Municipal Corporations

268XII Torts

268XII(E) Condition or Use of Public Buildings and Other Property

268k851 k. Parks and public squares and 

places. Most Cited Cases

The recreational use statute limits a governmental 

unit's duty for premises defects, for which sovereign 

immunity under the Texas Tort Claims Act is waived, 

to that which is owed a trespasser, i.e., not to injure 

that person willfully, wantonly, or through gross negligence. V.T.C.A., Civil Practice & Remedies Code §§ 

75.002(c, d), 101.021, 101.025, 101.058.

[7] Negligence 272 273

272 Negligence

272V Heightened Degrees of Negligence

272k273 k. Gross negligence. Most Cited 

Cases

Gross negligence involves two components: (1) 

viewed objectively from the actor's standpoint, the act 

or omission complained of must involve an extreme 

degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor 

must have actual, subjective awareness of the risk 

involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.

[8] Pleading 302 104(1)

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k104 Plea to the Jurisdiction

302k104(1) k. In general. Most Cited 

Cases

Sovereign immunity from suit defeats a trial 

court's subject matter jurisdiction, and thus is properly 

asserted in a plea to the jurisdiction.

[9] Courts 106 39

106 Courts

106I Nature, Extent, and Exercise of Jurisdiction 

in General

106I(A) In General

106k39 k. Determination of questions of 

jurisdiction in general. Most Cited Cases

The trial court must determine at its earliest opportunity whether it has the constitutional or statutory 

authority to decide the case, before allowing the litigation to proceed.

[10] Courts 106 39

106 Courts

106I Nature, Extent, and Exercise of Jurisdiction 

in General

106I(A) In General

106k39 k. Determination of questions of 

jurisdiction in general. Most Cited Cases

Whether a court has subject matter jurisdiction is 

a question of law.

[11] Appeal and Error 30 893(1)

30 Appeal and Error

30XVI Review

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

30XVI(F) Trial De Novo

30k892 Trial De Novo

30k893 Cases Triable in Appellate 

Court

30k893(1) k. In general. Most Cited 

Cases

Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo.

[12] Courts 106 39

106 Courts

106I Nature, Extent, and Exercise of Jurisdiction 

in General

106I(A) In General

106k39 k. Determination of questions of 

jurisdiction in general. Most Cited Cases

Whether undisputed evidence of jurisdictional 

facts establishes a trial court's subject matter jurisdiction is a question of law; however, in some cases, 

disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by 

the finder of fact.

[13] Pleading 302 104(1)

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k104 Plea to the Jurisdiction

302k104(1) k. In general. Most Cited 

Cases

Pleading 302 111.38

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.38 k. Petition, complaint, declaration or other pleadings. Most Cited Cases

When a plea to the jurisdiction challenges the 

pleadings, the court determines if the pleader has 

alleged facts that affirmatively demonstrate the court's 

subject matter jurisdiction to hear the cause, construing the pleadings liberally in favor of the pleader 

and looking to the pleader's intent.

[14] Pleading 302 111.48

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.48 k. Amendments following 

sustaining of pleas. Most Cited Cases

If the pleadings do not contain sufficient facts to 

affirmatively demonstrate the trial court's subject 

matter jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one 

of pleading sufficiency, and the plaintiffs should be 

afforded the opportunity to amend following sustaining of plea to the jurisdiction.

[15] Pleading 302 111.48

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Ab-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

atement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.48 k. Amendments following 

sustaining of pleas. Most Cited Cases

If the pleadings affirmatively negate the existence 

of subject matter jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs 

an opportunity to amend.

[16] Appeal and Error 30 863

30 Appeal and Error

30XVI Review

30XVI(A) Scope, Standards, and Extent, in 

General

30k862 Extent of Review Dependent on 

Nature of Decision Appealed from

30k863 k. In general. Most Cited Cases

If a plea to the jurisdiction challenges the existence of jurisdictional facts, the appellate court considers relevant evidence, beyond the allegations in the 

pleadings, submitted by the parties when necessary to 

resolve the subject matter jurisdiction issues raised, as 

the trial court is required to do.

[17] Courts 106 39

106 Courts

106I Nature, Extent, and Exercise of Jurisdiction 

in General

106I(A) In General

106k39 k. Determination of questions of 

jurisdiction in general. Most Cited Cases

When the consideration of a trial court's subject 

matter jurisdiction requires the examination of evidence beyond the allegations in the pleadings, the trial 

court exercises its discretion in deciding whether the 

jurisdictional determination should be made at a preliminary hearing or await a fuller development of the 

case, mindful that the determination of whether subject matter jurisdiction exists must be made as soon as 

practicable.

[18] Pleading 302 111.36

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.36 k. Scope of inquiry and 

matters considered in general. Most Cited Cases

In a case in which the jurisdictional challenge, 

relating to subject matter jurisdiction, implicates the 

merits of the plaintiffs' cause of action and the plea to 

the jurisdiction includes evidence beyond the allegations in the pleadings, the trial court reviews the relevant evidence to determine if a fact issue exists.

[19] Judgment 228 178

228 Judgment

228V On Motion or Summary Proceeding

228k178 k. Nature of summary judgment. 

Most Cited Cases

Purpose of summary judgments is to eliminate 

patently unmeritorious claims and untenable defenses. 

Vernon's Ann.Texas Rules Civ.Proc., Rule 166a.

[20] Pleading 302 111.39(.5)

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Ab-

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(Cite as: 133 S.W.3d 217)

atement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.39 Presumptions and Burden 

of Proof

302k111.39(.5) k. In general. Most 

Cited Cases

After the State asserts and supports with evidence 

that the trial court lacks subject matter jurisdiction, 

based on the State's sovereign immunity, the plaintiff 

is required, if the facts underlying the merits and 

subject matter jurisdiction are intertwined, to show 

that there is a disputed material fact regarding the 

jurisdictional issue.

[21] Appeal and Error 30 893(1)

30 Appeal and Error

30XVI Review

30XVI(F) Trial De Novo

30k892 Trial De Novo

30k893 Cases Triable in Appellate 

Court

30k893(1) k. In general. Most Cited 

Cases

Appellate courts reviewing a challenge to a trial 

court's subject matter jurisdiction review the trial 

court's ruling de novo.

[22] Appeal and Error 30 916(1)

30 Appeal and Error

30XVI Review

30XVI(G) Presumptions

30k915 Pleading

30k916 In General

30k916(1) k. In general. Most Cited 

Cases

When reviewing a plea to the jurisdiction in 

which the pleading requirement has been met and 

evidence has been submitted to support the plea that 

implicates the merits of the case, the appellate court 

takes as true all evidence favorable to the nonmovant 

and indulges every reasonable inference and resolve 

any doubts in the nonmovant's favor.

[23] Pleading 302 111.34

302 Pleading

302III Responses or Responsive Pleadings in 

General

302III(B) Dilatory Pleas and Matter in Abatement

302k111 Decision of Issue, and Proceedings 

Thereon

302k111.34 k. Time for trial. Most Cited 

Cases

The scheduling of a hearing on a plea to the jurisdiction is left to the discretion of the trial court, 

which is in the best position to evaluate the appropriate time frame for hearing such a plea in any particular 

case.

[24] States 360 112.2(6)

360 States

360III Property, Contracts, and Liabilities

360k112 Torts

360k112.2 Nature of Act or Claim

360k112.2(6) k. State parks, injuries in. 

Most Cited Cases

Visitor to state park alleged sufficient facts regarding Parks and Wildlife Department's gross negligence to survive a plea to the jurisdiction by the 

Department based solely on the pleadings, with the 

Department alleging sovereign immunity under the 

Texas Tort Claims Act and recreational use statute, as 

to park visitor's premises defect claim alleging she 

was seriously injured by falling tree limb at camp site; 

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visitor alleged that she specifically asked Department's employee for recommendation of safe camping 

location, that Department was aware of unpruned, 

uninspected tree branches creating dangerous defective condition at camp site but failed to alleviate the 

danger, and that Department consciously and deliberately failed to warn visitor of the extremely dangerous condition, though visitor did not cite specific 

evidence that Department had actual knowledge that 

tree limb would fall. (Per Wainwright, J., for a plurality of the court.) V.T.C.A., Civil Practice & Remedies Code §§ 75.002(c, d), 101.021, 101.025, 

101.058.

[25] States 360 112.2(6)

360 States

360III Property, Contracts, and Liabilities

360k112 Torts

360k112.2 Nature of Act or Claim

360k112.2(6) k. State parks, injuries in. 

Most Cited Cases

Parks and Wildlife Department did not act with 

gross negligence, and thus, Department had sovereign 

immunity under Texas Tort Claims Act and recreational use statute, as to state park visitor's premises 

defect claim alleging she was seriously injured by 

falling tree limb at camp site; operations and maintenance specialist for state park provided affidavit 

opining that tree limb fell because of unpredictable 

and unforeseeable phenomenon known as “sudden 

branch drop syndrome,” and there was no evidence 

that such syndrome created extreme risk of danger or 

that Department had actual subjective knowledge of 

that risk but nevertheless proceeded in conscious disregard for safety of others. V.T.C.A., Civil Practice & 

Remedies Code §§ 75.002(c, d), 101.021, 101.025, 

101.058.

[26] Municipal Corporations 268 847

268 Municipal Corporations

268XII Torts

268XII(E) Condition or Use of Public Buildings and Other Property

268k847 k. Nature and grounds of liability 

of municipality as proprietor. Most Cited Cases

Tort Claims Act's scheme of a limited waiver of 

immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect 

claim by re-casting the same acts as a claim relating to 

the negligent condition or use of tangible property. 

V.T.C.A., Civil Practice & Remedies Code § 101.022.

*220 Howard G. Baldwin, First Asst. Atty. Gen., 

Jeffrey S. Boyd, Thompson & Knight, Harry W. 

Deckard, Office of Attorney General, Nelly R. Herrera, Office of Attorney General, Julie Caruthers 

Parsley, Public Utility Com'n, and Lisa Royce Eskow, 

Attorney General's Office, Austin, for Petitioner.

Emmett R. Harris, Law Office of R. Emmett Harris, 

Jerry Don Evans, Uvalde, TX, for Respondent.

Justice WAINWRIGHT delivered the opinion of the 

Court with respect to parts I., II., III.A., III.B., III.C.2., 

III.C.3., III.D., and IV., in which Chief Justice 

PHILLIPS, Justice HECHT, Justice OWEN, and Justice SMITH joined, and a plurality opinion with respect to Part III.C.1., in which Chief Justice PHILLIPS, Justice HECHT, and Justice SMITH joined.

Maria Miranda sustained injuries after a tree limb 

fell on her at Garner State Park in Uvalde County. 

Maria and her husband Ray sued the Texas Parks and 

Wildlife Department,FN1 alleging negligence and *221

gross negligence. The Department filed a plea to the 

jurisdiction, to which it attached supporting evidence, 

and argued that sovereign immunity barred the Mirandas' claims. The trial court denied the plea to the 

jurisdiction and a unanimous court of appeals affirmed, holding that the trial court could not consider 

evidence in support of the plea because the Depart-

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ment did not allege that the Mirandas' pleadings were 

a sham for the purpose of wrongfully obtaining jurisdiction. 55 S.W.3d 648, 652.

FN1. The Mirandas originally named the 

“Texas Department of Parks and Wildlife” as 

defendant but corrected the name to the 

“Texas Parks and Wildlife Department” in 

their third amended petition. Because the 

parties and lower courts retained the original 

style of the case, we retain that style but in 

our opinion refer to the Department by its 

correct name.

In accord with our decision in Bland Independent 

School District v. Blue, 34 S.W.3d 547 (Tex.2000), we 

hold that the trial court in this case was required to 

examine the evidence on which the parties relied to 

determine if a fact issue existed regarding the alleged 

gross negligence of the Department. Due to the unusual confluence of standards erected by the Legislature for waiver of sovereign immunity in the Texas 

Tort Claims Act and the recreational use statute, 

plaintiffs must plead gross negligence to establish 

subject matter jurisdiction. Further, if the plaintiffs' 

factual allegations are challenged with supporting 

evidence necessary to consideration of the plea to the 

jurisdiction, to avoid dismissal plaintiffs must raise at 

least a genuine issue of material fact to overcome the 

challenge to the trial court's subject matter jurisdiction. Because the Mirandas failed to raise a genuine 

issue of material fact regarding the alleged gross negligence of the Department, we conclude that the trial 

court lacked subject matter jurisdiction over this 

lawsuit. Therefore, we reverse the judgment of the 

court of appeals and render judgment dismissing the 

case.

I. Factual and Procedural Background

The Mirandas' third amended petition contains 

the following allegations: In April 1998, the Mirandas 

and their family were camping and picnicking as 

paying guests at Garner State Park, owned and operated by the Texas Parks and Wildlife Department. The 

Mirandas asked a park ranger to recommend a campsite that would be safe for children. While standing 

next to a picnic table at the recommended campsite, a 

falling tree branch approximately twelve inches in 

diameter and fifteen feet long struck Maria on the 

head. As a result of the incident, Maria suffered extensive injuries to her head, neck, and spine. Ray 

suffered mental anguish and other damages related to 

his wife's injuries.

On May 7, 1999, the Mirandas filed suit against 

the Department, alleging negligence and later 

amended their suit to add gross negligence claims. 

With respect to the gross negligence claims, the Mirandas alleged that the Department “knew of the 

dangers of its falling tree branches, failed to inspect, 

failed to prune, failed to alleviate or remove the danger, and consciously and deliberately failed to warn 

Plaintiffs of the extremely dangerous condition,”

“knew that its property contained hidden, dangerous 

defect [sic] in that its tree branches which have not 

been inspected or pruned regularly fall,” failed “to 

make safe the dangerous condition of its campsite 

trees,” and “failed to warn or make reasonably safe the 

dangerous condition of which it was aware.” In addition, the Mirandas alleged that the Department's 

conduct was “willful, wanton, or grossly negligent.”

Over a year after the Mirandas filed suit and after 

the parties conducted discovery, the Department filed 

a plea to the jurisdiction*222 and motion to dismiss, 

arguing that the Mirandas' allegations were insufficient to invoke a waiver of the Department's sovereign 

immunity under the standard established in the Tort 

Claims Act and the recreational use statute.FN2 TEX. 

CIV. PRAC. & REM. Code §§ 101.001–.109; id. §§ 

75.001–.004. The Department attached evidence in 

support of its plea. The Mirandas filed a response to 

the Department's plea and their third amended original 

petition. In their response, the Mirandas stated that 

they relied on evidence attached to the Department's 

plea, including written discovery responses from the 

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Department and the deposition the Mirandas took of 

assistant park manager Craig VanBaarle. At the trial 

court's hearing on the Department's plea, the parties 

addressed the allegations in the Mirandas' third 

amended original petition. The next day, the trial court 

denied the plea. The Department filed this interlocutory appeal claiming that the trial court erroneously 

denied its plea to the jurisdiction and motion to dismiss. Id. § 51.014(a)(8). The court of appeals affirmed 

the trial court's denial of the plea, stating that the Mirandas pled a premises defect cause of action based on 

gross negligence under the recreational use statute. 55 

S.W.3d at 652. The court of appeals rejected the Department's argument that there was no evidence to 

support gross negligence, holding that “the trial court 

was not authorized to inquire into the substance of the 

claims because the Department did not specifically 

allege that the Mirandas' allegations were pled merely 

as a sham for the purpose of wrongfully obtaining 

jurisdiction.” Id. (citing Bland, 34 S.W.3d at 554 and 

Rylander v. Caldwell, 23 S.W.3d 132, 135 

(Tex.App.-BAustin 2000, no pet.)).

FN2. The Department also moved for summary judgment under Texas Rule of Civil 

Procedure 166a(b)-(c)and 166a(I). The trial 

court denied both motions, but the Department does not appeal the trial court's denial 

of either motion.

The Department contends that the court of appeals erred in relying solely upon the conclusory allegations found in the Mirandas' petition to affirm the 

trial courts denial of the Department's plea to the jurisdiction and in disregarding the Department's evidence submitted with its plea. Specifically, the Department contends that gross negligence is a jurisdictional prerequisite to the Mirandas' claims and that its 

evidence affirmatively negates gross negligence. The 

Department further argues that because the Mirandas 

failed to plead specific facts alleging gross negligence 

in their petition or introduce evidence to controvert the 

evidence in the Department's plea, they failed to establish subject matter jurisdiction to proceed with the 

litigation.

After originally dismissing the petition for want 

of jurisdiction, we granted the Department's petition 

on motion for rehearing. Before we consider the 

substantive issues presented, we first determine 

whether we have jurisdiction over this interlocutory 

appeal.

II. Conflicts Jurisdiction

[1] When there is no dissent in the court of appeals, this Court has jurisdiction over interlocutory 

appeals only if the court of appeals' decision “holds 

differently” or conflicts with “a prior decision of 

another court of appeals or of the supreme court on a 

question of law material to a decision of the case.”

TEX. GOV'T CODE 22.001(a)(2); FN3 *223Schein v. 

Stromboe, 102 S.W.3d 675, 687 (Tex.2002); Tex. 

Natural Res. Conservation Comm'n v. White, 46 

S.W.3d 864, 867 (Tex.2001). Two decisions conflict 

for purposes of establishing our jurisdiction under 

section 22.001(a)(2) when the two cases are so similar 

that the decision in one case is necessarily conclusive 

of the decision in the other. Schein, 102 S.W.3d at 

687–88; White, 46 S.W.3d at 867. “The conflict must 

be on the very question of law actually involved and 

determined, in respect of an issue in both cases, the 

test being whether one would operate to overrule the 

other in case they were both rendered by the same 

court.” Christy v. Williams, 156 Tex. 555, 298 S.W.2d 

565, 568–69 (1957) (citation omitted).

FN3. The Legislature amended section 

22.001 of the Government Code, effective 

September 1, 2003. Act of June 11, 2003, 

78th Leg., R.S., Ch. 204 (codified as section 

22.001(e) of the Texas Government Code). 

The amendment, which applies to actions 

filed on or after September 1, 2003 and does 

not govern our jurisdiction in this case, provides that “one court holds differently from 

another when there is inconsistency in their 

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respective decisions that should be clarified 

to remove unnecessary uncertainty in the law 

and unfairness to litigants.”

The Department contends that this Court has jurisdiction over its interlocutory appeal because the 

court of appeals' decision here conflicts with our opinion in Bland. In Bland, we held that a trial court “may 

consider evidence and must do so when necessary to 

resolve the jurisdictional issues raised.” 34 S.W.3d at 

555 (emphasis added). While recognizing that “a 

dilatory plea does not authorize an inquiry so far into 

the substance of the claims presented that plaintiffs are 

required to put on their case simply to establish jurisdiction,” we explained that “because a court must not 

act without determining that it has subject-matter 

jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with 

the case.” Id. at 554. “The court should, of course, 

confine itself to the evidence relevant to the jurisdictional issue.” Id. at 555.

In Bland, we included examples of when relevant 

evidence may be considered in determining whether 

jurisdiction has been established. See id. at 554. We 

also observed that when the defendant contends that 

the amount in controversy falls below the trial court's 

jurisdictional limit, the trial court should limit its 

inquiry to the pleadings. Id. In that situation, we concluded, “the plaintiff's pleadings are determinative 

unless the defendant specifically alleges that the 

amount was pleaded merely as a sham for the purpose 

of wrongfully obtaining jurisdiction.” Id.

[2][3] In this case, the court of appeals inaccurately stated and then misapplied Bland's holding. 55 

S.W.3d at 650–52. The court of appeals held that an 

inquiry behind the factual allegations pled in support 

of subject matter jurisdiction was improper unless the 

Department specifically alleged that the Mirandas' 

allegations were pled merely as a sham to wrongfully 

obtain jurisdiction. Id. at 652. This conflicts with our 

holding in Bland that a court must consider evidence 

when necessary to resolve the jurisdictional issues 

raised. 34 S.W.3d at 555; see also County of Cameron 

v. Brown, 80 S.W.3d 549, 556–57 (Tex.2002) (considering pleadings and limited jurisdictional evidence 

in evaluating forseeability element of premises defect 

claim under the Tort Claims Act); Tex. Dep't of 

Criminal Justice v. Miller, 51 S.W.3d 583, 587 

(Tex.2001) (examining pleadings and limited jurisdictional evidence to determine whether plaintiff affirmatively demonstrated waiver of sovereign immunity); White, 46 S.W.3d at 868 (analyzing the facts 

alleged by the plaintiff and to the extent relevant, 

evidence submitted by the parties, in considering 

whether plaintiff stated a claim for injuries caused by 

“motor-driven equipment” under the Tort Claims 

Act). *224 In Bland, our preclusion of a trial court's 

inquiry behind the facts pled in determining subject 

matter jurisdiction was limited to the jurisdictional 

amount. 34 S.W.3d at 554. Even this bar could be 

lifted, and evidence of the jurisdictional amount considered, in circumstances in which an adverse party 

asserts that the amount in controversy was pled as a 

sham to obtain jurisdiction.FN4 Id. That circumstance 

is not at issue here. Thus, the court of appeals' holding 

conflicts with the same question of law that we decided in Bland, and the opinions cannot stand together. 

Schein, 102 S.W.3d at 689. This conflict provides the 

basis for our jurisdiction to consider the merits of the 

plea. See Tex. Gov't Code § 22.001(a)(2).

FN4. The plaintiff's allegations in the petition 

of the amount in controversy control for jurisdictional purposes unless the party challenging jurisdiction pleads and proves that 

the plaintiff's allegations of the amount in 

controversy were made fraudulently for the 

purpose of obtaining jurisdiction. See Bland,

34 S.W.3d at 554; Cont'l Coffee Prods. Co. v. 

Cazarez, 937 S.W.2d 444, 449 (Tex.1996); 

Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263, 

263 (1886). We disapprove of courts of appeals' holdings that require a party to allege 

that pleadings, other than the jurisdictional 

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amount, are fraudulent in order for the trial 

court to consider evidence, when otherwise 

necessary, of whether it has jurisdiction over 

a case. See, e.g., Sullivan v. Wilmer Hutchins 

Indep. Sch. Dist., 47 S.W.3d 529, 531 

(Tex.App.-Dallas 2000), rev'd on other 

grounds, 51 S.W.3d 293 (Tex.2001); Denton 

County v. Howard, 22 S.W.3d 113, 117–18 

(Tex.App.-Fort Worth 2000, no pet.); Tex. 

Dep't of Mental Health & Mental Retardation v. Pearce, 16 S.W.3d 456, 460 

(Tex.App.-Waco 2000, pet. dism'd w.o.j.); 

Tex. State Employees Union/CWA Local 

6184 v. Tex. Workforce Comm'n, 16 S.W.3d 

61, 65, 66 (Tex.App.-Austin 2000, no pet.); 

DalMac Constr. Co. v. Tex. A & M Univ., 35 

S.W.3d 654, 655 n. 1 (Tex.App.-Austin 

1999), rev'd on other grounds, sub nom. Gen. 

Servs. Comm'n v. Little–Tex Insulation Co., 

Inc., 39 S.W.3d 591 (Tex.2001); Univ. of 

Houston v. Elthon, 9 S.W.3d 351, 356 

(Tex.App.-Houston [14th Dist.] 1999, pet. 

dism'd w.o.j.); Curbo v. State, Office of the 

Governor, 998 S.W.2d 337, 341–42 

(Tex.App.-Austin 1999, no pet.); City of Saginaw v. Carter, 996 S.W.2d 1, 3 

(Tex.App.-Fort Worth 1999, pet. dism-d 

w.o.j.); Bland Indep. Sch. Dist. v. Blue, 989 

S.W.2d 441, 447 (Tex.App.-Dallas 1999), 

rev'd, 34 S.W.3d 547 (Tex.2000).

III. The Department's Plea to the Jurisdiction

A. Sovereign Immunity

[4][5] In Texas, sovereign immunity deprives a 

trial court of subject matter jurisdiction for lawsuits in 

which the state or certain governmental units have 

been sued unless the state consents to suit. Tex. Dep't 

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); 

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 

(Tex.1997), superseded by statute on other grounds as 

stated in Little–Tex Insulation Co., 39 S.W.3d at 593;

Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); 

Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The 

Texas Tort Claims Act provides a limited waiver of 

sovereign immunity. TEX. CIV. PRAC. & 

REM.CODE §§ 101.001–.109. Sovereign immunity 

includes two distinct principles, immunity from suit 

and immunity from liability. Jones, 8 S.W.3d at 638;

Fed. Sign, 951 S.W.2d at 405. Immunity from liability 

is an affirmative defense, while immunity from suit 

deprives a court of subject matter jurisdiction. Jones, 8 

S.W.3d at 638; Fed. Sign, 951 S.W.2d at 405. The Tort 

Claims Act creates a unique statutory scheme in which 

the two immunities are co-extensive: “Sovereign 

immunity to suit is waived and abolished to the extent 

of liability created by this chapter.” TEX. CIV. PRAC. 

& REM.CODE § 101.025(a); State ex rel. State Dep't 

of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 

322, 326 (Tex.2002); Miller, 51 S.W.3d at 587. Thus, 

the Department is immune from suit unless the Tort 

Claims *225 Act expressly waives immunity. See

TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A)

(defining a governmental unit to include “all departments” of the state), 101.021, 101.025; White, 46 

S.W.3d at 868.

The Tort Claims Act expressly waives sovereign 

immunity in three areas: “ ‘use of publicly owned 

automobiles, premises defects, and injuries arising out 

of conditions or use of property.’ ” Brown, 80 S.W.3d 

at 554 (quoting Tex. Dep't of Transp. v. Able, 35 

S.W.3d 608, 611 (Tex.2000)); see TEX. CIV. PRAC. 

& REM CODE § 101.021. Section 101.058 of the Tort 

Claims Act further modifies a governmental unit's 

waiver of immunity from suit by imposing the limitations of liability articulated in the recreational use 

statute. TEX. CIV. PRAC. & REM.CODE § 101.058

(“To the extent that Chapter 75 limits the liability of a 

governmental unit under circumstances in which the 

governmental unit would be liable under [the Tort 

Claims Act], Chapter 75 controls.”).

The recreational use statute provides:

If an owner, lessee, or occupant of real property 

other than agricultural land gives permission to 

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another to enter the premises for recreation, the 

owner, lessee, or occupant, by giving the permission, does not:

(1) assure that the premises are safe for that purpose;

(2) owe to the person to whom permission is 

granted a greater degree of care than is owed to a 

trespasser on the premises; or

(3) assume responsibility or incur liability for any 

injury to any individual or property caused by any 

act of the person to whom permission is granted.

Id. § 75.002(c)(1)-(3). Recreational use includes 

camping and picnicking, the activities in which the 

Mirandas were engaged at the state park when Maria 

was injured. Id. § 75.001(3). As applied to a governmental unit, the recreational use statute limits liability 

even if the person pays to enter the premises. Id. § 

75.003(c) (excepting governmental units from the 

chapter's exclusion of landowners who charge a fee 

for recreational use of land).

[6][7] The recreational use statute limits the Department's duty for premises defects to that which is 

owed a trespasser.FN5 Id. The limited duty owed a 

trespasser is not to injure that person willfully, wantonly, or through gross negligence. Tex. Utils. Elec. 

Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997). 

Therefore, a governmental unit waives sovereign 

immunity under the recreational use statute and the 

Tort Claims Act only if it is grossly negligent. TEX. 

CIV. PRAC. & REM.CODE § 75.002(c)-(d); City of 

Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex.2002); 

Timmons, 947 S.W.2d at 193. “[G]ross negligence 

involves two components: (1) viewed objectively 

from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, 

considering the probability and magnitude of the potential harm to others; and (2) the actor must have 

actual, subjective awareness of the risk involved, but 

nevertheless proceed in conscious indifference to the 

rights, safety, or welfare of others.” Louisiana–Pacific 

Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999)

(citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 

(Tex.1994)).

FN5. The recreational use statute does not 

limit the liability of an owner, lessee, or occupant “who has been grossly negligent or 

has acted with malicious intent or in bad 

faith.” TEX. CIV. PRAC. & REM.CODE 

75.002(d).

B. Standard of Review

[8][9] Sovereign immunity from suit defeats a 

trial court's subject matter jurisdiction*226 and thus is 

properly asserted in a plea to the jurisdiction. Jones, 8 

S.W.3d at 637; see also Hosner, 1 Tex. at 769 (recognizing as appropriate procedure the challenge of a 

courts subject matter jurisdiction through a plea to the 

jurisdiction). The trial court must determine at its 

earliest opportunity whether it has the constitutional or 

statutory authority to decide the case before allowing 

the litigation to proceed. Austin & N.W.R. Co. v. 

Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903)

(“[T]here can be no doubt that the courts of Texas 

must look to the Constitution of this state, the enactments of the Legislature, and the common law for 

their authority to proceed ....);” see also State Bar of 

Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994) (“As 

a general proposition, before a court may address the 

merits of any case, the court must have jurisdiction 

over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter 

the particular judgment, and capacity to act as a 

court.)”; Gentry v. Bowser, 2 Tex.Civ.App. 388, 21 

S.W. 569, 570 (Fort Worth 1893, no writ) (“Certainly 

the court has the right to hear the necessary evidence 

to enable it to decide as to whether or not it has power 

to try the case it is sought to have it adjudicate, 

whether the allegations disclosing such want of jurisdiction appear in the petition of the plaintiff, or in the 

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plea to the jurisdiction by the defendant.”).

[10][11][12] Whether a court has subject matter 

jurisdiction is a question of law. Tex. Natural Res. 

Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 

855 (Tex.2002). Whether a pleader has alleged facts 

that affirmatively demonstrate a trial court's subject 

matter jurisdiction is a question of law reviewed de 

novo. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction 

is also a question of law. However, in some cases, 

disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by 

the finder of fact. See Gates v. Pitts, 291 S.W. 948, 

949 (Tex.Civ.App.-Amarillo 1927, no writ); Gentry,

21 S.W. at 570; see also Valentin v. Hosp. Bella Vista,

254 F.3d 358, 363 n. 3 (1st Cir.2001) (observing that 

in certain situations, the predicate facts can be so 

inextricably linked to the merits of the controversy 

that the district court may “defer resolution of the 

jurisdictional issue until the time of trial”); Cameron 

v. Children's Hosp. Med. Ctr., 131 F.3d 1167, 1170 

(6th Cir.1997) (“[W]hether a district court has subject 

matter jurisdiction is a question for the court, not a 

jury, to decide, even if the determination requires 

making factual findings, unless the jurisdictional issue 

is inextricably bound to the merits of the case.”); Williamson v. Tucker, 645 F.2d 404, 413 n. 6, 416 n. 10 

(5th Cir.1981) (suggesting that a federal district 

court's role in determining jurisdictional facts may be 

more limited in cases in which the jurisdictional attack 

implicates the merits of plaintiff's cause of action). In 

this case, we address a plea to the jurisdiction in which 

undisputed evidence implicates both the subject matter jurisdiction of the court and the merits of the case.

[13][14][15] 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. Tex. Ass'n of Bus. 

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 

(Tex.1993). We construe the pleadings liberally in 

favor of the plaintiffs and look to the pleaders' intent. 

Id. If the pleadings do not contain sufficient facts to 

affirmatively demonstrate the trial courts jurisdiction 

but do not affirmatively demonstrate incurable defects 

in jurisdiction, the issue is one of pleading sufficiency 

and the plaintiffs*227 should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. If the 

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted 

without allowing the plaintiffs an opportunity to 

amend. Id.

[16][17][18] However, if 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. See Bland,

34 S.W.3d at 555 (confining the evidentiary review to 

evidence that is relevant to the jurisdictional issue). 

When the consideration of a trial court's subject matter 

jurisdiction requires the examination of evidence, the 

trial court exercises its discretion in deciding whether 

the jurisdictional determination should be made at a 

preliminary hearing or await a fuller development of 

the case, mindful that this determination must be made 

as soon as practicable. Id. at 554. Then, in a case in 

which the jurisdictional challenge implicates the merits of the plaintiffs' cause of action and the plea to the 

jurisdiction includes evidence, the trial court reviews 

the relevant evidence to determine if a fact issue exists. The United States Supreme Court and all of the 

federal circuits have authorized federal district courts 

to consider evidence in deciding motions to dismiss 

for lack of subject matter jurisdiction. See

FED.R.CIV.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, 

735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209, (1947), 

overruled by implication on other grounds by Larson 

v. Domestic & Foreign Commerce Corp., 337 U.S. 

682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (observing 

that as a general rule, district courts have authority to 

inquire “into the facts as they exist” “by affidavits or 

otherwise” as well as the pleadings when determining 

whether the court has subject matter jurisdiction).FN6 If 

the evidence*228 creates a fact question regarding the 

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jurisdictional issue, then the trial court cannot grant 

the plea to the jurisdiction, and the fact issue will be 

resolved by the fact finder. However, if the relevant 

evidence is undisputed or fails to raise a fact question 

on the jurisdictional issue, the trial court rules on the 

plea to the jurisdiction as a matter of law.

FN6. See, e.g., Harris v. P.A.M. Transp., 

Inc., 339 F.3d 635, 637 n. 4 (8th Cir.2003)

(acknowledging district court's authority to 

consider matters outside the pleadings when 

subject matter jurisdiction is challenged under Rule 12(b)(1)); Johnson v. Apna Ghar, 

Inc., 330 F.3d 999, 1001 (7th Cir.2003)

(observing that when considering a motion 

for dismissal for lack of subject matter jurisdiction, “ ‘[t]he district court may properly ... 

view whatever evidence has been submitted 

on the issue’ ” (quoting Long v. Shorebank 

Dev. Corp., 182 F.3d 548, 554 (7th 

Cir.1999))); Sizova v. Nat'l Inst. of Standards 

& Tech., 282 F.3d 1320, 1324 (10th 

Cir.2002) (noting district court's “ ‘wide 

discretion to allow affidavits, other documents, and a limited evidentiary hearing to 

resolve disputed jurisdictional facts under 

Rule 12(b)(1)’ ” (quoting Holt v. United 

States, 46 F.3d 1000, 1003 (10th Cir.1995))); 

Valentin, 254 F.3d at 363 (district court has 

“broad authority to order discovery, consider 

extrinsic evidence, and hold evidentiary 

hearings in order to determine its own jurisdiction”); Ass'n of Am. Med. Colls. v. United 

States, 217 F.3d 770, 778 (9th Cir.2000) (“

‘district court obviously does not abuse its 

discretion by looking to ... extra-pleading 

material’ ” in deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction (quoting St. Clair v. City of Chico,

880 F.2d 199, 201 (9th Cir.1989))); Makarova v. United States, 201 F.3d 110, 113 (2d 

Cir.2000) (allowing district court to “refer to 

evidence outside the pleadings” to resolve a 

Rule 12(b)(1) motion); Williams v. United 

States, 50 F.3d 299, 304 (4th Cir.1995) (“In 

ruling on a Rule 12(b)(1) motion, the court 

may consider exhibits outside the pleadings.”); Moran v. Kingdom of Saudi Arabia,

27 F.3d 169, 172 (5th Cir.1994) (acknowledging a trial court's “authority to consider 

evidence presented beyond the pleadings ... 

which may include considering affidavits, 

allowing further discovery, hearing oral testimony, conducting an evidentiary hearing”); 

Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 

197 (D.C.Cir.1992) ( “[W]here necessary, 

the court may consider the complaint supplemented by undisputed facts evidenced in 

the record, or the complaint supplemented by 

undisputed facts plus the court's resolution of 

disputed facts.”); Lawrence v. Dunbar, 919 

F.2d 1525, 1529 (11th Cir.1990) (noting that 

“substantial authority” acknowledges the 

trial court's freedom to consider disputed 

evidence when deciding a Rule 12(b)(1)

motion) (citations omitted); Gould, Inc. v. 

Pechiney Ugine Kuhlmann, 853 F.2d 445, 

451 (6th Cir.1988) (“[T]he district court may 

consider affidavits, allow discovery, hear 

oral testimony, order an evidentiary hearing, 

or even postpone its determination if the 

question of jurisdiction is intertwined with 

the merits.”); Mortensen v. First Fed. Sav. & 

Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)

(acknowledging that “substantial authority”

allows trial courts to weigh the evidence of 

disputed facts when considering a Rule 

12(b)(1) motion); see also 5A Charles Alan 

Wright & Arthur R. Miller, Federal Practice 

and Procedure § 1364, at 468–469 (2d 

ed.1990).

[19][20] We acknowledge that this standard 

generally mirrors that of a summary judgment under 

Texas Rule of Civil Procedure 166a(c). We adhere to 

the fundamental precept that a court must not proceed 

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on the merits of a case until legitimate challenges to its 

jurisdiction have been decided. This standard accomplishes this goal and more. It also protects the interests 

of the state and the injured claimants in cases like this 

one, in which the determination of the subject matter 

jurisdiction of the court implicates the merits of the 

parties' cause of action. The standard allows the state 

in a timely manner to extricate itself from litigation if 

it is truly immune. However, by reserving for the fact 

finder the resolution of disputed jurisdictional facts 

that implicate the merits of the claim or defense, we 

preserve the parties' right to present the merits of their 

case at trial. Similar to the purpose of a plea to the 

jurisdiction, which is to defeat a cause of action for 

which the state has not waived sovereign immunity 

(usually before the state has incurred the full costs of 

litigation), the purpose of summary judgments in 

Texas is “ ‘to eliminate patently unmeritorious claims 

and untenable defenses.’ ” Casso v. Brand, 776 

S.W.2d 551, 556 (Tex.1989) (quoting City of Houston 

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 

(Tex.1979)). By requiring the state to meet the summary judgment standard of proof in cases like this one, 

we protect the plaintiffs from having to “put on their 

case simply to establish jurisdiction.” Bland, 34 

S.W.3d at 554. Instead, after the state asserts and 

supports with evidence that the trial court lacks subject 

matter jurisdiction, we simply require the plaintiffs, 

when the facts underlying the merits and subject 

matter jurisdiction are intertwined, to show that there 

is a disputed material fact regarding the jurisdictional 

issue. See Huckabee v. Time Warner Entm't Co. L.P.,

19 S.W.3d 413, 420 (Tex.2000); Phan Son Van v. 

Pena, 990 S.W.2d 751, 753 (Tex.1999).

[21][22] Appellate courts reviewing a challenge 

to a trial court's subject matter jurisdiction review the 

trial court's ruling de novo. IT–Davy, 74 S.W.3d at 

855. When reviewing a plea to the jurisdiction in 

which the pleading requirement has been met and 

evidence has been submitted to support the plea that 

implicates the merits of the case, we take as true all 

evidence favorable to the nonmovant. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 

(Tex.1997). We indulge every reasonable inference 

and resolve any doubts in the nonmovant's favor. Id.

[23] In his dissent JUSTICE JEFFERSON criticizes this standard of review as depriving plaintiffs 

responding to a plea of the procedural protections of a 

motion for summary judgment, including a twenty-*229 one day notice period or an adequate time to 

conduct discovery. TEX.R. CIV. P. 166a(c), 166a(i). 

However, the scheduling of a hearing of a plea to the 

jurisdiction is left to the discretion of the trial court, 

which is in the best position to evaluate the appropriate time frame for hearing a plea in any particular case. 

This procedure does not dramatically differ from that 

outlined in Texas Rule of Civil Procedure 120a governing special appearances. Although Rule 120a

requires any affidavits to be used at a hearing on a 

special appearance to be served at least seven days 

before the hearing, it does not specify the length of a 

notice period and is therefore presumably subject to 

the three-day notice period of Rule 21. TEX.R. CIV. 

P. 21. Rule 120a allows the trial court to order a continuance and allow time for discovery if the development of the case requires it. Nothing prevents a trial 

court from doing the same with a plea to the jurisdiction where evidence is necessary.

Many other procedures in Texas practice ranging 

from a trial court's rulings on motions to strike intervention to the timing of a class certification decision to 

even the alteration of the summary judgment notice 

periods—also “depend[ ] ... upon the wise exercise of 

discretion by the trial court.” Union Carbide Corp. v. 

B.D. Moye, 798 S.W.2d 792, 794 (Tex.1990) (Hecht, 

J., concurring); see, e.g., TEX.R. CIV. P. 42(c)(1)(A)

(directing a trial court to determine whether a suit may 

be maintained as a class action “at an early practicable 

time”); TEX.R. CIV. P. 166a(c) (“Except on leave of 

court, with notice to opposing counsel, the motion and 

any supporting affidavits shall be filed and served at 

least twenty-one days before the time specified for 

hearing.”) (emphasis added); Guaranty Fed. Sav. 

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Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 

657 (Tex.1990) (observing that the trial court has 

broad discretion in ruling on a motion to strike intervention, even though Rule 60 does not provide explicit 

guidelines for the scheduling of a hearing or the 

evaluation of evidence). Thus, the Texas civil procedural scheme entrusts many scheduling and procedural issues to the sound discretion of the trial court, 

subject to appellate review. Of course, Texas practice 

and rules also allow the parties to request additional 

time to prepare for certain hearings or to conduct 

discovery upon a showing of sufficient cause, and the 

court's ruling on such a motion is reviewed for an 

abuse of discretion. See, e.g., TEX.R. CIV. P. 166a(g), 

247, 251, 252. We note, also, that federal practice does 

not prescribe a procedure for the consideration of 

jurisdictional evidence but instead allows the district 

courts to tailor a method to suit the requirements of the 

cases before them. Land, 330 U.S. at 735 n. 4, 67 S.Ct. 

1009; Moran, 27 F.3d at 172. In any event, the Mirandas do not complain that they had an inadequate 

opportunity to conduct sufficient discovery, nor did 

they request a continuance to do so.

C. Waiver of Immunity Based on Premises Defects

1. The Mirandas' Pleadings

[24] The Mirandas contend that their pleadings 

fall within the Tort Claims Act's waiver of immunity 

for both premises defects and injuries arising out of 

conditions or use of property. The Act provides that a 

state agency is liable for injury and death caused by “a 

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 § 101.021(2). The 

Mirandas' pleadings allege injuries caused by a falling 

tree limb, which falls under the definition of real 

property i.e., “ ‘land, and generally whatever is erected 

or growing upon or affixed *230 to land.’ ” San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 

(Tex.2000) (quoting Chastain v. Koonce, 700 S.W.2d 

579, 584 (Tex.1985) (Gonzalez, J., concurring)). The 

Mirandas' allegation of an injury caused by a tree limb 

falling on Maria Miranda constitutes an allegation of a 

condition or use of real property and is an allegation of 

a premises defect.

To state a claim under the recreational use statute, 

the Mirandas must allege sufficient facts to establish 

that the Department was grossly negligent. See TEX. 

CIV. PRAC. & REM.CODE §§ 75.002(c)-(d), 

101.021, 101.025, 101.058. The Mirandas contend 

that both their allegations and the evidence presented 

on the plea establish claims of gross negligence. 

Looking first to the relevant factual allegations in the 

third amended petition, the Mirandas claim that (1) 

they specifically asked the Department's employee for 

a recommendation of a safe camping location; (2) at 

the campsite, Maria was struck by a falling tree branch 

that severely injured her; (3) the unpruned, uninspected tree branches created a dangerous, defective 

condition on the premises of which the Department 

was aware; (4) the Department knew of the dangers of 

its falling tree branches but failed to inspect, prune, 

alleviate the dangers, or otherwise make safe the 

dangerous conditions of its trees; (5) the Department 

consciously and deliberately failed to warn the Mirandas of the extremely dangerous condition; and (6) 

the Department's conduct was willful, wanton, or 

grossly negligent. A liberal construction of these allegations, as required, demonstrates that the Mirandas 

stated a claim against the Department for gross negligence. This conclusion should not be read as a suggestion that the Department has a duty to inspect every 

tree in each of the many parks that the Department 

manages. Instead, in this case, the Mirandas alleged 

sufficient facts to survive a plea to the jurisdiction 

based solely on the pleadings.

JUSTICE JEFFERSON'S dissent contends that 

the Mirandas' third amended petition does not state a 

claim for gross negligence because the allegations are 

conclusory and do not assert enough specific facts 

alleging that the Department had “actual subjective 

awareness of the risk involved and proceeded, nevertheless, with conscious indifference. He suggests that 

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to state a claim the Mirandas should have pled that the 

Department had actual knowledge that the branch 

would fall yet nevertheless instructed Maria to camp 

beneath it.” 133 S.W.3d at 242. The pleading hurdle 

he seeks to erect would be groundbreaking, indeed, 

extending beyond current requirements under our 

rules of civil procedure and case law. Rules 45 and 47 

require that the original pleadings give a short statement of the cause of action sufficient to give the opposing party fair notice of the claim involved. TEX.R. 

CIV. P. 45, 47; Paramount Pipe & Supply Co., Inc. v. 

Muhr, 749 S.W.2d 491, 494 (Tex.1988); Castleberry 

v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 

(Tex.1981). Rule 45 does not require that the plaintiff 

set out in his pleadings the evidence upon which he 

relies to establish his asserted cause of action. Muhr,

749 S.W.2d at 494–95. While it is clear that “[t]he 

party suing the governmental entity must establish the 

state's consent, which may be alleged either by reference to a statute or to express legislative permission,”

Jones, 8 S.W.3d at 638, and that “[m]ere reference to 

the Tort Claims Act does not establish the state's 

consent to be sued and thus is not enough to confer 

jurisdiction on the trial court,” Miller, 51 S.W.3d at 

587, the Mirandas' pleadings allege sufficient facts to 

bring their claims under the recreational use statute 

and the Tort Claims Act.

*231 Although facts alleged in a petition should 

not be improperly stretched to state a claim for gross 

negligence, JUSTICE JEFFERSON'S pleading standard for gross negligence would be virtually impossible to meet, even when grossly negligent conduct 

occurred, absent an admission of liability. His standard requires specific factual allegations in an original 

petition of what the defendant knew and thought i.e.,

its state of mind. His pleading hurdle would require 

discovery into the very extrinsic facts which he bemoans consideration of in the plea to the jurisdiction. 

The Mirandas' third amended petition provided sufficient notice to ascertain the nature and basic issues of 

the controversy and the evidence that probably would 

be relevant.

JUSTICE JEFFERSON also contends that the 

Mirandas are entitled to replead. As a practical matter, 

the Mirandas have already repled to try to cure the 

“defects” that JUSTICE JEFFERSON raises. The 

Mirandas no doubt filed their third amended petition, 

in which allegations of gross negligence were raised 

for the first time in this lawsuit, in response to the 

Department's plea to the jurisdiction. However, because the Mirandas' third amended petition satisfies 

the notice pleading requirements of our procedural 

rules, the Mirandas do not need, nor are they entitled 

to, an opportunity to replead. See TEX.R. CIV. P. 47.

2. The Department's Evidence

[25] The Department challenged the Mirandas' 

pleadings and also submitted evidence to controvert 

the factual allegations supporting jurisdiction. We 

consider the relevant evidence submitted to decide this 

jurisdictional challenge. See Bland, 34 S.W.3d at 555.

The Department attached the deposition testimony of 

Craig VanBaarle, the assistant park manager for 

Garner State Park, to its plea to the jurisdiction. 

VanBaarle testified that while the park normally inspects and maintains its trees, tree limbs are only 

pruned or trimmed if they appear to be dead. According to VanBaarle, the tree limb that fell on Maria 

was living. He testified that both dead and living tree 

limbs have fallen at various locations in the park. He 

testified that the park knows that tree limbs can fall 

and have fallen on approximately twenty occasions. 

However, no one had ever been injured by falling tree 

limbs. He also testified that the tree limb that injured 

Maria Miranda fell from fifty feet above the campsite 

and that the park employees would not have been able 

to see the limb clearly without climbing the tree even 

if the limb had been dead.

In addition, the Department attached the affidavit 

of Roy B. Inks, operations and maintenance specialist 

at Garner State Park. Inks' responsibilities included 

supervision of park maintenance including preservation and maintenance of trees at campsites. According 

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to his affidavit, Inks inspected the campsite after the 

accident. His examination of the tree and the fallen 

branch failed to reveal any indication that the branch 

was dead, decaying, or in need of pruning. Inks opined 

that there was no reason to conclude that the tree 

presented a dangerous or hazardous condition. Inks 

further opined that the branch that struck Maria “broke 

away from the tree as a result of an unpredictable and 

unforseeable phenomenon known as ‘sudden branch 

drop syndrome.’ ” Inks explained that “[i]t would be 

rare for anyone to be able to predict which branches 

will fall and which ones will not” as a result of this 

phenomenon. The Mirandas cite the Department's 

evidence as proof that the Department knew about 

sudden branch drop syndrome and did nothing about 

it, thus establishing gross negligence. The Mirandas 

did not cite any controverting evidence in their response to the Department's plea.

*232 We first examine this evidence to determine 

whether it establishes that the Department was grossly 

negligent. We have observed that with regard to the 

subjective component of gross negligence, it is the 

defendant's state of mind whether the defendant knew 

about a peril but nevertheless acted in a way that 

demonstrated that he did not care about the consequences that separates ordinary negligence from gross 

negligence. Louisiana–Pacific, 19 S.W.3d at 246–47.

We search the record for evidence that the Department's acts or omissions demonstrate that it did not 

care about the consequences to the Mirandas of a 

known extreme risk of danger. The Mirandas fail to 

point to any evidence, and the record contains no 

evidence, that shows that sudden branch drop syndrome constitutes an extreme risk of danger or that the 

Department had actual, subjective knowledge of that 

risk but nevertheless proceeded in conscious disregard 

for the safety of others. Nor is there any evidence that 

the Department could have taken any reasonable steps 

to minimize the dangers of an “unforseeable” and 

“unpredictable” phenomenon. We conclude that the 

evidence in the record establishes that the Department 

was not grossly negligent and that the Mirandas have 

failed to raise a fact question regarding the Department's alleged gross negligence. The Mirandas fall 

short of satisfying the requirements for the Legislature's limited grant of a waiver of sovereign immunity 

from suit under the applicable statutes. Therefore, the 

trial court lacked subject matter jurisdiction.

3. Dissent

In his dissent, JUSTICE BRISTER takes the view 

that all pleas to jurisdiction based on immunity must 

take the form of two “standard” or “established” motions—either special exceptions or motions for summary judgment. 133 S.W.3d at 239–40. This approach 

might be appropriate, if we were starting from scratch. 

Given that we are not writing on a blank slate, that 

pleas have been a useful procedural vehicle in Texas 

for over 150 years, and that use of its counterpart 

(Federal Rule of Civil Procedure 12(b)(1)) to challenge subject matter jurisdiction in the federal judicial 

system when evidence is involved has been authorized 

by every federal circuit court, the Court declines to 

abolish by written opinion such pleas to the jurisdiction.

The plea to the jurisdiction was included in procedural rules promulgated by this Court in 1877 and 

has been used as a procedural vehicle to challenge 

subject matter jurisdiction in trial courts for over a 

century and a half. See TEX.R. CIV. P. 85; TEX. 

DIST. CT. R. 7, 47 Tex. 597, 617 (1877); Hosner, 1 

Tex. at 769. In fact, as early as 1893, Texas courts 

indicated that evidentiary challenges to subject matter 

jurisdiction raised in pleas to the jurisdiction should be 

considered by trial courts. See, e.g., Gates, 291 S.W. at 

949; Gentry, 21 S.W. at 570. With such a long lineage, 

one wonders why a plea to jurisdiction does not qualify as a “standard” or “established” motion. Perhaps a 

second mention in the Texas Rules of Civil Procedure 

would suffice.

We decide that refining the rules for considering a 

plea supported by evidence is a better approach than 

eliminating the motion. This approach is consistent 

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with precedent, is not disruptive to civil practice going 

back more than a century, and furthers the legislative 

purpose of timely adjudicating subject matter jurisdiction when the immunity and liability facts are the 

same.

There is a suggestion in the dissents that confirming in this opinion the authority of trial courts to 

consider evidence in a plea to the jurisdiction is unfair 

to the *233 parties in this case. The facts undercut this 

assertion. At the trial court, both parties relied on 

extrinsic evidence in briefing the plea, and both parties 

had extrinsic evidence on file with the court. Furthermore, plaintiffs expressly stated in their response 

to the plea that they were relying on “Defendants' 

responses to discovery requests, and upon the deposition of Craig VanBaarle [the Department's assistant 

park manager].” In fact, the Mirandas deposed VanBaarle months before the Department filed its plea. 

There is good reason why Plaintiffs have not argued 

unfair surprise. Given Texas precedents and the actions of the parties, there was none.

D. Waiver of Immunity Based on Condition or Use 

of Tangible Property

[26] The Mirandas assert that their pleadings also 

state a cause of action for injuries resulting from a 

condition or use of tangible property. The allegations' 

in the Mirandas third amended petition concern only 

the Department's failure to act to reduce risks of falling tree limbs and failure to warn the Mirandas of the 

risk of falling tree limbs. These allegations comprise 

the elements of their premises defect claim. The Tort 

Claims Act's scheme of a limited waiver of immunity 

from suit does not allow plaintiffs to circumvent the 

heightened standards of a premises defect claim contained in section 101.022 by re-casting the same acts 

as a claim relating to the negligent condition or use of 

tangible property. See State v. Tennison, 509 S.W.2d 

560, 562 (Tex.1974) (rejecting the argument that the 

Tort Claims Act “creates two entirely separate 

grounds of liability” for negligent use or condition of 

real property and premise defect, but instead interpreting the premises defect provision to further limit 

the waiver of immunity for negligent use or condition 

of real property). Other 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. See, e.g., State v. Estate of 

Horton, 4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no 

pet.) (stating that once a claim is determined to be a 

premises defect, the claimant is limited to the provisions delineated by the section on premises defects 

and may not assert a general negligence theory); accord Laman v. Big Spring State Hosp., 970 S.W.2d 

670, 671–72 (Tex.App.-Eastland 1998, pet. denied); 

Univ. of Texas Pan Am. v. Valdez, 869 S.W.2d 446, 

450 (Tex.App.-Corpus Christi 1993, writ denied); 

Hawley v. State Dep't of Highways and Pub. Transp.,

830 S.W.2d 278, 281 (Tex.App.-Amarillo 1992, no 

writ). Accordingly, we conclude that the Mirandas 

have not established a cause of action under the Tort 

Claims Act for condition or use of tangible property 

separate from their premises defect claim.

IV. Conclusion

Trial courts should decide dilatory pleas early at 

the pleading stage of litigation if possible. Here, the 

Legislature's mandate is not so simple. By statute, 

waiver of sovereign immunity for recreational use of 

the Department's premises can only be effected by a 

showing that it acted with gross negligence. Due to the 

standard erected (gross negligence), the determination 

of whether immunity was waived may require consideration of extrinsic facts after reasonable opportunity for targeted discovery. To preclude consideration 

of extrinsic facts when necessary to decide a plea to 

the jurisdiction would require a trial on the merits for 

many cases that do not need it, waste the resources of 

the courts and the parties in the case, and *234 involve 

state courts in rulings on the merits in cases over 

which they have no jurisdiction.

For the reasons explained, we conclude that the 

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Department established that it was not grossly negligent and that the Mirandas failed to raise a fact issue 

on that point. Thus, the trial court lacked subject 

matter jurisdiction over the action. The judgment of 

the court of appeals is reversed and the Mirandas' 

action dismissed for lack of subject matter jurisdiction.

Justice JEFFERSON filed a dissenting opinion.

Justice BRISTER filed a dissenting opinion, in which 

Justice O'NEILL and Justice SCHNEIDER joined.

Justice JEFFERSON, dissenting.

I dissent on two grounds. First, I do not agree that 

our precedent requires the Mirandas to produce evidence on all essential elements of their cause of action 

to establish the trial court's jurisdiction. The Court's 

holding is inconsistent with the distinction Bland

draws between requiring the plaintiff to prove preliminary facts as a predicate to the trial court's power 

to entertain the merits, and requiring her to present the 

merits themselves on pain of dismissal. Bland Indep. 

School Dist. v. Blue, 34 S.W.3d 547 (Tex.2000).

FN1

FN1. I agree that the court of appeals' holding 

conflicts with Bland to the extent it holds that 

the trial court was prohibited from inquiring 

into the merits because “... the Department 

did not specifically allege that the Mirandas 

allegations were pled merely as a sham for 

the purpose of wrongfully obtaining jurisdiction.” 55 S.W.3d 648, 652. Bland does not 

require that form of defensive pleading as the 

sole gateway through which the trial court 

may consider evidence. If that were so, we 

could not have held that there are limited 

circumstances in which, even in the absence 

of a defendant's pleading that the plaintiff's 

pleadings were a sham, the trial court is required to consider evidence. I depart from the 

Courts holding, however, that this is such a 

case.

Second, I cannot agree that the Mirandas' pleading has alleged sufficient facts to confer jurisdiction 

on the trial court. The Mirandas assert that the Department was aware that branches fall from trees, but 

consciously chose not to post warnings. Is that gross 

negligence? No. Texas law does not impose on landowners a duty to warn trespassers about all conceivable dangers inherent in nature. What if you add 

the allegation that the Department did not inspect or 

prune trees in Garner State Park? The Court today 

makes clear that the Department has no duty to inspect trees in state parks. 133 S.W.3d 242. If there is 

no duty, a complaint about the failure to inspect or 

prune cannot possibly constitute a gross negligence 

pleading sufficient to invoke the courts jurisdiction.

But the Mirandas used the words “gross negligence.”

Not enough. The Mirandas pleaded no facts even 

remotely suggesting the Department was aware the 

limb was about to fall, much less that it would injure 

Maria.

I

Bland, in Proper Context

In deciding a plea to the jurisdiction, the trial 

court must consider evidence “when necessary to 

resolve the jurisdictional issues raised.” Bland, 34 

S.W.3d at 555. That quote must be read in context. We 

noted that when a defendant challenges an organization's standing to sue, the organization must present 

evidence of its nature and purpose before it can pursue 

its claims—a burden that “does not involve a significant inquiry into the substance of the claims.” Id. at 

554. Similarly, we *235 observed that a challenge to 

personal jurisdiction may “touch on the merits of the 

case,” but is not aimed at “whether the defendant may 

be liable as alleged.” Id. at 555. That theme—that a 

plaintiff is not required to litigate the merits to establish jurisdiction—was emphasized throughout our 

opinion. Id. at 554. We cautioned that “the proper 

function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented 

that plaintiffs are required to put on their case simply 

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to establish jurisdiction.” Id.

I interpret Bland to mean that if a plea to the jurisdiction requires the trial court to wade deeply into 

the lawsuit's merits, it is not a valid plea. Yet today the 

Court immerses itself in the merits by reaching and 

deciding the ultimate issue in the case: “... the evidence in the record establishes that the Department 

was not grossly negligent and that the Mirandas have 

failed to raise a fact question regarding the Department's alleged gross negligence.” 133 S.W.3d at 221 

(emphasis added). This holding misapplies Bland

because it permits a defendant, on painfully short 

notice and before evidence has been developed, to 

force the plaintiff either to present evidence on the 

ultimate issue in the lawsuit, or lose the right to a jury 

trial on the merits.

The Court asserts that its standard “mirrors that of 

a summary judgment....” 133 S.W.3d 228. It is a poor 

reflection. Our summary judgment rule, unlike the 

Court's standard, contains procedural safeguards to 

ensure that the merits are not determined before the 

nonmovant has had an adequate time for discovery 

and an opportunity to respond. TEX.R. CIV. P. 

166a(c) (“Except on leave of court, with notice to 

opposing counsel, the motion and any supporting 

affidavits shall be filed and served at least twenty-one 

days before the time specified for hearing. Except on 

leave of court, the adverse party, not later than seven 

days prior to the day of hearing may file and serve 

opposing affidavits or other written response.”); 

166a(i) (“After adequate time for discovery, a party 

without presenting summary judgment evidence may 

move for summary judgment on the ground that there 

is no evidence of one or more essential elements of a 

claim or defense....)”. As a uniform rule of procedure, 

the summary judgment rule leaves little to the imagination. A party whose claim is subject to adjudication 

on the merits is entitled to advance notice that it must 

present evidence and has an adequate opportunity to 

respond.FN2 The procedure the Court adopts today, in 

contrast, will vary from county to county and from 

judge to judge.

FN2. The prevailing view appears to be that 

the timeline is strictly enforced. See Luna v. 

Estate of Rodriguez, 906 S.W.2d 576, 582 

(Tex.App.-Austin 1995, no writ) (“Because 

summary judgment is a harsh remedy, we 

strictly construe the twenty-one day time 

limit.”). Accord Burns Motors, Inc. v. Gulf 

Ins. Co., 975 S.W.2d 810, 812 

(Tex.App.-Corpus Christi 1998) rev'd on 

other grounds, 22 S.W.3d 417 (Tex.2000); 

Martin v. Martin, Martin & Richards, Inc.,

991 S.W.2d 1, 11 (Tex.App.-Fort Worth 

1997) rev'd on other grounds, 989 S.W.2d 

357 (Tex.1998); Bell v. Showa Denko K.K.,

899 S.W.2d 749, 759 (Tex.App.-Amarillo 

1995, writ denied); Stephens v. Turtle Creek 

Apartments, Ltd., 875 S.W.2d 25, 27 

(Tex.App.-Houston [14th Dist.] 1994, no 

writ); Wavell v. Caller–Times Pub. Co., 809 

S.W.2d 633, 637 (Tex.App.-Corpus Christi 

1991, writ denied); Williams v. City of Angleton, 724 S.W.2d 414, 417 

(Tex.App.-Houston [1st Dist.] 1987, writ 

refd n.r.e.) disapproved of on other grounds,

876 S.W.2d 314 (Tex.1994).

The Court cites a number of federal decisions 

holding that when jurisdictional facts are intertwined 

with the merits, the trial court, in considering evidence, should either employ the standard applicable to 

a summary judgment or leave the jurisdictional*236

determination to trial. 133 S.W.3d 228; see also 2 

JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.30[3], at 12–37 to 12–38 (3d 

ed.2003). I do not disagree with that proposition, but it 

does not answer a fundamental question. This Court 

must decide what procedure governs in Texas when a 

plea to the jurisdiction is treated like a motion for 

summary judgment.

As JUSTICE BRISTER observes, no procedural 

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rule currently requires a trial court to advise the 

plaintiff that evidence may or must be presented in 

opposition to a plea to the jurisdiction, and no rule 

requires an adequate time for discovery before the 

court dismisses a case on the merits. 133 S.W.3d at 

237. By default, then, trial courts will turn to Rule 21. 

TEX.R. CIV. P. 21. Presumably, if a trial court's ruling 

comports with Rule 21's minimum procedural requirements, a dismissal on the merits will survive any 

challenge based on an abuse of discretion standard. 

We should ask ourselves, then, whether the Rule's 

minimum requirements are adequate when the stakes 

are no less than a party's ability to present its case on 

the merits.

Under Rule 21, a plea to the jurisdiction may be 

served “three days before the time specified for the 

hearing unless otherwise provided by these rules or 

shortened by the court.” Id. The rule does not mention 

an adverse party's right to present opposing evidence, 

which may explain why the Mirandas did not controvert the Department's plea with their own evidence. 

Compiling evidence of simple negligence on three 

days' notice—evidence that typically requires months 

of discovery—would be daunting in itself; but where, 

as here, a plaintiff must prove gross negligence, her 

ability to contest the Department's jurisdictional plea 

could be essentially non-existent.

The Mirandas had no reason to suspect that a 

summary judgment standard applied, requiring them 

to controvert the Department's evidence, because the 

Department's plea to the jurisdiction was subject to 

Bland. 34 S.W.3d at 554–55 (trial court not authorized 

to inquire so far into the substance of the claims presented that plaintiffs are required to put on their case 

simply to establish jurisdiction). At a minimum, I 

would hold that if a summary judgment standard applies, the trial court must so advise the parties and 

employ Rule 166a procedures.

II

Pleading Requirements Under Recreational Use 

Statute

Rather than dismiss the case on the merits under a 

summary judgment standard, I would examine the 

pleadings to determine whether the Mirandas alleged 

facts sufficient to invoke the trial court's jurisdiction. 

See Tex. Ass'n Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440, 446 (Tex.1993) (plaintiff has burden to 

allege facts affirmatively demonstrating that the trial 

court has subject matter jurisdiction). In my view, the 

Mirandas' pleading falls short. Just as the Department 

owes no duty to warn trespassers that rattlesnakes may 

strike, it owes no duty to advise statutory trespassers 

that tree limbs fall in state parks. The Mirandas did not 

allege that the Department had so much as an inkling 

that the branch in question would fall. See TEX. CIV. 

PRAC. & REM CODE § 41.001(7); see also Transp. 

Ins. Co. v. Moriel, 879 S.W.2d 10, 21–22 (Tex.1994)

(explaining that gross negligence requires at a minimum that the defendant subjectively “have actual 

awareness of the extreme risk created by his or her 

conduct”). Rather, she alleges that the Department is 

generally aware that tree limbs fall, just as it must 

know of countless other natural *237 perils in state 

parks. Because the Department owes no duty to warn 

trespassers that forces of nature may cause random 

harm, I would hold, contrary to the Courts conclusion, 

that the Mirandas pleading does not invoke the trial 

courts jurisdiction.

The Mirandas did not allege that the Department 

was subjectively aware of any specific risk of injury. 

See id. Instead, they alleged:

Defendant knew of the dangers of its falling tree 

branches, failed to inspect, failed to prune, failed to 

alleviate or remove the danger, and consciously and 

deliberately failed to warn Plaintiffs of the extremely dangerous condition. Plaintiffs paid a 

campsite rental fee and specifically asked defendant 

to assign them a safe campsite. Defendant knew that 

its property contained hidden, dangerous defect 

(sic) in that its tree branches which have not been 

inspected or pruned regularly fall. Defendant did 

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not warn Plaintiffs of the hidden danger.

* * *

Plaintiffs would show the court that the occurrence 

made the basis of this suit and the resulting damages 

set out below were a direct and proximate result of 

Defendants negligence and its agents, servants, and 

officers, both of commission or omission, or both 

separately and collectively, in failing to properly 

maintain and inspect the campsite where Plaintiffs 

were injured, in failing to properly maintain the 

campsite in a safe condition and/or in failing to exercise ordinary care to protect Plaintiffs from the 

danger.

The Mirandas' gross negligence allegations 

stated:

Plaintiffs would show the court that the occurrences 

made the basis of this suit and the resulting injuries 

and damages set out below were a direct and 

proximate result of Defendants negligence in failing 

to make safe the dangerous condition of its campsite 

trees. Defendant's conduct was willful, wanton, or 

grossly negligent. Defendant failed to warn or make 

reasonably safe the dangerous condition of which it 

was aware and which Plaintiffs were unaware.

We can accept as true the Mirandas' allegation 

that the Department knew “its tree branches which 

have not been inspected or pruned regularly fall” and 

did not warn them about that contingency. That 

pleading, however, is of neutral value in a suit against 

the Department, which would owe no duty to warn 

unless it had actual knowledge that the branch would 

fall yet nevertheless instructed Maria to camp beneath 

it. See id.; see also Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001) (reiterating that 

gross negligence requires that “the actor must have 

actual, subjective awareness of the risk involved, but 

nevertheless proceed in conscious indifference to the 

rights, safety, or welfare of others.”). Indeed, nowhere 

in their pleadings do the Mirandas assert that the Department was aware of any risk associated with either 

the tree or the campsite below. Instead, they simply 

recast allegations of simple negligence into a claim for 

gross negligence.

We are bound, however, to analyze their claims in 

light of the policies underlying the recreational use 

statute. The statute exists to encourage landowners to 

allow the public to enjoy outdoor recreation on their 

property by limiting their liability for personal injury. 

City of Bellmead v. Torres, 89 S.W.3d 611, 617 

(Tex.2002) (Hankinson, J. dissenting). To accomplish 

that objective, the Legislature has placed stringent 

parameters around the duty landowners owe “trespassers.” See TEX. CIV. PRAC. & REM CODE § 

75.002. The duty implicit in the Mirandas pleading, 

however, would require*238 the Department to warn 

all visitors of all perils commonly confronted by human interaction with nature. The scope of that proposed duty—obligating the Department to post 

warnings about all naturally occurring dangers—would create such an insurmountable practical 

and economic burden as to frustrate the legislatures 

intent to encourage landowners to make property 

available for recreational use.

Without allegations that the Department was 

aware that the limb would fall and nevertheless instructed Maria to camp below it, the Mirandas have 

not pleaded facts sufficient to proceed on their claim 

under the recreational use statute. I do not mean to 

suggest that merely because the injury is alleged to 

have resulted from a natural condition, the trial court 

is thereby deprived of jurisdiction. For example, the 

trial courts jurisdiction would be properly invoked by 

a pleading that the Department told the plaintiff it was 

safe to dive into waters the Department knew were so 

shallow that the dive posed a likelihood of serious 

injury, and that the plaintiff was severely injured diving in reliance on that assurance. Here, by contrast, 

the Mirandas did not plead that the Department directed Maria to a campsite knowing that an over-

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hanging tree branch would likely fall on her and cause 

serious injury.

I understand fully the Courts holding that the 

Mirandas gave “fair notice” that they were pursuing a 

gross negligence claim. Fair-notice pleadings, however, must be viewed in this case through the prism of 

sovereign immunity, which deprives a court of jurisdiction unless the State has expressly waived immunity. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 

(Tex.1999). The plaintiffs' pleadings against the State 

must affirmatively establish jurisdiction to overcome 

the contrary presumption. Tex. Dep't of Crim. Justice 

v. Miller, 51 S.W.3d 583, 587 (Tex.2001)(quoting 

Tex. Assn. Bus., 852 S.W.2d at 446). The plaintiff 

must plead facts that, if true, would establish that the 

claims come within an express waiver of sovereign 

immunity before the trial court has jurisdiction to 

proceed. Just as mere reference to the Texas Tort 

Claims Act is insufficient to confer jurisdiction, Miller, 51 S.W.3d at 587, the trial court's jurisdiction is 

not satisfied by mere notice that the plaintiff is pursuing a gross negligence claim. The Mirandas have 

failed to affirmatively establish the court's jurisdiction 

because, even if all of the facts alleged in their 

pleading were true, those facts would not amount to 

gross negligence and therefore would not establish a 

waiver of sovereign immunity under the recreational 

use statute.

When a plaintiff fails to plead facts establishing 

jurisdiction, the issue is ordinarily one of pleading 

sufficiency and the plaintiff should be afforded the 

opportunity to amend. County of Cameron v. Brown,

80 S.W.3d 549, 555 (Tex.2002). A court may grant a 

plea to the jurisdiction without affording an opportunity to amend only when the pleadings “affirmatively 

negate” the existence of jurisdiction, a circumstance 

not presented here. Id. In this case, however, the trial 

court overruled the Departments plea to the jurisdiction, concluding implicitly that the Mirandas pleadings were sufficient to confer jurisdiction, and the 

court of appeals affirmed. Consequently, the Mirandas 

have never been placed on notice that they must cure 

the jurisdictional defect. It may well be that the facts 

will not lend themselves to a pleading that would 

confer jurisdiction, but we are not equipped to make 

that determination at this stage of the proceedings.

III

Conclusion

We need not and should not inquire into the ultimate merits of this case. I would *239 remand the 

cause to the trial court to give the Mirandas an opportunity to amend their petition to plead facts establishing jurisdiction.

Justice BRISTER, joined by Justice O'NEILL and 

Justice SCHNEIDER, dissenting.

The Legislature has provided that state park visitors are owed the same duty of care as trespassers; FN1

thus, the plaintiffs in this case had to prove the Parks 

and Wildlife Department caused deliberate, wilful, or 

malicious injury.FN2 All members of the Court agree 

that either their petition or their summary judgment 

evidence fails to do so, though we disagree which.

FN1. TEX. CIV. PRAC. & REM.CODE §§ 

75.002(c)(2), 75.003(g).

FN2. Id. §§ 75.002(a)(2), 75.003, 101.022, 

101.058.

The Mirandas alleged Maria suffered severe injuries caused by the Department's gross negligence; 

specifically, they alleged the Department knew tree 

limbs could fall, and failed to warn them of that fact or 

assign them a campsite where none would. I have 

grave doubts whether such facts could possibly constitute gross negligence—natural conditions usually 

cannot be unreasonably dangerous (much less wanton),FN3 and trespassers do not have to be warned of 

what everyone should know.FN4 Nor does the Parks 

Department appear to have a duty to provide campsites safely away from trees; FN5 indeed, one has to ask 

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whether anyone would want to use such “parks” if it 

did.FN6

FN3. See Johnson County Sheriff's Posse, 

Inc. v. Endsley, 926 S.W.2d 284, 287 

(Tex.1996) (holding rock in dirt arena did not 

create unreasonably dangerous condition).

FN4. Cf. County of Cameron v. Brown, 80 

S.W.3d 549, 558 (Tex.2002) (holding darkness caused by failed streetlights was not 

open and obvious hazard precluding recovery 

by licensee because it could not be seen from 

entrance to causeway).

FN5. See TEX. CIV. PRAC. & REM.CODE 

§ 75.002(c)(1) (providing landowners who 

grant permission for recreational use do not 

assure that the premises are safe for that 

purpose).

FN6. See Tex. Home Mgmt., Inc. v. Peavy, 89 

S.W.3d 30, 33 (Tex.2002) (holding question 

of legal duty is question of law requiring 

balance of factors such as risk, utility, consequences of the duty, and other relevant individual and social interests).

Faced with what appears to be an insupportable 

allegation like the gross-negligence pleading here, 

litigants normally have two options: (1) demand more 

specific facts by special exception, or (2) demand 

more specific facts by motion for summary judgment. 

Instead, the Department filed three motions, including 

a “plea to the jurisdiction”—the white elephant FN7 of 

current Texas motion practice. By use of this plea, the 

Department was able to force the trial judge (and 

ultimately this Court) to make an ad hoc decision 

whether our jurisdiction should be determined by 

reference to pleadings or evidence. Because it should 

be litigants rather than judges making that choice, I 

respectfully dissent.

FN7. The OXFORD ENGLISH DICTIONARY (1989) defines “white elephant” as:

a. A rare albino variety of elephant which 

is highly venerated in some Asian countries. b. fig. A burdensome or costly possession (from the story that the kings of 

Siam were accustomed to make a present 

of one of these animals to courtiers who 

had rendered themselves obnoxious, in 

order to ruin the recipient by the cost of its 

maintenance). Also, an object, scheme, 

etc., considered to be without use or value.

Pleas to the jurisdiction are nothing new. In his 

Commentaries on the Laws of England, Blackstone 

lists them as a category of dilatory pleas that (along 

with pleas of disability and abatement) deny the *240

propriety of the remedy rather than the injury.FN8 One 

hundred years ago, this Court addressed a variety of 

matters as pleas to the jurisdiction, including objections based on personal jurisdiction,FN9 subject-matter 

jurisdiction,FN10 dominant jurisdiction,FN11 venue,FN12

capacity,FN13 and conflict of laws.FN14

FN8. 3 WILLIAM BLACKSTONE, 

COMMENTARIES ON THE LAWS OF 

ENGLAND 301–03 (1768).

FN9. See, e.g., Rice v. Peteet, 66 Tex. 568, 1 

S.W. 657, 657 (1886).

FN10. See, e.g., McIlhenny Co. v. Todd, 71 

Tex. 400, 9 S.W. 445, 446 (1888) (objecting 

that amount at issue fell below court's jurisdictional limits); Juneman v. Franklin, 67 

Tex. 411, 3 S.W. 562, 562 (1887) (objecting 

that forcible entry and detainer action was 

not filed in justice court).

FN11. See, e.g., Cleveland v. Ward, 116 Tex. 

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1, 285 S.W. 1063, 1072 (1926), disapproved 

on other grounds, Walker v. Packer, 827 

S.W.2d 833, 842 (Tex.1992); Grathaus v. 

Witte, 72 Tex. 124, 11 S.W. 1032, 1032 

(1888).

FN12. See, e.g., Pecos & N.T. Ry. Co. v. 

Thompson, 106 Tex. 456, 167 S.W. 801, 801 

(1914); Baines v. Jemison, 86 Tex. 118, 23 

S.W. 639, 640 (1893); Watson v. Baker, 67 

Tex. 48, 2 S.W. 375, 375–76 (1886).

FN13. See, e.g., Brown v. Gay, 76 Tex. 444, 

13 S.W. 472, 472–73 (1890).

FN14. See, e.g., Tex. & P. Ry. Co. v. Richards, 68 Tex. 375, 4 S.W. 627, 629 (1887).

Since then, there has been a steady shift away 

from the common-law forms of pleading to the more 

specific motion practice set out in the rules of civil 

procedure. For example, a defendant objecting to 

venue today must file a motion to transfer that complies with the form requirements of Rule 86 and the 

deadlines of Rule 87.FN15 Similarly, a nonresident 

objecting to personal jurisdiction must file a special 

appearance that meets the requirements of Rule 

120a.

FN16 In substance, these motions could still be 

categorized as “pleas to the jurisdiction;” but in form, 

they must comply with the current rules of civil procedure.

FN15. TEX.R. CIV. PROC. 86 (requiring 

unverified motion that is filed first and states 

counties of improper, proper, or mandatory 

venue); TEX.R. CIV. PROC. 87 (requiring 

45–days' notice of hearing, 30–days' notice 

of respondents affidavits, and 7–days' notice 

of movants affidavits).

FN16. TEX.R. CIV. PROC. 120a (requiring 

sworn motion that is filed and heard before 

any other matter, with affidavits served seven 

days before the hearing).

Case law as well as rule amendments have contributed to the trend away from the common-law plea 

to the jurisdiction. For example, we have held that a 

complaint based on dominant jurisdiction in another 

court must be raised by plea in abatement in the 

second court, or it is waived.FN17 Again, though this 

complaint could be characterized as a plea to the jurisdiction, a more specific motion and procedure has 

rendered the common-law term obsolete.

FN17. Mower v. Boyer, 811 S.W.2d 560, 563 

n. 2 (Tex.1991); Wyatt v. Shaw Plumbing 

Co., 760 S.W.2d 245, 247 (Tex.1988).

But pleas to the jurisdiction have enjoyed a recent 

resurgence in the field of governmental immunity. For 

many years, governmental units were not very particular about the vehicle for asserting immunity, raising 

it sometimes by—

• general demurrer; FN18

FN18. See, e.g., State v. Hale, 136 Tex. 29, 

146 S.W.2d 731, 735 (1941); Herring v. 

Houston Nat'l Exch. Bank, 113 Tex. 264, 253 

S.W. 813, 814 (1923); Stephens v. Tex. & P. 

Ry. Co., 100 Tex. 177, 97 S.W. 309, 310 

(1906); Thomson v. Baker, 90 Tex. 163, 38 

S.W. 21, 22 (1896).

• special demurrer; FN19

FN19. See, e.g., Thomson, 38 S.W. at 22.

*241 • special exception; FN20

FN20. See, e.g., Duhart v. State, 610 S.W.2d 

740, 741 (Tex.1980); Dir. of Dep't of Agric. 

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& Env't v. Printing Indus. Ass'n of Tex., 600 

S.W.2d 264, 265 (Tex.1980); Stephens, 97 

S.W. at 310.

• plea to the jurisdiction; FN21

FN21. See, e.g., Fed. Sign v. Tex. S. Univ.,

951 S.W.2d 401, 403 (Tex.1997), superseded 

by statute on other grounds as stated in Gen. 

Servs. Comm'n v. Little–Tex Insulation Co., 

Inc., 39 S.W.3d 591, 593 (Tex.2001); Lowe 

v. Tex. Tech Univ., 540 S.W.2d 297, 298 

(Tex.1976); State v. Lain, 162 Tex. 549, 349 

S.W.2d 579, 580 (1961); Griffin v. Hawn,

161 Tex. 422, 341 S.W.2d 151, 152 (1960); 

Short v. W.T. Carter & Bro., 133 Tex. 202, 

126 S.W.2d 953, 955 (1938).

• plea in abatement; FN22 or

FN22. See, e.g., Duhart v. State, 610 S.W.2d 

740, 741 (Tex.1980); Lowe, 540 S.W.2d at 

298; Griffin v. Hawn, 161 Tex. 422, 341 

S.W.2d 151, 152 (1960); W.D. Haden Co. v. 

Dodgen, 158 Tex. 74, 308 S.W.2d 838, 838 

(1958); Cobb v. Harrington, 144 Tex. 360, 

190 S.W.2d 709, 710 (1945); Short v. W.T. 

Carter & Bro., 133 Tex. 202, 126 S.W.2d 

953, 955 (1938).

• summary judgment.FN23

FN23. See, e.g., Overton Mem'l Hosp. v. 

McGuire, 518 S.W.2d 528, 528 (Tex.1975)

(per curiam); Tex. Dept. of Corr. v. Herring,

513 S.W.2d 6, 7 (Tex.1974).

In 1997, the Legislature amended the Civil Practices and Remedies Code to allow interlocutory appeals “from an interlocutory order ... [that] grants or 

denies a plea to the jurisdiction by a governmental 

unit.” FN24 We have held this section must be strictly 

construed, as it is an exception to the general rule that 

interlocutory orders are not appealable.FN25

FN24. TEX. CIV. PRAC. & REM.CODE § 

51.014(a)(8).

FN25. Bally Total Fitness Corp. v. Jackson,

53 S.W.3d 352, 355 (Tex.2001).

As a result, almost overnight a “plea to the jurisdiction” became the motion of choice for asserting 

immunity; FN26 indeed, some appellate courts have 

refused to consider any other.FN27 This development 

exalts form over substance. For example, before the 

Legislature's amendment, one governmental entity 

unsuccessfully asserted immunity by means of a 

summary judgment and special exceptions; immediately after the effective date, the entity filed the same 

objection as a “plea to jurisdiction”—and prevailed. FN28

FN26. See, e.g., Texas Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 

849, 852 (Tex.2002); Little–Tex Insulation 

Co., Inc., 39 S.W.3d at 594; McClain v. Univ. 

of Tex. Health Ctr. at Tyler, 119 S.W.3d 4, 5 

(Tex.App.-Tyler 2000, pet. denied); Dallas 

County Cmty. Coll. Dist. v. Bolton, 990 

S.W.2d 465, 466 (Tex.App.-Dallas 1999, no 

pet.); Alamo Cmty. Coll. Dist. v. Obayashi 

Corp., 980 S.W.2d 745, 746 (Tex.App.-San 

Antonio 1998, pet. denied); Tex. Parks & 

Wildlife Dept. v. Garrett Place, Inc., 972 

S.W.2d 140, 142 (Tex.App.-Dallas 1998, no 

pet.); Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 147 (Tex.App.-Austin 

1998, no pet.).

FN27. See, e.g., Thomas v. Long, 97 S.W.3d 

300, 302–03 (Tex. App.-Houston [14th Dist.] 

2003, pet. granted) (refusing interlocutory 

appeal of denial of summary judgment based 

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on lack of subject matter jurisdiction as no 

order granted or denied a plea to the jurisdiction); Baylor Coll. of Med. v. Tate, 77 

S.W.3d 467, 472 (Tex.App.-Houston [1st 

Dist.] 2002, no pet.) (refusing interlocutory 

appeal because trial court's order was summary judgment based on immunity from liability rather than plea to the jurisdiction 

based on immunity from suit).

FN28. Lamar Univ. v. Doe, 971 S.W.2d 191, 

193 (Tex.App.-Beaumont 1998, no pet.).

For several reasons, we should put a stop to this 

resurgence of common-law pleadings in immunity 

cases. First, it is fraught with uncertainty. Despite 

hundreds of haphazardly-numbered rules, only once 

do the Texas Rules of Civil Procedure mention pleas 

to the jurisdiction, and then only in a rule regarding 

permissible parts of an answer rather than permissible 

motions.*242 FN29 There is no rule—no case and no 

code—that specifies the form, deadlines, or evidentiary requirements for pleas to the jurisdiction generally.

FN29. TEX.R. CIV. PROC. 85:

The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory 

pleas; of special exceptions, of general 

denial, and any defense by way of avoidance or estoppel, and it may present a 

cross-action, which to that extent will 

place defendant in the attitude of a plaintiff. Matters in avoidance and estoppel may 

be stated together, or in several special 

pleas, each presenting a distinct defense, 

and numbered so as to admit of separate 

issues to be formed on them.

(Emphasis added).

In Bland Independent School District v. Blue,FN30

we attempted to bring some order to this resurgence by 

setting guidelines for handling such pleas. But due to 

the broad range of issues a plea to the jurisdiction 

might address, that was not easy to do. As we pointed 

out in several examples, consideration of some pleas 

should not go beyond the pleadings, but consideration 

of others must.FN31 When necessary, trial courts must 

consider evidence relating to the jurisdictional facts, 

but should not consider evidence relating to the merits,FN32 even though the two are sometimes the same. 

Nor could we be specific about when pleas should be 

decided, leaving it to the trial court's discretion 

whether to address the issue at a preliminary hearing 

or after fuller development of the merits.FN33

FN30. 34 S.W.3d 547 (Tex.2000).

FN31. Id. at 555.

FN32. Id.

FN33. Id. at 554.

The examples given in Bland certainly provided 

more procedural guidance than existed before. But 

without considering all possible pleas to the jurisdiction, we could not prescribe more definitive rules; 

until all those disputes come before us, we should 

probably not try. In the meantime, it will often be 

unclear what the trial court should consider, or when it 

should do so, until the plea is decided (or perhaps even 

later on appeal). To some observers, this may appear 

to be drawing up the rules after the game has been 

played.FN34

FN34. See id. at 555 (rejecting plaintiffs' 

demand for remand for full evidentiary 

hearing because they did not contest evidence at original plea to the jurisdiction 

hearing).

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

From almost any vantage point, the resurgence of 

pleas to the jurisdiction creates problems in immunity 

cases. For governmental entities, it results in unnecessary repetition. In this case, the Parks and Wildlife 

Department could not be sure whether the trial court 

would consider evidence necessary, so it filed three 

motions—a no-evidence motion for summary judgment, a traditional motion for summary judgment, and 

a plea to the jurisdiction. But as counsel for the Department admitted at the hearing, “all three relate to 

the same set of issues.”

Such repetition is unnecessary for interlocutory 

review. Nothing in the Civil Practice and Remedies 

Code suggests the Legislature intended to specify a 

form motions had to take for that purpose, rather than 

their substance. Indeed, the opposite is suggested by 

the Legislature's selection of a common-law term 

applicable to a broad category of motions, rather than 

a term pointing to any particular motion in the current 

rules of civil procedure. It has long been our practice 

to consider the substance of motions rather than their 

form; FN35 nothing in the legislative history *243

suggests the interlocutory appeal statute was intended 

to be an exception to that rule.

FN35. See, e.g., Speer v. Stover, 685 S.W.2d 

22, 23 (Tex.1985) (per curiam) (considering 

plea to jurisdiction even though misnamed 

plea in abatement); see also TEX.R. CIV. 

PROC. 71 (stating “[w]hen a party has mistakenly designated any plea or pleading, the 

court, if justice so requires, shall treat the 

plea or pleading as if it had been properly 

designated”). Some courts themselves appear 

to use the possible terms for immunity motions interchangeably. See, e.g., State v. Executive Condos., Inc., 673 S.W.2d 330, 

331–32 (Tex.App.-Corpus Christi 1984, writ 

refused n.r.e.) (referring to immunity motion 

as “plea to the jurisdiction” when it was filed, 

“plea in abatement” when it was denied, and 

“motion to dismiss” when it was reversed).

For plaintiffs, the problems created by the resurgence of pleas to the jurisdiction are even more acute. 

Defendants uncertain about how to present an immunity defense can simply try a little of everything; 

plaintiffs, by contrast, may lose their case if they guess 

wrong. In this case, for example, the Mirandas did not 

attach any evidence to their responses to the various 

motions. The lower courts agreed they did not need to, 

but if we hold otherwise, then the Mirandas will learn 

three years too late that they should have presented 

evidence at the jurisdictional hearing.

From a trial judge's vantage point, pleas to the 

jurisdiction create uncertainty, not just about the rules 

to be applied but about the role of the judge. This case 

is one of many in which immunity from suit under the 

Texas Tort Claims Act is coextensive with immunity 

from liability.FN36 As a result, deciding the jurisdictional question bears a strong resemblance to deciding 

the merits.

FN36. See TEX. CIV. PRAC. & 

REM.CODE § 101.025(a) (waiving immunity to suit to the extent of liability under 

chapter 101), § 101.021 (creating governmental liability for specified acts resulting 

from negligence, premises conditions, and 

use of property to the extent private persons 

would be liable).

In these circumstances, it is difficult for Texas 

judges to detect the line between jurisdictional questions they must decide before going further and liability questions they cannot decide without usurping 

the function of the jury. Here, the Mirandas convinced 

the lower courts that whether their pleadings were 

supported by any evidence was a question solely for 

the jury. But that is not true if they raised no material 

facts that could establish a waiver of immunity.FN37

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

FN37. See TEX.R. CIV. PROC. 166a(c).

By contrast, returning to standard motions as the 

vehicles for asserting governmental immunity would 

clarify what the jurisdictional hearing will be like and 

simplify many procedural questions. For decades, 

governmental units have asserted immunity by special 

exceptions FN38 or motions for summary judgment.FN39

In many cases (including this one), they still do so 

today.FN40 Relying on standard procedural *244 motions would eliminate many questions about deadlines, forms, and evidence. It would make government 

entities rather than trial judges decide whether the 

jurisdictional challenge is directed to the plaintiff's 

pleadings or the underlying facts. If a governmental 

unit chooses wrong,FN41 it may always try again. But 

the plaintiff is not required to guess what rules or 

procedures the trial judge might apply.

FN38. See, e.g., John G. & Marie Stella 

Kenedy Mem'l Found. v. Mauro, 921 S.W.2d 

278, 281 (Tex.App.-Corpus Christi 1995, 

writ denied); Tex. Dep't of Corr. v. Winters,

765 S.W.2d 531, 532 (Tex.App.-Beaumont 

1989, writ denied); Martine v. Bd. of Regents, State Senior Colleges of Tex., 578 

S.W.2d 465, 469 (Tex.Civ.App.-Tyler 1979, 

no writ); Harrison v. Bunnell, 420 S.W.2d 

777, 778 (Tex.Civ.App.-Austin 1967, no 

writ); State v. McDonald, 220 S.W.2d 732, 

732 (Tex.Civ.App.-Texarkana 1949, writ 

refused); Porter v. Langley, 155 S.W. 1042, 

1043 (Tex.Civ.App.-Dallas 1913, writ refused).

FN39. See, e.g., Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 681–83 

(Tex.App.-Amarillo 1998, pet. denied); 

Russell v. Tex. Dep't of Human Res., 746 

S.W.2d 510, 513 (Tex.App.-Texarkana 1988, 

writ denied); Gay v. State, 730 S.W.2d 154, 

159 (Tex.App.-Amarillo 1987, no writ).

FN40. See, e.g., Dallas Area Rapid Transit v. 

Whitley, 104 S.W.3d 540, 542 (Tex.2003)

(sovereign immunity asserted by plea to the 

jurisdiction and motion for summary judgment); County of Cameron v. Brown, 80 

S.W.3d 549, 553 (Tex.2002) (sovereign 

immunity asserted by plea to the jurisdiction 

and special exceptions).

FN41. See, e.g., Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9–10 (Tex.1974) (reversing summary judgment based on immunity as plaintiff was not allowed opportunity to replead).

Returning to pre-resurgence practice would not 

change the incidence of governmental immunity. As 

we recently held, if a plea to the jurisdiction is directed 

only to the plaintiff's pleadings, we construe them in 

the plaintiff's favor and allow an opportunity to amend 

unless they affirmatively negate jurisdiction.FN42 This 

is, of course, identical to the rules governing special 

exceptions.FN43 And when governmental entities wish 

to rely on evidence, any questions of fact that affect 

jurisdictional issues must be settled by the jury,FN44 the 

same standard that applies to summary judgments.

FN42. Cameron, 80 S.W.3d at 555; Tex. 

Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 

867 (Tex.2002).

FN43. See Brown, 80 S.W.3d at 559; Herring, 513 S.W.2d at 9–10.

FN44. See, e.g., Brown, 80 S.W.3d at 556

(holding foreseeability issue raised by plea to 

the jurisdiction presented fact question for 

jury).

Nor can it be argued that courts exceed their jurisdiction by requiring immunity pleas to be brought 

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

(Cite as: 133 S.W.3d 217)

in standard motions according to settled rules of procedure. As we stated shortly after the rules of civil 

procedure were enacted:

Since [the trial court] had the power to sustain the 

demurrers and grant the motions, it had the power to 

overrule them. The jurisdiction of a court must be 

determined, not upon the court's action in deciding 

the questions presented in a case, but upon the

character of the case itself. Jurisdiction is the power 

to decide, and not merely the power to decide correctly.FN45

FN45. Martin v. Sheppard, 145 Tex. 639, 

201 S.W.2d 810, 812–13 (1947).

Of course, returning to established procedural 

motions will not remove all difficulties with issues of 

governmental immunity. Judges of goodwill and intellect will still disagree about whether a particular 

pleading is sufficiently specific, as JUSTICES JEFFERSON and WAINWRIGHT do here. Governmental units may incur unnecessary discovery costs and 

delays unless judges agree to hear summary judgment 

motions on jurisdictional matters as early in the case 

as they might hear a plea to the jurisdiction. And appellate courts must still distinguish between immunity 

from suit (as to which an interlocutory appeal will lie) 

and immunity from liability (as to which it will 

not).FN46 But simplification of our procedures should 

not be rejected because we cannot simplify everything.

FN46. See Tex. Dep't of Transp. v. Jones, 8 

S.W.3d 636, 638–39 (Tex.1999).

If the Texas Legislature mandated interlocutory 

review of “pleas in bar asserting limitations” (a development devoutly to be wished against), few would 

suggest such review was available only for motions 

entitled “Plea in Bar” instead of the summary judgment or special exception forms that have long been 

used to raise such issues.FN47 We should stop making 

the assumption*245 that the Legislature intended 

something different for pleas of governmental immunity.

FN47. See Baker v. Monsanto Co., 111 

S.W.3d 158, 159 (Tex.2003) (per curiam) 

(asserting limitations by summary judgment); City of Port Arthur v. Tillman, 398 

S.W.2d 750, 751 (Tex.1965) (asserting limitations by special exception).

Accordingly, I would reverse and remand for (1) 

the Parks and Wildlife Department to specify whether 

its plea to the jurisdiction is a challenge to the pleadings (by special exception) or the evidence (by summary judgment), (2) the Mirandas to respond in compliance with the rules of civil procedure, and (3) the 

lower courts to address the governmental immunity 

issue in accordance with the usual rules governing 

disposition and review of those motions.

Tex.,2004.

Texas Dept. of Parks and Wildlife v. Miranda

133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.