## 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 Klag er , 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: (36 1) 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

## 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 T EXAS 

## T ORT 

## C LAIMS 

## A CT 

## 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 WAIV ER OF SOVEREIGN IMMUNITY

................................ ................................ ................. 6

III. THE EMERGENCY SITUAT ION EXCEPTION DOES N OT APPLY BECAUSE OFFICER WALK ER WAS NOT RESPONDIN G TO AN EMERGENCY.

................................ ................................ ................................ .... 8

IV. ASSUMING THE EMERGEN CY SITUATION EXCEPTI ON APPLIES, OFFICER WAL KER FAILED TO COMPLY WITH THE LAW AND ORDINANCES A PPLICABLE TO EMERGEN CY ACTION

... ... ................................ ................................ ................................ ...... 11

ii

## A. O FFICER 

## W ALKER 

## A DMIT TED 

## C AUSING THE 

## C OLLISION IN 

## H IS 

## D EPOSITION



## . ................................ ................................ ................................ .... 15

B. O FFICER 

## W ALKER 

## R ECEIVED A 

## C ITATION FOR 

## V IOLATING THE 

## T RANSPORTATION 

## C ODE AND 

## P LED 

## G UILTY IN 

## O PEN 

## C OURT



## . ..................... 16

C. O FFICER 

## W ALKER 

## ’ S 

## S PEED 

## E NDANGERED THE 

## L IFE AND 

## P ROPERTY OF 

## N ORMA 

## T ORRES



## . ................................ ................................ .............................. 17

D. A N 

## I NDEPENDENT 

## R EVIEW 

## B OARD 

## F OUND 

## O FFICER 

## W ALKER AT 

## F AULT
FOR 

## C AUSING THE 

## C OL LISION



## . ................................ ................................ ....... 20

E. O FFICER 

## W ALKER 

## V IOLATED 

## D EPARTMENTAL 

## O RDINANCES



## . ................ 21

V. ASSUMING THE EMERGEN CY SITUATION EXCEPTI ON APPLIES AND NO LAWS OR ORDINANCES G OVERN HIS CONDUCT, OFFICER WAL KER’S CONDUCT CONSTI TUTES CONSCIOUS INDIFFEREN CE OR RECKLESS DISRE GARD 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 215 54331 (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 An tonio , 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



## T EX



## . C IV



## . P RAC



## . & R EM



## . C ODE 

## §101.021(1).

................................ ............................. 7

T EX



## . C IV



## . P RAC



## . & R EM



## . C ODE 

## §101.021.

................................ ................................ .. 7

T EX



## . C IV



## . P RAC



## . & R EM



## . C ODE 

## §101.055(2).

................................ ....................... 8, 14

T EX



## . T RANSP



## . C ODE 

## A NN



## . § 546.002(b)

................................ ................................ ... 24

T EX



## . T RANSP



## . C ODE 

## A NN



## . § 546.003

................................ ................................ ....... 24

T EX



## . T RANSP



## . C ODE 

## A NN



## . § 546.005 (Vernon 2009).

................................ .............. 24

T EX



## . T RANSP



## . C ODE 

## A NN



## . § 546.001

................................ ................................ ....... 24

T EX



## . T RANSP



## . C ODE 

## A NN



## . § 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

(“C ity”).

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

subject matter jurisdiction because immunity was not waived under the T EXAS



## T ORT 

## C LAIMS 

## A CT 

## (“Act”) because Officer Walker was responding to an

emergency call and prop erly complied with the laws and ordinances applicable to

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

with conscious indifference or reckl ess disregard for Norma’s safety

.
The trial court erroneously held that Norma f ailed 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 T EXAS



## T ORT 

## C LAIM S 

## A CT



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

Texas, on November 23

, 2011

, alleging that the City wa s liable to Norma pursuant

to § 101.021 of the C IVIL 

## P RACTICE 

## & R EMEDIES 

## C ODE 

## 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 file d a plea to the jurisdiction ass erting 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 o n July 19 , 2013 a nd 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

## T he 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 briefing s with evidence

for the court on their positions (1 CR 328

- 333, 1 CR 424

- 439). On June 16, 2014,

the Cour t 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 unde rstanding of the

facts and legal issues presented in this appeal. See T EX



## . R. A PP



## . 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 T EX



## . R. A PP



## . P

. 39.1(d ). A ccordingly, Appellee

respectfully requests the Court grant oral argument.

x

## ISSUE PRESENTED

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

Was sovereign immunity properly waived pursuant to § 101.021 of the T EXAS 

## T

ORT 

## C LAIMS 

## A CT 

## 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 tr affic

. 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 supervi sing 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

T he 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

T EXAS 

## T ORT 

## C LAIMS 

## A CT



## . 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 , th e Emergency Situation Exception (“Exception”) to the A CT 

## 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 excep tion 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 T EXAS 

## T ORT



## C LAIMS 

## A CT 

## 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 la w 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 fact s

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 Co unty 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

cou rts 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 existen ce. 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 doe s 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) ; Cant u 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 o r 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 st andard

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 fa ct 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 i s for the fact

- finder to decide. 17



## II

. NORMA PROPERLY PLED A STATUTORY WAIVER O F 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

gov ernmental unit, the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity. 19 

## The T EXAS 

## T ORT 

## C LAIMS



## A CT 

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

met. The A CT 

## 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 ad ded).
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 per sonal or real property if the governmental unit, were it a private person, be liable to the claimant according to Texas law.

T EX



## . C IV



## . P RAC



## . & R EM



## . C ODE 

## §101.021. Thus, a governmental unit may be held

liable for the wrongful acts or omissions of its em ployees under the A CT 

## 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 claiman t 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). Moreove r, 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

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

motor driven

- vehicle. (1 CR 179).

20 

### T EX



### . C IV



### . P RAC



### . & R EM



### . C ODE 

### §101.021(1). 

## 7

## III. THE EMERGENCY SITUAT ION EXCEPTION DOES N OT APPLY BECAUSE OFFICER WALK ER WAS NOT RESPONDIN G TO AN EMERGENCY

.

The A CT 

## 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 A CT 

## excludes claims arising:

(2) from the action of an employee while responding to a n 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 reckles s disregard for the safety of others.

T EX



## . C IV



## . P RAC



## . & R EM



## . C ODE 

## §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 f act issue as to whether

Officer Walker was responding to an emergency.

The exis tence 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 automaticall y 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 har m 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 positi on 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 e vents at t he 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

man ner that the collision would not have

o ccurred. 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 V era) 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 d

ifferent 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 SITUAT ION EXCEPTION APPLIE S, OFFICER WALKER FAILE D TO COMPLY WITH THE LAW AND ORDINANCES APPLICABL E TO EMERGENCY ACTIO N

.

The City asserts that sovereign immunity is not waived under the A CT



## because Officer Walker was responding to an emergen cy 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 allege s sufficient

jurisdictional facts in her Amended Petition that actively dem onstrate 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, lis ted 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 plead ed 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

amou nt 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 al leged 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



## S ECTIO N 

## 101.055(2) of the A CT 

## 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 acti on, 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 

### T EX



### . C IV



### . P RAC



### . & R EM



### . § 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 und isputed 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 ap plies 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 divis ion manual , would there be any other employee manuals or handbooks that would govern the m anner 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 fol low? A Both.

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

portions of the T RANSPORTATION 

## C ODE 

## 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. O FFICER 

## W ALKER 

## A DMITTED 

## C AUSING THE 

## C OLLISION IN 

## H IS 

## D EPOSITION



## .



## The Emergency Exception to the A CT 

## does not apply because Officer

Walker violated laws and ordinances applicable to an emer gency 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 th at 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 emerg ency exception.

B

. O FFICER 

## W ALKER 

## R ECEIVED A 

## C ITATION FOR 

## V IOLATING THE 

## T RANSPORTATION 

## C ODE AND 

## P LED 

## G UILTY IN 

## O PEN 

## C OURT



## .



## The evidence also shows that Officer Walker violated the specific portions

of the T RANSPORTATION 

## C ODE 

## 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 t he 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 T RANSPORTATION 

## C ODE 

## is sufficient to raise a fact issue

regarding the emergency exception

.

C

. O FFICER 

## W ALKER 

## ’ S 

## S PEED 

## E NDANGERED THE 

## L IFE AND 

## P ROPERTY OF 

## N ORMA 

## T ORRES



## .



## 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 th e 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 t he laws applicable to emergency situations.

T he El Pa so 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

law s 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 T RANSPORTATION 

## C ODE



## . The officer is question

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

29 

### Texas D ep ’ 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, S ECTION 

## 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 ar ound 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 Y es, 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 th e speed you're going

30 

### T EX



### . T RANSP



### . C ODE 

### A NN



### . §§ 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 occu rred 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 t hat 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

. A N 

## I NDEPENDENT 

## R EVIEW 

## B OARD 

## F OUND 

## O FFICER 

## W ALKER AT 

## F AULT
FOR 

## C AUSING THE 

## C OLLISION



## .



## 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 thes e 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 t he

emergency exception.

20

## E

. O FFICER 

## W ALKER 

## V IOLAT ED 

## D EPARTMENTAL 

## O RDINANCES



## .



## 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 v ehicle 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 jur y 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 grou nds 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 t estified 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 EMERGEN CY SITUATION EXCEPTI ON APPLIES AND NO LAWS OR ORDIN ANCES GOVERN HIS CON DUCT , OFFICER WALKER’S CON DUCT CONSTITUTES CONSCIOUS INDIFFERENCE OR RECK LESS DISREGARD FOR THE SA FETY OF OTHERS

.

The City asserts im munity 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. C HAPTER 

## 546 of the T RANSPOR TATION 

## C ODE 

## governs the

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

authorized emergency vehicles which would normally violate the C ODE 

## 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 Ant onio 1984, writ ref’d n.r.e.) (emphasis added).
33 

### T EX



### . T RANSP



### . C ODE 

### A NN



### . §§ 546.001 ; T EX



### . T RANSP



### . C ODE 

### A NN



### . 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 suc h a degree that they lose control of their vehicle and strike oncoming

traffic. 35 

## Despite condoning normally illegal conduct, the T RANSPORTATION 

## C ODE



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

emergency operate the vehic le 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 emerg ency 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 ris k 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 

### T EX



### . T RANSP



### . C ODE 

### A NN



### . § 546.003 (Vernon 2009) (emphasis added).
35 

### While T EX



### . T RANSP



### . C ODE 

### A NN



### . § 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 

### T EX



### . T RANSP



### . C ODE 

### A NN



### . § 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 C HAPTER 

## 546 of the T RAN SPORTATION 

## C ODE 

## :

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 evidenc e 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 T RANSPORTATION 

## C ODE



## . Accordingly,

the trial court’s ruling on the C ity’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

T EXAS 

## T ORT 

## C LAIMS 

## A CT



## . Moreover, the evidence presented, when view in the

light most favorable to Norma, establishes fact issues a s 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

REV ERSE 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 ATTORNEY S FOR APPELLANT NORMA TORRES

26

## CERTIFICATE OF COMPLIANCE WITH WORD LIMITATION

I certify that I have review ed 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 typefac e 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 G EORGE 

## A. D E 

## V E RA 

## S TATE 

## B AR 

## N O



## . 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 20 th
day of April

, 201 5 :

VIA E

- SERVICE Mark DeK och City of Corpus Christi Legal Department 12 01 Leopard Street P.O. Box 9277 Corpus Christi, Texas 78401 Telephone: ( 361 ) 826

- 3372 Facsimile: ( 361 ) 826

- 3239

/s/George A. DeVera G EORGE 

## A. D E 

## V ERA



## 28

## APPENDIX

In compliance with T EX



## . R. A PP



## . P

. 38.1(k), copies of the following

documents are included:

TAB 1

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Order G ranting Plea to the Jurisdiction

TAB 2................................................

... ... ... ... T EX



## . T RANSP



## . C ODE 

## § 546

TAB 3......................................................... M ejia v. C ity of San Antonio

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

TAB 4....................................... City of D allas v. P orter
, 2 002 WL 1773008 (Tex. App.

– D allas 2002, no w rit .)

TAB 5.................................

... ... ................. B land Indep . Sch

. Dist. v. Blue

, 34 S.W.3d 547 ( T ex. 2000)

TAB 6......................................... Tex. Dep’t of Parks & Wildl ife v. Miranda 133 S.W.3d 217 (Tex. 2004)

TAB 7

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. City of San Antonio v. H igl e , 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)

29Page 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 WIL DLIFE, 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 A ntonio 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, Offic e of the Governor , 998 S.W.2d 337, Cit y 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 recre ational 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 op inion.

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 que stions where its decision conflicts with or overrules that
of another Court of Civil Appeals or that of the S upreme 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 S upreme 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 nece ssarily 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
G eneral 302III(B) Dilatory Pleas and Matter in A batement
302k111 Decision of Issue, and Proceedings
Thereon
302k111.36 k. Scope of inquiry and
matters consid ered in general. Most Cited Cases (Formerly 106k122)

The plain tiff's allegations, in the petition, of the amount in controversy control for subject matter j urisdiction purposes, unless the party challenging j urisdiction pleads and proves that the plaintiff's alleg ations of the amount in controversy were made fra udule ntly for the purpose of obtaining jurisdiction.

[3] Pleading 302 111.36

302 Pleading
302I II Responses or Responsive Pleadings in
General 302III(B) Dilatory Pleas and Matter in A batement
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,
i n order for the trial court to have authority to consider evidence outside of allegations in pleadings if co nsideration of such additional evidence is necessary for trial court to determine whether it has subject matter jurisdiction; disapproving of Sullivan v. Wilmer Hu tchins 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. E lthon , 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
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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 3 60 191.1

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 affirm ative 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 Buil dings and Other Propert y 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 Ac t is waived, to that which is owed a trespasser, i.e., not to injure that person willfully, wantonly, or through gross ne gligence. 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 compl ained of must involve an extreme degree of risk, considering the probability and ma gnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious i ndifference 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 A batement
302k104 Plea to the Jurisdiction 302k104(1) k. In general. Most Cited
Cases

Sovereign immuni ty 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 o pportunity whether it has the constitutional or statutory authority to decide the case, before allowing the lit igation 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

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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 affirm atively demonstrate a trial court's subject matter juri sdiction 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 es tablishes a trial court's subject matter jurisdi ction is a question of law; however, in some cases, disputed evidence of jurisdictional facts that also i mplicate 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 A batement
302k104 Plea to the Jurisdiction 302k104(1) k. In general. Most Cited
Cases

Pl eading 302 111.38

302 Pleading 302III Responses or Responsive Pleadings in
General 302III(B) Dilatory Pleas and Matter in A batement
302k111 Decision of Issue, and Proceedings
Thereon
302k111.38 k. Petition, complaint, de claration 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 th e court's subject matter jurisdiction to hear the cause, co nstruing the pleadings liberally in favor of the pleader and looking to the pleader's intent.

[14] Pleadin g 302 111.48

302 Pleading
302III Responses or Responsive Pleadings in
General 302III(B) Dilatory Pleas and Matter in A batement
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 demo nst rate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiffs should be afforded the opportunity to amend following sustai ning 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 A b-

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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 juri sdiction 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
30k86 2 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 exi stence of jurisdictional facts, the appellate court co nsiders 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

matt er jurisdiction requires the examination of ev idence beyond the allegations in the pleadings, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a pr eliminary hearing or await a fuller developmen t of the case, mindful that the determination of whether su bject 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 A batement
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 alleg ations in the pleadings, the trial c ourt reviews the r elevant 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 A b-

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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
302k111.39 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 materi al 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 tri al 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

a nd 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 A batement
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 j urisdiction is left to the discretion of the trial court, which is in the best position to evaluate the appropr iate 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

Vis itor to state park alleged sufficient facts r egarding Parks and Wildlife Department's gross ne gligence to survive a plea to the jurisdiction by the Department based solely on the pleadings, with the Department alleging sovereign immunity under the

Texas To rt 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

visitor alleged that she specifically asked Depar tment's employee for recommendation of safe campin g location, that Department was aware of unpruned, uninspected tree branches creating dangerous defe ctive condition at camp site but failed to alleviate the danger, and that Department consciously and delib erately failed to warn visitor of the extremely da nge rous condition, though visitor did not cite specific evidence that Department had actual knowledge that tree limb would fall. (Per Wainwright, J., for a pl urality of the court.) V.T.C.A., Civil Practice & R emedies 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 recre ational 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 mai ntenance 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 sy ndrome created extreme risk of danger or that Department had actual subjective knowledge of that risk but nevertheless proceeded in conscious di sregard 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 Bui l dings 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 t o ci rcumvent 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. He rrera , Office of Attorney General, Julie Caruthers Parsley , Public Utility Com'n, and Lisa Royce E skow

, 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 Ju stice SMITH joined, and a plurality opinion with r espect to Part II I.C.1., in which Chief Justice PHI LLIPS, 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 M irandas' claims. The trial court denied the plea to the jurisdiction and a unanimous court of appea ls a ffirmed, holding that the trial court could not consider evidence in support of the plea because the Depar t-

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

ment did not allege that the Mirandas' pleadings were a sham for the purpose of wrongfully obtaining juri sdiction. 55 S.W.3d 648, 652

.

FN1. The Mira ndas 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 cas e, 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 Dist rict 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 rel ied to determine if a fact issue existed regarding the alleged gross negligence of the Department. Due to the u nusual confluence of standards erected by the Legisl ature 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 jurisdi ction. Because the Mirandas failed to raise a genuine issue of material fact regarding the alleged gross ne gligence 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' thir d 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 ope rated 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 e xtensive injuries to her head , neck, and spine. Ray suffered mental anguish and other damages r elated 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 M irandas alleged that the Depa rtment “ knew of the dangers of its falling tree branches, failed to inspect, failed to prune, failed to alleviate or remove the da nger, and consciously and deliberately failed to warn Plaintiffs of the extremely dangerous condition, ”

“ knew that its propert y 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 con dition of which it was aware. ” In add ition, 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 Depa rtment's plea, including written discovery responses from the

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

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 Mir andas' third amended original petition. The next day, the trial court denied the plea. The Department filed this interloc utory appeal claiming that the trial court erroneously denied its plea to the jurisdiction and motion to di smiss. Id. § 51.014(a)(8). T he court of appeals affirmed the trial court's denial of the plea, stating that the M irandas 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 D epartment'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 wrong fully 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 su mmary judgment under Texas Rule of Civil Procedure 166a(b)

- (c) and 166a(I) . The trial court denied both motions, but the Depar tment does not appeal the trial court's denial
of either motion.

The Department contends that the court of a ppeals erred in relying solely upon the conclusory a llegations found in the Mirandas' petition to affirm the trial courts denial of the Department's plea to the j urisdiction and in disregarding the Department's ev idence submitt ed with its plea. Specifically, the D epartment contends that gross negligence is a jurisdi ctional prerequisite to the Mirandas' claims and that its evidence affirmatively negates gross negligence. The Department further argues that because the Mirandas
fai led 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 e stablish 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

ap peal.

II. Conflicts Jurisdiction [1] When there is no dissent in the court of a ppeals, this Court has jurisdiction over interlocutory appeals only if the court of appea ls' 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 *223 Schein 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 86 7. “ 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 afte r September 1, 2003 and does not govern our jurisdiction in this case, pr ovides that “ one court holds differently from another when there is inconsistency in their

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

respective decisions that should be clarified to remove unnecessary uncertainty in the law

a nd unfairness to litigants. ”

The Department contends that this Court has j urisdiction over its interlocutory appeal because the court of appeals' decision here conflicts with our op inion in Bland. In Bland, we held that a trial court “ may consider evidence and must do so when necessary to resolve the juris dictional 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 juri sdiction, ” 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 n ecessary 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 jurisdi ctional 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 co ncluded, “ the plaintiff's pleadings are determinative unless the defendant specifically a lleges 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 inacc urately stated and then misapplied Bland's holding. 55
S.W.3d at 650

– 52. Th e 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 jur isdiction. 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.3 d 549, 556

– 57 (Tex.2002) (co nsidering 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 juri sdictional evidence to determine whether plaintiff a ffirmatively demonstrated waiver of sovereign i mmunity); 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

amo unt. 34 S.W.3d at 554. Even this bar could be lifted, and evidence of the jurisdictional amount co ns idered, 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 d ecided in Bland, and the opinions cann ot 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 plainti ff's allegations in the petition of the amount in controversy control for j urisdictional purposes unless the party cha llenging jurisdiction pleads and proves that the plaintiff's allegations of the amount in controversy were made fraudulently for the

purpo se 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 a ppeals' holdings that require a party to allege that pleadings, other than the jurisdictional

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

amount, are fraudulent in order for the t rial 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
Gove rnor, 998 S.W.2d 337, 341

– 42 (Tex.App.

- Austin 1999, no pet.) ; City of S aginaw 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 c ertain governmental units have
been sued unless the state consents to suit. Tex. Dep't of Transp. v. Jo nes, 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 express ly waives immunity. See TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A) (defining a gove rnmental unit to include “ all depar tments ” 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 o f 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 limit ations 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permi ssion, does not:

(1 ) assure that the premises are safe for that pu rpose;

(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 individ ual 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. § 75.0 01(3). As applied to a gover nmental 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 recreationa l use of land).

[6] [7] The recreational use statute limits the D epartment'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, wa ntonly, or through gross negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997)

. Therefore, a governme ntal 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 o bjectively from the actor's standpoint, the act or omission co mplained of must involve an extreme degree of risk, considering the probability and magnitude of the p otential harm to others; and (2) the actor must have actual, subjective awareness of the ris k 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 o ccupant “ 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 al so Hosner, 1 Tex. at 769 (r ecognizing 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 o pportunity 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 enac tments 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, j urisdiction over the subject matter, juri sdiction 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 hea r 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 juri sdiction appear in the petition of the plaintiff, or in the

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plea to th e 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 j urisdictional facts establish es a trial court's jurisdiction is also a question of law. However, in some cases, disputed evidence of jurisdictional facts that also i mplicate 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, eve n if the determination requires making factual findings, unless the jurisdictional issue is inextricably bound to the merits of the case. ” ); Wi lliamson 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 jur isdiction in which undisputed evidence implicates both the subject ma tter jurisdiction of the court and the merits of the case.

[13] [14] [15] When a plea to the jurisd iction 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 c ontain 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 oppo rtunity to amend. Brown, 80 S.W.3d at 555. If the pleadings affirmatively negate the existence of juri sdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to

a mend. Id.

[16] [17] [18] However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant eviden ce 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 m erits 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 e xists. The Unite d 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 jurisdictio n is challenged u nder 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 juri sdiction, “ ‘ [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 doc uments, 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 juri sdiction ” ); 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) m otion to dismiss for lack of subject matter j urisdiction (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989) )) ; Mak arova 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 plea dings. ” ); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994) (acknow ledging a trial court's “ authority to consider evidence presented beyond the pleadings ... which may include considering affidavits, allowing further discovery, hearing oral te stimony, 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 su pplemented 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 whe n 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 acco mplishes this goal and more. It also p rotects 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 me rits 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 su mmary 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 plaintif fs, 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 f avorable to the nonmovant. See Sci. Spe ctrum, 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 cr it icizes this standard of review as depriving plaintiffs responding to a plea of the procedural protections of a motion for summary judgment, including a twe nty

- *229 one day notice period or an adequate time to conduct discovery. TEX.R. CIV. P. 166a(c)

, 166a(i)

. However, the scheduling o f 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 appropr iate time frame for hearing a plea in any particular case. This procedure does not dramatically differ from that

ou tlined in Texas Rule of Civil Procedure 120a g overning 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 p resumably subject to
the three

- day notice period of Rule 21. TEX.R. CIV.
P. 21

. Rule 120a allows the trial court to order a co ntinuance and allow time for discovery if the deve lopment of the case requires it. Nothing prevents a trial court from doing the same with a plea to the jurisdi ctio n where evidence is necessary.

Many other procedures in Texas practice ranging from a trial court's rulings on motions to strike inte rvention to the timing of a class certification decision to even the alteration of the summary judgment notice periods

— als o “ depend[ ] ... upon the wise exercise of discretion by the trial court. ” Union Carbide Corp. v.

B.D. M oye, 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 inte rvention, even though Rule 60 does not provide explicit guidelines for the scheduling of a hearing or the evaluation of evidence). Thus, the Texas civil proc edural scheme entrusts many scheduling and proc edural issues to the sound discretion of the trial court, subject to appellate review. Of course, Texas practice and rules also allow the parties to requ est 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 consi deration 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 M irandas 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 cau sed 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 A ntonio 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 Mi randa 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 ne gligence. 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, unin spected 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 M irandas of the extremely dangerous condition; and (6) the Department's co nduct was willful, wanton, or grossly negligent. A liberal construction of these a llegations, as required, demonstrates that the Mirandas stated a claim against the Department for gross ne gligence. This conclusion should not be read as a su ggestion that th e 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 diss ent 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 invo lved and proceeded, neve rtheless, 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 stat ement of the cau se of action sufficient to give the o pposing 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 esta blish the state's consent, which may be alleged either by refe rence 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 n ot 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 sta ndard for gross negligence would be virt ually impos sible to meet, even when grossly negligent conduct occurred, absent an admission of liability. His sta ndard requires specific factual allegations in an original petition of what the defendant knew and thought i.e., its state of mind. His pleadin g hurdle would require discovery into the very extrinsic facts which he b emoans 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 an d 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, b ecause 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 i nspects and maintains its trees, tree limbs are only pruned or trimmed if they appear to be dead. A ccording 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 t he 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 fif ty 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 preserv ation and maintenance of trees at campsites. According

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to his affidavit, Inks inspected the campsite after the
accident. His examination of t he 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 t he 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 an d 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 a ny controverting evidence in their r esponse 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 cons equences that separates ordinary negligence from gross negligence. Louisiana

– Pacific, 19 S.W.3d at 246

– 47. We search the record for evidence that the Depar tment's acts or omissions demonstrate that it did not care about the consequences to the Mirandas of a
known extreme risk of d anger. The Mirandas fail to point to any evidence, and the record contains no evidence, that shows that sudden branch drop sy ndrome 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 Depar tment's alleged gross negligence. The Mirandas fall short of satisfying the requirements for the Legisl ature's l imited 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 immuni ty must
take the form of two “ standard ” or “ established ” m otions

— either special exceptions or motions for su mmary 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 Procedur e 12(b)(1)) to cha llenge 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 jurisdi ction.

The plea to the jurisdiction was included in pr ocedural 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 qua lify 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 juri sdiction when the immunity and liability facts are the

same.

There is a suggestion in the dissents that co nfirming in this opinion the authority of tr ial 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. Fu rthermore, plaintiffs expressly stated in their response to the plea that they were relying on “ Defendants' responses to discovery requests, and upon the depos ition of Craig VanBaarle [the Department's assistant park mana ger]. ” In fact, the Mirandas deposed Va nBaarle months before the Department filed its plea. There is good reason why Plaintiffs have not argued unfair surprise. Given Texas precedents and the a ctions 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 fal ling tree limbs and failure to warn the Mirandas of the risk of falling tree limbs. Th ese 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 co ntained 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 inte rpreting 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 prov isions delineated by the section on premises defects and may not assert a general negligence theory); a ccord 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 act ed with gross negligence. Due to the standard erected (gross negligence), the determination of whether immunity was waived may require co nsideration of extrinsic facts after reasonable opport unity for targeted discovery. To preclude consideration
of extrin sic 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 c ases over which they have no jurisdiction.

For the reasons explained, we conclude that the

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

Department established that it was not grossly negl igent and that the Mirandas failed to raise a fact issue on that point. Thus, the trial court lacked subject

matt er jurisdiction over the action. The judgment of the court of appeals is reversed and the Mirandas' action dismissed for lack of subject matter jurisdi ction.

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 ev idence 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 Bla nd draws between requiring the plaintiff to prove pr eliminary 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 appe als' holding
conflicts with Bland to the extent it holds that the trial court was prohibited from inquiring
into the merits because “ ... the Department
di d not specifically allege that the Mirandas allegations were pled merely as a sham for the purpose of wrongfully obtaining juri sdiction. ” 55 S.W.3d 648, 652. Bland does not require that form of defensive pleading as the sole gateway through which the tri al 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 r equired to consider evidenc e. I depart from the Courts holding, however, that this is such a

case. Second, I cannot agree that the Mirandas' plea ding has alleged sufficient facts to confer jurisdiction
on the trial court. The Mirandas assert that the D epartment was aware that branc hes fall from trees, but consciously chose not to post warnings. Is that gross negligence? No. Texas law does not impose on la ndowners a duty to warn trespassers about all co nceivable dangers inherent in nature. What if you add the allegation that the Depa rtment did not inspect or prune trees in Garner State Park? The Court today makes clear that the Department has no duty to i nspect 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 organiz ation's standing to sue, the organization must present evidence of its nature and purpo se 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 all eged. ” Id. at 555. That theme

— that a plaintiff is no t required to litigate the merits to esta blish jurisdiction

— was emphasized throughout our opinion. Id. at 554. We cautioned that “ the proper function of a dilatory plea does not authorize an i nquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

to establish jurisdiction. ” Id.

I interpret Bland to mean that if a plea to the j urisdiction 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 ev idence in the record establishes that the Department was not grossly negligent and that the Mirandas have failed to raise a fact question regarding the Depar tment'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, c ontains 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 imag ination. A party whose claim is subject to adjudi cation
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 t oday, 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, wr it denied) ; Williams v. City of A ngleton, 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 ev idence, should ei ther 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 FE DERAL 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 current ly 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 r equirements, 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 th e 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 co ntrovert the Department's plea with their own e vidence. 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 ju risdictional 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 pr esented 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 a pplies, the trial court must so advise the parties and employ Rule 166a procedur es.

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 jurisd iction). 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 min imum 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 o wes 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 fa lling 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 e xtremely 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

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 omissio n, 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 e xercise ordinary care to protect Plaintif fs 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 n egligence 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 Plainti ffs 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. Harr ison, 70 S.W.3d 778, 785 (Tex.2001) (reiterating that gross negligence requires that “ the actor must have actual, subjective aw areness 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 D epartment 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) (H ankinson, J. dissenting). To accomplish that objective, the Legislature has placed stringent parameters around the duty landowners owe “ tre spassers. ” 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 h uman interaction with nature. The scope of that pr oposed duty

— ob ligating the Department to post warnings about all naturally occurring da ngers

— 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 i nstructed 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 ser ious injury, and that the plaintiff was severely injured d iving in reliance on that assurance. Here, by contrast, the Mirandas did not plead that the Department d irected Maria to a campsite knowing that an ove r-

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

hanging tree branch would likely fall on her a nd 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, ho wever, must be viewed in this case through the prism of sovereign immunity, whic h deprives a court of juri sdiction unless the State has expressly waived immu nity. Tex. Dep't of Transp . v. Jones, 8 S.W.3d 636, 638 (Tex.1999) . The plaintiffs' pleadings against the State
must affirm atively establish jurisdiction to overcome the contrary presumption. Tex. Dep't of Crim. Justice
v. Mil ler, 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 T ort Claims Act is insufficient to confer jurisdiction, Mi ller, 51 S.W.3d at 587, the trial court's jurisdiction is not satisfied by mere notice that the plaintiff is pu rsuing 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 im munity 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 opport unity to amend only when the pleadings “ affirmatively
negate ” the existence of jurisdiction, a circum stance not presented here. Id. In this case, however, the trial court overruled the Departments plea to the jurisdi ction, concluding implicitly that the M irandas plea dings 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 t o 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 u ltimate merits of this case. I would *239 remand the cause to the trial court to give the Mirandas an o pportunity to amend their petition to plead facts esta blishing jurisdiction.

Justice BRISTER , joined by Justice O'NEILL and
Justice SCHNEIDER , dissenting. The Legislature has provided that state park vi sitors are owed the same duty of care as trespa ssers; 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

, 101.05 8

.

The Mirandas alleged Maria suffered severe i njuries 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 whe re none would. I have grave doubts whether such facts could possibly co nstitute gross negligence

— natural conditions usually cannot be unreasonably dangerous (much less wa nton), 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

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 dar kness 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, co nseque nces of the duty, and other relevant i ndividual and social interests).

Faced with what appears to be an insupportable allegation like the gros s

- 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 ju risdiction ”

— 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. F N7. The OXFORD ENGLISH DICTI ONARY (1989) defines “ white elephant ” as:

a. A rare albino variety of elephant which is highly venerated in some Asian cou ntries. b. fig. A burdensome or costly po ssession (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 t o 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 reme dy rather than the injury. FN8 One hundred years ago, this Court addressed a variety of matters as pleas to the jurisdiction, including obje ctions based on perso nal 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 juri sdictional 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

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 (18 93) ; 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. R ichards, 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 mo re 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 co mplies 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 pr ocedure.

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

swor n 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 co ntributed 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 j urisdiction, 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 parti cular 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.

Houst on 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) ; D ir. of Dep't of Agric.

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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

& 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

F N21. 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 Pra ctices and Remedies Code to allow interlocutory a ppeals “ from an interlocutory order ... [that] grants or denies a plea to the jurisdiction by a governmen tal
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 juri sdiction ” became the motion of choice for asserting
i mmunity; 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; imm ediately after the ef fective date, the entity filed the same objection as a “ plea to jurisdiction ”

— and prevailed.

FN28

FN26. See, e.g., Texas Natural Res. Co nservation 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. Call away, 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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133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386 (Cite as: 133 S.W.3d 217)

on lack of subject matter jurisdiction as no order granted or denied a plea to the juri sdiction); 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 su mmary judgment based on immunity from li ability rather than plea to the ju risdiction 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 Proced ure 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 evide ntiary requirements for pleas to the jurisdiction gene rally.

FN29. TEX.R. CIV. PROC. 85 :

The original answer may consist of m otions to transfer venue, pleas to the juri sdiction, in abatement, or a ny other dilatory pleas; of special exceptions, of general denial, and any defense by way of avoi dance or estoppel, and it may present a

cross

- action, which to that extent will place defendant in the attitude of a plai ntiff. Matters in avoidance and estopp el 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 ha ndling 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 mu st. FN31 When necessary, trial courts must consider evidence relating to the jurisdictional facts, but should not consider evidence relating to the m erits, 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
wi thout considering all possible pleas to the jurisdi ction, 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 ev idence 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 al most any vantage point, the resurgence of pleas to the jurisdiction creates problems in immunity cases. For governmental entities, it results in unn ecessary repetition. In this case, the Parks and Wildlife Department could not be sure whether the trial cou rt would consider evidence necessary, so it filed three
motions

— a no

- evidence motion for summary jud gment, a traditional motion for summary judgment, and a plea to the jurisdiction. But as counsel for the D epartment admitted at the hearing, “ all three rela te 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 mi stakenly 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 term s for immunity m otions 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 resu rgence of pleas to the jurisdiction are even more acute.
Defendants uncertain about how to present an i mmunity 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 cre ate 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 jurisdi ctional question bears a strong resemblance to deciding
the merits.

FN36. See TEX. CIV. PRAC. & REM.CODE § 101.025(a) (waiving immu nity to suit to the extent of liability under chapter 101), § 101.021 (creating gover nmental 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 que stions they must decide before going further and li ability questions they cannot decide without usurping the function of the jury. Here, the Mirandas conv inced 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 d ecades, 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 m otions would eliminate many questions about dea dlines, 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 govern mental 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 R egents, 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 191 3, writ r efused)

.

FN39. See, e.g., Ho v. Univ. of Tex. at A rlington, 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 jud gment); 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. He rring, 513 S.W.2d 6, 9

– 10 (Tex.1974) (r eversing summary judgment based on i mmunity as plaintiff was not allowed oppo rtunity 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 nega te 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; He rring, 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 j urisdiction by requiring immunity pleas to be brought

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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 pr ocedure. 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 co rrectly. 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 remov e all difficulties with issues of governmental immunity. Judges of goodwill and i ntellect will still disagree about whether a particular pleading is sufficiently specific, as JUSTICES JE FFERSON and WAINWRIGHT do here. Governme ntal units may incur unnecessa ry 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 a ppellate courts must still distinguish between immunity from suit (as to w hich 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 ever ything.

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 d evelopment devoutly to be wished against), few would suggest such review was available only for motions
entitled “ Plea in Bar ” instead of the summary jud gment 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 i mmunity.

FN47. See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex.2003) (per curiam) (asserting limitations by summary jud gment); City of Port Arthur v. Tillman, 398 S.W.2d 750, 751 (Tex.1965) (asserting l imitations by spec ial 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 plea dings (by special exception) or the evidence (by su mmary judgment), (2) the Miranda s to respond in co mpliance 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 Wil dlife v. Miranda 133 S.W.3d 217, 47 Tex. Sup. Ct. J. 386

END OF DOCUMENT

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