AFFIRM; and Opinion Filed June 30, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-11-01144-CV

DALLAS METROCARE SERVICES, Appellant

V.

ADOLFO JUAREZ, Appellee

On Appeal from the 191st Judicial District Court

Dallas County, Texas

Trial Court Cause No. 11-01999

MEMORANDUM OPINION ON REMAND

Before Justices O’Neill, Francis, and Brown1

Opinion by Justice O’Neill

In this interlocutory appeal, Dallas Metrocare Services (Metrocare) appeals the denial of 

its plea to the jurisdiction. On original submission, we affirmed concluding Juarez had alleged a 

negligence claim involving the condition or use of tangible personal property. See Dallas 

Metrocare Servs. v. Juarez, 420 S.W.3d 78, 81 (Tex. App.—Dallas 2012), rev’d, 420 S.W.3d 39 

(Tex. 2013). In doing so, we refused to consider Metrocare’s jurisdictional arguments that were 

not raised in its plea to the jurisdiction. 

The Supreme Court reversed our opinion concluding we had erred to the extent our 

opinion was based on Metrocare’s “use” of tangible personal property. See Dallas Metrocare 

Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013). Additionally, the Supreme Court concluded we 

 1 The Honorable Justice Ada Brown succeeded the Honorable Mary Murphy, a member of the original panel, upon Justice Murphy’s 

retirement. Justice Brown has reviewed the briefs and record before the Court.
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had erred in refusing to consider jurisdictional arguments Metrocare raised for the first time on 

appeal. See Rusk State Hospital v. Black, 392 S.W.3d 88, 96 (Tex. 2012). The Court remanded 

for us to consider those arguments. Id. Having done so, we conclude Metrocare has failed to 

show the trial court lacked subject jurisdiction over Juarez’s claims.

The Tort Claims Act provides a limited waiver of immunity for injuries caused by “a 

condition or use of tangible personal or real property if the government unit would, were it a 

private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM.CODE 

ANN. § 101.021(2) (West 2011). This provision allows suits against government units for 

injuries caused by a “condition or use of tangible personal property” and “premises defects.” 

City of N. Richland Hills v. Friend, 370 S.W.3d 369, 371 (Tex. 2012). 

We review de novo a challenge to the trial court’s subject-matter jurisdiction. Tex. Dep't 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Perez v. City of Dallas, 180 

S.W.3d 906, 909 (Tex. App.—Dallas 2005, no pet.). If the allegations in the Plaintiffs’ 

pleadings do not demonstrate the court’s jurisdiction, but do not affirmatively negate it, the 

situation is a matter of pleading sufficiency, and the plaintiff should generally be given an 

opportunity to amend the pleadings. Tex. Dep’t of Crim. Justice-Cmty Justice Assistance Div. v. 

Campos, 384 S.W.3d 810, 815 (Tex. 2012). However, if a governmental entity has asserted in 

the trial court that it is immune and a plaintiff fails to allege or show facts demonstrating a 

waiver of immunity after having a reasonable opportunity to conduct discovery directed to the 

issue and amend the pleadings, then the case should be dismissed. Id. We liberally construe the 

plaintiff’s pleadings in favor of jurisdiction, and we look to the plaintiff’s intent. Miranda, 133 

S.W.3d at 226. 

In reviewing Metrocare’s arguments in this interlocutory appeal, we note we are limited 

to determining issues that show the trial court lacked jurisdiction over Juarez’s claims and we are 
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prohibited from rendering an advisory opinion. See Rusk, 392 S.W.3d at 95. We may only 

dismiss for jurisdictional issues raised for the first time on appeal, if either (1) the pleadings and 

record conclusively negate jurisdiction, (2) Juarez had a “full and fair” opportunity to develop 

the record and amend his pleadings or (3) the record shows Juarez would be unable to amend his 

pleadings on remand. Id. at 96. 

Metrocare first asserts Juarez has not, and cannot, plead a negligence claim for which 

immunity is waived because his complaint concerns only a condition of “real property” and he 

has not met the elevated standards applicable to premises defect cases. Specifically, Metrocare 

asserts Juarez has alleged only a defective condition of the conference room, not the whiteboard. 

We disagree. Juarez alleged the whiteboard was in an unsafe condition. The whiteboard was 

not affixed to the land and was thus not part of the “real property.” Therefore, the premises

defect line of cases Metrocare relies on is inapplicable. Harris County-Houston Sports Auth. v. 

Chilel, 14-12-00380-CV, 2013 WL 1789444 *2 (Tex. App.—Houston [14th Dist.] Apr. 25, 2013,

no pet.); see City of Houston v. Harris, 14-03-00264-CV, 2004 WL 349924, * 5 (Tex. App.—

Houston [14th Dist.] Feb. 26, 2004, no pet.) (concluding City failed to show plaintiff’s claim was 

for a premises defect because City failed to show the property that caused the injury, a statute, 

was affixed to the land);

2 see also Miranda, 133 S.W.3d at 229-30 (plaintiffs’ allegations 

concerned only government agency’s failure to reduce the risk of falling tree limbs and to warn 

plaintiffs of the risk of falling tree limbs, which were part of real property). 

We further conclude Juarez’s petition was sufficient to allege a negligence claim for 

injuries caused by the condition of the whiteboard. Juarez alleged the whiteboard was in an 

unsafe condition because it was not properly secured, and that Metrocare was negligent in 

 2 After remand, the City presented evidence that the statute was affixed to the land and in a subsequent appeal, based on that evidence, the 

Houston Fourteenth Court of Appeals concluded the plaintiff alleged a claim for premises defect subject to the heightened standards applicable to 

those claims. See City of Houston v. Harris ̧192 S.W.3d 167, 173-175 (Tex. App.—Houston [14th Dist.[ 2006, no pet.).
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creating and failing to remedy the unsafe condition.3 The Supreme Court has defined 

“condition” as “either an intentional or inadvertent state of being.” See Sparkman v. Maxwell, 

519 S.W.2d 852, 857 (Tex. 1975). To state a claim under the Act based on the condition of 

property, there must be some allegation of “defective or inadequate property.” See Salcedo v. El 

Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983); see also Dep’t of Transp. v. Garza, 70 S.W.3d 

802, 808 (Tex. 2002) (for a “condition” of a traffic sign to state a claim under the Act, there must 

be something “wrong” with the sign). Further, the complained-of condition must proximately 

cause the alleged injury. Rusk, 392 S.W.3d at 997. A condition of property does not 

proximately cause an injury if it does no more than furnish the means to make the injury 

possible. Id. at 97-98. The condition must “pose a hazard in the intended and ordinary ‘use’ of 

the property.” Rusk, 392 S.W.3d at 98 (claim that mental patient used plastic bag to commit 

suicide did not state a claim based on the condition of the bag because plastic bag did not pose 

hazard in its intended and ordinary use). And there must be a causal nexus between the 

complained-of condition and the injury. See Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex. 

2009) (claim that inmate used cord to commit suicide did not state a claim based on the condition 

of the cord, even if the cord was defective, because the injury was not caused by the alleged 

defective condition).

Here, Juarez alleged the unsecured state of the whiteboard constituted a dangerous 

condition of the whiteboard.4

 This condition posed a risk because the heavy whiteboard could 

 3 For decades, the courts have requested further guidance from the Legislature as to the meaning of the “condition or use” of tangible 

personal property language in the Act. See, e.g., Tex. Dep’t. of Crim. Justice v. Miller, 51 S.W.3d 583, 590-91 (Tex. 2001) (J. Hecht, concurring) 

(noting court has repeatedly “beseeched” the Legislature for guidance in applying the Act); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 301 (Tex. 

1976) (J. Greenhill, concurring) (encouraging Legislature to more clearly express its intent as to when governmental immunity waived). The 

Legislature’s failure to do so has resulted in what the Supreme Court has described as a “long and arduous history” of construing the statute. 

Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). While this history has resulted in numerous Supreme Court cases dealing 

with the “use” prong of the Act, there are relatively few dealing specifically with the “condition” prong. 

4 We recognize there was no allegation that the whiteboard was dilapidated, damaged, or improperly constructed. However, such an 

allegation or showing is not necessarily required under the Act. Cf. Sparkman, 519 S.W.2d at 857 (stop light that displayed a red left-turn arrow 

that confused some motorists was a “condition” of the light for which municipality could be liable under the Act). 
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fall. The whiteboard did fall, striking Juarez in the head, causing his alleged injuries. In Torres 

v. City of Waco, the plaintiff’s daughter was injured when a volleyball judge’s stand fell on her. 

See Torres v City of Waco, 51 S.W.3d 814, 818 (Tex. App.—Waco 2001, no pet.), disapproved 

on other grounds by Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004). The plaintiff alleged the 

City’s failure to “adequately secure the judge’s stand” proximately caused the child’s injuries. 

The Waco Court first concluded the plaintiff’s allegations did not state a claim based on the 

City’s “use” of the judge’s stand. Id. at 819. However, the court concluded the plaintiff did 

allege an actionable claim for injuries caused by the defective condition of judges’ stand. Id. at 

820. We similarly conclude Juarez’s pleadings were sufficient to allege an injury proximately 

caused by the defective condition of the whiteboard. 

In reaching this conclusion, we reject Metrocare’s reliance on cases dealing with the 

negligent “provision” of tangible property lacking an intergral safety component, and specifically 

its contention that Juarez failed to state a claim because Metrocare did not provide Juarez with 

the whiteboard.

5 The Supreme Court has held that a plaintiff can state a claim under the Act if 

the plaintiff alleges the government provided the plaintiff tangible property lacking an integral 

safety component. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (allegations of a 

negligent failure to furnish plaintiff proper protective items of personal property, to be used as a 

part of the uniform furnished him states a claim arising from “some condition or some use” of 

personal property); Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989)

(plaintiff stated a claim for negligence associated with drowning death when government entity 

was responsible for providing decedent with swimming attire, and entity did not provide 

 5 We note that although Juarez did not specifically state the whiteboard “lacked an intergral safety component,” he alleged the 

whiteboard was defective because it was not secured to the wall. A plaintiff is required to plead facts invoking a waiver of immunity, not to use

particular magic words. Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 223 n.3 (Tex. App.—Fort Worth, pet. denied). Liberally construing 

Juarez’s petition, we conclude he alleged the whiteboard was dangerous because it lacked something to secure it to the wall that was necessary 

for it to be safe.
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decedent with a life preserver, a “part of [decedent’s] swimming attire.”); Overton Mem’l Hosp. 

v. McGuirre, 518 S.W.2d 528, 529 (Tex. 1975) (injuries caused by negligently providing a 

hospital bed without bed rails are proximately caused from condition or use of tangible 

property.) 

Although not entirely clear, it appears the Supreme Court was defining the parameters of 

the waiver of immunity under the “use” prong of the Act when the plaintiff was relying on the 

government’s act of furnishing property to the plaintiff to establish both the government’s 

negligence and the government’s use of property. See Friend, 370 S.W.3d at 371 (plaintiff can 

bring a claim if the plaintiff alleges government unit “used” property that lacked an intergral 

safety component); Robinson, 780 S.W.2d at 172 (plaintiff’s sole contention is that the failure to 

provide a life jacket is a “use of tangible personal property”) (J. Hecht, dissenting); see also San 

Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246-47 (stating the hospital in Overton was 

alleged to have “used” the bed.). In concluding a claim exists in such cases, the Supreme Court 

has stated “[t]hese cases represent perhaps the outer bounds of what we have defined as use of 

tangible personal property.” See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 

1996) (emphasis added). Here, Juarez did not allege Metrocare was negligent in providing him 

with property but that it was negligent in creating or maintaining the dangerous condition of the 

property. We conclude the negligent provision line of cases relied on are not controlling.

Finally, even if we agreed with Metrocare that Juarez has alleged only a premises defect 

case and we must analyze it as such, we cannot agree Metrocare has shown it is entitled to 

dismissal of Juarez’s claims. According to Metrocare, Juarez cannot meet the heightened 

standards applicable to premises defect claims because he has not pleaded and cannot prove 

Metrocare had actual knowledge of any dangerous condition. See Miranda, 133 S.W.3d at 229-
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30 (plaintiff cannot recast complaints about falling tree limbs, which fall under definition of real 

property, as a complaint relating to the negligent condition of tangible property). 

Section 101.022 of the Act provides that if a claim arises from a “premise defect,” “the 

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

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

CODE § 101.022(a) (West 2011) (emphasis added). But if the claimant pays for use of the 

premises, the government unit’s duty is elevated to that owed to an invitee. See id.; State Dep’t 

of Highways & Pub., Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); City of Dallas v. 

Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.). If a plaintiff brining a 

premises defect claim is an invitee, he must prove only that the government entity knew or 

should have known about the condition. Payne, 838 S.W.2d at 237; Davenport, 418 S.W.3d at 

847.

According to Metrocare, Juarez is a licensee because he did not pay for use of the 

premises. It directs us to no evidence and cites no authority to support its contention. Further, 

although Juarez did not plead he paid for use of the premises, neither the pleadings nor the proof 

negate such payment. Further, Metrocare did show it is a “community center” under Section 

534.001(e) of the Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 534.001 (West 

2010). Section 534.017(a) of the Code requires a community center to charge a reasonable fee

for the services it provides, unless prohibited by law. TEX. HEALTH & SAFETY CODE ANN.

§ 534.017(a) (West 2010). 

The payment of a fee related to the premises does not establish the plaintiff has paid for 

use of the premises. Davenport, 418 S.W.3d at 848. Only a fee charged for entry onto a 

particular premises is sufficient to confer invitee status. Id. However, it is not necessary that 

any payment be solely for entrance. Rather, the courts have focused on whether the plaintiff 
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would have been granted access to the premises absent payment. See City of Dallas v. Patrick, 

347 S.W.3d 452, 457 (Tex. App.—Dallas 2011, no pet.) (plaintiff, who entered zoo as guest of a 

member, paid for use of premises because she was only permitted to enter because a fee was 

paid); Dallas-Fort Worth Int’l Airport Pub. Facility Improvement Corp. v. Banks, No. 02-09-

00176-CV, 2010 WL 87865 *3-4 (Tex. App.—Fort Worth Jan 7, 2010, pet. denied) (fact issue 

existed on whether plaintiff, who was injured in airport terminal, paid for use of the premises 

when she paid for plane ticket and she could not have entered the terminal without the plane 

ticket); see also M.D. Anderson Hosp. and Tumor Institute v. Felter, 837 S.W.2d 245, 248 (Tex. 

App.—Houston [1st Dist.] 1992, no writ) (evidence sufficient to show plaintiff paid for use of 

the premises when her husband was patient at hospital and she paid for her husband’s hospital 

stay). The Waco of Appeals had held that payment by the plaintiff’s employer for a training 

class was sufficient to show the plaintiff paid for use of the training facilities. Tex. Eng’g 

Extension Serv. v. Gifford, 10-11-00242-CV, 2012 WL 851742 (Tex. App.—Waco Mar. 14, 

2012, no pet.). Here, Juarez was injured in a conference room during a group therapy session, 

not in an area of Metrocare’s premises that would have been open to the public. We conclude 

Metrocare has not shown Juarez did not pay for use of the premises or that Juarez cannot amend 

his pleading to allege invitee status or prove he was an invitee.6

 Therefore, evidence that 

Metrocare did not have actual knowledge of the dangerous condition does not show the trial 

court lacked subject-matter jurisdiction over Juarez’s premises liability claim. 

Finally, Metrocare asserts in a footnote that the evidence negates a premises liability 

claim because the evidence showed that Juarez had knowledge of the “condition” of the 

 6 We also note that in Billstrom v. Memorial Medical Center, the Corpus Christi Court indicated that even if a patient does not 

actually pay for a hospital bill, the legislature did not intend the patient’s physical act of payment be determinative in deciding whether he is an 

invitee under the Act. See Billstrom v. Mem’l Med. Ctr., 598 S.W.2d 642, 648 (Tex. App.—Corpus Christi 1980, no writ) (refusing to affirm a 

summary judgment based on the hospital’s contention that the plaintiff did not pay for use of hospital because there might be a fact issue that 

hospital intended to treat plaintiff as a paying patient or the patient was indigent and unable to pay). 
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whiteboard. According to Metrocare, Juarez admitted in his affidavit that he noticed the 

“unattached” whiteboard about a year before it fell on him. However, Juarez merely stated he 

had knowledge of the whiteboard, not that it was unattached. It was the unattached condition of 

the whiteboard that Juarez alleged rendered it dangerous. There is no evidence Juarez was aware 

of this condition. However, Juarez’s petition did fail to allege he was not aware of the alleged 

dangerous condition. Thus, his petition was defective. But because the defect is not incurable, 

he must be given an opportunity to amend his pleadings. See Tex. A & M Univ. Sys. v. Koseoglu, 

233 S.W.3d 835, 839 (Tex. 2007).

We resolve Metrocare’s issues against it and remand to the trial court for further 

proceedings consistent with this opinion.

111144F.P05

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

DALLAS METROCARE SERVICES, 

Appellant

No. 05-11-01144-CV V.

ADOLFO JUAREZ, Appellee

On Appeal from the 191st Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. 11-01999.

Opinion delivered by Justice O'Neill. 

Justices Francis and Brown participating.

In accordance with this Court’s opinion of this date, the trial court’s order is 

AFFIRMED.

It is ORDERED that appellee ADOLFO JUAREZ recover his costs of this appeal from 

appellant DALLAS METROCARE SERVICES.

Judgment entered this 30th day of June, 2014.