Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00594-CV

Texas Department of Transportation, Appellant

v.

Cecilia M. Ramirez, Individually, as Next Friend of Cynthia Cecilia Ramirez and Melinda

Amanda Ramirez, Minors; and as Heir of the Estate of Ruben Armando Ramirez, Sr.,

Deceased; Ruben Armando Ramirez, Jr., Individually and as Heir of the Estate of

Ruben Armando Ramirez, Sr., Deceased; and Rene Ramirez, Individually and

as Heir of the Estate of Ruben Armando Ramirez, Sr., Deceased, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 99-06140, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

After a fatal automobile collision on Interstate Highway 35, family members of

Ruben Ramirez, Sr. ("appellees") brought a negligence action against the Texas Department of

Transportation ("the Department"), asserting a premises defect claim under the Texas Tort Claims

Act ("the Act"). (1) The Department brings this interlocutory appeal from a district court order

denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (West

Supp. 2001). In three issues, the Department argues that its sovereign immunity under the Act

was not waived because (i) appellees did not sufficiently state a defective condition of the

highway; (ii) the Department cannot be held liable for failing to install safety features; and (iii)

appellees did not allege an act after January 1, 1970 that caused the collision. We affirm the

district court's judgment.

Background

On the morning of February 14, 1998, Ruben Ramirez, Sr. was traveling

southbound in the far west lane of Interstate Highway 35. Just north of the Slaughter Lane

overpass in South Austin, at approximately 7:50 a.m., Ramirez's automobile was struck head-on

after Maria Vasquez lost control of her car. Prior to the accident, Vasquez had been traveling

northbound on the highway when she collided with a vehicle in an adjacent lane. Vasquez's car

crossed the grassy median separating the north and southbound lanes of the highway as well as

two lanes of oncoming southbound traffic before it collided with Ramirez's automobile. As a

result of the impact, Ramirez was pronounced dead at the scene of the collision approximately

thirty minutes later.

On May 26, 1999, appellees brought this suit against the Department, asserting a

single cause of action for negligence under section 101.022(a) of the Act. Id. § 101.022(a) (West

1997). The Department filed its original answer on June 25, 1999. Subsequently, on June 28,

2000, the Department filed a motion to dismiss for lack of jurisdiction and a motion for summary

judgment. After a hearing, the district court denied both motions. The Department appeals the

district court's judgment denying its motion to dismiss for lack of jurisdiction.

Standard of Review

A plea to the jurisdiction contests the district court's authority to determine the

subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex.

2000); City of Austin v. L.S. Ranch, Ltd. , 970 S.W.2d 750, 752 (Tex. App.-Austin 1998, no

pet.). Thus, a plea to the jurisdiction is properly employed to present a bar to subject matter

jurisdiction. Texas Dep't of Transp. v. Jones , 8 S.W.3d 636, 637 (Tex. 1999). As subject matter

jurisdiction presents a question of law, we review a district court's order denying a plea to the

jurisdiction de novo. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998).

We examine a plaintiff's good faith factual allegations to determine whether the

district court has jurisdiction. Brannon v. Pacific Employers Ins. Co. , 224 S.W.2d 466, 469

(Tex. 1949); see Bland Indep. Sch. Dist. , 34 S.W.3d at 554 . In reviewing a plea to the

jurisdiction, we may look beyond the pleadings and are required to do so when necessary to

resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. , 34 S.W.3d at 555 . The nature

of the issues raised in the plea determines the scope of the court's focus beyond the pleadings.

Id.

The plaintiff bears the burden of pleading facts that show the district court has

subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446

(Tex. 1993). Unless the defendant pleads and proves that the plaintiff's allegations were

fraudulently made to confer jurisdiction, they are accepted as true. Continental Coffee Prods. Co.

v. Cazarez , 937 S.W.2d 444, 449 (Tex. 1996). Absent the face of the petition affirmatively

demonstrating a lack of jurisdiction, the district court must liberally construe the allegations in

the petition in favor of the plaintiff and in favor of jurisdiction. Texas Ass'n of Bus. , 852 S.W.2d

at 446 ; Peek v. Equipment Serv. Co. , 779 S.W.2d 802, 804 (Tex. 1989).

In this case, the Department asserts governmental immunity from suit in its plea

to the jurisdiction, arguing in part that the petition does not state a claim under the Act. Because

this argument, if correct, has jurisdictional consequences for claims brought under the Act, the

Department properly asserted its challenge to the sufficiency of the petition in a plea to the

jurisdiction. See Jones , 8 S.W.3d at 637 (reversing court of appeals for affirming the denial of

the Department's plea without first determining whether Jones's pleadings stated a claim under

the Texas Tort Claims Act); Brown v. City of Houston , 8 S.W.3d 331, 334 (Tex. App.-Waco

1999, pet. denied) (court did not err in sustaining plea to the jurisdiction because no viable cause

of action was alleged under section 101.021 of the Act). The question before us is whether

appellees' petition alleged facts that bring their action within the Act and thus confer jurisdiction

on the district court.

DISCUSSION

Sovereign Immunity and the Texas Torts Claim Act

The doctrine of sovereign immunity protects the State (2) from lawsuits for damages

unless waived and consists of two basic principles of law--immunity from liability and immunity

from suit. Federal Sign v. Texas S. Univ. , 951 S.W.2d 401, 405 (Tex. 1997); Missouri Pac. R.R.

Co. v. Brownsville Navigation Dist. , 453 S.W.2d 812, 813 (Tex. 1970). While immunity from

liability does not affect a court's jurisdiction to hear a case, immunity from suit bars an action

against the State unless the State expressly consents to the suit. Federal Sign , 951 S.W.2d at 405 ;

Missouri Pac. R.R. Co. , 453 S.W.2d at 813 .

"The courts of our state require clear and unambiguous legislative expression

before they will hold that sovereign immunity has been waived." Kerrville State Hosp. v.

Fernandez , 28 S.W.3d 1, 3 (Tex. 2000). The supreme court recently confirmed that courts of this

state should defer to the Texas Legislature's delineation of the boundaries of sovereign immunity.

General Servs. Comm'n v. Little-Tex Insulation Co. , 39 S.W.3d 591, 595 (Tex. 2001). In other

words, establishing when and to what extent sovereign immunity from suit should be waived is

solely within the realm of the Legislature. Id. ; Federal Sign , 951 S.W.2d at 409 .

A party suing a governmental entity must establish the State's consent, which may

be alleged either by reference to a statute or to express legislative permission. Jones , 8 S.W.3d

at 637 ; Missouri Pac. R.R. Co. , 453 S.W.2d at 814 . Here, in order for their claim to survive,

appellees must demonstrate that they have stated a claim for which the Legislature has waived

governmental immunity from suit.

In Texas, governmental entities are immune from tort liability unless the

Legislature has waived immunity. Dallas County Mental Health & Mental Retardation v.

Bossley , 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act contains an express

waiver of the State's immunity from suit under certain circumstances. Tex. Civ. Prac. & Rem.

Code Ann. § 101.025 (West 1997) ("Sovereign immunity to suit is waived and abolished to the

extent of liability created by this chapter."). When immunity has been expressly waived by the

Legislature, the court must determine the scope of the waiver from the language of the statute.

Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 211 (Tex. 1989).

The Legislature did not intend the waiver of sovereign immunity in the Act to be

complete. Bossley , 968 S.W.2d at 341-42 (discussing the history of the passage of the Act); City

of LaPorte v. Barfield , 898 S.W.2d 288, 299 (Tex. 1995) ("[O]nly causes of action and remedies

authorized by the Texas Tort Claims Act are permitted."). But the supreme court has stated that

waiver under the Act should be liberally construed to effectuate its purposes. Robinson v. Central

Tex. MHMR Ctr. , 780 S.W.2d 169, 170 (Tex. 1989). Any exercise of liberal construction of the

Act, however, must still abide by the supreme court's directive, "Arguments for applications of

the Act that would essentially result in its waiver becoming absolute must therefore be rejected

as contrary to the Act's fundamental purpose." Bossley , 968 S.W.2d at 342 .

The express waiver of the Act only permits a district court to exercise jurisdiction

when a plaintiff sufficiently pleads a claim for which liability has been established under the Act.

Jones , 8 S.W.3d at 639 ; City of Midland v. Sullivan , 33 S.W.3d 1, 10 (Tex. App.-El Paso 2000,

pet. filed); Prairie View A&M Univ. v. Mitchell , 27 S.W.3d 323, 327 (Tex. App.-Houston [1st

Dist.] 2000, pet. denied). The Texas Supreme Court has outlined the following two-step analysis

to determine whether a governmental entity has waived sovereign immunity from suit under the

Act:

[I]f a claim is barred by immunity, but immunity is waived under sections

101.021-.022 of the Act, action is still prohibited if the claim falls within [an]

exception. If, however, a claim is not barred by immunity, neither the waiver of

immunity by the Act, nor the exceptions to that waiver, are relevant.

Delaney v. University of Houston , 835 S.W.2d 56, 58 (Tex. 1992). Jurisdiction then is conferred

upon a district court when a plaintiff alleges sufficient facts to state a claim under the Act and that

claim does not fall within one of the Act's exceptions. Id.

Section 101.021 addresses the limited circumstances under which a governmental

entity will be liable for torts and includes "personal injury and death so 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 Ann.

§ 101.021 (2) (West 1997); see also Texas Dep't of Transp. v. Able , 35 S.W.3d 608, 611 (Tex.

2000). The supreme court has held that section 101.021(2) includes governmental liability for

premises defects because it encompasses liability for conditions of real property and tangible

personal property. Able , 35 S.W.3d at 612 ; DeWitt v. Harris County , 904 S.W.2d 650, 653

(Tex. 1995). We must first determine whether appellees asserted a cause of action under a section

of the Act that created liability, thereby waiving the Department's immunity from suit.

Relying solely upon section 101.022(a) of the Act, appellees pleaded the following

negligence cause of action in their petition:

[The Department], as a governmental entity, owed the same duty of care to Mr.

Ramirez that a private person would owe a licensee on private property. The

[Department] breached that duty by its failure to correct and/or warn Mr. Ramirez

of the presence of the defect of the roadway, which was known by the

[Department], but not by Mr. Ramirez. Such breach was a proximate cause of the

head-on collision in question, which resulted in Mr. Ramirez's untimely tragic

death and Plaintiffs' damages.

The original petition failed to mention either section 101.021(2) or 101.025, the provision

establishing the parameters of the Act's waiver of immunity from suit and the express waiver

itself.

In this case, appellees expressly disclaim that their premises defect claim falls under

101.021(2) of the Act; rather, they argue that section 101.022(a) provides an independent waiver

of immunity. Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (a). Courts, however, have already

rejected this argument, recognizing that, rather than creating liability, section 101.022 of the Act

constitutes a limitation on the State's tort liability for premises defects by imposing a duty

equivalent to that of a private landowner to a licensee. State v. Tennison , 509 S.W.2d 560, 562

(Tex. 1974) (analyzing the Act prior to its codification); Robnett v. City of Big Spring , 26 S.W.3d

535, 537 (Tex. App.-Eastland 2000, no pet.); State Dep't of Hwys. & Pub. Transp. v. Gonzalez ,

24 S.W.3d 533, 535 (Tex. App.-Corpus Christi 2000, no pet.); University of Tex. Med. Branch

v. Davidson , 882 S.W.2d 83, 85 (Tex. App.-Houston [14th Dist.] 1994, no writ); Hawley v. State

Dep't of Hwys. & Pub. Transp. , 830 S.W.2d 278, 280-81 (Tex. App.-Amarillo 1992, no writ).

Although not constituting an independent waiver of immunity, section 101.022 does serve as a

predicate for liability in a premises defect claim and therefore must be referenced . Able , 35

S.W.3d at 612 ; DeWitt , 904 S.W.2d at 653 .

Here, appellees' petition references section 101.022 of the Act, thereby properly

pleading the required predicate. Because the Act has waived immunity from suit for premises

defect claims and this petition attempts to assert such a claim, we may construe the Act liberally

and look beyond the fact that the petition does not expressly invoke section 101.021(2), the

provision creating liability for such claims. See Robinson , 780 S.W.2d at 170 . This construction,

however, does not relieve appellees of their burden to state a premises defect claim.

The Requirements to State a Premises Defect Claim Under the Texas Tort Claims Act

In its first issue, the Department argues that appellees did not plead sufficient facts

to allege a defective condition of the portion of the highway at issue. The supreme court has

established the following elements for a premises defect (3) claim:

(1) a condition of the premises created an unreasonable risk of harm to the

licensee;

(2) the owner actually knew of the condition;

(3) the licensee did not actually know of the condition;

(4) the owner failed to exercise ordinary care to protect the licensee from danger;

and

(5) the owner's failure was a proximate cause of injury to the licensee.

State Dep't of Hwys. & Pub. Transp. v. Payne , 838 S.W.2d 235, 238 (Tex. 1992) (citing

Tennison , 509 S.W.2d at 561 ).

Unless a plaintiff alleges that a legal duty sufficient to impose liability under the

Act exists and has been violated, sovereign immunity is not waived. City of Denton v. Van Page ,

701 S.W.2d 831, 834 (Tex. 1986). The Legislature has expressly stated that, with respect to

premises defect claims, governmental entities owe "only the duty that a private person owes to

a licensee on private property, unless the claimant pays for use of the premises." Tex. Civ. Prac.

& Rem. Code Ann. § 101.022 (a). This duty requires that "a landowner not injure a licensee by

willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn

a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and

the licensee is not." Payne , 838 S.W.2d at 237 .

While the Act does not expressly define the term "condition," Texas courts have

described the term as "an intentional or an inadvertent state of being." Sparkman v. Maxwell , 519

S.W.2d 852, 858 (Tex. 1975); see also Gonzalez , 24 S.W.3d at 537 (providing the Oxford

English Dictionary definition of "condition" as "a particular mode or state of being of a thing").

The Act's language "condition or use" has also been interpreted as implying "that such property

was furnished, was in bad or defective condition or was wrongly used." Lowe v. Texas Tech

Univ. , 540 S.W.2d 297, 302 (Tex. 1976) (Greenhill, C.J., concurring); see also Texas Dep't of

Transp. v. Henson , 843 S.W.2d 648, 650 (Tex. App.-Houston [14th Dist.] 1992, writ denied).

The supreme court in Salcedo v. El Paso Hospital District stated that the phrase "some condition"

required "an allegation of defective or inadequate property when 'some condition' of property is

a contributing factor to the injury." 659 S.W.2d 30, 32 (Tex. 1983). (4)

In paragraphs ten and eleven of the original petition, appellees alleged as follows:

The condition of the highway at or near the location of the collision [that]

made the basis of this suit was dangerous. Prior to the death of Mr. Ramirez on

February 14, 1998, there had been numerous head-on collisions involving vehicles

crossing the narrow grass median and colliding with vehicles traveling in the

opposite direction.

The stretch of Interstate 35 in question has been continuously controlled,

supervised, and maintained by . . . [the Department]. As of the date of this filing,

. . . [the Department] has taken no action to correct the defect of the roadway

and/or to warn the public using the roadway of the defect of the roadway.

This petition simply asserts that a dangerous condition existed on the stretch of highway in

question. While we must accept the facts alleged by a plaintiff as true absent a challenge from

a defendant, we are not bound to accept the legal and factual conclusions that the plaintiff draws

from the pleaded facts. Firemen's Ins. Co. v. Board of Regents of the Univ. of Tex. Sys. , 909

S.W.2d 540, 542 (Tex. App.-Austin 1995, writ denied). When jurisdictional issues are raised,

as here, we are required to look beyond the petition to the extent necessary to determine whether

jurisdiction has been conferred. Bland Indep. Sch. Dist. , 34 S.W.3d at 555 .

At oral argument, appellees contended that a premises defect was clearly identified

in their expert's report, which was considered at a hearing on the Department's motion to dismiss

and motion for summary judgment. In particular, appellees' counsel argued that the report,

authored by R.T. Abrahamson, an expert in forensic and human engineering and accident

reconstruction, identifies the alleged defect--the slope of the northbound lanes in relation to the

southbound lanes and the slope of the grassy median. In their supplemental brief, however,

appellees merely state, "It is a defective condition of IH-35 that allows a car traveling in the

opposite direction to cross a median," suggesting that the alleged defect may be the Department's

failure to install safety features. Attributing a liberal construction to the facts alleged in the

petition and examining, to a limited extent, the record beyond the petition, we conclude that

appellees have sufficiently alleged a defective condition. Issue one is overruled.

Assuming without deciding that the facts in the petition also sufficiently allege the

remaining elements of a premises defect claim under the Act, we turn to the second step of

analysis to determine if the Department has waived sovereign immunity under the Act. See

Delaney , 835 S.W.2d at 58 . This step requires us to examine whether the claim falls within one

of the Act's exceptions. Id.

Exceptions to the Waiver of Sovereign Immunity Under the Act

In its second and third issues, the Department maintains that sections 101.056 and

101.061, which carve out exceptions to the Act's waiver of sovereign immunity, apply to this

case, leaving the Department's sovereign immunity intact. Specifically, the Department argues

that it cannot be held liable for failing to install safety features and, further, that appellees did not

allege an act after January 1, 1970 that caused the collision. Appellees contend that we should

not consider these arguments because they were not raised in the district court. Because the

record reveals otherwise, we will proceed with our review of the Department's second issue. (5)

Section 101.056 provides:

This chapter does not apply to a claim based on:

(1) the failure of a governmental unit to perform an act that the unit is not

required by law to perform; or

(2) a governmental unit's decision not to perform an act or its failure to make a

decision on the performance or nonperformance of an act if the law leaves the

performance or nonperformance of the act to the discretion of the

governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 1997). Thus, this section provides that

when a governmental entity's acts are discretionary, (6) the entity does not waive its sovereign

immunity. State v. Rodriguez , 985 S.W.2d 83, 85 (Tex. 1999); State v. Burris , 877 S.W.2d 298,

299 (Tex. 1994). The purpose of this exception is "to avoid judicial review that would question

the wisdom of a government's exercise of its discretion in making policy decisions" and to serve

the interests in "effective, unfettered performance of officials in making policy decisions and the

maintenance of the separation of powers between the executive, legislative and judicial branches

of government." State v. Terrell , 588 S.W.2d 784, 787 (Tex. 1979).

In addition, the Department argues that appellees' premises defect claim is barred

by section 101.061, which reads, "This chapter does not apply to a claim based on an act or

omission that occurred before January 1, 1970." Tex. Civ. Prac. & Rem. Code Ann. § 101.061 .

In light of the procedural posture here, which prevents us from considering the merits, the

question before us is whether the Department has shown that appellees' petition, on its face,

alleges facts which fall within either of these exceptions, thereby affirmatively demonstrating a

lack of jurisdiction.

To successfully challenge a district court's subject matter jurisdiction, a defendant,

like the Department, must prove either that (i) the plaintiff's pleadings, when taken as true,

affirmatively establish that the court does not have subject matter jurisdiction; or (ii) the plaintiff

has pleaded fraudulently or in bad faith to confer jurisdiction. See Curbo v. State , 998 S.W.2d

337, 342 (Tex. App.-Austin 1999, no pet.). We agree with the Department that appellees'

petition may be deficient in terms of specificity and consistency. But we cannot ignore that the

Department had at its disposal procedural methods to require appellees to plead its claim more

specifically and chose not to do so. See Godley Indep. Sch. Dist. v. Woods , 21 S.W.3d 656, 660-61 (Tex. App.-Waco 2000, pet. filed).

A court should not grant a plea to the jurisdiction without first allowing a plaintiff

an opportunity to replead if the jurisdictional defect is susceptible to amendment to show the

court's jurisdiction. Bybee v. Firemen's Fund Ins. Co. , 331 S.W.2d 910, 917 (Tex. 1960); see

also Texas Ass'n of Bus. , 852 S.W.2d at 446 ; Peek , 779 S.W.2d at 805 . When a jurisdictional

defect is curable, the true issue is one of sufficiency of pleading, not of jurisdiction. Bybee, 331

S.W.2d at 917 . Because the Department did not seek to require appellees to replead their claim

more specifically, it is now also saddled with the lack of detail in the current pleading. From the

record before us, we cannot say the Department has established that appellees' claim falls within

the exceptions delineated in section 101.056 or 101.061 of the Act. Accordingly, appellant's

second issue is overruled.

CONCLUSION

Having overruled its issues, we conclude that the Department has not satisfied its

burden to establish that appellees' petition affirmatively demonstrates a lack of jurisdiction.

Accordingly, we affirm the district court's judgment denying the Department's plea to the

jurisdiction.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: April 5, 2001

Do Not Publish Released for publication May 2, 2002. Tex. R. App. P. 47.3(c).

1. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 -.109 (West 1997 & Supp. 2001).

2. As a state agency, the Department enjoys sovereign immunity. Tex. Civ. Prac. & Rem.

Code Ann. § 101.001 (3) (West Supp. 2001); see also Texas Dept. of Transp. v. Able , 35 S.W.3d

608, 611 (Tex. 2000); Lowe v. Texas Tech Univ. , 540 S.W.2d 297, 298 (Tex. 1976).

3. Whether a condition is a premises or special defect presents a question of law. State Dep't

of Hwys. & Pub. Transp. v. Payne , 838 S.W.2d 235, 238 (Tex. 1992). A state highway has been

viewed as a premises. Sutton v. State Hwy. Dep't , 549 S.W.2d 59, 61 (Tex. Civ. App.-Waco

1977, writ ref'd n.r.e.). Appellees do not assert that their claim is based on a special defect.

4. The supreme court has expressly limited the Salcedo decision to its specific facts. Dallas

County Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 342 (Tex. 1998).

5. The Department presented both arguments in its motion to dismiss.

6. Whether a governmental act is discretionary is a question of law. State v. San Miguel , 2

S.W.3d 249, 251 (Tex. 1999); State v. Rodriguez , 985 S.W.2d 83, 85 (Tex. 1999). Design of

a public work, such as a state highway, is generally a discretionary function that involves

numerous policy decisions, including what type of safety features to install. San Miguel , 2

S.W.3d at 251 ; Rodriguez , 985 S.W.2d at 85 ; see also Maxwell v. Texas Dep't of Transp. , 880

S.W.2d 461, 463-64 (Tex. App.-Austin 1994, writ denied).