Opinion

NUMBER

13-04-168-CV

COURT OF

APPEALS

THIRTEENTH DISTRICT

OF TEXAS

CORPUS CHRISTI -

EDINBURG

LOS

FRESNOS CONSOLIDATED

INDEPENDENT SCHOOL

DISTRICT , Appellant,

v.

ENRIQUE

RIVAS, JR. AND ELSA RIVAS, INDIVIDUALLY

AND

AS NEXT FRIENDS OF FELIX RIVAS,

MAGDALENA RIVAS AND

VELENTIN RIVAS , Appellees.

On appeal from

the 107th District Court

of Cameron County, Texas.

MEMORANDUM

OPINION

Before

Justices Yanez, Castillo, and Garza

Memorandum

Opinion by Justice Castillo

This

interlocutory appeal stems from a suit by Enrique Rivas, Jr. and Elsa Rivas,

Individually and as next friends of Felix Rivas, Magdalena Rivas, and Valentin

Rivas ("the Rivases") against Los Fresnos Consolidated Independent

School District (the "School District") and Raquel F. Fortuna [1]

for negligence resulting in a bus accident in which Felix, Magdalena, and

Valentin were allegedly injured. The

School District appeals the trial court's denial of its plea to the

jurisdiction. We affirm the judgment of

the trial court in part and reverse in part.

I. Background

The

Rivases alleged that on or about August 27, 2001, Felix, Magdalena, and

Valentin Rivas were passengers on a school bus driven by Raquel Fortuna. At some point, the bus rolled onto its

side. The Rivases allege that the

children suffered serious injuries in the accident. In their petition, the Rivases sue based on

claims of (1) negligence of both Fortuna and the School District, (2) negligent

entrustment on the part of the School District, and (4) negligent hiring and

retention, also on the part of the School District. Additionally, the Rivases claim that the

School District is liable under respondeat superior . The Rivases request actual and exemplary

damages.

In their

first amended answer, the School District and Fortuna denied the Rivases'

allegations and asserted the affirmative defense of governmental immunity. The School District and Fortuna later filed a

plea to the jurisdiction, moving the trial court to dismiss the Rivases' claims

for lack of subject matter jurisdiction.

The plea to the jurisdiction stated that, as a governmental unit, the

School District is immune from tort liability unless the Legislature has waived

immunity. Further, the School District

and Fortuna contended that it was the Rivases' burden to affirmatively

demonstrate (1) lack of immunity for the School District and Fortuna, and (2)

that the trial court has jurisdiction over their claims. The plea goes on to state that the School District's

monetary liability is limited to $100,000, and that the School District and

Fortuna's insurer had already paid claimants involved in the bus accident sums

in excess of that amount. Attached to

the plea to the jurisdiction is the affidavit of Connie Dedmon, the claims

adjuster for the insurance company utilized by the School District and

Fortuna. Dedmon states that "To

date, Fortuna, through her insurer, has paid to claimants in excess of $100,000

for damages alleged to be caused by an alleged act or omission by Fortuna in

the course and scope of her employment with the Los Fresnos Consolidated

Independent School District, while employed as a public servant."

The

Rivases responded to the plea to the jurisdiction, stating that subject matter

jurisdiction under the Texas Torts Claims Act had been invoked. The response also questioned the School

District and Fortuna's argument that the School District's liability is

foreclosed since its employee's liability has allegedly been exhausted. On March 25, 2004, the trial court denied the

School District and Fortuna's plea to the jurisdiction. It is from that decision that the School

District now appeals.

II. Jurisdiction

Our initial inquiry is always whether we have

jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County ,

101 S.W.3d 778, 779 (Tex. App. B Corpus Christi 2003, no pet.) (citing Tex. Ass'n

of Bus. v. Tex. Air Control Bd ., 852 S.W.2d 440, 443 (Tex.

1993)). We are obligated to determine,

sua sponte, our own jurisdiction. Garcia ,

101 S.W.3d at 779 (citing N.Y. Underwriters Ins. Co. v. Sanchez,

799 S.W.2d 677, 678 (Tex. 1990) (per curiam)). Jurisdiction of a court is never

presumed. Garcia , 101 S.W.3d

at 783 . Our jurisdiction is

established exclusively by constitutional and statutory enactments. Id . at 784; see Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05). Unless one of the sources of our authority

specifically authorizes an interlocutory appeal, we only have jurisdiction over

an appeal taken from a final judgment.

Garcia , 101 S.W.3d at 784 .

Absent an express grant of authority, we do not have jurisdiction to

review an interlocutory order. Id .

If the record does not affirmatively

demonstrate our jurisdiction, we must dismiss the appeal. Id .

The Texas Civil Practice and Remedies Code grants us

jurisdiction to hear an interlocutory appeal from an order granting or denying

a plea to the jurisdiction by a governmental unit. See T ex .

C iv . P rac . & R em .

C ode A nn . ' 51.014(a)(8) (Vernon Supp. 2004‑05). It is undisputed that the School District is

such a governmental unit. See id . ' 101.001(3)(B) (Vernon 2005). Accordingly, we conclude that we have

jurisdiction to consider the issues raised on appeal.

III. Issue on

Appeal

The School District's brief states that the ultimate

issue to be decided on appeal is whether the trial court erred in denying the

School District and Fortuna's plea to the jurisdiction. The School District includes in this question

the following primary issues: (1) whether Fortuna lacks "personal

liability" to appellees under these circumstances by operation of Texas

Civil Practice and Remedies Code section 108.002, (2) whether the School

District may assert Fortuna's defense as a basis for its plea to the

jurisdiction, and (3) whether the School District, as Fortuna's employer, is

immune because Fortuna cannot be personally liable to appellees.

A. Standard

of Review

This appeal is strictly limited to our review of the

trial court's ruling on the plea to the jurisdiction. Tex.

Civ. Prac. & Rem. Code Ann. '

51.014(a)(8) (Vernon Supp. 2004-05). A

plea to the jurisdiction is the vehicle by which a party contests the trial

court's authority to determine the subject matter of the cause of action. State v. Benavides , 772 S.W.2d 271,

273 (Tex. App. B Corpus Christi 1989, writ denied). The plaintiff bears the burden of alleging

facts affirmatively demonstrating the trial court's jurisdiction to hear a

case. Tex. Ass'n of Bus. , 852

S.W.2d at 446 ; Mission Consol. Indep. Sch. Dist. v. Flores , 39 S.W.3d

674, 676 (Tex. App. B Corpus Christi 2001, no pet.). A trial court must not weigh the merits of

the case, but instead must consider only the pleadings and evidence pertinent

to the jurisdictional question. County

of Cameron v. Brown , 80 S.W.3d 549, 554-55 (Tex. 2002) (citing Tex.

Natural Res. Conservation Comm'n v. White , 46 S.W.3d 864, 868 (Tex.

2001)). In doing so, the trial court

must construe the plaintiff's pleadings liberally in favor of jurisdiction, Peek

v. Equip. Serv. Co. , 779 S.W.2d 802, 804 (Tex. 1989), and must take all

factual allegations pled as true, unless the defendant pleads and proves that

the allegations were fraudulently made in order to confer jurisdiction. Cont. Coffee Prods. Co. v. Cazarez,

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

a plaintiff pleads facts that affirmatively demonstrate an absence of

jurisdiction and such defect is incurable, immediate dismissal of the case is

proper. Peek , 779 S.W.2d at

804-05 ; City of Austin v. L.S. Ranch , 970 S.W.2d 750, 753 (Tex. App. B Austin 1998, no pet.). However, the mere failure of a petition to

state a cause of action does not show a want of jurisdiction in the court. Bybee v. Fireman's Fund Ins. Co. , 331

S.W.2d 910, 917 (1960). If the

plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction,

but do not affirmatively show incurable defects in jurisdiction, the proper

remedy is to allow the plaintiff an opportunity to amend before dismissing. Brown , 80 S.W.3d at 545-55 ; Peek ,

779 S.W.2d at 804-05 .

On appeal, because the question of subject matter

jurisdiction is a legal question, we review the trial court's ruling on a plea

to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale , 964

S.W.2d 922, 928 (Tex. 1998). To

determine whether the plaintiff has affirmatively demonstrated the court's

jurisdiction to hear the case, we consider the facts alleged by the plaintiff,

and to the extent it is relevant to the jurisdictional issue, the evidence

submitted by the parties. White ,

46 S.W.3d at 868 . Like the trial court,

we must construe the pleadings in the plaintiff's favor and look to the

pleader's intent. Brown , 80

S.W.3d at 545-55 . Our task is not to

determine the merits of the case but rather to examine the petition, taking as

true the facts pled, and determine whether those facts support jurisdiction in

the trial court. Baston v. City of

Port Isabel , 49 S.W.3d 425, 427-28 (Tex. App. B Corpus

Christi 2001, pet. denied).

B. Law on

Statutory Construction

This case is based on provisions of the civil

practice and remedies code, and specifically the Texas Tort Claims Act. T ex .

C iv . P rac . & R em .

C ode A nn . ' 101.001-.109 (Vernon 2005). Our primary objective when construing a

statute is to ascertain and give effect to the Legislature's intent. See McIntyre v. Ramirez , 109 S.W.3d

741, 745 (Tex. 2003); Kroger Co. v. Keng , 23 S.W.3d 347, 349 (Tex.

2000). In discerning that intent, we

begin with the plain and common meaning of the statute's words. McIntyre, 109 S.W.3d at 745 . In construing a statute, a court may consider

the (1) object sought to be obtained; (2) circumstances under which the statute

was enacted; (3) legislative history; (4) common law or former statutory

provisions, including laws on the same or similar subjects; (5) consequences of

a particular construction; (6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision. T ex .

G ov't C ode A nn . ' 311.023 (Vernon 1998). We must read the statute as a whole and not

just isolated portions. See City of

San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003). If the statutory language is unambiguous, we

must interpret it according to its terms, giving meaning to the language

consistent with other provisions in the statute. See McIntyre , 109 S.W.3d at 745 . Additionally, if the statutory text is

unambiguous, a court must adopt the interpretation supported by the statute's

plain language unless that interpretation would lead to absurd results. Tex. Dep't of Protective & Regulatory

Servs. v. Mega Child Care, Inc ., 145 S.W.3d 170, 177 (Tex. 2004). We presume that the Legislature would not do

a useless act. Webb County Appraisal

Dist. v. New Laredo Hotel , 792 S.W.2d 952, 954 (Tex. 1990).

C. Pleading

Sovereign Immunity

In their plea to the jurisdiction, the School

District and Fortuna argued that it is the plaintiff's burden to affirmatively

demonstrate the lack of immunity, and therefore jurisdiction over plaintiff's

claims. The School District and Fortuna

went on to assert that "[b]ecause it is clear this Court lacks subject

matter jurisdiction over Plaintiff's claims, dismissal is clearly

appropriate."

In reviewing the Rivases' petition, we note they

alleged the following:

Defendant LOS FRESNOS CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT may be held to answer in a court of law for the occurrence just

described because the plaintiffs' claims involve the use of a motor vehicle,

for which immunity has been waived.

Therefore, LOS FRESNOS C.I.S.D. may be sued.

1.

Immunity-the Law

"Mere reference to the Tort Claims Act does not

establish the state's consent to be sued and thus is not enough to confer

jurisdiction on the trial court." State

Dep't of Crim. Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). The Tort Claims Act provides a limited waiver

of sovereign immunity, allowing suits to be brought against governmental units

only in certain, narrowly defined circumstances. Id . (citing Dallas County

Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 341

(Tex. 1998) ("the Legislature intended the waiver in the Act to be

limited")). Therefore, "we must look to the terms of the Act to

determine the scope of its waiver," Kerrville State Hosp. v. Clark ,

923 S.W.2d 582, 584 (Tex. 1996), and then must consider the particular facts of

the case before us to determine whether it comes within that scope. Id .

The Texas Torts Claims Act states that a

"governmental unit in the state" is liable for personal injury or the

negligence of "an employee acting within his scope of employment" if

the personal injury arises from the "operation or use of a motor-driven

vehicle" and the employee "would be personally liable to the claimant

according to Texas law." T ex . C iv .

P rac . & R em . C ode

A nn . ' 101.021 (Vernon 2005). Section 101.051 [2]

indicates that the waiver of immunity does not apply to a school district except

as to motor vehicles . See T ex . C iv .

P rac . & R em . C ode

A nn . ' 101.051 (Vernon 2005) (emphasis added).

2. Analysis

The Rivases allege that, on the date of the

accident, the Rivas children were passengers on the school bus operated by

Fortuna. The Rivases allege that Fortuna

operated the bus in a negligent manner, violating the duty she owed the

passengers on the bus in that she failed to exercise ordinary care in the

operation of a motor vehicle. They also

cite the applicable section of the civil practice and remedies code that waives

statutory immunity under those circumstances.

See T ex . C iv . P rac .

& R em . C ode A nn .

' 101.021 (Vernon 2005) (providing for liability for

injuries arising from the operation or use of a motor-driven vehicle). The Rivases cite authority allowing a school

district to be sued after a motor vehicle accident such as this one. See T ex .

C iv . P rac . & R em .

C ode A nn . ' 101.051 (Vernon 2005) (stating that the waiver of

immunity contained in the Texas Tort Claims Act does not apply to school

districts except as to motor vehicles).

We conclude that the Rivases alleged facts sufficient to establish

waiver of the School District's immunity.

See T ex . C iv . P rac .

& R em . C ode A nn .

' 101.021 (Vernon 2005).

D. Official

Immunity of Fortuna

Additionally, the School District asserts that

Fortuna is protected from liability

by official immunity, is not personally liable to

the claimant, and therefore, the School District should retain its

immunity.

A governmental employee is entitled to official

immunity (1) for the performance of discretionary duties, (2) within the scope

of the employee's authority, (3) provided the employee acts in good faith. Univ. of Houston v. Clark , 38 S.W.3d

578, 580 (Tex. 2000) (citing City of Lancaster v. Chambers , 883 S.W.2d

650, 653 (Tex. 1994)). Discretionary

duties are those requiring personal deliberation, decisions, and judgment. See Chambers , 883 S.W.2d at 654 . Ministerial duties are those in which the law prescribes and defines the duties to

be performed with such precision and certainty that nothing is left to the

discretion of the actor. See id .

The Rivases contend that Fortuna cannot assert

official immunity, and therefore, the School District's liability is not capped

by section 108.002. They point out that

a key element of official immunity is that the employee be performing a

discretionary duty when the cause of action arises. See Clark , 38 S.W.3d at 580 . Driving a bus is not a discretionary

duty. See Los Fresnos Consol. Indep.

Sch. Dist. v. Southworth , 156 S.W.3d 910, 917 (Tex. App. B Corpus Christi 2005) (citing Garza v. Salvatierra ,

846 S.W.2d 17, 22-23 (Tex. App. B San Antonio 1992, writ dism'd w.o.j.) (holding

discretion used by bus driver was traffic judgment, not governmental

judgment)). Therefore, we conclude that

Fortuna cannot assert official immunity, and the School District cannot rely on

her official immunity in order to retain its sovereign immunity. We conclude that the trial court did not err

in denying the School District and Fortuna's plea to the jurisdiction as to the

Rivases' claims stemming from Fortuna's alleged negligence in operating the

school bus.

E. Limits to

Liability

The School District further asserts that, even if

the Rivases identified the Texas Tort Claims Act as a source of waiver of

immunity, the School District's liability can be no more than Fortuna's,

because her alleged actions form the basis of the claim. The School District argues that because the

carrier for the School District and Fortuna had already paid in excess of

$100,000 for damages to claimants since the accident, and because Fortuna's

status as a "public servant" limits her personal liability to

$100,000, the Rivases' claims against Fortuna are barred.

1. The Law

The Texas Tort Claims Act sets forth limits as to

the liability of units of local government and public servants. Section 101.021 states that the governmental

unit can be liable if the employee would be personally liable to the claimant

according to Texas Law. See T ex . C iv .

P rac . & R em . C ode

A nn . ' 101.021 (Vernon 2005). Section 108.002 states that a public servant

is not personally liable for damages in excess of $100,000 arising from

personal injury, death or deprivation of a right, privilege, or immunity if the

damages are a result of an act or omission by the public servant in the course

and scope of the public servant's office, employment, or contractual performance

for or service on behalf of a state agency, institution, department, or local

government. See T ex . C iv .

P rac . & R em . C ode

A nn . ' 108.002 (Vernon 2005). Section 101.023(b) states that "except

as provided by subsection (c), liability of a unit of local government under

this chapter is limited to money damages in a maximum amount of $100,000 for

each person and $300,000 for each single occurrence for bodily injury or death

. . . ." [3] T ex .

C iv . P rac . & R em .

C ode A nn . ' 101.023(c) (Vernon 2005).

2. Analysis

Section 108.002 applies in situations where an

employee may be personally liable. See

T ex . C iv . P rac . &

R em . C ode A nn . ' 108.002 (Vernon 2005). In this case, the Rivases do not name Fortuna

in her individual capacity. In fact,

their last live pleading states that "[a]t all times material to this

cause of action, defendant FORTUNA was the employee, agent, servant, and/or

representative of defendant LOS FRESNOS C.I.S.D. and was acting in the course

and scope of said company."

Therefore, the School District cannot rely on that section as a basis

for their argument. [4]

F. Negligent

Hiring, Retention and Entrustment

The Rivases allege that the School District

"was negligent in hiring and/or retaining FORTUNA as an employee, agent,

and/or representative, when it was apparent that Fortuna was not qualified

and/or competent for her position," and that the School District

"negligently entrusted its vehicle to FORTUNA . . . therefore [the School

District]'s allowing the vehicle in question to come into the use, custody and

control of FORTUNA constitutes negligent entrustment." The Texas Torts Claims Act waives liability

as to personal injury proximately caused by the wrongful act or omission or the

negligence of an employee acting within his scope of employment if the personal

injury arises from the operation or use of a motor-driven vehicle , or

motor-driven equipment. See T ex . C iv .

P rac . & R em . C ode

A nn . ' 101.021 (Vernon 2005). (emphasis added). Texas courts have construed that to mean the

Tort Claims Act waives sovereign immunity in the "use of publicly owned

automobiles." County of Cameron

v. Brown , 80 S.W.3d 549, 554 (Tex. 2002) (quoting Tex. Dep't of Transp.

v . Able , 35 S.W.3d 608, 611 (Tex. 2000)).

Negligent hiring, retention or entrustment does not constitute "use

of a publicly owned automobile."

Nowhere have we found, nor have the Rivases directed our attention to,

any statutory waiver of immunity for negligent hiring, negligent retention, or

negligent entrustment on the part of a governmental unit. We conclude that the Rivases have failed to

properly allege facts to demonstrate how the School District's alleged

negligent hiring, retention and entrustment could have caused the children

injury from the operation or use of a motor-driven vehicle. Therefore, we reverse that portion of the

trial court's judgment denying the School District and Fortuna's plea to the

jurisdiction as to these claims.

IV.

Conclusion

We reverse and remand the portion of the judgment

denying the plea to the jurisdiction as to the Rivases' claims of negligent

hiring, retention, and entrustment. We

affirm the portion of the judgment denying the plea to the jurisdiction as to

the remainder of the Rivases' claims, those based on the alleged actions of

Fortuna.

ERRLINDA CASTILLO

Justice

Memorandum

Opinion delivered and filed

this

the 18th day of August, 2005.

[1] While Fortuna is a party to the

underlying suit and has not been non-suited, the School District alone appeals

the denial of the plea to the jurisdiction.

[2] Unless otherwise indicated, all

sections referred to are contained in the Texas Civil Practice and Remedies

Code.

[3] Subsection "c" relates

to the liability for a municipality, inapplicable here. See T ex .

C iv . P rac . & R em .

C ode A nn . ' 101.023(c) (Vernon 2005).

[4] Because we make our decision based

upon the fact that the Rivases did not sue Fortuna in her personal capacity, we

do not address the validity of the School District's argument that by reading

section 108.002 together with section 101.023, the School District could limit

its liability in the manner it asserts.