Opinion

NUMBER

13-05-491-CV

COURT OF

APPEALS

THIRTEENTH DISTRICT OF

TEXAS

CORPUS

CHRISTI B EDINBURG

LOS FRESNOS VOLUNTEER FIRE DEPARTMENT,

INC., (INCORRECTLY

NAMED AS LOS FRESNOS

EMERGENCY MEDICAL SERVICES), DR. CARLOS

CHAVEZ, M.D., JOSEPH HERNANDEZ, GENE

DANIELS, AND L. AREVALOS, Appellants,

v.

ANGIE JEANETTE DAVALOS, INDIVIDUALLY,

AND ON BEHALF OF THE ESTATE OF JUAN

LUIS GONZALEZ, DECEASED, AND ON BEHALF

OF THE BENEFICIARIES OF THE ESTATE OF

JUAN LUIS GONZALEZ, DECEASED,

Appellees.

On appeal from the 103rd District

Court

of

Cameron County, Texas.

MEMORANDUM

OPINION

Before Chief Justice Valdez and Justices Rodriguez and

Castillo

Memorandum Opinion by Chief Justice Valdez

This is an

interlocutory appeal by appellant, the Los Fresnos Volunteer Fire Department,

Inc., from the trial court = s denial of appellant = s plea

to the jurisdiction asserted against appellee, Angie Jeanette Davalos,

individually and on behalf of the estate of Juan Luis Gonzalez. We affirm.

Background

On May 10, 2003,

employees of Los Fresnos Emergency Medical Services ( A Los Fresnos EMS @ ) responded to a medical emergency call in San

Benito, Texas. Upon their arrival, they

found Juan Luis Gonzalez, injured and in need of medical assistance. According to the suit filed by appellee, the

Los Fresnos EMS employees failed to properly intubate Gonzalez while being

transported, depriving him of oxygen while en route to the hospital. Gonzalez ultimately went into cardiac arrest,

fell into a coma from which he never awoke, and died a few weeks later.

Appellee,

decedent = s wife, filed suit against Los Fresnos EMS, among

others, for negligence. A process server

delivered notice of the suit to A Los Fresnos [EMS] by serving its medical director,

Dr. Carlos Chavez, M.D. @ Los Fresnos

EMS then filed its original answer, referring to itself as Los Fresnos EMS and

denying all allegations.

This party then

filed a plea to the jurisdiction, this time referring to itself as A Los Fresnos Volunteer Fire Department, Inc. @ ( A Fire Department @ ), and claiming it had been A improperly named as Los Fresnos [EMS] in this

matter. @ It further

claimed that as an emergency service organization, it was a A governmental unit @ as

defined by the Texas Tort Claims Act and, thus, entitled to immunity from

suit. See Tex. Civ. Prac. & Rem. Code Ann . ' 101.001(1)

(Vernon 2005).

The trial court

determined that the Fire Department was not entitled to immunity as a

governmental unit and denied the plea to the jurisdiction. The Fire Department filed a renewed plea to

the jurisdiction alleging that the trial court had based its decision on a

misinterpretation of the tort claims act and the tax code. The trial court reviewed the renewed plea,

determined that A nothing has changed from its previous rulings, @ and again denied the Fire Department = s plea to the jurisdiction. The Fire Department now appeals to this

Court.

Plea to the

Jurisdiction

A party may

submit a plea to the jurisdiction in order to assert that it enjoys sovereign immunity from suit and therefore is

not properly within the subject matter jurisdiction of the trial court. Tex. Dep't of Transp. v. Jones , 8

S.W.3d 636, 638 (Tex. 1999) (per curiam).

The limits of the trial court's subject matter jurisdiction is a

question of law and subject to de novo review by this Court. Tex. Natural Res. Conservation Comm'n v.

IT‑Davy , 74 S.W.3d 849, 855 (Tex. 2000).

In a suit against

a governmental unit, the plaintiff must affirmatively demonstrate the court's

jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley ,

104 S.W.3d 540, 542 (Tex. 2003). To

determine if the plaintiff has met that burden, "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." Tex. Natural Res. Conservation Comm'n v.

White , 46 S.W.3d 864, 868 (Tex. 2001). The court of appeals may look beyond the

pleadings in its de novo review and evaluate the jurisdictional evidence

submitted by both parties. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). The court of appeals must also take the

pleadings as true when evaluating them for purposes of jurisdiction and must

construe them liberally in favor of jurisdiction. Texana Cmty. MHMR Ctr. v. Silvas , 62

S.W.3d 317, 320 (Tex. App. B Corpus Christi 2001, no pet.).

Sovereign

Immunity

A governmental

unit is immune from tort liability for its own acts or the acts of its agents

unless the Texas Tort Claims Act waives immunity from suit. [1] See Guillen v. City of San Antonio , 13

S.W.3d 428, 432 (Tex. App. B San Antonio 2000, pet. denied). The term A governmental

unit @ includes A emergency service organization, @ which is statutorily defined as A a volunteer fire department, rescue squad, or an

emergency medical services provider that is:

(A) operated by its members, and (B) exempt from state taxes by being

listed as an exempt organization under Section 151.310 or 171.083, Tax Code. @ See Tex. Civ. Prac. & Rem. Code Ann . ' 101.001.

Section 151.310 of the tax code further defines an A exempt organization @ as an

organization qualifying for an exemption from federal income taxes under

Section 501(c)(3), (4), (8), (10), or (19), Internal Revenue Code. Tex.

Tax Code Ann . ' 151.310 (Vernon 2002). Section 171.083 exempts A a nonprofit corporation that is organized for the

sole purpose of and engages exclusively in providing emergency medical

services, including rescue and ambulance services. @ Id . ' 171.083.

Thus, the first

question to be decided here is whether appellant fulfills the statutory

definition of being an A emergency service organization, @ as this is necessary for appellant to qualify as a A governmental unit. @ The record establishes the following relevant

facts: the Fire Department received its

articles of incorporation on July 3, 1974.

The stated purpose of the corporation was A to

operate a non-profit volunteer fire department to serve the residents and

property owners of the City of Los Fresnos and the surrounding area, and for

such purpose to acquire, by purchase or otherwise, maintain and operate fire

trucks and other fire fighting equipment. @ Fire

fighting was therefore the sole purpose of the corporation; there was no

provision for emergency medical services or any other services. In September of 1999, the Fire Department

received a determination letter from the IRS notifying it that the IRS

considered it a 501(c)(3) exempt organization.

See 26 U.S.C. 501(c)(3) (1988). The determination letter and

other IRS materials warned, however, that A [a] ruling or determination letter recognizing

exemption may not be relied upon if there is a material change, inconsistent

with exemption, in the character, the purpose, or the method of operation of

the organization. @

In October of

2002, the City of Los Fresnos decided to divest itself of the Los Fresnos EMS,

which it had previously operated, and the City entered into a contract with the

Fire Department such that the Fire Department would take over operation of the

Los Fresnos EMS. The Fire Department

then began paying taxes and wages for the Los Fresnos EMS employees; as a

volunteer organization, it had apparently not previously engaged in paying

employee wages and taxes.

The Gonzalez

incident that triggered this litigation occurred in May of 2003, while the Fire

Department continued to operate the Los Fresnos EMS. The Los Fresnos EMS subsequently filed its

own articles of incorporation in August of 2003 and became a separate entity

called A Los Fresnos Ambulance Service, Inc. @

Case law

regarding immunity draws a distinction between volunteer organizations and

those staffed by paid employees, as they are treated differently under relevant

legislative codes. See Norrell v.

Gardendale Volunteer Fire Dep't, 115 S.W.3d 114, 117-18 (Tex. App. B San Antonio 2003, no pet.) (relying on Harris

County v. Dillard , 883 S.W.2d 166, 167 (Tex. 1994)). Thus, when the Fire Department took on the

responsibilities of running the Los Fresnos EMS from October 2002 to August

2003, its legal status as a potentially exempt organization changed. It could not claim to be exempt under section

171.083 of the tax code because it was not exclusively involved in the

provision of emergency medical services but, rather, continued to retain its

fire-fighting and rescue duties. See Tex. Tax Code Ann . ' 171.083. It

also could no longer rely on its determination letter from the IRS establishing

its 501(c)(3) exempt status, given that it had substantially changed its

character and purpose. It was no longer

a volunteer organization with the sole purpose of fighting fires but instead

had the dual purposes of fire fighting and providing emergency medical

services, and also had wage-making employees.

See Rev. Proc . 80‑25,

1980‑1 C.B. 667, 671, 1980 IRB LEXIS 595, *18 (effective June 30,

1980). Thus, without being able to rely

on its 501(c)(3) status, the Fire Department also could no longer claim to be

exempt under section 151.310 of the tax code.

See Tex. Tax Code Ann .

' 151.310.

We are not

determining, by this opinion, that the Fire Department could not operate as a

dual-purpose organization without losing its tax-exempt status; we are simply

noting that, under the standard of review for pleas to the jurisdiction, we are

constrained to rely upon our conclusion that the original letter establishing

tax-exempt status for the organization is no longer necessarily valid following

the changes made to the organization. Given this uncertainty, we cannot uphold

a ruling that requires little to no uncertainty about the underlying

jurisdictional facts.

Construing the

pleadings liberally in favor of jurisdiction, we conclude that the Fire

Department, as of the date of the Gonzalez incident, was unable to claim

immunity as an A emergency service organization @ under the tort claims act. See Tex.

Civ. Prac. & Rem. Code Ann . ' 101.001; Silvas , 62 S.W.3d at 320 . It is therefore subject to suit for the

allegedly negligent acts of its employees or itself. The trial court properly denied the Fire

Department = s plea to the jurisdiction.

Conclusion

The trial court = s order denying appellant = s plea to the jurisdiction is affirmed.

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion

delivered

and filed this 27th

day of April, 2006.

[1] Section 101.055(2) states that immunity will attach "from the

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

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

applicable to emergency action. . . ." See Tex. Civ. Prac. & Rem. Code Ann . ' 101.055(2) (Vernon 2005). Section 101.062(b) provides a

public agency with immunity from suit for an employee's actions in connection

with 9-1-1 claims, unless the action violates a statute or ordinance applicable

to the action. See id. ' 101.062(b).