Texas Department of Public Safety and Steven McCraw in His Official Capacity as Director of the Texas Department of Public Safety v. Maria Luisa Mejia Sunuc, Individually and on Behalf of the Estate of Marcos Antonio Castro Estrada, and as Next Friend to L.M. and H.M., Minors

NUMBER 13-19-00443-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY

AND STEVEN MCCRAW IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF THE TEXAS

DEPARTMENT OF PUBLIC SAFETY, Appellants,

v.

MARIA LUISA MEJIA SUNUC, INDIVIDUALLY

AND ON BEHALF OF THE ESTATE OF MARCOS

ANTONIO CASTRO ESTRADA, AND AS NEXT

FRIEND TO L.M. AND H.M., MINORS, ET AL., Appellees.

On appeal from the 389th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina

Memorandum Opinion by Justice Benavides

Appellees, Maria Luisa Mejia Sunuc, individually, on behalf of the estate of Marcos

Estrada, and as next friend to L.M. and H.M., minors, and Maria Maura Espital Yucute,

as next friend to C.C.E., E.C.E., and E.W.C.E., minors, filed suit alleging various claims

against appellants, the Texas Department of Public Safety (DPS) and Steven McCraw in

his official capacity as Director of DPS, related to the shooting deaths of Marcos Estrada

and Leonardo Coj Cumar during a police pursuit. Appellants seek interlocutory review of

the denial of their motion for summary judgment asserting sovereign immunity from these

claims. Because we determine that (1) the motion for summary judgment constitutes a

motion to reconsider appellants’ previously filed plea to the jurisdiction, and (2) appellants

failed to timely invoke our interlocutory jurisdiction to review the trial court’s denial of that

plea, we dismiss this appeal for want of jurisdiction.

I. BACKGROUND

On October 25, 2012, a DPS helicopter joined an ongoing police pursuit of a

vehicle traveling on a rural road near the Texas, Mexico border. It is undisputed that the

troopers in the helicopter, Tactical Flight Officer Miguel Avila, pilot Lieutenant Johnny

Prince, and co-pilot Captain Holland, believed that the tarp covering the bed of the truck

was concealing drugs—not people. Acting under DPS’s then-policy permitting an airborne

use of deadly force on a fleeing vehicle, Trooper Avila attempted to disable the truck by

firing at the vehicle’s tires with a high-powered rifle. Nineteen rounds later, the truck was

disabled; however, it was then discovered that the vehicle was transporting

undocumented immigrants, not drugs, and that several of Trooper Avila’s errant shots

had unintentionally hit and killed Marcos Estrada and Leonardo Coj Cumar as they lay

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underneath the tarp in the bed of the truck.

Appellees filed suit for wrongful death, alleging various theories of negligence

against DPS based on improper use of the helicopter and rifle. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2). They also sought a declaratory judgment that DPS’s use-

of-force policy violated Estrada and Cumar’s rights under the Texas and United States

Constitutions or alternatively, that Director McCraw’s implementation or retention of the

policy was ultra vires.

Approximately seven months later, appellants filed a plea to the jurisdiction

contending that all of appellees’ claims were barred by sovereign immunity. DPS argued

that appellees’ allegations, although labeled otherwise, amounted to an intentional tort

claim, which is excepted from the Texas Tort Claims Act’s (TTCA) waiver of immunity.

See id. § 101.057(2). Alternatively, DPS argued that it could conclusively establish that

its troopers were entitled to official immunity, thereby cloaking DPS in derivative immunity.

See DeWitt v. Harris County, 904 S.W.2d 650, 653–54 (Tex. 1995) (establishing that a

governmental unit’s immunity is not waived under § 101.021(2) when its liability is based

on an employee’s negligence and the employee is entitled to official immunity).

In support of its assertion of official immunity on behalf of its troopers, DPS

attached a video of the incident taken from the helicopter that also includes audio of the

conversations between the troopers throughout the incident. Additionally, DPS attached

detailed sworn statements from each of its troopers explaining their beliefs about the

contents of the vehicle and the factors they considered in deciding to fire on the vehicle.1

1 These statements were made as part of the Texas Rangers’ investigation of the incident.

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For example, Lieutenant Prince’s statement provided, in part:

On 10-25-2012, I was operating an American Eurocopter Astar 350 B3 with

U.S. number N329TX, registered to [DPS]. This helicopter is black and

white in color with Texas DPS on the tail section and underneath the

fuselage. The helicopter has a Texas emblem on the left and right side of

the helicopter. On 10-25-2012, I was wearing a BDU flight suit, green in

color with a shoulder holster containing a DPS issued Sig Sauer P239. My

flight suit has a DPS Aircraft Lieutenant Badge. On the right chest . . . area

is a [v]elcro patch with my last name Prince. I also wear a DPS Aircraft

Lieutenant badge on the right side of my belt. In flight, I wear a helmet

issued by [DPS]. The helmet plugs into the helicopter radio and intercom

system that allows a voice activated system in the helicopter for all

crewmembers to communicate.

....

At approximately 2:10 PM, we departed the Edinburg Airport to assist

DPS Criminal Investigations Division Agents in an attempt to serve a felony

warrant. I was pilot, Captain Holland was the co-pilot[,] and Tactical Flight

Officer Trooper Avila was the marksman. The suspect was not located.

We proceeded to the northwestern part of Hidalgo County and the

eastern part of Starr County in support of Contingency Plan Tier 1, which

was in effect due to recent cross[-]border violence. The contingency plan

[went] in[to] effect on Monday and was scheduled to last through Friday.

Northwestern Hidalgo County and eastern Starr County [are] where multiple

pursuits of stolen vehicles and drugs have been seized in recent months,

including the seizure that we assisted with eight hours earlier, on the corner

of FM 2058 and Mile 14. I have personally been involved in multiple

searches of vehicles and suspects in that area. This area had multiple

north/south roads that have access to the Rio Grande River and are used

for smuggling operations. Some of the primary roads are Pipeline Road and

El Pinto Road; both are smuggling corridors from the Sullivan City area.

Captain Holland was seated in the left front seat as co-pilot. His

duties were to operate the camera, aero computer, police radios, and assist

the pilot with his duties. The aero computer is a mapping system normally

operated on a 10-inch monitor and a 12-inch monitor that is used for the

camera. This equipment is located in front of the co-pilot and is operated by

a hand[-]held joystick. The on and off buttons for the co-pilot to operate any

radio system to transmit or receive are located in the middle of the dash

area. There is a two-minute delay once the button is activated for the

recorder to begin recording on an SD card.

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I was seated in the right front seat of the helicopter as pilot of this

flight. My duties were to operate the helicopter in a safe manner, [and] if

emergencies occur[ed], I would handle all issues regarding mechanical

failures. I . . . also control[led] the navigation, communications with air traffic

controllers, and handle[d] all clearances into controlled airspaces. I . . .

assist[ed] with police radio communications if necessary. On the right side

by the door[,] above . . . my right knee[,] is a six-inch monitor that allows me

to see the camera and aero computer; this is also controlled with a switch

depending on what screen I want to see. I have other instruments that [I

am] required to monitor for a safe flight of the helicopter. As the pilot, I am

the pilot in charge of the operation of the aircraft. . . . [A]ll operations and

flights[,] including this one[,] are operated under the term crew resources

management, which means everyone has responsibilities and we assist

each other as crewmembers.

Tactical Flight Officer Trooper Avila was seated in the right rear cabin

of the helicopter. His duties are observer, marksman, assists with police

radios, and can deploy to the ground if necessary. As a marksman, he is

issued a Larue .308, and has received training in Aerial Use of Force. Aerial

Use of Force training consists of discharging firearms from certain heights[,]

normally from 100 to 150 feet[,] [and] [l]earning commands from the pilot

. . . authorizing [the] discharg[e of firearms] from the helicopter. Training for

the marksman is usually conducted every quarter in firing from the

helicopter.

I flew DPS 108 to the intersection of Pipeline Road and Farm to

Market 490 and turned south on Pipeline Road. There was good visibility[,]

and the wind was out of the south. As we traveled south on Pipeline, I could

see a fast[-]moving dust trail east of Pipeline Road around the area of Mile

14 moving east. Simultaneously, maybe seconds later, I heard over the

DPS Base radio frequency of a pursuit traveling east from Pipeline Road. I

heard the unit was in pursuit of a red Ford pickup. I proceeded to fly towards

the fast[-]moving dust cloud[.] I did not see Captain Holland activate the

recording equipment but that is standard procedure for us. I was receiving

updates from the pursuing unit[,] who I identified by his unit number to be a

Texas Parks and Wildlife Game Warden. I don’t remember the exact unit

number, but it was a number consistent with the Game Warden[’]s radio call

numbers. I arrived overhead within minutes . . . and could see the pursuit

proceeding southbound on El Pinto Road. When I arrived overhead, I could

visually see a Texas Game Warden in pursuit of a red Ford F[-]150 pickup.

The game warden’s vehicle was a dark colored pickup with its emergency

lights on; I know he did not have overhead lights on top of the unit. I estimate

he was a quarter of a mile behind the red Ford pickup. I positioned the

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helicopter to the left side and slightly behind the red Ford pickup, which is

the practice of a DPS helicopter in pursuits because it allows view for the

pilot and the marksman, while the co-pilot observes everything on the

monitor. The co-pilot can look around, but normally they remain watching

the monitor and run the camera. The pickup was traveling at a high rate of

speed; I was approximately 400 to 500 feet above the ground. I remember

Captain Holland say that there were bundles in the pickup, or something

like that. As a pilot, I am required to monitor instruments within the cockpit

that maintain the limitations of the helicopter, including air speed, torque,

and the rotor speed. I was also visually looking for obstacles that include

towers and other aircraft. Apart from that, I maintained a visual of the road

ahead. The game warden advised that they were traveling over 80 mile[s]

an hour. I could tell and confirmed that the vehicle was traveling at a high

rate of speed because of the speed that I was traveling at, and I could

visually see that it was traveling at a high rate of speed, especially for the

road conditions. El Pinto Road is a caliche road, dusty, and rough. It is not

a very wide road, but it has enough room for vehicles to meet each other.

The traffic on El Pinto Road during the pursuit was light; however, the

pursuit met three vehicles that needed to take evasive action when they

obviously saw the red Ford pickup. I was looking ahead to observe any

vehicles or large trucks that are common in the area because of the oil and

gas companies. By evasive action, the vehicles pulled over to the side of

the road[.] [O]ne pulled into a drive-way [sic][.] I don’t know if it was going

that way, but it looked like it was taking evasive action to get out of the way

to avoid a head[-]on collision. I remember transmitting what I call a “blind

call,” to U.S. Border Patrol on the La Joya Border Patrol repeater. I

transmitted the location of the pursuit. Captain Holland continued to give

updates on the DPS Base A repeater, which was also being used by the

[g]ame [w]ardens pursuing the red Ford pickup. The reason I was calling

Border Patrol was to prepare them that a pursuit with a drug smuggler was

moving in a southerly direction and would likely return to the Rio Grande

River.

The red Ford pickup was an extended cab and did not look very old.

By seeing the outside mirrors, I knew it was an F-150. It confirmed what the

game warden had stated on the radio that he was pursuing a red Ford F-

150. I could see a tarp in the bed of the pickup that appeared to be covering

something stacked higher towards the cab of the pickup. To me that

indicated that more than likely it was bundles of drugs. In my experience[],

I have seen illegal aliens covered in the bed of pickups; however, they

usually laid flat and in a single file. Tarps or any other covering device[s] are

usually used to conceal any illegal activities from aircraft flying over because

the appearance would resemble the bottom of the pickup bed.

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I remember seeing the red Ford pickup slow down a little bit, so it

could maneuver around a curve. I dropped a little altitude and did a 360

completely around the truck, so that the driver would know that there was a

police helicopter in the pursuit and so I could see all sides of the pickup and

the cab. I could see a passenger sitting in the right front passenger seat. All

I could tell is that a person was in the passenger front seat. I could not see

any other occupants inside the cab. I tried to see in the backseat area[,] and

I could not see anything inside. I remember that the back seat windows

appeared to be tinted, or very dark, making it difficult to see. All I could see

was the steering wheel[,] and it looked like the driver’s arms were bare. I

could not see the driver’s head or body. I remember I relayed to all of the

crewmembers that I had seen the driver and a passenger in the front seat

of the pickup. The bed had the same appearance on the tarp on the right

side of the pickup and all the way around[;] it all looked the same, and it

looked like it was covering bundles of drugs. In my experience, drivers

involved in pursuits that are smuggling illegal aliens will usually pullover and

flee on foot, and more likely to do that when they see a police helicopter

because they know that trying to outrun a police helicopter is impossible.

As I continued the pursuit, I did a visual scan of the helicopter[’]s

instruments, monitors, the red Ford pickup, any vehicles that may be

approaching from any intersection or the opposite direct of the pursuit, and

the direction the helicopter was traveling. Captain Holland[,] utilizing the

hand control joystick[,] zoomed in through the driver’s window[.] I remember

glancing at the monitor and seeing what appears to be a male’s arm. Around

this time, Captain Holland said that the driver was on a cell phone. When I

heard that, I knew that it was possible . . . that the driver was calling a

“recovery team” to be ready at the Rio Grande River. A “recovery team”

simply means that large groups of people will be waiting at the river to

offload the drugs. These people have been known to be cartel members

and violent. The reason that the Contingency Plan Tier 1 had been activated

. . . was because . . . U.S. Border Patrol Agents south of Sullivan City on

the Rio Grande River had received gunfire. There had also been other

violent confrontations that had recently occurred.

The pursuit continued southbound on El Pinto Road. [I knew] that if

we continue[d] southbound, the pursuit would enter Sullivan City and traffic

would increase dramatically with many cross streets. There is a school zone

on the northside of Sullivan City. I knew that it was about 3:00 PM or a little

after and there would be a lot of school traffic[,] including buses and children

walking home from school. I kn[e]w that the road changes to asphalt and

there are residential subdivisions on both sides of El Pinto Road with

intersecting streets. Seeing the speed that the red Ford pickup was traveling

on a caliche road, I expected that the speeds would increase on the asphalt

road. I remember[ed] I had been on a previous pursuit, it had been raining,

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the roads were wet, and the vehicle had driven against oncoming traffic on

U.S. 83[. The] vehicle eventually turned onto a two[-]way asphalt farm to

market road . . . and drove through a school zone in the community of La

Grulla at a high rate of speed. I remember[ed] it was about 8:45 in the

morning on a school day[,] and I watched the vehicle nearly strike numerous

school buses and passenger vehicles. The vehicle ended up losing control

and striking a house at an intersection. There had been no regard for human

life during his attempt to flee from the police. I remember[ed] I hollered “no,

no” because the vehicle had entered an intersection with a school bus and

vehicles, [and] it was a miracle that a bad fatal accident did not occur. I

retained that video to show people how smugglers fleeing from police on

public roads have no regard for life.

Prior to arriving at 7 Mile Line, the game wardens asked if there were

any units near El Pinto Road and U.S. 83. Captain Holland replied that we

were working on it. That meant that DPS Communications was

broadcasting the pursuit to other units. We started discussing ending the

pursuit, which meant to engage our Ariel Use of Force because of the

dangerous condition this pursuit would create if it reached the community

of Sullivan City.

Aerial Use of Force is protocol used in firing a long gun by a

marksman from a helicopter. To initiate the Aerial Use of Force, the pilot

would give commands that are standard by DPS training in firing a long gun

from a helicopter. There are four basic commands[. The first command is]

“travel,” which means that a marksman would have the weapon on safe, his

hands off the trigger, and the barrel would be pointed down. The marksman

. . . is sitting on the floor with the right rear door open. The next command

is “ready.” This means that the marksman would have extended the rifle to

his shoulder in the ready position. The next command is “cleared hot,” which

means that the marksman could engage or fire. In other words, that is the

only time it is safe to fire from the helicopter. It is the marksman[’s] choice

when to fire or not. “Cease fire” will occur when the pilot observes any

obstacles such as oncoming traffic, houses, buildings, people, or if the

helicopter being flown was required to make any movement that prohibited

the line of fire.

During the pursuit, Trooper Avila was already in the “travel” position,

the right rear door was open[,] and Trooper Avila was sitting on the floor.

Trooper Avila was given the command of “ready” by me as we approached

7 Mile Line Road. The red Ford pickup made a left turn and traveled east

on 7 Mile Line Road and continued at a high rate of speed for a caliche

road. The red Ford pickup passed a slower moving vehicle and continued

eastbound. As the pursuit continued, a truck tractor-trailer was observed

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traveling west and would be meeting the red Ford pickup.

If the red Ford pickup continued east on 7 Mile Line, it would

eventually intersect with Jara China Road[,] also known as FM 2221. This

intersection is a 4-way intersection. Just east of this intersection . . . is a

school, [and] at a high rate of speed, the red Ford pickup would be at the

intersection within minutes. FM 2221 is a farm to market road[;] it is a two-

lane road with shoulders north and south to the intersection of 7 Mile Line

and proceeds east. If the red Ford pickup turned south on Jara China/FM

2221, it would travel to the community of La Joya with a high school located

near FM 2221. FM 2221 would also intersect with U.S. 83. If the red Ford

pickup turned north, it would be a caliche road named Jara Chine, which

would lead back to a rural area and in the general direction of where the

pursuit had started. At this time, we still believed that the red ford pickup

had bundles of narcotics, covered with the tarp, and was more than likely

headed to the Rio Grande River.

The truck tractor semi trailer [sic] that had been seen traveling

westbound towards the red Ford pickup turned north onto a private drive

just prior to meeting with the pickup. Captain Holland said that he did not

think the red Ford pickup was going to stop. I agreed with Captain Holland[.]

I do not remember what Trooper Avila said exactly, but he mentioned a

school ahead. Captain Holland said that the area looked like a decent spot[,]

referring to an area that Aerial Use of Force could be used. Captain Holland

advised to engage the left rear tire. In my opinion, the left rear tire would

allow the driver to maintain better control of the vehicle rather than shooting

a front tire, which would make it much harder to control and steer. This could

induce a rollover.

I lowered altitude between 150 feet and 100 feet from the ground. I

pulled alongside the red Ford pickup, approximately 200 feet away. These

procedures are used during [an] Aerial Use of Force. This particular Aerial

Use of Force was to disable the left rear tire of the red Ford pickup so that

it would not reach the intersection of FM 2221, which was near a school.

The area agreed upon was a rural area with no houses, no cars in the

immediate area, and we obviously did not want to shoot in an area that

could contain cars, houses, and persons in the immediate vicinity. We could

not wait to shoot until we were in a school zone.

I then gave the command “clear hot.” During that time, the helicopter

needed to be flown level, flat, and maintained as smooth as possible. I also

continued to scan forward for any reason to “cease fire.” Trooper Avila’s

assigned .308 is equipped with a suppressor that reduces the sound of

shots fired from the rifle. I heard what sounded like an air rifle[,] probably

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from Trooper Avila’s mic through the intercom. I was not looking where

Trooper Avila’s shots were hitting, and I have no idea how many shots he

fired. I continued to fly and held the helicopter approximately at a 90-degree

angle. Every time I glanced at the vehicle, everything looked the same[,]

including the tarp in the bed of the pickup. Shortly after that, I called for

“cease fire” because I had seen a building or structure on the northside of

the road a short distance ahead of us. We passed the structure and I called

“clear hot’” as Captain Holland called for the left rear tire. Shortly after,

Trooper Avila fired[.] I don’t know how many times he fired, but I could hear

the same sound as before. I looked at the pickup and observed the left rear

tire going flat as it began to fishtail[.] I remember saying that the pickup was

going to wreck. Captain Holland called for a “cease fire.” Trooper Avila

stopped engaging at that time.

I noticed that the pickup slowed down considerably because I had to

slow down as well and conducted a 360-degree turn around the red Ford

pickup. The pickup continued traveling east and eventually sped up

considerably, not as fast as before but gained control and continued east. I

heard Trooper Avila mention that both rear tires were flat. When the speed

increased, Captain Holland asked for engagement on the front tire. I went

back “clear hot,” at which time Trooper Avila fired one time[.] I remember

hearing the same air rifle sound as before. I actually was looking at the

pickup and saw that the shot had hit at or near the front left tire. The pickup

immediately went to the right side of the road and came to a stop. I saw that

five suspects exited and ran from the passenger side of the red Ford pickup

and fled south into a brushy area. I noticed most of them were wearing dark

clothing except for one that was wearing a bluish colored shirt. I was

extremely surprised to see five people running from the cab of the truck. I

remember saying “f***** I/A’s.” I knew then that it was possibly an illegal

alien load[,] and I became concerned of what was in back of the pickup.

The statements of Trooper Avila and Captain Holland were similarly detailed, and each

statement was consistent with the video of the incident. DPS argued that the troopers

were entitled to official immunity because they acted in good faith when they decided to

fire on the vehicle. 2

2 “The elements of the defense of official immunity are (1) the performance of a discretionary

function (2) in good faith (3) within the scope of the employee’s authority.” Kassen v. Hatley, 887 S.W.2d

4, 9 (Tex. 1994) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)). The parties do

not dispute that the troopers were performing a discretionary function within the scope of their authority.

10

To controvert the troopers’ claims of good faith, appellees offered, among other

evidence, the report of an expert on police pursuits and use-of-force policies who opined

that the troopers had not acted in good faith. The expert was “not aware of a single law

enforcement agency in the United States that has authorized or presently authorizes law

enforcement officers to discharge a firearm from a helicopter in order to disable a vehicle

involved in a pursuit where the only justification is ending the pursuit, as opposed to

circumstances that would authorize the use of deadly force.” After noting how difficult it is

to accurately shoot a moving target from a helicopter, thereby placing innocent

passengers and the surrounding public in danger, the expert concluded that “a reasonably

prudent law enforcement officer, under the same or similar circumstances, could not have

believed that the need to immediately apprehend the driver of the F-150 outweighed the

clear risk of harm to the public created by attempting to disable the tires of that vehicle

with the use of a firearm discharged from the helicopter.”

Appellants also argued in their plea that under United States Supreme Court

precedent, a claim based on violations of federal constitutional rights may only lie against

a “person” and because appellees sued Director McCraw in his official capacity, as

opposed to his individual capacity, appellees had failed to state a cognizable claim. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State

nor its officials acting in their official capacities are ‘persons’ under § 1983.”). As to

appellees’ request for a declaration that DPS’s use-of-force policy violated the Texas

Constitution, appellants argued that the Uniform Declaratory Judgments Act (“UDJA”)

does not waive DPS’s immunity from such a claim and appellees had otherwise failed to

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establish an underlying waiver. See Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622

(Tex. 2011) (recognizing that the UDJA “waives sovereign immunity in particular cases”

but otherwise it is “merely a procedural device for deciding cases already within a court’s

jurisdiction” (quoting Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex.

2011))).

Finally, appellants argued that the policy in question was amended following the

incident so, to the extent appellees could prove that Director McCraw acted ultra vires,

any such claim was now moot because there was no prospective relief for the trial court

to grant. See City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009) (holding “that

a claimant who successfully proves an ultra vires claim is entitled to prospective injunctive

relief” but is generally not entitled to retrospective money damages). To support this

jurisdictional challenge, appellants attached verified copies of DPS’s former and current

use-of-force policies. The new policy provides that “a firearms discharge from an aircraft

is authorized only when an officer reasonably believes that the suspect has used or is

about to use deadly force by use of a deadly weapon against the air crew, ground officers

or innocent third parties.” The new policy also clarifies that “a suspect’s driving behavior[,]

including aggressive or reckless driving to evade arrest[,] does not constitute use of a

deadly weapon by the suspect.”

The trial court denied the plea, and appellants did not seek interlocutory review of

the trial court’s decision. Over the next three years, appellees prepared for trial by

deposing the three troopers, as well as the two game wardens that initiated the pursuit.

Prior to trial, appellants filed a motion for summary judgment, again challenging the trial

12

court’s jurisdiction. The jurisdictional arguments in the motion mirrored those appellants

previously made in their plea. Appellants included the same evidence they previously

attached to their original plea along with deposition excerpts from the two game wardens

and the three troopers. 3 The trial court denied the motion, and appellants sought

interlocutory review.

II. APPLICABLE LAW

A. Sovereign Immunity

Sovereign immunity protects the State of Texas and its agencies from lawsuits for

money damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s

claims. Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 75 (Tex. 2015) (citing

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). DPS, a state

agency, generally enjoys immunity unless the Legislature waives it. See Sawyer Tr., 354

S.W.3d at 388 (citing Miranda, 133 S.W.3d at 224).

The plaintiff has the burden to allege facts affirmatively demonstrating the trial

court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993). To prevail on a claim of immunity, the governmental defendant

“may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo Heights

Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a defendant

challenges the existence of jurisdictional facts, the analysis “mirrors that of a traditional

summary judgment.” Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021)

(quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)).

3 Appellants also attached voluntary statements made by the two game wardens; however, these

statements were previously provided by appellees in response to the plea.

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B. Interlocutory Appeals

Section 51.014(a) of the Texas Civil Practice & Remedies Code provides a narrow

set of exceptions to the general rule that only final judgments are appealable, Tex. A &

M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (citing Bally Total Fitness

Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)), including the grant or denial of a plea

to the jurisdiction by a governmental unit, TEX. CIV. PRAC. & REM. CODE ANN.

§ 54.014(a)(8), regardless of the procedural vehicle used to make the jurisdictional

challenge. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (concluding that a

motion for summary judgment challenging the trial court’s subject matter jurisdiction is

subsumed under § 54.014(a)(8)).

Although § 54.014(a) does not expressly limit a party to one interlocutory appeal,

the right to successive interlocutory appeals is not without limits. Scripps NP Operating,

LLC v. Carter, 573 S.W.3d 781, 789 (Tex. 2019). To invoke a court of appeals’

interlocutory jurisdiction, the governmental unit must file its notice of appeal within twenty

days after the challenged order is signed. See TEX. R. APP. P. 26.1(b) (establishing a

twenty-day deadline for accelerated appeals); id. R. 28.1(a) (defining accelerated appeals

to include appeals from interlocutory orders).

Consistent with § 54.014(a)’s purpose of promoting judicial economy, when a party

fails to timely appeal the denial of a plea to the jurisdiction, the court of appeals cannot

entertain a second challenge to the trial court’s jurisdiction that merely constitutes a

motion to reconsider the first challenge. City of Houston v. Estate of Jones, 388 S.W.3d

663, 667 (Tex. 2007) (per curiam). “Permitting appeals under circumstances such as

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these would effectively eliminate the requirement that appeals from interlocutory orders

must be filed within twenty days after the challenged order is signed.” Id. (citing TEX. R.

APP. P. 26.1(b), 28.1); see In re K.A.F., 160 S.W.3d 923, 925 (Tex. 2005) (“[T]he language

of rule 26.1(b) is clear and contains no exceptions to the twenty-day deadline.”).

To reset the appellate clock, any subsequent jurisdictional challenge must be “new

and distinct.” City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 301

(Tex. 2017) (per curiam) (citing Estate of Jones, 388 S.W.3d at 667). In making this

determination, a court of appeals should compare both the substance and procedural

nature of the two challenges. Id. at 301. For example, a plea to the jurisdiction based on

the plaintiff’s pleading and a subsequent motion for summary judgment based on the

existence of jurisdictional facts may be sufficiently distinct even though they rely on the

same jurisdictional theories. Id.

III. ANALYSIS

On our own motion, we asked the parties to file supplemental briefs addressing

our jurisdiction over this appeal. See Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812

(Tex. App.—Corpus Christi–Edinburg 2009, pet. denied) (“Appellate courts are obligated

to review sua sponte issues affecting jurisdiction.” (citing M.O. Dental Lab v. Rape, 139

S.W.3d 671, 673 (Tex. 2004))); see also Arriaga v. Arriaga, No. 13-15-00038-CV, 2015

WL 5626189, at *2 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) (mem. op.).

Appellees acknowledge that the plea and motion “are fundamentally the same” but

nonetheless ask us to address the merits of the appeal out of concerns for judicial

economy. Appellants contend that the motion is “sufficiently distinct” from the plea and

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generally point to the additional evidence attached to their motion to demonstrate that the

jurisdictional record was more fully developed at the summary judgment stage with

respect to their official immunity argument.

While there was certainly more evidence before the trial court when it denied the

motion, we disagree that any of it constituted “new evidence” material to the trial court’s

jurisdictional analysis. See Smedley, 533 S.W.3d at 302. Appellants have failed to point

us to any specific jurisdictional fact that was established by this additional evidence, as

opposed to the evidence before the trial court when it decided the plea, and we have

found none. Simply put, the deposition transcripts are redundant; each material fact DPS

relied on to support its official immunity argument can be found in either the video, 4 the

detailed statements from the five officers, or both. As such, there was no “discovered

evidence” for the trial court to consider when it denied the motion for summary judgment.

See id.

Likewise, the remainder of the jurisdictional issues in the motion were both

procedurally and substantively identical to the issues previously presented in the plea.

See id. at 301. Appellants merely reasserted their previous jurisdictional arguments based

on the pleadings and the changed policy. 5 See id. Therefore, because the motion for

summary judgment constitutes a motion to reconsider the previously denied plea to the

jurisdiction and appellants filed their notice of appeal more than twenty days after the trial

4 It is noteworthy that there is a video of the incident and that it is consistent with the troopers’

statements. Cf. Scott v. Harris, 550 U.S. 372, 378–81 (2007) (holding that video evidence can conclusively

establish that an officer is entitled to qualified immunity from an excessive force claim).

5 DPS’s primary argument on appeal is that appellees failed to allege a valid waiver under the

TTCA. If correct, then its affirmative defense based on official immunity is unnecessary to the disposition

of the case.

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court denied the plea, we lack jurisdiction over this appeal. See Estate of Jones, 388

S.W.3d at 667; TEX. R. APP. P. 26.1(b), 28.1(a).

Finally, we recognize that our decision is ultimately unsatisfying to both parties,

and we are sympathetic to their pleas for judicial economy. We cannot, however, exercise

jurisdiction where none exists. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction

is power to declare the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause.” (quoting Ex parte

McCardle, 74 U.S. 506, 514 (1868)). 6

IV. CONCLUSION

We dismiss the appeal for want of jurisdiction.

GINA M. BENAVIDES

Justice

Delivered and filed on the

3rd day of February, 2022.

6 Of course, appellants had the opportunity to have these jurisdictional questions answered early

in the litigation and potentially avoid discovery and trial all together. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(b) (providing for the automatic stay of “all other proceedings in the trial court” during the pendency

of an appeal from the denial of a plea to the jurisdiction); City of Houston v. Estate of Jones, 388 S.W.3d

663, 667 (Tex. 2007) (per curiam) (“[T]he main purpose of the interlocutory appeal statute . . . is to increase

efficiency in the judicial process.” (citing Tex. A & M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.

2007))).

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