Raul Hinojosa, Individually and on Behalf of S.H., a Minor v. Hidalgo County Community Supervision and Corrections Department

NUMBER 13-23-00077-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RAUL HINOJOSA, INDIVIDUALLY

AND ON BEHALF OF S.H., A MINOR, Appellant,

v.

HIDALGO COUNTY COMMUNITY

SUPERVISION AND CORRECTIONS

DEPARTMENT, Appellee.

On appeal from the 92nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Chief Justice Contreras

Appellant Raul Hinojosa, individually and on behalf of S.H., a minor, sued appellee

Hidalgo County Community Supervision and Corrections Department (CSCD) for

damages arising from an auto accident. The trial court granted CSCD’s plea to the

jurisdiction. On appeal, Hinojosa contends the trial court erred because: (1) his petition

affirmatively demonstrated the trial court’s jurisdiction; (2) there is a genuine issue of

material fact as to whether CSCD received actual notice as required by the Texas Tort

Claims Act (TTCA), see TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c); and (3) official

immunity does not apply. We reverse and remand.

I. BACKGROUND

The subject accident occurred in Edinburg on July 20, 2018. In his original petition

filed on June 24, 2019, Hinojosa alleged that, as he was driving eastbound on East Mile

17 ½ Road, a vehicle heading north on North M Road failed to yield the right of way and

collided with him. Hinojosa alleged that the collision caused him to “veer off of the road

and strike a fence,” resulting in “serious injuries” to him and his four-year-old son. In his

live petition, Hinojosa alleged that the other vehicle was driven by Juan Moreno, and that

CSCD was vicariously liable for Moreno’s negligence because Moreno was acting within

the course and scope of his employment by CSCD at the time of the accident. 1

CSCD filed a plea to the jurisdiction, arguing that the trial court lacks subject matter

jurisdiction because: (1) Hinojosa did not plead facts establishing that he met the TTCA’s

formal pre-suit notice requirement, see id. § 101.101(a); (2) CSCD did not have actual

notice of any injuries or damages, see id. § 101.101(c); and (3) Moreno is entitled to

official immunity and “would not be personally liable to [Hinojosa] under Texas law.”

Attached to the plea were excerpts from Moreno’s deposition, a police report regarding

the accident, and incident reports authored by Moreno and his passenger, another CSCD

1 Hinojosa’s original petition named only Moreno and Hidalgo County as defendants. His live

petition names only CSCD as a defendant.

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employee.

Hinojosa filed a response, arguing: (1) the law does not require a TTCA plaintiff to

plead facts showing compliance with the formal notice requirement; (2) CSCD had actual

notice of his alleged damages; and (3) Moreno is not entitled to official immunity because

he was performing a ministerial act, not a discretionary function. As to actual notice,

Hinojosa specifically alleged that “two [CSCD] directors were notified of the collision and

arrived at the scene of the collision,” where they were informed that “[Hinojosa’s] back

was injured,” that Hinojosa’s son “was complaining about his neck,” and that Hinojosa

intended to go to the hospital with his son. As to official immunity, Hinojosa pointed to

Moreno’s deposition testimony that, at the time of the collision, he was on his way from

CSCD’s substance abuse treatment facility to the county jail, where Moreno intended to

“pick up . . . a new resident that was incarcerated there” and bring him back to the

substance abuse treatment facility.

By order dated February 15, 2023, the trial court granted CSCD’s plea to the

jurisdiction. 2 This appeal followed.

II. DISCUSSION

A. Standard of Review

Subject matter jurisdiction is essential to a court’s authority to decide a case. Teal

Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324,

331 (Tex. 2020). Whether a trial court has subject matter jurisdiction is a question of law

that we review de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex. 2020).

2 By a separate order, the trial court also granted a plea to the jurisdiction filed by Hidalgo County.

However, as noted, Hinojosa’s live petition does not name Hidalgo County as a defendant, and Hinojosa’s

notice of appeal states only that he is challenging the order granting CSCD’s plea to the jurisdiction. Hidalgo

County is not a party to this appeal.

3

When a plea to the jurisdiction challenges jurisdictional facts, our review mirrors

that of a traditional summary judgment motion. City of San Antonio v. Maspero, 640

S.W.3d 523, 528 (Tex. 2022). We review all the evidence “in the light most favorable to

the plaintiff to determine whether a genuine issue of material fact exists.” Town of Shady

Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). “[W]e take as true all evidence

favorable to the nonmovant and indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Maspero, 640 S.W.3d at 528–29. A genuine issue

exists if “the evidence is such that a reasonable jury could find that fact in favor of the

non-moving party.” Smith v. Mosbacker, 94 S.W.3d 292, 294 (Tex. App.—Corpus Christi–

Edinburg 2002, no pet.). If the evidence generates a fact question on jurisdiction,

dismissal on a plea to the jurisdiction is improper, and the fact issue must be resolved at

trial by the factfinder. Maspero, 640 S.W.3d at 529.

B. Applicable Law

The doctrine of sovereign immunity holds that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.” Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,

769 (1847)). Under the doctrine, courts lack subject matter jurisdiction over suits against

governmental units, such as CSCD, unless immunity has been clearly and

unambiguously waived by the legislature. Harris County v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004); see TEX. GOV’T CODE ANN. § 311.034.

The TTCA clearly and unambiguously waives governmental immunity to suits for

property damage, personal injury, and death proximately caused by the

wrongful act or omission or the negligence of an employee acting within his

scope of employment if:

(A) the property damage, personal injury, or death arises from the

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operation or use of a motor-driven vehicle or motor-driven

equipment; and

(B) the employee would be personally liable to the claimant according to

Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).

“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.” TEX. GOV’T CODE ANN. § 311.034.

C. Analysis

1. Actual Notice

A governmental unit is “entitled to receive notice” of a TTCA claim against it “not

later than six months after the day that the incident giving rise to the claim occurred.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.101(a). Such formal notice “must reasonably

describe: (1) the damage or injury claimed; (2) the time and place of the incident; and

(3) the incident.” Id. However, the formal notice requirement “do[es] not apply if the

governmental unit has actual notice that death has occurred, that the claimant has

received some injury, or that the claimant’s property has been damaged.” Id.

§ 101.101(c).

Hinojosa alleged that the trial court had subject matter jurisdiction over his suit

because CSCD’s governmental immunity was waived by § 101.021(1) of the TTCA. See

id. § 101.021(1). And it is undisputed that CSCD was not provided with formal notice of

his claim as contemplated by § 101.101(a). See id. § 101.101(a). 3 Accordingly, for the

trial court to have jurisdiction under the TTCA, CSCD had to have “actual notice” that

3 The police report attached to CSCD’s plea stated that Hinojosa and his son were transported to

Edinburg Regional Hospital, and it contains a stamp indicating that it was “released” to “Hidalgo County

Adult Probation” on September 10, 2019, which is after the TTCA notice period expired.

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Hinojosa received some injury or that his property was damaged. See id. § 101.101(c).

A governmental unit has “actual notice” under § 101.101(c) if it has “knowledge of

(1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing

or contributing to the death, injury, or property damage; and (3) the identity of the parties

involved.” Reyes v. Jefferson County, 601 S.W.3d 795, 798 (Tex. 2020) (quoting Cathey

v. Booth, 900 S.W.3d 339, 341 (Tex. 1995)). To establish knowledge of an injury, the

governmental entity must have “actual, subjective awareness” that a claimant has

suffered some injury; it is not necessary that the governmental entity be “absolutely

certain of the nature and extent of the injury.” City of San Antonio v. Cervantes, 521

S.W.3d 390, 396 (Tex. App.—San Antonio 2017, no pet.). Knowledge of fault is

established when the governmental unit has “subjective awareness connecting alleged

governmental conduct to causation of an alleged injury to person or property in the

manner ultimately asserted.” Worsdale v. City of Killeen, 578 S.W.3d 57, 65 (Tex. 2019).

“Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies

responsibility for the injury claimed.” Univ. of Tex. Sw. Med. Ctr. at Dall. v. Estate of

Arancibia, 324 S.W.3d 544, 550 (Tex. 2010); see Worsdale, 578 S.W.3d at 68 (“The

critical inquiry is the governmental unit’s actual anticipation of an alleged claim rather than

subjective confirmation of its actual liability.”).

Hinojosa argues that CSCD had actual notice of his claim because two CSCD

officials appeared at the scene shortly after the accident and were informed of the

circumstances. In his deposition, Moreno testified that CSCD director Robert Lizcano and

CSCD “security supervisor” 4 Octaviano Uresti arrived on scene shortly after the accident,

4 Elsewhere in the record, Uresti is identified as a “residential coordinator.”

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and Moreno “let them know what happened.” Hinojosa’s response to CSCD’s plea to the

jurisdiction included an affidavit in which he stated that he told Lizcano “that my son and

I were going to the hospital because of my back and his neck.” The response also

included a cell phone video recording, taken at the scene by Hinojosa, which corroborates

Hinojosa’s account. In the video recording, Hinojosa can be heard explaining to Lizcano

that the other driver “stopped . . . and then he started going again” and “hit me.” 5 After

Hinojosa told Lizcano that he and his son were going to the hospital, Lizcano replied that

he was going to “take a couple quick photos.”

The evidence attached to Hinojosa’s response also included a copy of an email

from Lizcano to Arnold Patrick, CSCD’s executive director, explaining that “one of our

vehicles was involved in an accident” and that “both staff members acknowledge that they

were ok[ay].” The email did not mention Hinojosa or his son.

On appeal, CSCD argues that, “[f]rom the record, nothing indicates that [CSCD]

was subjectively aware of Hinojosa’s injuries.” It argues that Hinojosa’s remarks to

Lizcano at the scene “do not sufficiently demonstrate that [it] had actual notice of the

injuries he claims.” It further observes that Lizcano did not indicate that he “subjectively

believed” the Hinojosas had suffered injuries, and he did not take any photos of any such

injuries. CSCD claims that, to hold that it was subjectively aware of the injuries, this Court

“would need to find that [Lizcano] deliberately refused to photograph any of Hinojosa’s

injuries and deliberately omitted any mention of Hinojosa’s injuries in the summation

provided to the executive director.”

5 The record reflects that there is a stop sign on North M Road (on which Moreno was driving) but

not on East Mile 17 ½ Road (on which Hinojosa was driving). Moreno testified in his deposition that he

mistakenly believed the intersection was a four-way stop.

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CSCD’s arguments are unavailing. As noted, Hinojosa’s burden at this stage was

merely to create a fact issue as to whether CSCD received actual notice. Town of Shady

Shores, 590 S.W.3d at 550. His affidavit and cell phone video recording satisfied that

burden. When viewed in the light most favorable to Hinojosa, they establish that Lizcano

was made aware that Hinojosa and his son had been injured and that those injuries were

caused when a vehicle driven by a CSCD employee “hit” Hinojosa’s car. And CSCD does

not dispute that actual notice may be imputed from Lizcano to CSCD. See Dinh v. Harris

Cnty. Hosp. Dist., 896 S.W.2d 248, 253 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d

w.o.j.) (noting that actual notice “may be imputed to the government by an agent or

representative who has a duty to gather facts and investigate”).

The fact that Lizcano did not photograph any injuries at the scene does not

conclusively establish that Lizcano lacked actual notice, nor does the fact that Lizcano

failed to mention any injuries in his email to Patrick. Instead, a reasonable juror could find

from Hinojosa’s affidavit and cell phone video that CSCD had “actual, subjective

awareness” that Hinojosa was injured and that CSCD was responsible for those injuries.

See Reyes, 601 S.W.3d at 798; Worsdale, 578 S.W.3d at 65; Estate of Arancibia, 324

S.W.3d at 550; Cervantes, 521 S.W.3d at 396. Accordingly, Hinojosa met his burden to

create a fact issue on whether CSCD had actual notice of his claim. See Smith, 94 S.W.3d

at 294.

Hinojosa’s first two issues are sustained.

2. Official Immunity

CSCD further argued in its plea to the jurisdiction that its governmental immunity

to suit is not waived because Moreno is entitled to official immunity.

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“Government employees are entitled to official immunity from suit arising from the

performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting

within the scope of their authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex. 1994). Official immunity is an affirmative defense to suit, not a jurisdictional bar. Id.

However, TTCA § 101.021(1) states that a governmental unit’s immunity is waived for

suits involving an employee’s motor vehicle accident only if “the employee would be

personally liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021(1)(B). Thus, “[i]f the employee is protected from liability by official

immunity, the employee is not personally liable to the claimant and the government

retains its sovereign immunity under [TTCA § 101.021(1)].” DeWitt v. Harris County, 904

S.W.2d 650, 653 (Tex. 1995). The burden is on the government defendant to establish

all elements of the defense. Chambers, 883 S.W.2d at 653; Los Fresnos Consol. Indep.

Sch. Dist. v. Southworth, 156 S.W.3d 910, 916 (Tex. App.—Corpus Christi–Edinburg

2005, pet. denied).

There is no dispute that, at the time of the accident, Moreno was acting within the

course and scope of his authority as CSCD’s employee. Hinojosa contends on appeal,

however, that Moreno was not performing a “discretionary” act and did not act in good

faith when the accident occurred. A discretionary act is one that requires “personal

deliberation, decision, and judgment.” Chambers, 883 S.W.2d at 654. On the other hand,

ministerial acts are those “where the law prescribes and defines the duties to be

performed with such precision and certainty as to leave nothing to the exercise of

discretion or judgment.” Id. In determining whether conduct is discretionary, we focus on

whether the public official was performing a discretionary function, not on whether the

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official had discretion to do an allegedly wrongful act while discharging that function. See

id.

In its plea, CSCD stated that Moreno was performing a “county pickup” and

acknowledged this was a “routine and required job function for Moreno as a residential

monitor.” That said, in his deposition, Moreno agreed with CSCD’s counsel that he had

the “freedom, as a CSCD residential monitor, to choose the route [he] was going to take

to get to the county jail.” CSCD argues that this testimony shows that Moreno was

engaged in a discretionary act because he “enjoyed discretion in determining the

schedule and route taken to effectuate his ‘county pickup.’”

We disagree. “Unlike high speed chases or traffic stops, operating a car in a non-

emergency situation does not involve personal deliberation or the exercise of professional

expertise, decision, or judgment.” Harris County v. Gibbons, 150 S.W.3d 877, 886 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (citing Woods v. Moody, 933 S.W.2d 306, 308

(Tex. App.—Houston [14th Dist.] 1996, no writ)). Generally, “[d]riving a car is a ministerial

act because it requires a person to perform in a given state of facts and in a prescribed

manner in obedience to the method of legal authority, without regard to the propriety of

the act being done.” Id. (citing City of Houston v. Daniels, 66 S.W.3d 420, 425 (Tex.

App.—Houston [14th Dist.] 2001, no pet.)). In Gibbons, an officer rear-ended the plaintiff’s

vehicle when he was looking down at his on-board computer terminal to determine if a

different vehicle was stolen. Id. At the time, the officer was “on his way to another job”;

nevertheless, the court found that he was acting within the scope of his authority as a

police officer and was performing a ministerial function. Id. at 886 (“Because [the officer]

was operating his patrol vehicle in a non-emergency situation, he was obligated to

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operate his patrol car in a safe manner in accordance with traffic laws and was performing

a ministerial function.”). Similarly, in Southworth, we held that a school bus driver was

performing a ministerial function, and therefore was not entitled to official immunity,

because she “was not under any duty to make any decision other than driving the bus.”

156 S.W.3d at 917 (noting that “[t]he accident which caused appellees’ injuries allegedly

resulted from the manner in which the bus was being driven and not from any

discretionary decision or election made by” the government employee).

This case is analogous to Gibbons and Southworth. There is no suggestion that

Moreno was responding to an emergency at the time of his collision with Hinojosa, and

CSCD acknowledged that Moreno was “required” to engage in “county pickups” as part

of his job. The mere fact that Moreno was free to determine the route he took to the county

jail does not mean that his actions were discretionary for purposes of official immunity. 6

If that were true, then practically every auto accident caused by a government employee

would be shielded by immunity despite the Legislature’s clear intent to waive immunity in

these situations. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). Instead, Moreno

“was obligated to operate his [vehicle] in a safe manner in accordance with traffic laws

and was performing a ministerial function” at the time of the subject accident. Gibbons,

150 S.W.3d at 886.

Because Moreno was not performing a discretionary duty at the time of the

accident, he is not entitled to official immunity, and CSCD’s plea to the jurisdiction should

not have been granted on this basis. 7 Hinojosa’s third issue is sustained.

6 CSCD does not direct us to any evidence in the record, and we find none, establishing that Moreno

had discretion to determine his “schedule” or to decline to engage in “county pickups.”

7 In light of our conclusion that Moreno was not performing a discretionary function, we need not

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III. CONCLUSION

We reverse the trial court’s judgment granting CSCD’s plea to the jurisdiction. We

remand with instructions to deny CSCD’s plea to the jurisdiction, and for further

proceedings consistent with this memorandum opinion.

DORI CONTRERAS

Chief Justice

Delivered and filed on the

24th day of August, 2023.

address whether Moreno was acting in good faith at the time of the accident. See TEX. R. APP. P. 47.1.

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