The opinion
Affirmed and Memorandum Opinion filed March 28, 2024.
In The
Fourteenth Court of Appeals
NO. 14-23-00241-CV
REBECA GARCIA, Appellant
V.
THE CITY OF AUSTIN, Appellee
On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-001902
MEMORANDUM OPINION
An individual was shot and killed by an Austin police officer while the police
officer was exercising his official duties. The individual’s girlfriend, appellant
Rebeca Garcia, sued the City of Austin, alleging negligent infliction of emotional
distress. The City responded by filing a plea to the jurisdiction, asserting immunity
from suit. The trial court granted the plea and dismissed Garcia’s suit. In two issues
on appeal, Garcia asserts the trial court erred in granting the plea. Reviewing the
jurisdictional allegations, taking them as true, and construing them in favor of
Garcia, we conclude that Garcia’s petition does not present a claim for which
immunity is waived and affirm the trial court’s order granting the City’s plea to the
jurisdiction.
BACKGROUND
According to Garcia’s pleadings, Garcia and Mike Ramos were sitting in a car
in the parking lot of an apartment complex. A citizen called 911 and reported that a
man and woman were sitting in a gold and black Toyota Prius using drugs. The
citizen reported that the man had a gun. City of Austin police officers responded,
saw the Toyota Prius backed into a parking spot, and commanded both people to
show their hands and get out of the car. When Ramos was out of the car officers
instructed him to lift his shirt and turn in a circle. Ramos initially complied but
became non-compliant and verbally confrontational. Ramos walked back toward the
car, refusing verbal commands to step away from the driver’s door of the car.
Believing there was a gun in the car, officers shot a “less-lethal munition,” which
struck Ramos on the left side, but did not stop him from getting back in the car.
When Ramos began to drive away, an Austin police officer shot and killed him.
Garcia, who was in the car, jumped out of the car as Ramos drove away.
Garcia received no physical injuries but subsequently sued the City for
negligent infliction of emotional distress. Garcia alleged that her “sensory and
contemporaneous observation of the incident resulted in sever[e] shock, direct
emotional impact, and extreme emotional distress.”
The City filed a plea to the jurisdiction in which it alleged that Garcia failed
to plead a waiver of the City’s governmental immunity. The City asserted that the
gravamen of Garcia’s complaint was that the police officer wrongfully shot Ramos
while she was in the vicinity. Because Garcia’s claim of negligent infliction of
emotional distress was based on the commission of an intentional tort, the City
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asserted that Garcia’s claim was barred by governmental immunity.1 Garcia
responded, alleging that her claim sounded in negligence and because she was not
required to prove intent, immunity did not bar her claim. After a non-evidentiary
hearing, the trial court granted the City’s plea. This appeal followed.
ANALYSIS2
In two issues Garcia asserts (1) the trial court erred in granting the City’s plea
to the jurisdiction; and (2) the City did not meet its burden to establish governmental
immunity.
I. Standard of review and applicable law
Whether a trial court has subject matter jurisdiction is a question of law we
review de novo. City of Houston v. Williams, 353 S.W.3d 128, 133–34 (Tex. 2011).
When considering a plea to the jurisdiction, our analysis begins with the live
pleadings. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). We first
determine if the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the case. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). In doing so, we construe the pleadings liberally in favor of the
plaintiff, and unless challenged with evidence, we accept all allegations as true. Id.
at 226–27. The plea must be granted if the plaintiff’s pleadings affirmatively negate
the existence of jurisdiction or if the defendant presents undisputed evidence that
1
The City also asserted that Garcia failed to give notice under section 101.101 of the Tort
Claims Act, but on appeal has conceded actual notice.
2
The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our
court. See Tex. Gov’t Code § 73.001. Under the Rules of Appellate Procedure, “the court of
appeals to which the case is transferred must decide the case in accordance with the precedent of
the transferor court under principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3. We
are unaware of any conflict between the Third Court of Appeals precedent and that of this court
on any relevant issue.
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negates the existence of the court’s jurisdiction. Heckman, 369 S.W.3d at 150.
II. The trial court did not err in granting the City’s plea to the jurisdiction.
In Garcia’s first issue she asserts the trial court erred in granting the City’s
plea to the jurisdiction. The City asserted the trial court lacked jurisdiction based on
application of the doctrine of governmental immunity. Governmental immunity
from suit defeats a trial court’s subject matter jurisdiction and is therefore properly
asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 225–26. Absent a
waiver of governmental immunity, a political subdivision of the state, such as the
City, may not be sued. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999).
Tort claims against a governmental entity are governed by the Texas Tort
Claims Act. Tex. Civ. Prac. & Rem. Code § 101.106; see also Miranda, 133 S.W.3d
at 224–25 (holding that the governmental entity was immune from suit for a tort
unless it was expressly waived by the Texas Tort Claims Act). As pertinent to this
case, the Texas Tort Claims Act waives governmental immunity from suits arising
from injuries caused by a condition or use of tangible personal property if the
governmental unit would, were it a private person, be liable to the claimant according
to Texas law. Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep’t of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001). The Texas Tort Claims Act waives
governmental immunity for certain negligent conduct, but it does not waive
immunity for claims arising out of intentional torts. Tex. Civ. Prac. & Rem. Code
§ 101.057; see also City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014).
Intentional conduct, no matter how it is pleaded, falls under the Texas Tort Claims
Act’s governmental immunity waiver exception. Petta, 44 S.W.3d at 580.
The City asserted that while Garcia’s pleading alleged a claim for negligent
infliction of emotional distress, the facts alleged in her pleading alleged intentional
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conduct of the police officer. The specific conduct—shooting Ramos—was clearly
intentional. In the trial court and in Garcia’s opening brief on appeal, she asserts that
the police officer did not assert that his decision to use deadly force was intentional.
Garcia relies on a motion to dismiss filed by the officer in federal court in response
to a suit filed in the United States District Court for the Western District of Texas.
The police officer averred in his motion that he had less than a “split second” to
“make the incalculably difficult decision to utilize deadly force.” The document to
which Garcia referred was a motion to dismiss filed under Federal Rule of Civil
Procedure 12(b)(6). It does not contain factual allegations about the officer’s mental
state at the time he shot Ramos. The speed at which the officer made the decision to
use deadly force is not evidence that the officer’s act of shooting was not intentional.
The officer’s affidavit in federal court is not evidence that the shooting constituted
negligence.
In Garcia’s reply brief she asserts that Texas courts have held police officers
and cities liable for negligent infliction of emotional distress and have held that
immunity does not protect them from liability. The cases Garcia cites are
distinguishable from this case in that in those cases the issue was whether an officer
had official immunity, not whether a city had governmental immunity. See Martinez
v. Mikel, 960 S.W.2d 158, 160 (Tex. App.—San Antonio 1997, no pet.) (reviewing
whether officer acted in good faith in using force); Antu v. Eddy, 914 S.W.2d 166,
170 (Tex. App.—San Antonio 1995, no writ) (same).
Governmental immunity and official immunity are different. Official
immunity protects individual officials; governmental immunity protects
governmental entities. DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995).
Whether the Texas Tort Claims Act waives governmental immunity in a given case
does not affect whether the governmental employee may assert official immunity as
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a defense. Id.
We conclude the allegations in this case fit squarely within the Texas Tort
Claims Act’s exclusion of claims arising out of assault, battery, or any other
intentional tort. See Tex. Civ. Prac. & Rem. Code § 101.057. We therefore overrule
Garcia’s first issue.
II. The City was not required to present evidence of jurisdictional facts.
In Garcia’s second issue she asserts the City was required to produce evidence
to challenge the jurisdictional facts. Garcia preserved this issue by asserting her
claim in response to the City’s plea to the jurisdiction. When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133
S.W.3d at 226. However, if a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issues raised, as the trial court is required to
do. Id.
In this case, Garcia’s pleadings negate jurisdiction because her allegations fit
squarely within the Texas Tort Claims Act’s exclusion of claims resulting from
intentional torts. The City did not challenge the existence of jurisdictional facts
because it alleged Garcia’s pleadings affirmatively negated jurisdiction. We
therefore overrule Garcia’s second issue.
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CONCLUSION
Having overruled Garcia’s issues on appeal we affirm the trial court’s final
judgment dismissing the case for lack of subject-matter jurisdiction.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
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