Opinion
No. 04-07-00733-CV
Delivered and Filed: February 6, 2008.
Appealed from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. 07367A, Honorable Stephen B. Ables, Judge Presiding.
Reversed and Rendered.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Appellant Kerrville Independent School District ("KISD") brings this interlocutory appeal stemming from the trial court's order denying its plea to the jurisdiction on Appellees Ty Botkin's and Michelle Botkin's claims (collectively "Botkins"). In two issues, KISD states that the trial court erred in denying its plea to the jurisdiction because (1) the Botkins' alleged facts and claims do not fall within the limited waiver of immunity for school districts and (2) they failed to exhaust their administrative remedies. Because we hold that the Botkins failed to invoke the trial court's subject matter jurisdiction pursuant to the Texas Tort Claims Act, we reverse the judgment of the trial court and render judgment dismissing the case for lack of jurisdiction.
Background
For purposes of this appeal, the facts are undisputed. On March 28, 2007, S. B. was injured while driving through a traffic control gate at KISD's premises. In their petition, the Botkins state that "[w]hile attempting to drive past the gate, a pipe attached to the gate suddenly and unexpectedly swung out and crashed into [S. B.'s] vehicle and through the windshield." KISD did not own the vehicle that S. B. was driving. The premises in question were owned and under the control of KISD.
Standard of Review
"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). If the plaintiff fails to do so, the trial court lacks subject matter jurisdiction. Id. Whether a plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity is a question of law reviewed de novo. Tex. Dept. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Analysis
KISD, as a governmental unit, is immune from suit for the Botkins' claims unless that immunity has been waived by the Texas Torts Claims Act ("Act"). Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 2005); LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). In its first issue, KISD asserts that the (Act) does not waive its sovereign immunity from the claims alleged by the Botkins.
Section 101.021 provides for the waiver of a governmental unit's sovereign immunity. Tex. Civ. Prac. Rem. Code Ann. § 101.021. Specifically, Section 101.021 states:
[a] governmental unit in the state is liable for:
(1) 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 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; and
(2) personal injury and death so caused by a condition or use of tangible personal or real 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. Section 101.051, however, further limits the waiver of immunity for school districts and junior colleges. Tex. Civ. Prac. Rem. Code Ann. § 101.051. School districts are immune from suit under the Texas Torts Claims Act except as to the operation and use of motor vehicles. Id. Although Section 101.021 does not state whose operation or use of the vehicle is necessary, the Texas Supreme Court has noted that "the more plausible reading is that the required operation or use is that of the [governmental] employee." LeLeaux, 835 S.W.2d at 51.
The Botkins' pled three specific allegations against KISD. First, the Botkins allege that S. B.'s injuries were caused as a result of a special defect on KISD's premises. Second, the Botkins' allege that the gate was a traffic control device which KISD failed to safely maintain and monitor. Finally, the Botkins allege that KISD was negligent in, among other acts or omissions, failing to protect S. B., inspecting its premises, failing to warn, and failing to correct the dangerous condition.
With regards to their first and second claims, on appeal, the Botkins assert that they have alleged a cause of action sufficient to invoke a waiver of immunity under Sections 101.021(a)(2), 101.022, and 101.060 of the Act. Section 101.022 states:
(a) Except as provided in Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.
(c) If a claim arises from a premise defect on a toll highway, road, or street, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property.
Tex. Civ. Prac. Rem. Code Ann. § 101.022. Section 101.060 further limits liability and in pertinent part provides that:
(a) [t]his chapter does not apply to a claim arising from:
(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;
(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or
(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal of destruction within a reasonable time after actual notice.
Tex. Civ. Prac. Rem. Code. Ann. § 101.060.
In support of their waiver of immunity, the Botkins cite to a number of authorities, but none involve a school district. The waiver of sovereign immunity for school districts is specific and narrow. If Sections 101.022 and 101.060 were applicable, then the limited waiver of immunity in Section 101.051 would be meaningless. We cannot interpret Section 101.022 and 101.060 as to render Section 101.051 ineffective. See Tex. Gov't Code Ann. § 311.021 (Vernon 2005) (providing that in enacting a statute "it is presumed that: . . . (2) the entire statute is intended to be effective").
Any waiver of sovereign immunity must be by clear and unambiguous language. Tex. Gov't Code Ann. § 311.034 (Vernon 2005); Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980). We are not persuaded that Section 101.022 and 101.060 independently or concurrently establish a waiver of immunity for school districts beyond that found in Section 101.051 and Section 101.021(a)(1).
The waiver of sovereign immunity by Section 101.051 and 101.021(a)(1) requires a showing that the injury arises from the school district's use or operation of a motor vehicle. LeLeaux, 835 S.W.2d at 51; Heyer v. North East Indep. Sch. Dist., 730 S.W.2d 130, 131. The Botkins failed to allege that S. B.'s injuries were caused by KISD's use or operation of a motor vehicle.
Seemingly, the Botkins also argue that a waiver of immunity under Sections 101.021(a)(2) and 101.051 does not require an allegation that the school district's use or operation of a motor vehicle gave rise to the injury. However, they have not provided, and we have not found, any authority to support this proposition. As to the Botkins first and second claims, they failed to affirmatively demonstrate a valid waiver of immunity under the Act.
In their third claim, the Botkins complain that KISD and its agents or employees were negligent during the course of operating and maintaining the premises. However, a school district is liable for a personal injury proximately caused by its employees' negligence only if the injury arises from the operation or use of a motor vehicle. Tex. Civ. Prac. Rem. Code Ann. §§ 101.021, 101.051. This negligence claim is unrelated to the use or operation of a motor vehicle.
The Botkins had the burden to affirmatively demonstrate an express waiver of immunity. Because the Botkins' allegations are unrelated to KISD's use or operation of a motor vehicle, we conclude that the Botkins' claims do not fall within the waiver of immunity for school districts under the Act. Accordingly, the trial court erred in denying KISD's plea to the jurisdiction. We sustain KISD's first issue.
Conclusion
We reverse the trial court's denial of KISD's plea to the jurisdiction and render judgment dismissing the case for lack of jurisdiction.