Martina Dominguez and Savannah Reyes, as Next of Friend of Jeremiah Ramirez, a Minor v. City of San Antonio

IN THE TENTH COURT OF APPEALS No. 10-06-00110-CV Martina Dominguez and Savannah Reyes, As Next of Friend of Jeremiah Ramirez, A Minor, Appellants v. City of San Antonio, Appellee From the 166th District Court Bexar County, Texas Trial Court No. 2006-CI-01237 (Severance from Trial Court No. 2005-CI-10694) MEMORANDUM Opinion Dominguez sued the City of San Antonio for negligence and gross negligence, and other defendants on those and other claims. Dominguez alleged that the San Antonio Police Department “[a]ssist[ed] in the identification of JERMAINE RAMIREZ, and, in so doing, fail[ed] to properly identify the body/remains of, JERMAINE RAMIREZ.” ([sic] II C.R. at 208-209 (bracketed alterations added).) The trial court granted the City’s pleas to the jurisdiction and severed the claims against the City. Dominguez appeals. We affirm. In Dominguez’s two issues, she contends that the trial court erred in granting the City’s pleas to the jurisdiction. In Dominguez’s first issue, she contends that her claims were not barred by governmental immunity. In Dominguez’s second issue, she contends that she did not release the City from her claims. “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 case. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). “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.” Miranda at 227. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial courts [sic] jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Miranda, 133 S.W.3d at 226-27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). “If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff’s action. Such a dismissal is with prejudice . . . .” Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). “A municipality is . . . immune from suit . . . for torts committed in the performance of its governmental functions.” Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). “[G]overnmental functions . . . are those that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, including . . . police and fire protection and control.” Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (Vernon 2005). The Texas Tort Claims Act provides, however, that “[a] governmental unit in the state is liable for . . . personal injury . . . so 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 Ann. § 101.021 (Vernon 2005); see id. §§ 101.001-101.109 (Vernon 2005 & Supp. 2006); see Torres v. City of Waco, 51 S.W.3d 814, 820 (Tex. App.—Waco 2001, no pet.), disapproved of on other grounds, Binur v. Jacobo, 135 S.W.3d 646, 651 n.11 (Tex. 2004). “[T]angible personal property refers to something that has a corporeal, concrete, and palpable existence.” Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 178 (Tex. 1994). The trial court did not hear evidence on the City’s pleas. The City’s plea to the jurisdiction argued: [T]the crux of the claims by PLAINTIFFS are that CITY OF SAN ANTONIO used, misused, or engaged in a nonuse of two Texas Driver’s License records. . . . CITY OF SAN ANTONIO retains immunity from suit and liability for the claims PLAINTIFFS make regarding the Drivers’ License records. ([sic] I C.R. at 79 (ellipsis added) (bracketed alteration added).) Dominguez argues that “Appellant’s trial courts erred in determining that the Texas Driver’s License of JERMAINE RAMIREZ, Appellant’s deceased loved one, was not property for the purposes of the Texas Tort Claims Act.” ([sic] Br. at 22; see id. at 20-24; Reply Br. at 5-6.) The petition alleged that the City “misuse[d] the charred and burned Texas Driver’s License of JERMAINE RAMIREZ (which is an item of tangible personal property).” ([sic] II C.R. at 208 (bracketed alteration added) (emphasis in orig.).) The City argues that its actions constituted the use of the information on the driver’s licenses, not the use of the driver’s-license certificates as tangible personal property.[1] “[T]he Legislature has not waived immunity for negligence involving the use, misuse, or non-use of the information” that property “contain[s].” Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001); accord York, 871 S.W.2d at 179. “[I]nformation is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities.” Petta at 580; accord York at 179. “[S]imply reducing information to writing on paper does not make the information ‘tangible personal property.’” Petta at 580 (quoting Dallas County v. Harper, 913 S.W.2d 207, 207-208 (Tex. 1995)). Dominguez relies primarily upon Salcedo v. El Paso Hospital District. See Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex. 1983), limited by Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998). Dominguez argues that the Texas Supreme Court has held when the information is reduced to writing by a machine correctly and that writing/information is misinterpreted (misused) in such a way that it brings about the very injury the writing was designed to prevent, liability has been found to exist based on the misuse of the machine and/or the written results of that machine. ([sic] Br. at 21 (citing Salcedo, 659 S.W.2d 30; Univ. of Tex. Med. Branch v. Estate of Blackmon, 169 S.W.3d 712, 719 (Tex. App.—Waco 2005)[, vacated, 195 S.W.3d 98 (Tex. 2006) (per curiam)]); see Br. at 21-22; Reply Br. at 5-6.) Salcedo, however, “does not permit claims against the State for misuse of information.” York, 871 S.W.2d at 179. “The decision in Salcedo is limited to its facts.” Bossley, 968 S.W.2d at 342 (citing York at 178); accord Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 591 (Tex. 2001). “[T]he waiver of immunity in Salcedo arose from the governmental unit’s misuse of an electrocardiograph” device, not merely information. Bossley at 342 (citing York at 178); see York at 178-79. Construing Dominguez’s pleadings liberally in her favor and looking to her intent, she has not alleged facts that affirmatively demonstrate that the City used tangible personal property in the form of Ramirez’s driver’s license. In Dominguez’s response to the City’s plea, Dominguez also argued that “the remains of JERMAINE RAMIREZ were plead in Plaintiff’s petition and specifically referred to as personal tangible property which was misused by this Defendant, for the purposes of the Texas Tort Claims Act.” ([sic] I C.R. at 178; Br. at 22; see Reply Br. at 7-10.) The petition alleged that the City “misuse[d] the charred and burned body of JERMAINE RAMIREZ, (which is an item of tangible personal property).” ([sic] II C.R. at 208, 209 (bracketed alteration added) (emphasis in orig.).) In this connection, Dominguez argues, “the law . . . specifically state[s] that human remains [a]re property.” (Br. at 23 (citing Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex. 1993); Terrill v. H[a]rbin, 376 S.W.2d 945, 945-46 (Tex. Civ. App.—Eastland 1964, writ dism’d [w.o.j.])); see Reply Br. at 7-10.) Those cases do not state that proposition. Cf. Boyles, 855 S.W.2d 593; Terrill, 376 S.W.2d 945. Dominguez argues, further, “the heirs/survivors do have ownership in these remains such that they can bring suit in order to enforce their selection on how those remains are to be disposed so long as their elected method is consistent with the laws and customs of their civil society.” ([sic] Br. at 23 (citing e.g. Lancaster v. Mebane, 247 S.W. 926 (Tex. Civ. App.—Texarkana 1923, writ ref’d)); see Reply Br. at 7-10.) Assuming that those cases so hold, they do not stand for the proposition that the corpse constitutes personal property concerning which a party may sue the State for money damages.[2] Cf. e.g. Lancaster, 247 S.W. 926. Construing Dominguez’s pleadings liberally in her favor and looking to her intent, she has not alleged facts that affirmatively demonstrate that the City used tangible personal property in the form of Ramirez’s corpse. Because the trial court would not have erred in concluding that Dominguez did not allege facts that affirmatively demonstrate that court’s jurisdiction in the City’s use of tangible personal property in either manner alleged by Dominguez, we need not reach her responses to the other grounds in the City’s plea or its supplemental plea. Dominguez does not contend that she did not have an opportunity to amend her petition in response to the City’s plea, and we do not reach the ground alleged in the supplemental plea. We overrule Dominguez’s first issue. We need not reach Dominguez’s second issue. Having overruled Dominguez’s first issue, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance dissents from the judgment without a separate opinion) Affirmed Opinion delivered and filed February 28, 2007 [CV06] [1] We note, moreover, that it is a “settled principle that a license or permit to drive an automobile on the public highways and streets is . . . not property or a property right.” Gillaspie v. Dep’t of Pub. Safety, 152 Tex. 459, 466, 259 S.W.2d 177, 182 (1953); see Tex. Transp. Code Ann. § 521.001(a)(3), (6) (Vernon Supp. 2006). [2] In the only such case, for instance, that Dominguez cites decided under the Tort Claims Act, the appellant alleged the misuse of a corpse, but the appellate court held for the appellant instead only on the theory of the operation or use of motor-driven equipment. See Freeman v. Harris County, 183 S.W.3d 885, 888 n.3, 889 (Tex. App.—Houston [1st Dist.] 2006, pet. filed); Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A).