Permian Basin Community Centers for Mental Health and Mental Retardation v. Sheila Limon

Opinion filed July 10, 2008 Opinion filed July 10, 2008 In The Eleventh Court of Appeals __________ No. 11-07-00321-CV _________ PERMIAN BASIN COMMUNITY CENTERS FOR MENTAL HEALTH AND MENTAL RETARDATION, Appellant vs. SHEILA LIMON, Appellee On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-124,033 M E M O R A N D U M   O P I N I O N Sheila Limon sued Permian Basin Community Centers for Mental Health and Mental Retardation (PBCC) for fraud. PBCC responded by filing a plea to the jurisdiction in which it asserted sovereign immunity. The trial court denied the plea, and this appeal followed. Because we believe that the trial court erred when it denied the plea to the jurisdiction, we reverse and render. PBCC argues that it is entitled to sovereign immunity from this suit and that the trial court should have granted its plea to the jurisdiction. We agree. A plea to the jurisdiction is an appropriate way to raise the issue of sovereign immunity and to challenge the trial court=s subject-matter jurisdiction. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject-matter jurisdiction involves a question of law. Tex. Natural Res. Conservation Comm=n v. IT‑Davy, 74 S.W.3d 849, 855 (Tex. 2002). In this case, the trial court apparently heard no evidence in connection with the plea to the jurisdiction, and our review is directed toward the pleadings. Construing the pleadings liberally in favor of the plaintiff and looking at the plaintiff=s intent, we review de novo the question of whether facts have been alleged that affirmatively demonstrate a trial court=s subject-matter jurisdiction. Tex. Dep=t of Parks & Wildlife, 133 S.W.3d at 226; Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Where, as here, a plea to the jurisdiction challenges the pleadings, we review those pleadings to determine whether the plaintiff has alleged facts that affirmatively show that the court has jurisdiction to hear the case. Tex. Dep=t of Parks & Wildlife, 133 S.W.3d 226. If the pleadings do not affirmatively show the trial court=s jurisdiction, but do not affirmatively show that there are incurable defects in jurisdiction, the trial court should give the plaintiff an opportunity to amend. Id. at 226-27. If the pleadings negate the existence of jurisdiction, then the trial court may grant the plea without allowing the plaintiff an opportunity to amend. Id. at 227. Immunity from suit prohibits a suit against the State or its subdivisions (such as PBCC) unless the legislature grants consent. Ben Bolt‑Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self‑Ins. Fund, 212 S.W.3d 320, 323-24 (Tex. 2006); Gen. Servs. Comm=n v. Little‑Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001); Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Eastland County Coop. Dispatch v. Poyner, 64 S.W.3d 182 (Tex. AppCEastland 2001, pet. denied). Sovereign immunity encompasses two basic concepts: (1) immunity from suit and (2) immunity from liability. Little‑Tex, 39 S.W.3d at 594. Here, we are concerned only with the concept of immunity from suit. PBCC was created under the authority of Tex. Health & Safety Code Ann. ch. 534 (Vernon 2003 & Supp. 2007). Chapter 534 authorizes the Texas Department of Mental Health and Mental Retardation to provide various services relating to mental health, mental retardation, and chemical dependency. Chapter 534 does not provide specifically for waiver of sovereign immunity under these circumstances. Limon has sued PBCC for fraud. Her pleadings show that she was working as a contractor for PBCC from April 2000 until January 2005. During this time, and pursuant to her contract with PBCC, Limon cared for several physically or mentally challenged children in her home. She maintains in her petition that PBCC paid her approximately $1,650 per month. She further claims that, Afor years,@ PBCC shorted her, and others, $275 each month. Although PBCC, in its brief, explains the reason for this Ashortage,@ according to the record we have been furnished, a clerk=s record only, there were no pleadings or evidence offered regarding that reason.[1] Be that as it may, Limon claims that PBCC defrauded her, and others, by withholding those monies from her monthly check. The legislature has provided for waiver of sovereign immunity, under certain circumstances, in the Texas Tort Claims Act. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. '' 101.021, .025 (Vernon 2005). However, by the specific terms of the act, the waivers do not apply to intentional torts such as fraud. Tex. Civ. Prac. & Rem. Code Ann. ' 101.057 (Vernon 2005). When we measure Limon=s pleadings against law pertaining to sovereign immunity and against the provisions of the Texas Tort Claims Act, her fraud claim cannot stand against PBCC=s plea to the jurisdiction. Fraud is an intentional tort, and, again, by its very terms, the Tort Claims Act=s waiver of immunity does not apply to intentional torts. Section 101.057; Gen. Elec. Co. v. City of Abilene, 795 S.W.2d 311, 313 (Tex. App.CEastland 1990, no writ). Limon relies upon Dillard v. Austin Independent School Dist., 806 S.W.2d 589 (Tex. App.CAustin 1991, writ den=d). Even assuming the continuing authority of Dillard on some of its points, it does correctly hold that the Tort Claims Act does not apply to intentional torts. See Dillard, 806 S.W.2d at 597. Limon=s own pleadings negate the trial court=s jurisdiction over her claim. Because it is not possible for Limon to amend the petition to make her only claim, the intentional tort of fraud, viable against a claim of sovereign immunity, it is not necessary to allow Limon the opportunity to amend her petition before dismissing her lawsuit. The trial court erred when it denied PBCC=s plea to the jurisdiction. PBCC=s sole issue on appeal is sustained. We reverse the judgment of the trial court and render a judgment of dismissal of Limon=s suit against PBCC. JIM R. WRIGHT CHIEF JUSTICE July 10, 2008 Panel consists of: Wright, C.J., McCall, J., and Boyd, J.[2] [1]Limon had brought this and other claims against PBCC in a federal district court. We cannot tell from the record before us just how much of the circumstances of the federal case were presented to the state trial court. However, both parties address the federal case in their briefing to us. Summary judgment was apparently granted in favor of PBCC on all claims except the fraud claim. The federal district court dismissed the fraud claim without prejudice. Limon appears to make the argument that the federal district court=s order dismissing the fraud claim without prejudice somehow gives the state trial court jurisdiction of the claim. To the contrary, the federal district court simply declined to exercise supplemental jurisdiction over that claim and did not address the jurisdictional issue now before us. [2]John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo sitting by assignment.