James Randel and Nancy Patterson , as Next Friends of Haley Patterson and Garrett Patterson v. City of Alvin

Affirmed and Memorandum Opinion filed August 15, 2006 Affirmed and Memorandum Opinion filed August 15, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00915-CV ____________ JAMES RANDEL TOWNSEND and NANCY E. TOWNSEND, as Next Friends of HALEY PATTERSON and GARRETT PATTERSON, Appellants V. CITY OF ALVIN, Appellee On Appeal from the 239th District Court Brazoria County, Texas Trial Court Cause No. 33071 M E M O R A N D U M   O P I N I O N Raleigh Patterson, as next friend of Haley and Garrett Patterson, sued the City of Alvin (the ACity@) for negligence arising out of a fatal automobile accident. The trial court granted the City=s plea to the jurisdiction. On appeal, James Randel and Nancy E. Townsend, appellants, substituted for Raleigh Patterson. The sole issue on appeal is whether an Alvin police officer used or operated a vehicle in such a manner as to waive governmental immunity under the Texas Tort Claims Act (TTCA). We affirm. The trial court heard no evidence on this jurisdictional issue, and the facts before us are taken from the pleadings at trial. The plaintiffs= petition alleged Scott Elliott, an Alvin, Texas police officer, conducted a traffic stop for a speeding violation and learned the seventeen-year-old driver, Michael Leroux, was unlicensed, untrained, had no insurance for the vehicle, and could provide no form of identification. Despite this knowledge, Officer Elliott Aexercised control@ over Leroux=s vehicle and Aexhibited bad faith when he commanded Leroux to drive straight home.@ Only minutes later, Leroux ran a red light and broadsided another car, killing its driver, Kimberly Patterson. Raleigh Patterson, Kimberly Patterson=s husband, was a passenger in the vehicle. Raleigh and Kimberly had two children at the time of the accident, eight-year-old Haley and three-year-old Garrett. Raleigh Patterson, as next friend of Haley and Garrett (the APattersons@), sued the City, the Alvin Police Department, and Officer Scott Elliott for negligence under the TTCA.[1] The trial court granted the City=s plea to the jurisdiction, and the Townsends bring this appeal. Standard of Review A unit of state government is immune from suit without the state=s consent. City of Kemah v. Vela, 149 S.W.3d 199, 202 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). Sovereign immunity from suit defeats a trial court=s subject matter jurisdiction, and is properly asserted in a plea to the jurisdiction. Id. A trial court must address whether it has subject matter jurisdiction over a case before litigation may proceed. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a plaintiff has alleged facts affirmatively demonstrating a trial court=s subject matter jurisdiction is a question of law we review de novo. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We construe the pleadings liberally in favor of the plaintiffs, looking to their intent. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.CHouston [14th Dist.] 2004, no pet.). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court=s jurisdiction, but also do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiffs should be allowed an opportunity to amend. Id. A plea to the jurisdiction may be granted without allowing any opportunity to amend if the pleadings affirmatively negate the existence of jurisdiction. Id. To prevail, the defense must show that, even if all allegations in plaintiffs= pleadings are true, there remains an incurable jurisdictional defect on the face of the pleadings that deprives the trial court of subject matter jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.CHouston [14th Dist.] 2005, no pet.). The Texas Tort Claims Act=s Waiver of Governmental Liability The TTCA allows an individual to sue a governmental unit Aonly in certain, narrowly defined circumstances.@ Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The TTCA waives governmental immunity for claims involving: (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. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(1) (Vernon 2005).[2] The City is not liable for injuries proximately caused by a negligent employee unless the injury Aarises from the operation or use of a motor-driven vehicle.@ Id. AOperation@ means Aa doing or performing of a practical work,@ and Ause@ means Ato put or bring into action or service; to employ for or apply to a given purpose.@ LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). AArises from,@ as it is used in this statute, requires a nexus between the injury and the operation or use of the vehicle. Id. That is, the use must actually cause the injury. Tex. Nat. Res. Conservation Comm=n v. White, 46 S.W.3d 864, 869 (Tex. 2001). Furthermore, the governmental employee, and not some third party, must operate or use the vehicle. LeLeaux, 835 S.W.2d at 51. The statute does not, however, require the vehicle be a governmental vehicle, or the employee actually drive the vehicle. City of El Campo v. Rubio, 980 S.W.2d 943, 944 (Tex. App.CCorpus Christi 1998, pet. dism=d w.o.j.); County of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex. App.CHouston [14th Dist.] 1994, writ denied).[3] Use or Operation of a Motor-Driven Vehicle The Pattersons/Townsends argue their petition alleges facts that constitute a valid waiver of sovereign immunity under the TTCA. They claim, and the City agrees, that the controlling issue on appeal is whether Officer Elliott=s command to Leroux to Adrive straight home@ amounts to his Ause or operation@ of Leroux=s vehicle in order to satisfy the TTCA=s requirements for waiving governmental immunity. This issue is not entirely settled in Texas jurisprudence. Some Texas appellate courts do not accept that a governmental employee can Ause@ or Aoperate@ a vehicle without being the operator.[4] Others, including this Court, clearly do accept this possibility in certain cases.[5] The Pattersons cite two cases to support their claim that they have effectively pled waiver under the TTCA. In City of El Campo v. Rubio, a police officer stopped a driver who was swerving between lanes. 980 S.W.2d at 944. The driver=s wife, Pascuala, and their two children were in the van. Id. The officer discovered the driver=s license was suspended, he arrested the driver and ordered Pascuala, who was unlicensed, to drive the van. Id. The officer showed Pascuala how to work the gas and brake pedals, stated he would activate his emergency flashers to clear the road, and also asked if her twelve-year-old daughter could drive. Id. Pascuala claimed she acted under the officer=s direct orders by driving the van, and that she was fearful for her family=s safety on the highway late at night. Id. Pascuala attempted to drive but, when she pulled out, the officer was already on the highway making a U-turn, and her van was hit by an oncoming vehicle. Id. The Rubio court found governmental immunity was waived because the officer Aused or operated@ Pascuala=s van by exercising control over the vehicle. Id. at 947. The court emphasized that Pascuala had Alittle or no choice and no control over the situation: she could have driven the vehicle, she could have had her twelve-year-old daughter drive the vehicle, or she could have sat on the side of Highway 59 at midnight with two children until help arrived from Houston.@ Id. at 946. In County of Galveston v. Morgan, county employees supervised road repair work and provided Aspotters@ to signal the trucking company=s drivers when to move forward and when to stop. 882 S.W.2d at 487B88. The spotters were necessary because the drivers could not see any overhead obstructions. Id. at 488. This Court found governmental immunity was waived under the TTCA after a spotter directed a truck too close to a power line and Morgan, an employee of the trucking company, received an electric shock. Id. at 490B91. In finding the spotters Aused or operated@ the trucks to waive immunity under the TTCA, this Court emphasized the spotters= sole discretion over the trucks= operations and the fact that a driver could be fired for moving his truck contrary to the spotters= directions. Id. at 490. We find Morgan and Rubio are distinguishable from the facts of this case. The county employees in Morgan retained sole discretion over each truck=s movements, and the drivers had to follow their direction or risk being fired. Morgan, 882 S.W.2d at 490. Here, Officer Elliott retained no control over Leroux=s vehicle, and Leroux would suffer no consequence for disobeying Officer Elliott. Rubio=s unique facts also set it apart from this case. In Rubio, Pascuala was told to follow the officer to the police station after being given a brief lesson on how to drive a car. Rubio, 980 S.W.2d at 944. Here, Leroux was not ordered to follow Officer Elliott, and was not under his control. We find this case is more analogous to Sepulveda v. County of El Paso. 170 S.W.3d 605, 614 (Tex. App.CEl Paso 2005, no pet.). In Sepulveda, Victor Garcia, an employee of Jobe concrete company, called Deputy Jorge Andujo of the sheriff=s department to report illegal drag racing on the road leading up to his plant. Id. at 608. The road was paved up to the entrance of the plant and extended beyond the plant as a dirt road. Id. Although the road was dedicated for public use, it was never placed in the county road system, and the county did not assume responsibility for maintaining the road. Id. at 609. To contain the drag racers, Deputy Andujo asked Garcia to construct a temporary sand berm no higher than two feet using one of Jobe=s front-end loaders. Id. Garcia said Jobe would build the berm that afternoon and remove it the following morning. Id. No one from the sheriff=s department was present when the berm was constructed, and the berm was built between three and five feet tall. Id. The following afternoon, Sepulveda=s vehicle collided with the berm. Id. The El Paso Court of Appeals held immunity was not waived because Deputy Andujo was not present for and retained no control over the berm=s construction; therefore, he did not Ause@ or Aoperate@ the vehicle that constructed the berm. Id. at 614. In this case, the Pattersons allege Officer Elliott arrived on the scene of the accident Amoments after it occurred and realized it was the same individual that he had only moments before released . . . .@ Officer Elliott released Leroux from a temporary detention with an admonishment, trusted that Leroux would comply, and was not present when the accident occurred. Leroux was free to obey or disobey Officer Elliott=s command without fear of consequence. Even assuming Leroux feared discovery if he did not drive straight home, he was free to choose any route without direction from another person.[6] Although the Pattersons= pleadings allege Officer Elliott exercised control over Leroux=s vehicle, the facts in support of this allegation show only that he exercised discretion in letting Leroux go and retained no control over the vehicle. Therefore, the Pattersons= pleadings affirmatively negate the existence of jurisdiction, and we find the trial court did not err by granting the City=s plea to the jurisdiction.[7] We overrule the Pattersons= sole issue that their petition alleged facts constituting a valid waiver of sovereign immunity under the TTCA, and affirm the trial court=s judgment. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed August 15, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. [1] Claims against defendants Alvin Police Department and Scott Elliott were voluntarily dismissed in the trial court. [2] The Pattersons/Townsends did not bring a claim for any injuries arising from a condition or use of property under subsection (2) of this statute. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2). [3] We reject the City=s argument that the fact Leroux=s vehicle is not a governmental vehicle is important to this case. The City cites cases that do not support this assertion. These cases merely involve governmental vehicles; their analyses do not hinge on whether the vehicle was a governmental vehicle. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542B43(Tex. 2003) (finding immunity not waived when city bus= use or operation did not cause injury after bus driver forced passenger with cerebral palsy off bus when another passenger began to threaten him, and that passenger then exited and beat first passenger severely); City of Kemah v. Vela, 149 S.W.3d 199, 203B04 (Tex. App.CHouston [14th Dist.] 2004, pet. denied) (finding immunity not waived when plaintiff was placed in a patrol car parked in turn lane behind plaintiff=s car because patrol car merely furnished condition that made plaintiff=s injuries possible when third party collided with patrol car); Houston Indep. Sch. Dist. v. Brown, 123 S.W.3d 618, 623 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (finding no waiver of immunity when patrol car where girl was sexually abused was only the site of the injury and car was not used to cause injury); City of Sugar Land v. Ballard, 174 S.W.3d 259, 265B66 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (stating claim that officers negligently failed to properly secure minor in patrol car did not waive governmental immunity because patrol car=s use must have actually caused injury and actual cause of death was detainee=s decision to escape from car and into oncoming traffic). [4] Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 324B25 (Tex. App.CBeaumont 2002, no pet.); Ramos v. City of San Antonio, 974 S.W.2d 112, 116B17 (Tex. App.CSan Antonio 1998, no pet.); Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App.CHouston [1st Dist.] 1995, no writ). But see Ramos v. Tex. Dep=t of Pub. Safety, 35 S.W.3d 723, 735 (Tex. App.CHouston [1st Dist.] 2000, pet. denied) (Mirabal, J., concurring in part and dissenting in part) (stating majority erred by finding officer enjoyed official immunity and therefore not addressing governmental liability; stating also that pleadings alleging officer operated or used vehicle when he instructed driver=s license road test taker to park vehicle were sufficient to support jurisdiction); Vineyard v. City of San Antonio, No. 04-03-00458-CV, 2004 WL 572312, at *2 (Tex. App.CSan Antonio Mar. 24, 2004, pet. denied) (not designated for publication) (stating immunity waived only when employee is operator of vehicle but acknowledging immunity can be waived when employee exercises clear control over injured party=s vehicle by leading or directing the party, and such action must take place immediately before or during the accident). [5] See Morgan, 882 S.W.2d at 490B91 (finding county road crew Aspotters@ used or operated vehicle by instructing driver to park close to a power line); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 866 (Tex. App.CAustin 2001, pet. denied) (finding immunity waived when school bus driver took affirmative action of honking horn to signal a child to cross the street); City of El Campo v. Rubio, 980 S.W.2d 943, 944 (Tex. App.CCorpus Christi 1998, pet. dism=d w.o.j.) (finding officer Aused or operated@ vehicle by ordering unlicensed motorist to drive and instructing her how to operated gas and brake pedals); City of El Paso v. W.E.B. Inv., 950 S.W.2d 166, 170 (Tex. App.CEl Paso 1997, pet. denied) (finding immunity waived when governmental employee negligently ordered vehicle to demolish building without checking conflict in demolition order, even though employee did not physically operate equipment); Finnigan v. Blanco County, 670 S.W.2d 313, 316 (Tex. App.CAustin 1984, no writ) (per curiam) (finding immunity waived when officer left police car unattended with motor running outside jail and inmate used car to escape). [6] The Pattersons/Townsends argue the trial court erroneously granted the plea to the jurisdiction based on the City=s argument that the amount of control alleged was insufficient to constitute waiver. Appellants contend the amount of control is a question of fact that cannot be resolved in a plea to the jurisdiction. We disagree. We have liberally construed the pleadings in appellants= favor. However, having found appellants= petition affirmatively negates the existence of jurisdiction, the trial court did not err in granting the City=s plea to the jurisdiction. Lacy, 132 S.W.3d at 122. [7] We do not reach the City=s alternative argument against waiver of governmental immunity under the TTCA.