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City of Houston v. Fagan12/2/1999
The City of Houston and Gary Michael Storemski, a Houston Police Officer, bringthis appealfrom the denial of a motion to dismiss for lack of jurisdiction, and, in the alternative, a motion for summary judgment. We affirm.
On March 13, 1996, Officer Storemski was dispatched to pursue a stolen vehicle in the Heights district in the city of Houston. Storemski was southbound on Yale and his emergency lights were flashing. There is a dispute as to whether his siren was activated. When he entered the intersection with 11 th street, he collided with Mildred Fagan who was traveling westbound. Ms. Fagan was cited for the accident, but the ticket was later dismissed. She filed suit and the appellants moved to dismiss for lack of jurisdiction, and, in the alternative, for summary judgment. The motion was denied and this appeal ensued.
Plea to the Jurisdiction
The first issue presented is whether the trial court properly exercised subject matter jurisdiction. Appellants (hereafter referred to collectively as "the City") allege that a plea to the jurisdiction was appropriate and should have been granted by the trial court. They contend that because Fagan failed to plead that governmental immunity had been waived, the court lacked subject matter jurisdiction and had no authority to act. A governmental unit may appeal an interlocutory order that "grants or denies a plea to the jurisdiction." TEX. CIV. PRAC. & REM. CODE Ann. ยง 51.014(a)(8) (Vernon Supp.1999). We conclude that the trial court properly exercised subject matter jurisdiction.
There are two conflicting views on governmental immunity as a bar to subject matter jurisdiction. One view is that sovereign immunitymaynot be asserted as a jurisdictional obstacle to a trial court's power to hear cases against governmental defendants. See Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex. 1988); Smith v. State, 923 S.W.2d 244, 246 (Tex. App.-Waco 1996, writ denied). Instead, erroneous judgments against governmental units may be corrected, as in other cases, on appeal. Davis, 752 S.W.2d at 520.
The opposing view is that absent some waiver of sovereign immunity, a trial court lacks subject matter jurisdiction over the case. See Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997); Hencerling v. Texas A & M University, 986 S.W.2d 373, 375 (Tex. App.-Houston [1st Dist.] 1999, writ denied); Southwest Airlines v. Texas High-Speed Rail Auth., 867 S.W.2d 154, 158 n. 6 (Tex. App.-Austin 1993, writ denied). These cases generally divide governmental immunity into immunity from suit and immunity from liability. The Austin court has suggested that Davis is precedential as to the waiver of immunity from liability, but only dicta as to waiver of immunity from suit. See Southwest Airlines, 867 S.W.2d at 158 n. 6. Under either view, the trial court properly denied the appellants' Plea to the Jurisdiction. Under Davis, the issue cannot act as a bar. Moreover, for the reasons set forth below, we find Fagan properly pled an express waiver of sovereign immunity.
The Texas Tort Claims Act ("TTCA") creates a limited waiver of sovereign immunity. The statute provides that:
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 propertydamage, 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
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