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Freeman v. Harris County8/31/2005
Appellant, Octavish Freeman, appeals the trial court's order dismissing his negligence claim against appellee, Harris County, Texas ("the County"), for lack of subject-matter jurisdiction. In three separate issues, Freeman contends that the trial court erred in granting the County's plea to jurisdiction because (1) Freeman alleged sufficient facts to show that the County had waived its immunity under the Texas Tort Claims Act ("the Act"), (2) Freeman is entitled to recover damages for his mental anguish and property loss, and (3) the County waived its governmental immunity when it committed an unauthorized and/or unlawful act. We reverse and remand.
Background
The Harris County Medical Examiner's Office ("the Office") performed an autopsy on the body of Freeman's 27-day-old baby. The autopsy was required by law pursuant to article 49.25 section 6(a)(7) of the Texas Code of Criminal Procedure. After the autopsy, the Office informed Freeman that it had lost the baby's body. To date, the body has not been located.
Katrina Jones and Freeman were the child's biological parents. Jones filed a civil suit against the County seeking damages for the loss of the baby's body, and Freeman intervened. In response to the intervention, the County filed a plea to the jurisdiction. Following a hearing, the trial court granted the County's plea to the jurisdiction and dismissed the case. Freeman challenges the trial court's order of dismissal.
Governmental Immunity
A plea to the jurisdiction is a dilatory plea challenging a trial court's authority to determine the subject matter of the cause of action without defeating the merits of the case. City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex. App.---Houston [1st Dist.] 2001, pet. denied) (citing Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). While the underlying claims may form the context in which a plea to the jurisdiction is raised, the purpose of the plea is not to preview or delve into the merits of the case, but to establish the reason why the merits of the underlying claims should never be reached. Id. To defeat a plea to the jurisdiction, "the [plaintiff] must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause." City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex. App.---Houston [1st Dist.] 1999, no pet.). In determining whether jurisdiction exists, we accept allegations in the plaintiff's pleadings as true and construe them liberally in favor of the plaintiff. Texas Dep't Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A trial court's ruling on a plea to the jurisdiction presents a question of law which is reviewed de novo. Texas Nat'l. Res. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In his pleadings, Freeman alleges that the County has waived its governmental immunity to this suit because it was negligent in (1) using its tangible personal and real property, which included certain motor-driven equipment and (2) in failing to warn or make reasonably safe, a premise defect at its premises. Freeman also argued that the County's conduct constituted criminal negligence under section 42.08 of the Texas Penal Code. See Tex. Pen. Code Ann. ยง 42.08(a)(1) (Vernon 2003) (providing that a person commits an offense if he intentionally or knowingly disinters, disturbs, removes, dissects, in whole or in part, carries away, or treats in a seriously offensive manner a human corpse). In response, the County argued that its immunity from suit was not waived because Freeman did not allege facts which would result in the waiver of its imm
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