IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0157

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The Texas = Parks and Wildlife = Department,

Doug Hammit, and Marvin C. Wills, = Jr.,

Petitioners,

E. E. Lowrey Realty, Ltd. d/b/a Gatesville = Storage

and The Estate of = E. E.=20 Lowrey,

Respondents

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On Petition for Review from = the

Court of Appeals for the Tenth = District of=20 Texas

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PER = CURIAM

=20 After a fire damaged its storage facility, E. E. Lowrey Realty, = Ltd.=20 d/b/a Gatesville Storage, along with the Estate of E. E. Lowrey = (collectively,=20 =93Lowrey=94), sued the Texas Parks and Wildlife Department and two of = its=20 employees, Marvin C. Wills, Jr., a game warden, and Doug Hammitt, a field radio technician. Lowrey alleged negligence claims relating to Wills=92s and Hammitt=92s installation=20 of a radio, siren, and lights on a TPWD patrol boat stored in Lowrey=92s facility, and alleged that TPWD = breached its=20 storage contract by refusing to pay for damages caused by the fire. TPWD = and its=20 employees filed a joint plea to the jurisdiction, contending that Lowrey=92s claims were barred by sovereign = immunity. The trial=20 court denied the plea, and TPWD and its employees appealed.

=20 In their appeal to this Court, TPWD and its employees first argue = that=20 section 51.014(a) of the Texas Civil Practice and Remedies Code = authorizes=20 interlocutory review of a state entity=92s jurisdictional plea on claims = brought=20 against government officials in their official capacity.[1] The court of appeals held that = the right=20 to interlocutory appeal afforded under Section 51.014(a)(8) does not extend to an employee of a = governmental unit,=20 even when the employee is a codefendant with the governmental unit. 155 = S.W.3d=20 456, 458 (Tex. App.=97Waco 2005, pet. granted). We disagree. Section = 51.014(a)(8) vests appellate courts with jurisdiction to = consider an=20 interlocutory appeal of a jurisdictional plea brought by employees of a=20 government unit. Tex. A&M = Univ. = Sys.=20 v. Koseoglu, ___ S.W.3d ___, ___ = (Tex. 2007). = We reverse=20 the court of appeals=92 dismissal of the appeals filed by Wills and = Hammitt and, rendering the judgment the court of = appeals=20 should have rendered, dismiss Lowrey=92s = claims against=20 Wills and Hammitt.

=20 We next consider whether the court of appeals erroneously = remanded Lowrey=92s claims against TPWD to the trial court = for=20 additional proceedings. The court of appeals determined that Lowrey=92s negligence and breach of contract = claims fell=20 outside any waiver of sovereign immunity and remanded the = jurisdictionally=20 defective claims to provide Lowrey an = opportunity to=20 amend its pleadings before the case would be dismissed with prejudice. = 155=20 S.W.3d at 459 (citing Harris County v. Sykes, 136 S.W.3d 635, 639 = (Tex. 2004)).=20 Incurably defective claims, however, should not be remanded because = amending the=20 pleadings would serve no legitimate purpose. Koseoglu, ___ = S.W.3d at=20 ___. Lowrey, who did not obtain legislative consent to sue under = chapter 107 of=20 the Texas Civil Practice and Remedies Code, cannot pursue a breach of = contract=20 action against the State. See id. at=20 ___.

=20 The Texas Tort Claims Act provides a limited waiver of sovereign = immunity=20 when property damage arose =93from the operation or use of a = motor-driven vehicle=20 or motor-driven equipment.=94 Tex. Civ.=20 Prac. Rem. Code =A7 101.021(1)(A). = Lowrey argued in its jurisdictional plea that the = fire may=20 have been caused by an electrical fault in the boat=92s wiring, which = was =93use=94 of=20 a motor vehicle sufficient to invoke the Act=92s waiver. We agree with = the court=20 of appeals, however, that Lowrey has not met = its=20 burden of showing a sufficient nexus between the operation or use of a = motor=20 vehicle and the injury, which is required for a waiver of sovereign = immunity.=20 See Dallas Area Rapid Transit v. = Whitley,=20 104 S.W.3d 540, 543 (Tex. 2003); = Tex. Nat. Res. Conservation Comm=92n v. White, 46 S.W.3d 864, 869 = (Tex. 2001). = As the court=20 of appeals noted, Lowrey=92s petition does = not allege=20 operation or use of the boat, or any other item, as a vehicle or = motor-driven=20 equipment. Lowrey=92s negligence claims, = which are based=20 on an allegation that Wills and Hammitt left = the=20 premises while the boat=92s electrical wiring was in a dangerous = condition, relate=20 not to the active use or operation of a motor vehicle or motor-driven = equipment=20 but to the condition of state property. See Dallas County Mental = Health &=20 Mental Retardation v. Bossley, 968 = S.W.2d 339, 343=20 (Tex. 1998)=20 (noting that property does not cause injury for purposes of the Act=92s = waiver if=20 it merely creates =93the condition that makes the injury possible=94); = LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) = (concluding=20 that a parked and empty school bus was not in =93use=94 for purposes of = the Act).=20 All parties agree that Wills and Hammitt = were not=20 present at the storage facility when the property damage occurred. When = an=20 injury is caused by a property condition, the State=92s liability is = limited.=20 See Tex. Civ. Prac. = Rem. Code =A7=20 101.021. In those circumstances, a claimant can = recover=20 damages arising only from personal injury or death. Id. =A7=20 101.021(2). Thus, the jurisdictional defect in Lowrey=92s negligence claims cannot be cured by = allowing Lowrey to plead additional facts. Similarly, = merely pleading=20 more facts in support of Lowrey=92s breach = of contract=20 claim will not overcome TPWD=92s immunity = from suit.[2] See Koseoglu, ___ S.W.3d at ___. We therefore = reverse the=20 court of appeals=92 remand order and dismiss Lowrey=92s=20 claims against TPWD.

=20 Accordingly, we grant the petition for review, and without = hearing oral=20 argument, see Tex. R. = App. P.=20 59.1, we reverse the court of appeals=92 judgment with respect to = claims=20 filed against Wills and Hammitt in their = official=20 capacities and render judgment that those claims be dismissed. We also = reverse=20 the portion of the court of appeals=92 judgment remanding claims against = TPWD and=20 render judgment that those claims be dismissed.

OPINION DELIVERED: = September 28,=20 2007

^[1]=20 The parties disagree about whether Lowrey = brought=20 claims against Wills and Hammitt in their = individual=20 capacities. However, Lowrey did not object = to TPWD=92s and the court of appeals=92 = characterization of its=20 claims as being against Wills and Hammitt in = their=20 official capacities. Lowrey thus failed to = preserve=20 any argument that it also brought claims against Wills and Hammitt in their individual capacities. For that = reason, and=20 because the issues briefed address only claims made against governmental = officials in their official capacities, we do not address Lowrey=92s argument that its suit was filed = against Wills and=20 Hammitt in their individual capacities. =

^[2]=20 In 1999, the Legislature enacted administrative procedures to resolve = breach of=20 contract suits against the State. Tex.=20 Gov=92t Code =A7=A7=20 2260.001=96.108; Gen. Servs. Comm=92n v. Little-Tex = Insulation=20 Co., 39 S.W.3d 591, 595 (Tex.=20 2001). Those procedures apply to claims pending or = arising on=20 or after August 30, 1999, the effective date of the statutory enactment. = Little-Tex, 39 S.W.3d at 597. In this = case, the=20 fire occurred on May 30, 1999, before the effective date of the = administrative=20 procedures. Therefore, Lowrey could only = pursue a=20 breach of contract claim against the State if he first obtained = legislative=20 consent under chapter 107 of the Texas Civil Practice and Remedies Code. = See=20 Koseoglu, ___ S.W.3d at ___; = Little-Tex,=20 39 S.W.3d at = 597.