law-ILA-governmental-entities-and-officials | interlocutory appeals | Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
interlocutory appeal from order denying special-appearance | interlocutory appeals (ILA) | arbitration and
interlocutory appeals | finality of order appealed from | interlocutory review of rulings on governmental unit's plea
to the jurisdiction | accelerated interlocutory appeals from temporary injunction orders (grant or denial) |
permissive-interlocutory-appeal | no final judgment | dismissal of appeal for want of jurisdiction |
INTERLOCUTORY APPEAL - IMMUNITY CLAIM OF GOVERNMENTAL ENTITY
CASELAW SNIPPETS
Jurisdiction over Interlocutory Appeal
Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only when a
statute explicitly confers such jurisdiction. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
(Tex. 2007).
Section 51.014(a) of the Civil Practice and Remedies Code allows an appeal from an interlocutory order
that
(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual
who is an officer or employee of the state or a political subdivision of the state . . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (Vernon 2008).
The Supreme Court of Texas held recently held in Austin State Hospital v. Graham that “an appeal may
be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless
of the procedural vehicle used,” including a motion to dismiss filed under Tort Claims Act section
101.106(e). Austin State Hosp. v. Graham, No. 10–0674, 2011 WL 3796619, at *2 (Tex. Aug. 26, 2011).
Under its language, section 51.014(a)(5) applies only if the City’s motion to dismiss was based on an
assertion of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5). Courts have indicated
that when a governmental unit seeks dismissal of the claims against an employee under subsection
101.106(e), such action is based on an assertion of immunity. See Univ. of Texas Health Sci. Ctr. at
Houston v. Crowder, No. 14–10–00092–CV, 2011 WL 1413306, at *2 (Tex. App.—Houston [14th Dist.]
Apr. 14, 2011, no pet.); Singleton v. Casteel, 267 S.W.3d 547, 549–50 (Tex. App.—Houston [14th Dist.]
2008, pet. denied); see also Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that
section 101.106 confers immunity in some instances to employees of governmental units).
An appeal may be taken from an interlocutory order that grants or denies a plea to the jurisdiction filed
by “a governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008); id. §
101.001(3)(D) (Vernon 2011). We review de novo a trial court’s ruling on a jurisdictional plea. See Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When reviewing a trial court’s ruling on a plea,
“we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of
the plaintiffs and looking to the pleader’s intent,” and “we consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised.” City of Waco v. Kirwan, 298 S.W.3d
618, 621–22 (Tex. 2009); see also Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864,
868 (Tex. 2001) (“[W]e consider the facts alleged by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties.”). In considering this evidence, we “take as
true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d at 228).
A “pleader must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”
City of Houston v. Rushing, 7 S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). It is
proper for a trial court to dismiss claims over which it does not have subject matter jurisdiction but retain
claims in the same case over which it has jurisdiction. Thomas v. Long, 207 S.W.3d 334, 338–39 (Tex.
2006). That is, a trial court is not required to deny an otherwise meritorious plea to the jurisdiction
concerning some claims because the trial court has jurisdiction over other claims. Id. at 339.
Although a motion to dismiss for want of jurisdiction may be construed as a plea to the jurisdiction, see Klein v.
Hernandez, 260 S.W.3d 1, 4, 8 (Tex. App.—Houston [1st Dist.] 2008, pet. granted on other grounds) (construing
motion to dismiss for lack of jurisdiction as plea to jurisdiction), only a governmental unit may bring an
interlocutory appeal from the denial of a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014
(a)(8) (Vernon 2008); Young v. Villegas, 231 S.W.3d 1, 6–7 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
Civil Practice and Remedies Code section 51.014(a) provides that “[a] person may appeal from an interlocutory
order of a district court, county court at law, or county court that . . . grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)
(8) (Vernon 2008). Section 101.001 defines “governmental unit” as:
(A) this state and all the several agencies of government that collectively constitute the government of this state .
. . ;
(B) a political subdivision of this state, including any city, county, [and] school district . . . ;
(C) an emergency services organization; and
(D) any other institution, agency, or organ of government the status and authority of which are derived from the
Constitution of Texas or from laws passed by the legislature under the constitution.
Id. § 101.001(3) (Vernon 2005). The Texas Supreme Court has also held that a “state official sued in his official
capacity” should be treated identically to “his employing governmental entity” under section 51.014(a)(8). Tex.
A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007).
INTERLOCUTORY APPEALS INVOLVING GOVERNMENT ENTITIES
Harris County Flood Control District v. Great American Ins. Co. (Tex.App. - Houston [14th Dist.] Feb. 25, 2010)
(Hedges) (plea to the jurisdiction governmental immunity, prompt payment act, quantum meruit)
Appellant, Harris County Flood Control District, appeals from the denial of its plea to the jurisdiction on the claims of appellee, Great
American Insurance Company, for quantum meruit and attorney’s fees. Because we conclude that appellant has not waived its
immunity relative to those claims, we reverse and dismiss in part, affirm in part, and remand.
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Senior Justice Margaret Mirabal
14-09-00571-CV Harris County Flood Control District v. Great American Insurance Company Appeal from
157th District Court of Harris County
Trial Court Judge: Randy Wilson
In its response brief, appellee argues this court does not have jurisdiction to hear this interlocutory appeal
because appellant did not assert governmental immunity as a bar to the entire case. Appellee cites two cases in
support of this argument: Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) and City of Cleburne v. Trussell, 10 S.
W.3d 407, 410 (Tex. App.—Waco 2000, no pet.). These cases stand for the proposition that “the granting of a
plea to the jurisdiction on the basis that some of the damages pled are not recoverable would be erroneous.” City
of Cleburne, 10 S.W.3d at 410 (emphasis in original). However, this line of cases has been overruled by the
Texas Supreme Court in Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). In Thomas, the Texas Supreme
Court held “[a] trial court is not required to deny an otherwise meritorious plea to the jurisdiction or motion for
summary judgment based on a jurisdictional challenge concerning some claims because the trial court has
jurisdiction over other claims.” Id. To be entitled to an interlocutory appeal, all section 51.014(a)(8) of the Civil
Practice & Remedies Code requires is the denial of a jurisdictional challenge. Id. at 340. We conclude that we
have jurisdiction to hear this appeal.
Dissenting Opinion by Justice Mirabal in Harris County Flood Control Dist. v. Great American Ins. Co. (re immunity
from liability and attorneys fees)
Attempted interlocutory appeal in whistleblower suit did not involve jurisdictional issues -
dismissed because not authorized by statute
Galveston ISD v. Jaco (Tex.App.- Houston [14th Dist.] Nov. 15, 2007)(Hedges)(public employment, school law
case, WBA, ILA dismissed DWOJ, arguments advanced by ISD in motion for summary judgment are not
jurisdictional)
DISMISSED: Opinion by Chief Justice Hedges
14-07-00313-CV Galveston Independent School District v. Brent Jaco
Appeal from 56th District Court of Galveston County (Hon. Lonnie Cox)
Medina v. Benkiser (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(trial court had no jurisdiction on modify judgment and add attorney's fee award after appeal completed)
VACATE TRIAL COUR JUDGMENT AND DISMISS CASE: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00777-CV Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay
Fisher v. Tina Benkiser and The Republican Party of Texas
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Citing to Civil Practices & Remedies Code § 51.014(a)(4), appellees now attempt to cast Medina I as an
interlocutory appeal from an order granting a motion to dissolve a TRO. They argue that the county court,
therefore, retained jurisdiction over the controversy after our opinion and judgment issued. However, at the time
the appeal was filed, the parties agreed that the trial court's order dismissed the cause and this Court
acknowledged in its opinion the finality of the judgment dismissing the cause. Appellants cannot now recast their
appeal after our judgment and mandate. Moreover, a party, cannot appeal from an interlocutory order of a county
court at law granting or denying a plea to jurisdiction unless that party is a governmental unit. Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(8) (Vernon 2008). Appellees do not fit the definition of a governmental unit, nor do
they attempt to contend that they could do so. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (Vernon
2008). Appellees, therefore, could not--and did not--file an interlocutory appeal in Medina I.
Governmental official entitled to sovereign immunity dismissal, and to interlocutory appeal when the
trial court denies plea to the jurisdiction
Texas A & M Univ. Sys. v. Koseoglu, No. 05-0321 (Tex. Sep. 7, 2007)(Green)
(public employment law, sovereign immunity, breach of settlement agreement, ILA, opportunity to amend)
Young., M.D. and Baylor College of Medicine v. Silva Villegas (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Frost)
(HCLC, interlocutory appeal, ILA, immunity claim, doctors vs. entity defendant, supported medical school, who
may take interlocutory appeal?, effect of nonsuit on standing)
This court lacks appellate jurisdiction over Baylor’s appeal from the trial court’s order because Baylor had been nonsuited before
the trial court signed the order and because in that order the trial court did not rule on any motion filed by Baylor. This court does not
have appellate jurisdiction over Dr. Young’s appeal from the denial of her plea to the jurisdiction because she is not a governmental
unit. Based on section 312.007 of the Texas Health and Safety Code, this court has appellate jurisdiction to review the trial court’s
denial of the Summary Judgment Motions as to Dr. Young, but because Dr. Young did not prove as a matter of law that she is
entitled to the protections of section 312.006, the trial court properly denied these motions as to her. Accordingly, we dismiss Baylor’
s appeal in its entirety and dismiss Dr. Young’s appeal of the trial court’s denial of the Pleas to the Jurisdiction. We affirm the trial
court’s order denying the Summary Judgment Motions as to Dr. Young.
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