REVIEW OF ORDER ON PLEA TO THE JURISDICTION - STANDARD ON APPEAL
We review a trial court's ruling on a plea to the jurisdiction de novo. See Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (setting forth standard of review for pleas to
the jurisdiction). In our review, we construe the pleadings liberally in favor of the pleader and look to
the pleader's intent to determine whether the facts alleged affirmatively demonstrate the trial court's
jurisdiction to hear the cause. See id. In a review of a plea to the jurisdiction, we cannot examine
the merits of the case. See Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 635 (Tex.
App.- Houston [14th Dist.] 2006, pet. denied) (op. on reh'g).
Standard of Review
Determining whether a court has subject matter jurisdiction § including exhaustion of administrative remedies
§ is treated as a question of law and reviewed de novo. See Subaru of Am., Inc. v. David McDavid Nissan,
Inc., 84 S.W.3d 212, 222 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998);
Kelly v. Am. Interstate Ins. Co., No. 14-07-00083-CV, 2008 WL 5085138, at *2 (Tex. App.-Houston [14th
Dist.] Nov. 25, 2008, pet. filed) (mem. op., not designated for publication) (citing Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
A plea to the jurisdiction challenging exhaustion of administrative remedies under the workers' compensation
scheme can rest on the pleadings, or on evidence. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653,
657 (Tex. App.- Dallas 2008, no pet.) (citing Miranda, 133 S.W.3d at 226); see also Kelly, 2008 WL 5085138,
at *2; Schwartz v. Ins. Co. of Penn., 274 S.W.3d 270, 273-74 (Tex. App.- Houston [1st Dist.] 2008, pet.
"When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to hear the case." Deese, 266 S.W.3d at 657 (citing
Miranda, 133 S.W.3d at 226). The reviewing court "must look to the allegations in the pleadings, liberally
construe them in the plaintiff's favor, and look to the pleader's intent." Kelly, 2008 WL 5085138, at *2 (citing
Miranda, 133 S.W.3d at 226). "If the pleadings do not contain sufficient facts to affirmatively demonstrate the
trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one
of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend." Id. (citing Miranda,
133 S.W.3d at 226-27).
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)); see
also Deese, 266 S.W.3d at 657. The standard of review for a jurisdictional plea based on evidence
"'generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).'"Deese, 266
S.W.3d at 657 (quoting Miranda, 133 S.W.3d at 228). Under this standard, we credit evidence favoring the
non-movant and draw all reasonable inferences in the non-movant's favor. See id. at 659 (citing Miranda,
133 S.W.3d at 228).
Stinson v. Ins. Co. of the State of Pennsylvania (Tex.App.- Houston [14th Dist.] Apr. 30, 2009)(Boyce)
extra-contractual claims against appellees the Insurance Company of the State of Pennsylvania, Gallagher
Bassett Services, Inc., and Belinda Ybarra. (workers compensation denial of claim)
(Stinson contends the trial court erred in dismissing her suit for want of jurisdiction based on an asserted
failure to exhaust available administrative remedies. We reverse and remand.
REVERSED AND REMANDED: Opinion by Justice Boyce
Before Justices Brock Yates, Seymore and Boyce)
14-07-00698-CV Sue Ann Stinson v. The Insurance Company of The State of Pennsylvania, Gallagher
Bassett Services, Inc., and Belinda Ybarra
Appeal from 61st District Court of Harris County
Trial Court Judge: JOHN J. DONOVAN
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