County of Hidalgo, Texas v. Fabiana Carlos

NUMBER 13-24-00401-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

COUNTY OF HIDALGO, TEXAS, Appellant,

v.

FABIANA CARLOS, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 7
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice Fonseca

Appellant County of Hidalgo, Texas argues by two issues that the trial court

improperly denied its plea to the jurisdiction based on governmental immunity. It first

argues that appellee Fabiana Carlos failed to demonstrate that it had actual knowledge

of a dangerous condition. Appellant also argues that appellee was aware of the

dangerous condition. We reverse and remand.
I. BACKGROUND

This appeal arises from a slip and fall incident that occurred at the Hidalgo County

Courthouse. On September 17, 2019, appellee was walking across a makeshift walkway

outside of the courthouse when she allegedly fell due to a negligent condition of the

property. Appellee alleges that a contractor, Morganti Construction, was responsible for

creating the makeshift walkway and that appellant’s employees were responsible for

maintaining the walkway and keeping it clean. Appellee’s petition contained photos that

she claims demonstrated the area was unsafe.

Appellee filed suit on June 2, 2021. Appellant answered on June 28, 2021, and,

after appellee amended her petition, appellant filed its own amended pleading that

included a plea to the jurisdiction. Appellant filed a brief in support of its plea to the

jurisdiction on April 12, 2023, arguing that it is immune from tort liability except in areas

where the Texas Legislature specifically waives immunity. Appellee did not file a response

to the plea to the jurisdiction. The trial court held a hearing on the plea to the jurisdiction

on July 31, 2024, and thereafter denied it via written order on August 5, 2024. This

accelerated interlocutory appeal followed. TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8).

II. APPENDIX DOCUMENTS

As a preliminary matter, appellee complains that appellant has attached

documents to its brief as Appendix D that were not part of the appellate record. It is well-

resolved that “we do not consider attachments to briefs that were not part of the trial court

record and are not formally included in the appellate record.” Black v. Shor, 443 S.W.3d

170, 174 n.3 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.) (citing Guajardo v.

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Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (further citations omitted)). Upon review of

Appendix D, we have determined that it includes photos that were not part of the trial

court record and are not part of the appellate record. As such, we agree with appellee,

and we will not consider the two photos included for the first time in Appendix D.

III. ANALYSIS

Appellant complains that the trial court erred in two regards when it denied the plea

to the jurisdiction, both related to appellant’s governmental immunity. First, appellant

complains that appellee failed to present any evidence that appellant had actual

knowledge of the alleged dangerous condition, which was required to establish a statutory

waiver of immunity. Second, appellant argues that it retained immunity because appellee

was aware of the alleged dangerous condition.

A. Standard of Review

“A plea to the jurisdiction challenges the existence of subject matter jurisdiction;

that is, the court’s power to decide the case.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex.

2024) (citing Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015)). “The trial

court’s ruling on a plea to the jurisdiction is a question of law we review de novo.” Id.

(citing Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex.

2016)). In de novo review, no deference is given to the trial court’s decision. See In re

Est. of Slaughter, 305 S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.) (citing

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)).

Challenges to jurisdiction can be based either on pleadings or on the jurisdictional

facts. Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022). When reviewing pleadings, this

Court must “determine if the pleader has alleged facts that affirmatively demonstrate the

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court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Pleadings are construed liberally in favor of the pleader

and a plaintiff “should be afforded the opportunity to amend” if the challenged jurisdictional

defect may be cured with further factual allegations. Tex. Tech. Univ. Sys. v. Martinez,

691 S.W.3d 415, 419 (Tex. 2024). A court cannot sustain a plea to the jurisdiction if the

pleadings generate a fact question. Ryder Integrated Logistics, Inc. v. Fayette County,

453 S.W.3d 922, 927 (Tex. 2015) (per curiam); see also City of Corpus Christi v. Muller,

No. 13-18-00443-CV, 2019 WL 2384162, at *1 (Tex. App.—Corpus Christi–Edinburg

June 6, 2019, no pet.) (mem. op.).

If jurisdictional facts are challenged, our standard of review mirrors that of a

summary judgment where we consider evidence necessary to resolve the jurisdictional

issues. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770–71 (Tex. 2018).

It is foundational that the “party suing the governmental entity bears the burden of

affirmatively showing waiver of immunity.” City of San Antonio v. Maspero, 640 S.W.3d

523, 528 (Tex. 2022). Thus, a plaintiff can only survive a plea to the jurisdiction “by

showing that the statute ‘clearly and affirmatively waive[s] immunity’ and by also ‘negating

any provisions that create exceptions to, and thus withdraw, that waiver.’” City of Austin

v. Powell, 704 S.W.3d 437, 447 (Tex. 2024) (quoting Rattray v. City of Brownsville, 662

S.W.3d 860, 866 (Tex. 2023)). While a plaintiff need not anticipate every possible

defense, if their pleadings indicate a particular defense, the government is not charged

with producing additional evidence to invoke that defense. Id.

Thus, a plea to the jurisdiction can be “like a no-evidence motion for summary

judgment by asserting that the plaintiff has produced no evidence of an element required

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for the immunity waiver to apply.” Id. In such a circumstance, the plaintiff can then respond

by producing evidence of that waiver. Id. The controlling question, regardless of who

attached evidence, is “whether the nonmovant raised a fact issue to preclude summary

judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024). The plaintiff

ultimately bears the evidentiary burden to establish a waiver of immunity. Powell, 704

S.W.3d at 448.

B. Applicable Law

Political subdivisions of the State, including appellant, are generally immune from

suit unless immunity has been clearly and unambiguously waived by the legislature. TEX.

GOV’T CODE ANN. § 311.034; City of Houston v. Hous. Mun. Emps. Pension Sys., 549

S.W.3d 566, 576 (Tex. 2018). Immunity from suit is properly asserted through a plea to

the jurisdiction. See Clark, 544 S.W.3d at 770 (citing Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000)). The Texas Tort Claims Act (TTCA) waives immunity for

“personal injury . . . [proximately] caused by a condition or use of . . . real property if the

governmental unit would, were it a private person, be liable to the claimant according to

Texas law” on a premises liability theory. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021(2), 101.022(a), 101.025; Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380,

384–85 (Tex. 2016) (noting that “a claim for a condition or use of real property is a

premises defect claim under the [TTCA]”). Premises liability is a theory of liability where

a static condition of the property, such as an uneven surface, causes the injury rather

than an active use of the property. Sampson, 500 S.W.3d at 390.

However, the only duty a governmental unit owes for premises liability is the same

duty “that a private person owes to a licensee on private property, unless the claimant

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pays for use of the premises.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). There is

no allegation that appellee paid for use of the premises. Therefore:

the duty owed to a licensee on private property requires that “a landowner
not injure a licensee by willful, wanton or grossly negligent conduct, and that
the owner use ordinary care either to warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and
the licensee is not.”

Sampson, 500 S.W.3d at 385 (quoting State Dep’t of Highways & Pub. Transp. v. Payne,

838 S.W.2d 235, 237 (Tex. 1992) (further citations omitted)). Appellee does not allege

there was willful, wanton, or grossly negligent conduct. Therefore, the elements required

to prove premises liability are:

(1) a premises condition created an unreasonable risk of harm;

(2) appellant had actual knowledge of the condition;

(3) appellee did not know of the condition;

(4) appellant failed to exercise ordinary care; and

(5) the failure to exercise ordinary care was the proximate cause of appellee’s

injury.

Id. at 391 (citing Payne, 838 S.W.2d at 237). If there is no evidence of any one of these

elements, then denial of the plea to the jurisdiction was improper. Id. Appellant contends

there is no evidence of two elements, which we examine below.

C. Actual Knowledge

Appellant first asserts that there was no evidence of its actual knowledge of the

dangerous condition on the property. There must be actual, rather than constructive,

knowledge of the dangerous condition to maintain a cause of action. See id. at 392. This

means showing more than hypothetical knowledge and that the owner “actually knew of

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the ‘dangerous condition at the time of the accident, not merely of the possibility that a

dangerous condition c[ould] develop over time.’” Id. (quoting City of Coriscana v. Stewart,

249 S.W.3d 412, 413–14 (Tex. 2008) (per curiam)). “Although there is no one test for

determining actual knowledge that a condition presents an unreasonable risk of harm,

courts generally consider whether the premises owner has received reports of prior

injuries or reports of the potential danger presented by the condition.” Id. (quoting Univ.

of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)).

Circumstantial evidence can establish actual knowledge, but it must directly or by

reasonable inference support the asserted conclusion. Id. at 394 (citing Suarez, 465

S.W.3d at 634). Mere suspicion is not enough to form a reasonable inference. Id. “[A]ctual

knowledge cannot be established by piling inference upon inference.” Am. Indus. Life Ins.

v. Ruvalcaba, 64 S.W.3d 126, 141 (Tex. App.—Houston [14th Dist.] 2001, pet. denied);

see Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (“[S]ome suspicion

linked to other suspicion produces only more suspicion, which is not the same as some

evidence.”); Rounsaville v. Bullard, 276 S.W.2d 791, 794 (1955) (“No inference of fact

should be drawn from premises which are uncertain. . . . One presumption cannot be

based upon another presumption.”).

Because whether appellant had actual knowledge is a jurisdictional fact, we will

consider evidence necessary to resolve this issue. See Clark, 544 S.W.3d at 770–71.

Appellant challenged via its plea to the jurisdiction that appellee failed to present any

evidence that appellant had actual knowledge of these conditions. Thus, we treat this as

a no-evidence plea to the jurisdiction and will review to determine “whether [appellee] has

raised a fact issue regarding the [TTCA]’s immunity waiver.” Powell, 704 S.W.3d at 448.

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Appellee’s petition alleged that she was an invitee at the Hidalgo County

Courthouse, and that she used the makeshift walkway there. She further alleged that

appellant’s employees were responsible for maintaining the walkway, trash cans, and

carpeting, and that they were not properly maintained, constituting a dangerous condition.

Her only “evidence” for these assertions at the time of the hearing was a single photo

attached to her live petition. However, pleadings or documents attached to pleadings do

not generally qualify as summary judgment evidence, whether verified or not. See

Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818–19

(Tex. 2021). The photograph was not verified, and appellee did not file a response to the

plea to the jurisdiction with any verified summary judgment evidence. Id. Accordingly,

appellee has failed in her burden to create a fact issue. See Powell, 704 S.W.3d at 448.

As appellee failed to produce any competent evidence in response to the plea to

the jurisdiction, we sustain appellant’s first issue. Because this issue is dispositive, we

need not address appellant’s remaining issue. See TEX. R. APP. P. 47.1.

D. Remedy

Appellee failed to produce evidence creating a fact issue as to actual knowledge

even after amending her petition multiple times. Typically, this conclusion would result in

our rendition of judgment in favor of appellant. See, e.g., Harris County v. Sykes, 136

S.W.3d 635, 639 (Tex. 2004). However, at the time of the trial court’s decision, the Powell

case had not been decided and, thus, a no-evidence style plea to the jurisdiction was not

proper.1 Under the applicable law, appellant’s filing of its plea to the jurisdiction without

1 See, e.g., La Joya Indep. Sch. Dist. v. Gonzalez, 532 S.W.3d 892, 897 (Tex. App.—Corpus

Christi–Edinburg 2017, pet. denied) (“A defendant cannot simply deny the existence of jurisdictional facts
and force the plaintiff to raise a fact issue. . . . In other words, a defendant may not advance a ‘no-evidence’

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supporting evidence did not generate a burden on the part of appellee to produce

evidence. This could explain appellee’s failure to provide such evidence in response to

appellant’s plea.

Given the supreme court’s clarification of the law since the trial court’s denial of

plea to the jurisdiction, we find the appropriate remedy is to remand to provide a final

opportunity for appellee present evidence sufficient to create a fact issue. See TEX. R.

APP. P. 43.3 (“When reversing a trial court’s judgment, the court must render the judgment

that the trial court should have rendered, except when: (a) a remand is necessary for

further proceedings; or (b) the interests of justice require a remand for another trial.”). In

reconsidering the plea to the jurisdiction, the trial court should follow Powell and consider

whether appellee has met her burden to show a waiver of immunity.

IV. CONCLUSION

Appellee failed to present evidence to create a fact issue to defeat appellant’s plea

to the jurisdiction. Based on the recent Powell decision, we reverse the trial court’s denial

of the plea, but we remand for further proceedings in accordance with this opinion.

YSMAEL D. FONSECA
Justice

Delivered and filed on the
26th day of June, 2025.

plea to the jurisdiction.”); HS Tejas, Ltd. v. City of Houston, 462 S.W.3d 552, 557 (Tex. App.—Houston [1st
Dist.] 2015, no pet.) (“By not presenting any evidence to establish that the trial court lacked jurisdiction as
a matter of law, the City failed to meet its burden to challenge jurisdiction.”), abrogated by Powell, 704
S.W.3d at 447.

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