OPINION
Aрpellee filed suit under the Texas Tort Claims Act (“the Act”) seeking damages for appellant’s placing of hazardous materials on appellee’s property. Appellant raised special exceptions and sought a plea in abatement on May 10, 1999, alleging that appellee failed to allege facts sufficient to invoke the limited waiver provisions of the Aсt, and that appellee failed to provide notice as required by the Act. The trial court sustained appellant’s spеcial exceptions requiring appellee to amend its original petition. Appellee filed its First Amended Petition on August 6, 1999. On January 14, 2000, appellant filed its Plea to the Jurisdiction. Appellee responded to appellant’s Plea to the Jurisdiction and filed its Second Amended Petition on January 25, 2000. Oh April 28, 2000, the trial court denied appellant’s Plea to the Jurisdiction. Appellant files this interlocutory appeal asserting that the trial court erred in denying its Plea to the Jurisdiction. Specifically, appellant cоntends that appel-lee’s suit fails to allege facts which satisfy the limited waiver of sovereign immunity *553 provisions found in the Act. We reverse and remand.
I. STANDARD OF REVIEW
A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action.
Cornyn v. County of Hill,
If the petition fails to allege jurisdictional facts, the plaintiff has a right to amend before the trial court dismisses the сause.
TRST Corpus, Inc.,
II. DISCUSSION
In its sole point of error, appellant claims that the trial court erred in denying its Plеa to the Jurisdiction. Specifically, appellant asserts that a review of appel-lee’s petition reveals thаt the suit is, and can only be, a suit for the intentional tort of trespass, which is an exception to the general waiver of immunity under the Aсt. We agree.
In Texas, a governmental unit is immune from tort liability unless the Legislature has waived immunity.
Dallas County Mental Health & Mental Retardation v. Bossley,
(1) property dаmage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to thе claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible persоnal or real property if the governmental unit would, were it a private person, be liable to the claimant accоrding to Texas law.
Tex.Civ.Prac. & RemCode Ann. § 101.021 (Vernon 1997). However, the Act provides that section 101.021 does not apply to a claim “arising out of аssault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities.” Tex.Civ. Prac. & Rem.Code Ann. § 101.057(2) (Vernon 1997); see
Dillon
v.
Jefferson County Sheriffs Dep’t,
Appellee clearly states in section two of its Second Amended Petition that “[t]his suit seeks to recover damаges for trespass and damages to Plaintiffs property located in Harris County, Texas”, and again in section three that “Harris County, Texas wrongfully trespassed and dumped hazardous materials on and into the property now owned by Cypress Forest PUD.... ” Moreover, the facts contained in appellee’s Second Amended Petition can only support a theory of intentional trespаss.
A trespass is usually regarded as an intentional tort in the sense that it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation.
Malouf v. Dallas Athletic Country Club,
This hazardous material was placed in the property from truсks operated or used from the destruction of a bridge, which included concrete and bridge timbers. It is believed that this bridge was locаted in and under the control, of the then County Commissioner, for Precinct Number Four, Bob Eckels.
Having determined that appellee’s Second Amended Petition states a cause of action for intentional trespass, we sustain appellant’s sole point of error.
As noted above, dismissing an action for lack of subject matter jurisdiction is proper only when it is impossible for a plaintiffs рetition to confer jurisdiction on the trial court.
TRST Corpus, Inc.,
Accordingly, we reverse the trial court’s order denying appellant’s Plea to the Jurisdiction, and we remand this matter to the trial court with instructions to enter an order dismissing appellee’s claims against appellant for lack of jurisdiction.