*1 protecting such threat. Consistent with public, encourages “sepa- the code also
rating parents the child from the child’s necessary for the child’s welfare public safety.” the interest of 51.01(5). Thus, according
Fam.Code
this purpose, appears Legisla- that the
ture intended for the child’s interests be separating
considered before the child parents sending
from his him to TYC.
But, properly today, plain as we
wording require of the statute does not juvenile dispositions being
this when are
modified. I See Tex. Fam.Code 54.05. urge
would to reevaluate change
this statute and to it if Legisla- require
ture intended to more before com-
mitting a child to TYC. COUNTY,
HARRIS Texas and Carl
Borchers, Petitioners,
Faye SYKES, Individually and a/n/f Battle, Respondents.
Trenard
No. 02-1014.
Supreme Court of Texas.
Argued Nov. 2003. May
Decided *2 Jewell, Hrdlicka
Kevin D. Chamberlain Martin, Todd Casey White Williams Stafford, A Wallace and Michael Hull, Atty., Michael R. Houston, Office, County Attorney’s for Pe- titioner. P.C., Usoro, Usoro, Okon
Okon J. J. Houston, Respondent.
Chief PHILLIPS delivered Justice Court, in Justice opinion of the which OWEN, HECHT, Justice Justice SMITH, JEFFERSON, Justice joined. Justice WAINWRIGHT First, we This two case raises issues. gov- granting an address whether order son, Battle, Sykes’s minor be added as ernmental unit’s Mr. George should be with without and that the estate the claimant has failed to state a claim that place in the of her be substituted cognizable under the Texas Tort late husband. *3 answer, Act. of Regardless we must governmental immunity from Asserting then decide whether such a dismissal is a suit, County plea a to the Harris filed judgment purposes for of section jurisdiction arguing that Act, 101.106 of the Texas Tort Claims that like has not waived from suits plaintiff proceeding would bar a from Sykes that immu- Sykes’s. responded against governmental agents for claims Tort nity was waived the Texas Claims arising subject from the same matter. See injuries her arose Act because husband’s § Tex. Civ. Prac. & Rem.Code 101.106. of property. out of the condition or use appeals The court of held that a dismissal § Prac. & Rem.Code 101.021. Civ. jurisdiction pursuant plea to a is a Specifically, Sykes argued that the words such, prejudice, without and dismissal “housed,” “room,” in “sleeping space” and judgment not a Tort under the Texas all their connote use Claims Act. 89 S.W.3d We hold tangible personal property or real that such a dismissal is with Sykes’s injury and caused Mr. eventual fully adjudicates finally because and death. asserted, whether the claims that were asserted, that could have been come within By petition, Sykes amended added Carl the Texas Tort Claims Act’s waiver of Borchers, major County of the Harris sovereign immunity. further in jail, individually as a both defendant judgment such a dismissal is a under sec- capacity. The trial court his official subse- tion 101.106 of the Texas Tort Claims Act. County’s plea Harris quently granted Accordingly, modify we judgment jurisdiction Sykes’s and dismissed appeals the court of judgment render against County preju- claims Harris dismissing preju- claims with for dice. Borchers then moved judgment dice and render that the judgment, urging that the trial court’s dis- nothing. take County entitled him to missal Harris immunity under section 101.106 derivative I of the Texas Tort Claims Act. See id. wife, George Sykes Faye, and his Oldham, 101.106; § Thomas v. brought injuries Sykes this suit for Mr. (Tex.1995). grant- The trial court allegedly County sustained in the Harris signed ed Borchers’s motion and an order jail. there, Sykes Mr. While incarcerated Sykes nothing. take assigned was a bed next to an inmate Sykes arguing that the trial appealed, who was infected with tuberculosis. granting plea court in erred Sykeses county negli- claimed that the was jurisdiction dismissing her claims gent failing quarantine the infected against Harris because the Texas Sykes and in failing inmate to warn Mr. Act when a waives the inmate’s infection. months af- Several prop- suit, tangible personal condition or use of filing Faye Sykes sugges- ter filed Prac. & erty injury. causes See Tex. Civ. informing tion the trial court of her hus- time, argued § also death. At filed Rem.Code 101.021. band’s the same she motion, grant- trial that the trial court further erred appar- which the court ruled, summary judg- motion for ently requesting ing never that Trenard Borchers’s im- vides a limited waiver County’s ment because are met. See munity if certain conditions purposes of section was not a 101.021, §§ Prac. Rem.Code § The court of Tex. Civ. 101.106. See id. 101.106. trial court’s dismissal 101.025.1 affirmed the County, holding affirmatively did not petition amended A to confer facts sufficient plead of a case dilatory plea that seeks dismissal at 667. But on the trial court. 89 S.W.3d jurisdiction. subject for lack that, granting the court decided Blue, Indep. Bland Sch. Dist. trial court could jurisdiction, governmen Because prejudice, the suit without dismiss trial immunity from suit defeats a tal *4 a under qualify not which did by jurisdiction, may be raised court’s of the Texas section 101.106 Dep’t Tex. Parks Wild plea. such a of Accordingly, at 668. Act. 89 S.W.3d 217, Miranda, 225-26 v. 133 S.W.3d life Borchers’s of reversed Carl court Jones, (Tex.2004); at 639. 8 S.W.3d summary judgment and remanded juris subject matter a court has Whether granted court. Carl case to the trial ex rel. legal question. diction is a State County’s petition and Harris Borchers v. Transp. & Pub. Dep’t Highways State of review. (Tex.2002); Gonzalez, 322, 327 82 S.W.3d Sunnyvale, 964
Mayhew v. Town of (Tex.1998). II 922, If the trial 928 S.W.2d entity’s governmental court denies de Sovereign immunity from suit jurisdiction, whether it has claim of no jurisdic subject matter feats a trial court’s jurisdiction, by plea asserted been expressly state consents tion unless the or other summary judgment, a motion for Jones, Transp. v. 8 Dep’t suit. Tex. wise, that an provided has (Tex.1999). 636, 638 Governmental S.W.3d may brought. be See interlocutory appeal sovereign immuni immunity operates like 51.014; § Prac. & Rem.Code Tex. Civ. protection to afford similar subdivi ty Cowan, 128 Hosp. v. Antonio State San State, counties, including cit sions of the (Tex.2004). However, 244, 245 n. 3 S.W.3d ies, and school districts. See Wichita jurisdic grants plea if court Taylor, v. 106 S.W.3d Hosp. Falls State case, tion, trial court did this (Tex.2003) as the 692, (recognizing 694 n. 3 may appeal take an once im immunity governmental and sovereign final. Am. judgment becomes See Cash although concepts munity are distinct Bennett, 12, 15 Int’l Inc. v. 35 S.W.3d interchange often use the terms courts pro- Act ably). The Texas Tort Claims (B) personally lia- employee would be Act states:
1. The Texas Tort Claims law; according to Texas ble to the claimant governmental unit in the state is liable A for: and (1) personal injury, property damage, (2) by injury so caused personal and death wrongful proximately caused death tangible personal or a condition or use of negligence an act or omission or the governmental unit property if the real acting scope of em- employee within his would, private person, be liable were it ployment if: according to law. the claimant Texas (A) personal injury, damage, property § Id. 101.021. operation or use of from the or death arises or motor-driven vehicle a motor-driven equipment; and a trial appropriate when to with grant must A trial court jurisdiction be appro subject an jurisdiction, providing after court lacks amend, bar. See sovereign priate opportunity cause of the Justice, a cause of action do not state Criminal v. Tex. Bd. Martin jurisdiction. has upon which the trial court 226, (Tex.App.-Corpus Christi Co., 160 Bybee v. Fireman’s Fund Ins. See 2001, v. Sulli pet.); City no Midland (1960) 429, 910, (citing Tex. 331 S.W.2d 1, van, (Tex.App.-El Paso Davis, Corp. v. Lone Star Fin. 2000, w.o.j.); City Cleburne pet. dism’d 1934, no (Tex.App.-Eastland Trussell, (Tex.App. writ)). Har This was such a case. After Med. pet.); Univ. -Waco no jurisdiction, County its ris filed Hohman, Branch v. petition amended her to state 1999, pet. (Tex.App.-Houston [1st Dist.] Har theory greater particularity Tex. w.o.j.); Hampton v. Univ. dism’d waived ris Ctr., 6 Cancer M.D. Anderson Sykes in room by placing Mr. the same 1999, no (Tex.App.-Houston [1st Dist.] near, with, him an assigning a bed Doe, pet.); Lamar Univ. The tri inmate infected with tuberculosis. (Tex.App.-Beaumont claims, and the al court dismissed *5 Stephenville, 896 City pet.); Jones of appeals agreed “any that effect court of 1995, 574, (Tex.App.-Eastland S.W.2d 577 had Sykes’s that the room’s walls and bed writ); Sharp, Liberty Mut. Ins. Co. no Sykes’s alleged exposure to tuberculosis 1994, 736, (Tex.App.-Austin 740 of is too attenuated to constitute a waiver denied). granted Borchers writ Claims [Texas under the Tort this County’s petition to resolve (citing at 667 Dallas Act].” 89 S.W.3d conflict. Health Mental Retarda County Mental (Tex. 339, Bossley, tion v. 343 a plaintiff provided a has been If 1998)).2 to amend after opportunity reasonable plea its governmental entity flies disagreed of appeals The court with jurisdiction, plaintiff’s amended court, however, trial on whether such a that allege does not facts pleading still preju should be with or without immunity, of a waiver would constitute preju In general, dice. dismissal with dismiss the the trial court should then plaintiff capa improper dice is when the a dismissal is with action. Such jurisdictional remedying defect. ble should not be because a State, 856, 92 862 See Dahl v. S.W.3d once relitigate jurisdiction permitted to 2002, no (Tex.App.-Houston Dist.] [14th finally has been determined. that issue Skinner, 845, Thomas v. pet.); case, trial court dismissing this Before 2001, (Tex.App.-Corpus pet. Christi Sykes petition, to file an amended allowed denied); Dep’t Highways & Bell v. State adjudi final court made a (Tex. after which the 292, Transp., Pub. S.W.2d waived that has not cation 1997, de writ App.-Houston [14th Dist.] the Texas under nied). governmental this case The court any claim respect Tort Act with Claims Sykes’s that claims relied on Bell County. brought against Hams Sykes preju have been dismissed without should Therefore, from relit- Sykes is foreclosed contrary doing, In court ruled dice. so Act Tort the Texas igating that dismissal whether stating a line of decisions judgment. appeals’ of the court of petition this Court for review did not however, According- appeals, courts of have immunity in this ease. Several waives reversing this issue. In v. Prairie ly, court erred considered Brown below Univ., modify prejudice, and we A & M the Fourteenth Court dismissal with View appeals’ judgment Appeals dismissing the court of to dismiss held that Prairie against pursuant plea claims A & M to a View prejudice. judgment trig not a was Tort Claims gered the bar of the Texas
Ill 405, (Tex.App.-Hous Act. S.W.2d Next, the court of n.r.e.). we address 1982, ref'd ton writ [14th Dish] reversing appeals’ holding Brown, however, court, as well Since judgment granted by the trial court appeals, have held as two other courts favor of Carl Borchers. The Texas to a pursuant that a dismissal judgment “A in an Claims Act states: purposes judgment is a of a claim under this action or a settlement the Texas Tort Claims section 101.106 of involving same chapter any bars action Antonio, 88 City Liu v. Act. San subject against the claimant 2002, pet. (Tex.App.-San Antonio governmental unit whose employee of the Nauta, denied); Dalehite v. gave
act rise to the claim.” or omission (Tex.App.-Houston Dist.] [14th § 101.106.3 Tex. Civ. Prac. & Rem.Code denied); County, 79 pet. Doyal v. Johnson pro 101.106 is to purpose of section (Tex.App.-Waco unit employees tect of a Pearce, pet.); Lowry v. or settle liability from when a denied). (Tex.App.-Waco pet. govern from the ment has been obtained Sykes argues granted to a claim under employer pursuant ment *6 judgment as a jurisdiction qualify does not Chapter 101 of the Texas Tort Claims Act. claims’ dispose of the because it does not Oldham, v. Thomas held, howev already merits. As we have (Tex.1995). applies not 101.106 Section er, final determi constitutes a dismissal only judgment there has been a actually on the merits of the nation against governmental entity prior the Ritchey Vasquez, v. decided. See also when against employee, suit the but (Tex.1999) curiam); (per judgment against or the settlement Shields, v. Mossler entity any occurs at time curiam). (Tex.1991) case, In this (per of the ac during pendency or before Legis that the adjudication is a final there employee. Id. at 355. against tion County’s im Harris lature has not waived of whether the applies regardless The bar case. Since the munity on the facts of this or to the judgment is favorable adverse properly trial court dismissed County Mental governmental unit. Dallas County preju with against claims Bossley, Health & Mental Retardation dice, to derivative Borchers is entitled Carl the Tex 101.106of immunity under section This has never addressed Court Act. as Tort Claims juris a dismissal on a whether holding erred appeals court of judgment purposes for of sec The diction is a against the claims Tort Claims Act. tion 101.106 of the Texas applies filed September to actions by 2003 and amended Act of June 3. This section was R.S., 11, 2003, Leg., § ch. 204 11.05. date. 78th or after the effective on became effective on The amended section have many could courts How so prejudice proved).3 without should be dismissed so confused? judgment been a dismissal is not a that such 101.106 section of the Texas under recently must be have held dismissal We modify the Accordingly, Act. we moot- on without when based the court and ren- judgment conveniens,5 ness,4 non or exclusive forum judgment suit is der mat- dilatory Each of jurisdiction.6 these prejudice. also reverse dismissed with to the “plea raised in a ters could be judg- portion appeals’ of the court of presumably changing jurisdiction,” and reversing Carl Borchers’s ment change pre- motion’s name would not render judgment Thus, regarding rule effect. clusive nothing. take jurisdiction to be: appears to the pleas usually prejudice,
dismissal is without but Why? prejudice. with sometimes When? BRISTER, joined by Justice Justice O’NEILL, concurring. conflicting opinions by courts of The satisfactory explanation appeals give elsewhere, govern- For reasons stated prejudice” either result. Of the “with mental raised should not be courts, any appears one have made “plea jurisdiction.”1 motion called a on attempt explain why dismissal based why. This case shows another reason sovereign immunity preclusive; should be plain- in that explanation case was holds The Court pres- cannot amend their tiffs immunity grounds must be pleas ent evidence on prejudice.2 many While intermediate wrong.8 are —both which assertions opinions sup- appellate court are cited just many ex- port, prejudice” can be cited “without courts have others (and contrary disap- are on lack of impliedly that dismissal based plained now Dep't (Tex.App.-Houston Mi- [1st Dist.] 1. See Tex. Parks & Wildlife randa, J., (Blister, denied) (Tex.2004) (holding sovereign immunity writ dissenting). by special exception could not be claim raised prejudice). dismissed with at 637. 2. 136 S.W.3d *7 611, Vasquez, Ritchey 612 4. v. 986 S.W.2d (Tex. 1999) curiam). (per Unit, See, e.g., High 3. Mullins v. Estelle Sec. 268, (Tex.App.-Texarkana S.W.3d 274 560, Carter, Corning v. 2003, 5. 997 S.W.2d Owens pet.) (holding no of inmate’s 1999). (Tex. 580 n. 13 immunity due to suit as frivolous defendant’s prejudice); have been Ab-Tex should without Am., Univ., Nis- 6. Inc. David McDavid Subaru v. Beverage Corp. Angelo State of 84 san, Inc., 212, 2003, 683, S.W.3d (Tex.App.-Austin S.W.3d pet.); Prairie View A Univ. Tex. v. & M Mitchell, 323, Liberty Sharp, Co. Mut. Ins. (Tex.App.-Hous 1994, denied). 736, denied); (Tex.App.-Austin pet. writ v. Univ. [1st Dist.] ton Li Houston, 984 Tex. Health Sci. Ctr. at Brown, (Tex.App.-Houston Cameron v. [14th 8. See (Tex.2002) denied); (holding plaintiff must pet. Cervantes v. 558-59 Dist.] see also Foods, Inc., plea to Tyson given opportunity replead to before 157-58 be filed) grant- (holding jurisdiction based is (Tex.App.-El pet. Paso on Blue, ed); Indep. granting plea jurisdiction for Dist. v. to the Bland Sch. order (Tex.2000) (holding plea ap to missing filing deadline for administrative jurisdiction not consideration peal prejudice); without Bell v. State is limited to must be pleadings). Dep’t Highways Transp., Pub. merits, by special jurisdiction sovereign immunity can on the is raised never be remedy they know have one improper plaintiff exceptions, and is if the can claimants jurisdictional and are thereafter replead defect.9 But courts al- chance to ways jurisdiction have to determine their barred.14 subject-matter jurisdiction,10 own and a de- only explanation today’s valid termination on that matter should not be holding changing the motion’s name is Further, open relitigation. to endless as jurisdiction” should not “plea to a given opportunity must be an But rather change preclusive effect. remedy regarding immunity defects before jurisdiction holding than any plea granted,11 is dismissed based on should be why opportunity is unclear should be be the with because would perpetuity. extended in summary judgment or dismissal effect of a adopts prejudice” The Court the “with special exceptions on the same after rule because “a should not be simply grounds, I would relitigate jurisdiction once
permitted Ac- by the latter motions. must be raised finally that issue has been determined.”12 today’s holding in cordingly, agree I with jurisdic- begs question; This when is II, I though grounds; Part on different finally Nothing tion determined? inherent join in Part III. fully pleas jurisdiction suggests an answer. concurring Justice BRISTER filed Today’s holding explained can be joined. opinion, which Justice O’NEILL another ad hoc effort to modernize an plea. obsolete common-law Because Justice SCHNEIDER did not is not so much a motion decision. participate category complaints, always as a it will say or unifor- particularity be hard to Wisely,
mity ought apply. rules what Procedure do not Texas Rules Civil try;
even we should follow that lead.
There would have been as much never sovereign immunity if had to be
confusion by summary judgment special
raised summary judgment rules
exceptions. The only the deadlines and
make clear not rules,
evidentiary any but also that sum-
mary judgment granted preclusive *8 if Similarly, actually
the issues
decided.13
Alvarado,
See,
Mullins,
274;
Hyundai
Co. v.
e.g.,
at
Ab-
13. See
Motor
9.
curiam)
(Tex. 1995) (per
Beverage, S.W.3d at 686.
Tex
(holding
never
nonsuit without
prejudice as
operates
dismissal with
theless
Samaniego,
10. See Camacho
partial
decided in earlier
to issues
judgment).
Brown,
at 559.
Ryan, 960 S.W.2d
14. See Friesenhahn v.
Herring,
(Tex.1998);
Dep’t
Corr.
(Tex. 1974).
12.