Texas Department of Parks & Wildlife v. Miranda

DEPARTMENT TEXAS OF PARKS WILDLIFE, Petitioner,

AND Ray Miranda,

Maria MIRANDA and

Respondents.

No. 01-0619.

Supreme Court of Texas.

Argued Oct.

April Baldwin, Atty. First

Howard G. Asst. Gen., Jeffrey Boyd, Thompson S. & Deckard, At- Knight, Harry Office of W. General, Herrera, Office of torney Nelly R. General, Parsley, Attorney Julie Caruthers Es- Com’n, Royce Lisa Utility Public and Office, Austin, kow, Attorney General’s Petitioner. Harris, R. R. Law Office of

Emmett Uvalde, Harris, Evans, Jerry Don Emmett TX, Respondent. delivered the

Justice WAINWRIGHT respect parts opinion of the Court with III.B., III.C.2., III.C.3., L, II., III.A., III.D., IV., in and which Chief Justice PHILLIPS, HECHT, Justice Justice OWEN, joined, and and Justice SMITH Part plurality opinion respect III.C.l., in which Chief Justice HECHT, PHILLIPS, and Justice Justice joined. SMITH injuries after a Maria Miranda sustained Park on her at Garner State tree limb fell hus- County. Maria and her in Uvalde Parks the Texas and Wild- Ray band sued and Department,1 alleging negligence life defen- Department of and Wildlife” as originally Parks Mirandas named "Texas The I. Factual and Procedural gross negligence. filed a Background it at- plea to to which evidence, supporting argued tached and petition The Mirandas’ third amended sovereign immunity barred the Mi- April following allegations: contains the trial randas’ claims. The court denied the family and them were Mirandas and a unanimous camping picnicking paying guests affirmed, appeals holding court of that the Park, operated at Garner owned and State Depart- trial court could not consider evidence in the Texas Parks Wildlife park ranger ment. The Mirandas asked a support Depart- because campsite to recommend a that would be allege ment did the Mirandas’ standing safe for children. While next to purpose were sham for the picnic campsite, table at the recommended wrongfully obtaining falling approximately tree branch twelve 648, 652. S.W.Bd long inсhes diameter fifteen feet In accord with our decision in Bland struck Maria on the head. As a result of Blue, Independent School District v. incident, inju- the Maria suffered extensive (Tex.2000), we hold that the head, neck, Ray spine. ries to her and trial court in this case to required and other dam- anguish suffered mental parties examine the evidence on which the injuries. to his wife’s ages related relied to if determine a fact issue existed 7, 1999, May On the Mirandas filed suit regarding alleged the gross negligence of against Department, negli- alleging the Department. the Due to the unusual con- gence and later amended their suit to add fluence of Legis- standards erected the gross negligence respect claims. to With lature for waiver of sovereign claims, gross negligence the the Mirandas the Tort Texas Claims Act and the recre- alleged Department that the “knew of the statute, plaintiffs ational use plead must branches, dangers falling of its tree failed gross negligence subject to mat- establish inspect, prune, to failed to failed to allevi- jurisdiction. Further, plaintiffs’ ter if the danger, consciously ate or remove the and allegations factual challenged sup- are with deliberately and failed to Plaintiffs of warn porting necessary evidence to consider- condition,” extremely dangerous the “knew ation of the to plea hidden, the property danger- that its contained avoid plaintiffs dismissal must raise at ous defect that its tree branches [sic] genuine inspected pruned least a issue of which have not been or material fact to fall,” regularly failed “to the make safe challenge overcome the to the trial court’s trees,” dangerous campsite condition of its subject matter Because the reasonably or and “failed warn make genuine Mirandas failed raise a issue of dangerous safe the condition of which it regarding alleged gross material fact the addition, was aware.” In the Mirandas negligence Department, of the we conclude Department’s alleged that the conduct was subject that the trial court lacked matter “willful,wanton, grossly negligent.” Therefore, jurisdiction over this lawsuit. judgment we reverse the the court of year Over a after the Mirandas filed suit appeals judgment dismissing discovery, and render parties and after the conducted jurisdic- Department filed a to the the case. original style dant but corrected the name to the "Texas lower courts retained case, Department" style opinion Parks and Wildlife in their third we retain that but in our Department by petition. parties and to the its correct name. amended Because the refer dismiss, tion (TexApp.-BAustin and motion to arguing allegations pet.)). Mirandas’ were insufficient a waiver of the Department’s invoke Department The contends the court sovereign immunity under the standard solely appeals relying upon erred in in the Tort Act and the established Claims conclusory allegations found in the Mi- recreational use statute.2 Tex. Civ. PRAC. & randas’ petition to affirm trial courts 101.001-.109; §§ §§ 75.001- Code id. Rem. Department’s plea denial of the Department The attached evidence .004. disregarding and in the De- plea. of its The Mirandas filed a suрport partment’s submitted evidence with its response Department’s plea. Specifically, Department con- original their amended petition. third negligence jurisdic- tends is a gross response, their the Mirandas stated that prerequisite tional claims Mirandas’ relied on evidence attached to affirmatively negates its evidence Department’s plea, including written dis- The fur- gross negligence. from the covery responses argues ther that because Mirandas deposition the Mirandas took of specific alleging gross failed to facts plead manager Craig park assistant VanBaarle. negligence petition in their or introduce hearing Depart- At trial court’s on the evidence to controvert the in the evidence plea, parties the alle- ment’s addressed Department’s they failed to plea, establish' gations in the Mirandas’ third amended proceed matter original next petition. day, the trial litigation. plea. Department court denied the The interlocutory appeal that claiming filed this dismissing After the originally petition erroneously its trial court denied granted the for want of we jurisdiction motion to dismiss. Department’s petition on motion for re- 51.014(a)(8). appeals § Id. The court of hearing. Before we consider substan- plea, affirmed the trial court’s denial of the first presented, tive determine issues pled a stating premises that the Mirandas jurisdiction over this in- whether we have negli- of action based on gross defect cause terlocutory appeal. gence the recreational statute. under use appeals The at 652. court of S.W.3d Jurisdiction II. Conflicts rejected that Department’s argument in there is dissent When gross to support no evidence there was jurisdic court of this Court has appeals, holding that court negligence, “the trial interlocutory appeals only tion if the over inquire was not authorized into the sub- “holds court of decision different appeals’ Depart- claims stance of the because prior “a of ly” or decision conflicts specifically allege ment did not appeals supreme another of court allegations pled merely were as Mirandas’ court on of law material to question purpose wrongfully ob- sham for Bland, case.” Tex. Gov’t Code Id. 34 decision of the taining jurisdiction.” (citing Stromboe, Caldwell, 22.001(a)(2);3 v. Rylander Schein at 554 and S.W.3d summary Legislature 3. The amended section 22.001 Department also moved for The Code, September Rule of the Government effective judgment under Texas Civil Procedure R.S., 166a(I). Leg., 78th 166a(b)-(c)and June The court de- Act of trial 22.001(e) motions, (codified Ch. 204 as section but the does nied both amendment, Code). The Texas appeal the trial court’s denial of either Government applies which to actions filed on or after motion. (Tex.2002); jurisdiction determining S.W.3d Tex. Natural whether has been White, Res. Conservation Comm’n id. at 554. also established. See We ob- 864, 867 S.W.3d Two decisions served that when the defendant contends controversy conflict for in purposes establishing our that the amount falls below 22.001(a)(2) limit, jurisdictional under section the trial court’s when the two cases are limit inquiry so similar trial court should its situation, decision in one In necessarily pleadings. case is conclu- Id. we con- Schein, cluded, sive of the decision in the other. plaintiffs pleadings “the are deter- 687-88; White, at specifically 46 S.W.3d at minative unless the defendant very 867. “The conflict must alleges pleaded that the amount was mere- question actually ly law involved and de- purpose wrongfully as sham for the termined, respect jurisdiction.” of an issue in both obtaining Id. cases, being the test whether one would case, In this the court of appeals operate to overrule other case inaccurately stated and then misapplied

were both rendered the same court.” holding. 55 Bland’s 650-52. Williams, Christy v. 156 Tex. appeals inquiry The court of that an held (1957) (citation 568-69 omit- allegations pled sup behind the factual ted). im port of matter contends that proper Department specifically unless the Court has over its interlocu- alleged allegations that the Mirandas’ were tory appeal because the court of appeals’ merely pled wrongfully sham to obtain decision here conflicts opinion with our Id. at 652. This conflicts Bland, Bland. we held that a trial holding with our in Bland that a court court “may consider evidence and must do necessary must consider evidence when necessary jurisdic- so when to resolve the resolve the issues raised. 34 tional issues raised.” 34 S.W.3d at 555 555; County S.W.3d at see also Camer added). (emphasis recognizing While (Tex. Brown, on v. 556-57 dilatory “a plea does not an in- authorize 2002) (considering pleadings and limited quiry so far into the substance of the jurisdictional in evaluating evidence forsee- presented claims that plaintiffs are re- ability premises element of defect claim quired put on their simply case to es- Act); Dep’t under the Tort Claims Tex. of jurisdiction,” tablish explained we Miller, 583, Criminal Justice v. 51 S.W.3d “because a court must not act without de- (Tex.2001) (examining pleadings 587 termining subject-matter juris- that it has jurisdictional limited evidence to determine so, diction to do it should hear evidence as plaintiff affirmatively whether demonstrat necessary to determine the issue before White, sovereign immunity); ed waiver of proceeding with the case.” Id. at 554. (analyzing 46 at 868 the facts al S.W.3d should, course, “The court of confíne itself by and to extent leged plaintiff jurisdiction- to the evidence relevant to the relevant, by par evidence submitted al at 555. issue.” Id. ties, considering plaintiff in whether stated Bland, injuries

In examples by we included of when a claim for caused “motor-driv Act). equipment” relevant evidence considered in en under the Tort Claims 1, September govern 2003 and our be clarified to remove un- does not sions should case, jurisdiction provides uncertainty in this that "one necessary the law and unfair- in differently court holds from another when litigants.” ness inconsistency respective there is deci- in their 224 Bland, 636, (Tex.1999); preclusion Sign

In of 638 v. our a trial court’s Fed. Tex. S. Univ., (Tex.1997), inquiry pled behind the facts in 951 405 su- determin S.W.2d ing subject perseded by grounds statute on other matter limited was Co., stated in Little-Tex Insulation jurisdictional amount. at 39 593; State, lifted, Duhart v. 554. S.W.3d at 610 Even this bar could be (Tex.1980); S.W.2d 741 v. Hosner evidence of the con amount (1847). DeYoung, 1 769 sidered, Tex. The in in circumstances an ad which provides Texas Tort Act a limited Claims in party verse asserts the amount sovereign immunity. waiver of controversy pled as a Tex. Civ. sham to obtain §§ & 101.001-.109. Sover- jurisdiction.4 Id. That circumstance is not PRAC. Rem.Code eign includes two immunity princi- distinct Thus, at appeals’ issue here. court of ples, immunity immunity from suit and conflicts with the holding question same Jones, 638; liability. from 8 S.W.3d at Bland, law that decided and the Sign, Immunity Fed. at 405. S.W.2d Schein, opinions together. cannot stand defense, liability is an affirmative provides at 689. This conflict S.W.3d deprives immunity while from suit a court the basis for our to consider Jones, subject matter plea. the merits of the See Tex. Gov’t 638; Sign, S.W.3d at Fed. 22.001(a)(2). § Code 405. Act The Tort Claims creates a unique statutory scheme which the two Department’s III. The Plea “Sovereign immunities are co-extensive: to the Jurisdiction immunity to is waived and abolished to suit Sovereign Immunity A. liability created chap- extent of Texas, sovereign ter.” Prac. & Tex. Civ. Rem.Code § deprives 101.025(a); a trial court matter rel. State Dep’t State ex Gonzalez, Highways Transp. for lawsuits which the Pub. v. state & (Tex.2002); Miller, governmental have been certain units Thus, sued the state S.W.3d at unless consents suit. Jones, Transp.

Tex. immune unless the Dep’t from suit Tort Claims allegations pet.); Dep’t plaintiff’s petition Fort Men Worth Pearce, controversy juris the amount in control for tal Health & Mental Retardation purposes challeng (Tex.App.-Waco the party pet. dictional unless proves ing jurisdiction pleads w.o.j.); Employees dism’d that the Tex. State Un plaintiff's allegations of the contro 6184 v. Tex. amount in Local ion/CWA Workforce 65, Comm'n, 61, fraudulently versy purpose (Tex.App. 66 were made for the 16 S.W.3d ‍​‌​‌​​​​​​​‌‌​‌​‌‌‌‌​​​‌‌‌​​​​​​‌​​​​‌‌​‌​‌​​‌​‌‍Bland, 2000, obtaining jurisdiction. pet.); of DalMac Co. v. See 34 Austin no Constr. 654, 554; Univ., Tex. A 35 S.W.3d 655 n. 1 S.W.3d at Cont’l Prods. Co. v. & M Coffee Cazarez, 444, 1999), (Tex.1996); (Tex.App.-Austin rev'd 937 S.W.2d 449 on other 263, 58, Eichoff, grounds, 66 Tex. Gen. Servs. Comm’n v. Tidball v. 17 S.W. sub nom. S,W.3d Inc., Co., (1886). disapprove ap We 39 591 263 of courts of Little-Tex Insulation Elthon, (Tex.2001); peals' holdings require allege Houston v. 9 party that Univ. of 351, (Tex.App.-Houston S.W.3d pleadings, [14th other than the 356 1999, State, amount, w.o.j.); pet. in v. Dist.] are fraudulent order for the trial dism’d Curbo evidence, Governor, 337, S.W.2d 341- court to consider when otherwise 998 Office of 1999, pet.); City necessary, (Tex.App.-Austin whether it has over 42 Carter, 1, See, e.g., Saginaw (Tex.App. v. 996 S.W.2d 3 case. Sullivan Wilmer Hutchins v. Dist., 1999, 529, (Tex. w.o.j.); pet. Fort dism-d Bland Indep. Sch. 47 S.W.3d 531 Worth Blue, 2000), Indep. App.-Dallas grounds, rev’d on 51 v. 989 S.W.2d 447 other Sch. Dist. rev’d, 1999), (Tex.2001); County (Tex.App.-Dallas 34 S.W.3d 547 S.W.3d 293 Denton Howard, (Tex.2000). (Tex.App. 22 S.W.3d 117-18

225 75.002(c)(l)-(3). expressly immunity. § Act waives use in- See Id. Recreational Tex. 101.001(3)(A)(de- camping picnicking, §§ cludes and the activi- Civ. Prac. & Rem.Code engaged in which the Mirandas were fining governmental ties unit to include “all injured. at the state when Maria was state), 101.021, park departments” 75.001(3). § White, applied govern- Id. As to a 101.025; at S.W.3d unit, mental the recreational use statute The Tort Act expressly Claims waives if liability person pays limits even “ sovereign immunity three areas: ‘use 75.003(c) (ex- § premises. enter the Id. publicly automobiles, premises owned cepting governmental chap- units defects, injuries arising out of condi- charge ter’s exclusion of landowners who ” Brown, or property.’ tions use of land). fee for use of recreational (quoting Dep’t S.W.3d at 554 Tex. The recreational use statute lim Able, (Tex. Transp. v. 35 S.W.3d Department’s duty premises its the for 2000)); see Tex. Civ. & Rem PRAC. Code trespasser.5 defects to that which is owed a § 101.021. Section 101.058 of the Tort duty trespasser Id. The limited owed a is Claims Act further governmen- modifies a injure person willfully, not to wanton tal unit’s waiver of from suit ly, through gross negligence. Tex. imposing liability the limitations of articu- Timmons, Utils. Elec. Co. v. lated the recreational use statute. Tex. Therefore, a govern (“To § Civ. PRAC. & Rem.Code 101.058 sovereign immunity mental unit waives un extent that Chapter liability 75 limits the der the recreational use and the statute of a governmental unit circum- under Tort Act if it only grossly negli Claims governmental stances which the unit gent. Civ. Prac. & Rem.Code would be liable under [the Tort Claims 75.002(c)-(d); § City Bellmead v. Tor Act], controls.”). Chapter 75 res, (Tex.2002); Tim The recreational provides: use statute “[Gjross mons, 947 negli (1) gence components: involves two viewed owner, lessee,

If an or occupant of objectively standpoint, from the actor’s property real other agricultural than act complained or omission of must involve gives permission land to another to en- risk, an degree considering extreme recreation, ter premises the own- probability magnitude potential er, lessee, or occupant, by giving the (2) others; harm to the actor must permission, does not: actual, subjective have awareness of the (1) premises assure are safe involved, proceed risk but nevertheless purpose; rights, safety, conscious indifference to the (2) owe to the person per- to whom or welfare of others.” Louisiana-Pacific granted greater mission is degree of (Tex. Andrade, Corp. care than is a trespasser owed to on the 1999) Moriel, (citing Transp. Ins. Co. v. premises; or (Tex.1994)). (3) responsibility assume or incur lia- B. Standard of Review bility any injury any individual or property by any per- Sovereign immunity caused act of the from suit permission subject juris- son to whom granted. is defeats a trial court’s matter 5. The recreational use statute does not limit with malicious intent or in bad faith.” Tex. owner, lessee, liability occupant 75.002(d). the of an Civ.Prac. &Rem.Code grossly negligent "who has been or has acted

226 jurisdictional cases, evidence of disputed in a asserted properly and thus

diction is of the Jones, implicate the merits facts that also 8 S.W.3d to the plea by the finder Hosner, may require resolution 637; 1 Tex. at 769 case also at see Pitts, 948, 291 v. S.W. the of fact. See Gates procedure (recognizing appropriate writ); 1927, no juris- (Tex.Civ.App.-Amarillo 949 subject matter challenge of a courts 570; 21 see also Valentin Gentry, S.W. jurisdiction). to the through plea a diction 358, Vista, n. 3 254 F.3d 363 Hosp. v. Bella at its earli- trial court must determine Cir.2001) (1st (observing that in certain consti- it has the opportunity est whether situations, facts can be so predicate the authority to decide statutory tutional or of the inextricably linked to the merits allowing litigation the case before Cluck, may controversy that the district court Co. v. proceed. Austin & N.W.R. (1903) jurisdictional of the issue 172, 403, “defer resolution 97 Tex. 77 S.W. trial”); Cameron v. Chil (“[Tjhere until the time of that the courts can be no doubt 1167, Ctr., 131 F.3d Hosp. of dren’s Med. look to the Constitution of Texas must (6th Cir.1997) (“[Wjhether a district state, Legisla- the enactments of jurisdiction a subject matter is court has ture, for their author- the common law court, jury, not a to de for the ....);” question Bar see also State ity proceed (Tex. cide, requires 243, if the determination Gomez, even Tex. v. 891 S.W.2d juris 1994) (“As findings, factual unless making proposition, bеfore general case, inextricably bound dictional issue is any merits of may court address case.”); Tuck v. the merits of the Williamson jurisdiction over the court must have (5th suit, er, n. 416 n. 10 645 F.2d subject to the property or the party Cir.1981) district matter, juris- (suggesting that a federal subject jurisdiction over the jurisdictional determining role in judgment, court’s particular diction to enter court.)”; limited in cases facts be more Gentry v. capacity to act as implicates attack Bowser, which Tex.Civ.App. S.W. action). writ) (Fort plaintiff’s merits of cause of (“Certainly Worth case, address a In this to hear the neces- right the court has the evidence jurisdiction undisputed in which as to to enable it to decide sary evidence subject jurisdic matter both the try implicates the case power or not it has whether of the and the merits tion of the court adjudicate, it whether sought it to have ju- case. disclosing such want allegations petition in the appear risdiction jurisdiction When jurisdiction plea to the plaintiff, or in the if we determine challenges pleadings, defendant.”). by the affirma alleged facts that pleader has the court’s tively demonstrate a court has Whether Ass’n Bus. the cause. Tex. to hear question is a law. matter Bd., Tex. Air Control Res. Conservation Comm’n Natural (Tex.1993). pleadings lib construe We IT-Davy, look to erally plaintiffs in favor of the facts that alleged has pleader Whether Id. If the pleaders’ intent. a trial court’s affirmatively demonstrate facts to affirma sufficient of do not contain question is a subject matter jurisdic the trial courts Likewise, tively demonstrate whether de novo. law reviewed affirmаtively demonstrate but do not jurisdictional facts tion undisputed evidence the issue defects jurisdiction is incurable a trial court’s establishes plain- sufficiency and However, pleading of in some is one of law. question also a 227 Then, tiffs should be afforded the to opportunity ticable. Id. at 554. in a case in Brown, amend. 80 at If jurisdictional challenge impli which the pleadings affirmatively negate the exis- plaintiffs’ cates the merits of the cause of jurisdiction, tence of then a action and the in jurisdiction may granted be without allow- evidence, cludes the trial court reviews the ing plaintiffs an opportunity to amend. if relevant evidence determine a fact Id. Supreme issue exists. The United States

However, juris if a plea to the Court and all of the federal circuits have diction challenges jurisdic the existence of authorized federal district courts to consid facts, tional we consider relevant evidence deciding er evidence in motions dismiss by parties submitted necessary when subject for lack of matter See jurisdictional raised, to resolve the issues 12(b)(1); Dollar, Fed.R.Civ.P. Land v. 330 as the trial required court is to do. See 731, 4, 1009, U.S. & n. 67 735 S.Ct. 91 Bland, 34 S.W.3d at 555 (confining the 1209, (1947), L.Ed. by implica overruled evidentiary review to evidence that is rele grounds by tion on other Larson v. Do issue). vant to the When Foreign mestic Corp., & Commerce 337 subject consideration of a trial ‍​‌​‌​​​​​​​‌‌​‌​‌‌‌‌​​​‌‌‌​​​​​​‌​​​​‌‌​‌​‌​​‌​‌‍court’s mat 682, 1457, U.S. 69 S.Ct. 93 L.Ed. 1628 ter requires the examination of (1949) rule, (observing general that as a evidence, the trial court exercises its dis authority district courts have inquire cretion in deciding jurisdic whether “into the “by facts as exist” affidavits tional determination should made at a or otherwise” as pleadings well as the preliminary hearing or await a fuller devel opment determining of when whether the court has case, mindful that this de termination must be made as soon prac subject jurisdiction).6 If matter the evi See, Inc., e.g., Transp., 12(b)(1) Harris v. deciding P.A.M. 339 a Rule motion to dismiss for 635, (8th Cir.2003) (acknowl F.3d 637 n. 4 subject jurisdiction (quoting matter lack St. edging authority district court’s Chico, consider 199, (9th City Clair v. 880 F.2d 201 pleadings matters outside subject when Cir.1989))); States, Makarova v. United 201 challenged matter under Rule 110, (2d Cir.2000) (allowing F.3d 113 district 12(b)(1)); Ghar, Inc., Apna Johnson v. 330 plead court to "refer to evidence outside the 999, (7th Cir.2003) F.3d 1001 (observing that 12(b)(1) motion); ings” to resolve a Rule considering when a motion for dismissal for States, 299, Williams v. United 50 F.3d 304 " lack of matter '[t]he (4th Cir.1995) ("In 12(b)(1) ruling on a Rule may properly district court ... view whatever motion, may the court consider out exhibits ” evidence has been submitted on the issue’ pleadings.”); Kingdom side the Moran v. (quoting Long Corp., v. Shorebank Dev. 182 Arabia, (5th Cir.1994) Saudi 27 F.3d 172 (7th 1999))); F.3d 554 Cir. v. Nat’l Sizova (acknowledging "authority a trial court’s Tech., Inst. Standards & 282 F.3d presented beyond consider evidence (10th Cir.2002) (noting 1324 district court’s " may considering ... which include affidavits, 'wide discretion to allow other affidavits, allowing discovery, hearing further documents, evidentiary hearing and a limited testimony, conducting evidentiary oral an disputed jurisdictional to resolve facts under Acad, ” Sci., hearing”); Herbert v. Nat’l 12(b)(1)’ States, (quoting Rule Holt v. United (D.C.Cir.1992) ("[Wjhere F.2d nec (10th 1995))); 46 F.3d tin, Cir. Valen essary, complaint the court consider the (district F.3d court has "broad supplemented by undisputed facts evidenced authority discovery, to order consider extrin record, complaint supplemented in the evidence, evidentiary heаrings sic and hold by undisputed plus facts the court’s resolution jurisdiction"); order to determine its own Colls, Dunbar, facts.”); States, disputed Lawrence v. Ass'n Am. Med. v. United Cir.1990) (9th Cir.2000) (“ (11th (noting F.3d F.2d ‘district court obviously authority” acknowledges does not abuse its discretion "substantial the trial ” looking extra-pleading to ... disputed material’ court’s freedom to consider evidence

228 regarding (quoting City creates a the 556 Houston question

dence fact issue, Auth., jurisdictional then the trial court Basin Clear Creek 589 S.W.2d (Tex.1979)). grant jurisdiction, the the plea By requiring cannot to 678 n. 5 the and the fact issue resolved the summary judgment will be to meet the stan state However, one, fact finder. if the relevant evi proof dard of cases like this we to raise a undisputed dence is or fails fact plaintiffs having “put the from to protect issue, jurisdictional on the the question jurisdic simply their case to establish jurisdic plea trial court rules on the Bland, Instead, at 554. tion.” S.W.3d a matter of tion as law. supports after the state asserts and with subject that the trial court lacks evidence acknowledge that We this jurisdiction, simply require the matter we generally that of a sum standard mirrors underlying when facts the plaintiffs, the mary judgment Rule of Civil under Texas subject jurisdiction matter are merits 166a(e). to the fun Procedure adhere We intertwined, disput that there is a show precept a court must not damental jurisdiction regarding material fact the ed legiti on the of a case until proceed merits v. Time al issue. See Huckabee Warner challenges jurisdiction mate its have (Tex. L.P., Entm’t Co. accomplishes decided. been This standard Pena, 2000); Phan Son Van v. goal protects and more. It also (Tex.1999). 751, 753 injured interests of the and the state one, claimants cases like this which reviewing Appellate courts subject matter the determination of challenge to a trial matter court’s jurisdiction implicates court ruling review the trial court’s parties’ of the of action. merits cause at 855. IT-Davy, de novo. timely allows in a man standard the state reviewing a plea When if it litigation is ner extricate itself pleading requirement has which However, by reserving immune. truly met and evidence has been submitted been disputed the fact finder the resolution implicates support implicate facts that the mer case, true all take as merits we defense, or preserve its of the claim favorable to the nonmovant. See evidence right present the merits of then- parties’ Martinez, 941 Inc. v. Spectrum, Sci. purpose at trial. Similar to the of a case indulge We is to defeat a plea to which any and resolve every reasonable inference has of action for which the state cause Id. in the nonmovant’s favor. doubts sovereign (usually before waived In his full costs of dissent the state has incurred the Justice Jeffeeson depriv summary this standard of review judg criticizes litigation), purpose “ responding to a patently ing plaintiffs is in Texas ‘to eliminate ments motion for protections of a procedural untenable de unmeritorious claims and ” twenty- Brand, summary judgment, including Casso v. fenses.’ Ass’n, motion) (cita 12(b)(1) 549 F.2d deciding a Fed. Sav. & Loan Rule First when (3d Cir.1977) omitted); Gould, Ugine (acknowledging that "sub Pechiney Inc. v. tions Kuhlmann, (6th weigh Cir.1988) authority” courts allows trial F.2d stantial affidavits, ("[T]he disputed when consider evidenсe facts district court consider motion); 12(b)(1) also discovery, testimony, ing a see 5A order an Rule allow hear oral Miller, Wright Fed evidentiary postpone its Alan & Arthur R. hearing, even de Charles § 468- eral Practice and Procedure question if the termination ed.1990). (2d merits.”); Mortensen v. intertwined intervention, day period adequate though one notice or an time Rule 60 does not even discovery. to conduct P. provide explicit guidelines for the schedul Tex.R. Civ. 166a(i). 166a(c), However, scheduling hearing ing of a or the evaluation of evi hearing plea of a of a dence). Thus, procedural civil the Texas court, left to the discretion of the trial many scheduling pro scheme entrusts which is in the position best to evaluate the cedural issues to the sound discretion appropriate hearing plea time frame for a court, subject appellate the trial review. any particular procedure case. This course, practice Of Texas and rules also dramatically does not differ from that out- parties allow to request additional time lined Texas Rule of Procedure Civil prepare hearings for certain or to con governing special 120a Al- appearances. discovery upon showing duct a of sufficient though requires Rule 120a any affidavits to cause, ruling and the court’s on such a at a hearing special appear- be used on a motion is for an reviewed abuse discre ance to be days served least seven See, tion. e.g., 166a(g), Civ. P. Tex.R. hearing, before the it specify does not note, also, prac We that fedеral length period of notice and is therefore prescribe procedure tice does not for the presumably subject three-day to the notice consideration of evidence but period of Rule 21. Tex.R. Civ. P. 21. Rule instead allows the district courts to tailor a 120a allows the trial court to order a con- method to requirements suit the tinuance discovery and allow time for if the Land, cases before them. 330 U.S. at 735 development of requires the case it. Moran, 1009; n. 67 S.Ct. 27 F.3d at 172. Nothing prevents a trial court from doing event, any the Mirandas not com do the same plain an inadequate opportu had where evidence is necessary. nity to conduct discovery, sufficient nor did Many procedures other in Texas prac they request a continuance to so. do ranging tice rulings from a trial on court’s motions to strike timing intervention to the Immunity C. Waiver Based of a class certification decision to even the on Premises Defects alteration of the summary judgment notice periods ... “depend[ upon ] the wise —also Pleadings 1. The Mirandas’ by exercise of discretion the trial court.” The Mirandas contend that their Union Corp. Moye, Carbide v. B.D. pleadings fall within the Tort Claims Act’s (Tex.1990) (Hecht, J., con waiver of de premises both see, curring); e.g., Tex.R. P. Civ. injuries arising fects and out of conditions 42(c)(1)(A)(directing a trial court deter property. provides or use of The Act mine whether a suit be maintained as agency injury is hable for state early a class action “at an practicable death caused “a condition or use of 166a(c) time”); Tex.R. Civ. P. on (“Except tangible personаl property or real if the court, opposing leave with notice to would, counsel, governmental private unit were it a any supporting the motion and person, according be liable to the claimant affidavits shall be filed and served at least to Texas law.” Tex. Civ. & twenty-one days specified before the time PRAC. Rem.Code 101.021(2). § added); al hearing.”) Mirandas’ (emphasis Guaran limb, ty lege injuries by falling Operating Fed. Sav. Bank v. caused tree Horseshoe Co., (Tex.1990) (ob which falls under the definition of real “ i.e., ‘land, serving property generally that the trial court has broad dis what cretion in ruling growing upon on a motion to strike ever is erected or or affixed ” Found, Area facts to survive a

to land.’ San Antonio sufficient (quot- Lang, solely pleadings. based Koonce, ing Chastain dissent contends Justice JeffeRSOn’s J., (Gonzalez, concurring)). that third petition the Mirandas’ amended allegation injury- The Mirandas’ an gross negligence state a for does not claim by a tree limb on Maria falling caused and allegations conclusory because the are allegation Miranda of a con- constitutes an specific enough alleging do not assert facts property dition or use of real and is an Department subjec- that the had “actual allegation premises of a defect. tive awareness of the risk involved and the To state a claim under recreational nevertheless, proceeded, conscious in- statute, allege use the Mirandas must suf- suggests that to difference. He state Depart- that the ficient facts to establish pled claim the Mirandas should have that grоssly negligent. ment was See Tex. Civ. knowledge the had actual that Department 75.002(c)-(d),101.021, §§ Pra.c. & Rem.Code yet the fall in- branch would nevertheless 101.025, contend 101.058. Mirandas camp structed Maria to beneath it.” that both their and the evi- allegations pleading 242. The he S.W.3d at hurdle presented on the establish dence groundbreaking, seeks to erect would be gross Looking claims of first negligence. indeed, extending beyond require- current allegations in the factual the to relevant procedure under our rules of civil ments petition, the third amended Mirandas require Rules 45 and 47 and case law. (1) they that asked the specifically claim original pleadings give a short the employee for a Department’s recommenda- cause of action statement the sufficient (2) location; camping at the tion of safe give party the fair opposing notice campsite, by falling was struck Maria 47; P. the claim involved. Tex.R. Civ. her; (3) injured severely tree branch that Co., Inc. v. Pipe Supply Paramount & unpruned, uninspected the tree branches (Tex.1988); Muhr, 749 S.W.2d dangerous, condition on created defective Goolsby Castleberry Bldg. Corp., Department of which the premises the Rule 45 does (4) aware; Department knew in his require plaintiff not that the set out dangers falling of its tree branches but re- pleadings upon the evidence which he prune, the dan- inspect, failed to alleviate cause of ac- lies to establish his asserted danger- gers, or otherwise make safe the Muhr, tion. at 494-95. While (5) trees; Depart- its ous conditions of suing party gov- it is clear “[t]he failed consciously deliberately ment entity must establish state’s ernmental extremely dan- warn Mirandas of consent, alleged which be either (6) condition; gerous Depart- express legisla- to a statute or to reference willful, wanton, ment’s conduct was or S.W,3d Jones, permission,” at tive grossly A liberal construction negligent. Tort “[m]ere reference required, allegations, demon- of these the state’s Claims Act does establish a claim that the Mirandas stated strates enough is not consent to be sued and thus negli- Department gross against court,” trial jurisdiction on the to confer gence. conclusion should not be read This Miller, the Mirandas’ has suggestion as a bring allege facts to sufficient duty every tree each inspect use their claims under recreational manages. many parks that the case, the Tort Claims Act. Instead, alleged statute and the Mirandas Although alleged petition facts in a diction. VanBaarle testified that while the park normally inspects should not be and maintains its improperly stretched to trees, only pruned are a claim tree limbs gross negligence, state Justice they appear trimmed if dead. Ac- pleading gross standard for JeffeRSOn’s VanBaarle, cording to the tree limb that negligence virtually impossible would be living. fell on Maria was He testified that meet, grossly negligent even when conduct living both dead and tree fallen limbs have occurred, liability. absent an admission of park. at various locations in the He testi- requires His standard specific factual alle- fied that park knows that tree limbs gations in an original petition of what the can approximately fall and have fallen on ie., defendant thought knew and its state However, twenty occasions. no one had of mind. pleading His hurdle would re- injured by falling ever been tree limbs. quire discovery very into the extrinsic He also testified that the tree limb that facts which he bemoans consideration of in injured fifty Maria Miranda fell from feet plea jurisdiction. to the The Mi- campsite above the and that park em- randas’ third petition provided amended ployees not would have been able to see sufficient notice to ascertain the nature clearly climbing the limb without the tree and basic issues of the controversy and the if even the limb had been dead. probably evidence that would be relevant. addition, Department attached also contends that the Justice Jeffeeson Inks, Roy the affidavit of B. operations Mirandas are replead. entitled to As a at specialist maintenance Garner State matter, practical the Mirandas have al- Park. responsibilities Inks’ included super- ready repled try to cure the “defects” park vision of maintenance including pres- that Justice raises. The Mi- JeffeRson ervation and at maintenance of trees randas no doubt filed them third amended campsites. affidavit, According to his Inks petition, in which allegations of gross neg- inspected campsite after the accident. ligence were raised the first time in His examination of the tree and the fallen lawsuit, this in response Depart- to the any branch failed to reveal indication that plea jurisdiction. However, ment’s to the dead, decaying, branch was or in need because the Mirandas’ third amended peti- of pruning. opined Inks that there nowas tion satisfies the pleading notice require- reason to conclude that the presented tree procedural rules, ments of our the Mi- dangerous or hazardous condition. Inks need, randas do not nor are entitled opined further that the branch that struck to, opportunity an to replead. See Tex.R. away Maria “broke from the tree as a Crv.P. 47. result of an unpredictable and unforseea- phenomenon ble known as ‘sudden branch Department’s 2. The Evidence ” drop syndrome.’ explained Inks that Department challenged The anyone “[i]t would be rare for to be able to Mirandas’ and also submitted predict which branches will fall and which allega evidence to controvert the factual phenome- ones will not” as a result of this jurisdiction. supporting tions We consider non. The Department’s Mirandas cite the the relevant evidence submitted to decide proof evidence that Bland, this challenge. See drop syndrome knew about sudden branch at it, S.W.Sd 555. The at nothing establishing and did about thus deposition testimony Craig tached gross negligence. The did not Mirandas VanBaarle, park manager the assistant any controverting cite in them evidence Park, Garner juris- response Department’s State to its to the plea. approach might be if appropriate, We first examine this evidence to deter- we were whether mine it establishes that the De- starting from scratch. that we are Given negligent. have partment grossly slate, We not writing pleas blank to the regard subjective obsеrved have procedural been a useful vehicle in component gross negligence, it is the years, over 150 and that use Texas for mind de- defendant’s state of whether the (Federal counterpart its Rule of Civil Pro- peril knew but fendant about neverthe- 12(b)(1)) to challenge cedure mat- a way less acted in that demonstrated that judicial sys- ter in the federal the consequences he did care about has tem when evidence involved been ordinary negligence separates every court, by circuit authorized federal gross negligence. Louisiana-Pacific, by declines written Court abolish search record 246-47. We opinion pleas such Department’s for evidence acts or was included that it omissions demonstrate did not care procedural rules promulgated about the to the Mirandas of consequences as Court in 1877 and used a has been of danger. a known extreme risk subject to procedural challenge vehicle evidence, any fail point Mirandas to to and jurisdiction trial courts for matter over evidence, the record contains half. century a and a Tex.R. Civ. P. See drop syndrome shows that sudden branch 85; 597, 7,R. 47 Tex. 617 Tex. Dist. Ct. an risk of danger constitutes extreme Hosner, fact, (1877); at 769. as actual, Department subjective had that the 1893, early as Texas courts indicated that of knowledge that risk but nevertheless challenges subject evidentiary to matter proceeded disregard conscious for the jurisdiction jurisdic- in pleas to the raised safety any Nor is there evi- others. by tion be considered trial courts. should that the tak- Department dеnce could have See, Gates, 949; e.g., Gentry, at S.W. any steps to minimize the en reasonable long at 570. With a lineage, such S.W. an dangers “unpre- “unforseeable” and jurisdiction why one a plea wonders phenomenon. dictable” We conclude that does not or “estab- qualify “standard” the evidence in the record establishes a second mention Perhaps lished” motion. grossly negligent the was not Texas Rules of Civil Procedure the that the Mirandas have to raise failed would suffice. question regarding Depart- a fact alleged gross negligence. ment’s The Mi- rules refining decide that We satisfying require- randas fall short of by considering plea supported evidence grant for the Legislature’s ments limited eliminating is a approach than better sovereign immunity of a waiver of approach consistent with motion. This is under the statutes. There- applicable suit practice civil precedent, disruptive is not fore, subject trial matter court lacked century, than going back more fur- timely legislative purpose thers the ad- judicating matter when 3. Dissent facts are liability dissent, In his BristeR takes the Justice same. pleas all view that based suggestion in the dissents There is immunity must form of take the two “stan- in this the authori- confirming opinion or “established” motions—either dard” ty evidence in a summary of trial courts consider exceptions or motions special unfair This judgment. 239-40. parties in this case. property). The facts undercut Other Texas courts have rec- court, At this assertion. the trial both ognized plaintiffs that to allow to charac- parties relied on extrinsic evidence in premises terizе defect claims as claims briefing plea, parties and both had by negligent caused condition or use of extrinsic evidence on file with the court. personal property or real would render the Furthermore, plaintiffs expressly stated Legislature’s heightened requirements for response their were See, premises meaningless. defect claims relying on responses “Defendants’ to dis- Horton, 53, e.g., State v. Estate covery requests, and upon deposition (Tex.App.-Tyler (stating no pet.) Craig Department’s [the VanBaarle as- that once a claim is determined to be a park fact, sistant manager].” In the Mi- defect, premises the claimant is limited deposed randas months VanBaarle before provisions delineated the section on plea. filed its There is premises defects and assert good why reason Plaintiffs have not ar- general negligence theory); accord Laman gued surprise. unfaii' prece- Given Texas Big Spring Hosp., State dents and the actions parties, there (Tex.App.-Eastland 671-72 pet. de- was none. nied); Valdez, Texas Univ. Pan Am. v. 450 (Tex.App.-Corpus Immunity D. Waiver of Based denied); Hawley Christi writ v. State on Condition or Use of Dep’t Highways Transp., and Pub. Tangible Property (TexApp.-Amarillo The Mirandas assert that their writ). Accordingly, no we conclude that pleadings also state a cause of action for the Mirandas have not a established cause injuries resulting from a condition or use of action under the Tort Claims Act for of tangible property. The in allegations’ tangible condition or use of property sepa- the Mirandas third petition amended con rate from premises their defect claim. only Department’s cern the failure to act falling reduce risks of tree limbs and IV. Conclusion failure to warn the Mirandas of the risk of dilatory pleas Trial courts should decide falling tree limbs. allegations These com early pleading stage litigation at the if prise premises the elements of their defect Here, possible. Legislature’s the mandate claim. The Tort Claims Act’s scheme of a statute, By is not simple. so waiver limited of immunity waiver from suit does sovereign immunity for recreational use of not plaintiffs allow to circumvent the Department’s premises only can heightened premises ‍​‌​‌​​​​​​​‌‌​‌​‌‌‌‌​​​‌‌‌​​​​​​‌​​​​‌‌​‌​‌​​‌​‌‍standards of a defect by showing effected a that it acted with claim in contained section 101.022 re gross negligence. Due to the standard casting the same acts claim relating as a (gross negligence), erected the determina- negligent condition or tangible use of Tennison, tion of whether was waived property. See State v. require consideration of extrinsic facts af- (rejecting the targeted ter for argument opportunity reasonable that the Tort Claims Act “cre entirely discovery. preclude ates To consideration of separate grounds two of lia bility” negligent necessary extrinsic facts when to decide a use or condition of property defect, real a premise require and but in would interpreting premises many stead trial on the merits for that do pro defect cases it, vision to further limit the waiver of immu not need waste the resources of the nity negligent case, use or parties condition of real courts and the in the rulings partment courts on the mer- was aware that fall

involve state in branches trees, juris- consciously over have no but chose not to its cases which post warnings. gross negligence? diction. Is that impose No. Texas law not on land- does reasons explained, For the we conclude duty trespassers owners to warn about Department that it established dangers all conceivable inherent in na- grossly negligent not was you allegation if add the ture. What Mirandas failed to raise a fact issue on or Department inspect prune did not Thus, trial court lacked point. Park? The trees Garner Court State subject matter over the action. today makes clear that appeals judgment The the court duty trees in state inspect parks. has no action reversed and Mirandas’ dis- no duty, there is jurisdic- missed for lack matter If inspect about complaint tion. failure possibly gross cannot constitute prune dissenting Justice JEFFERSON filed to invoke negligence pleading sufficient opinion. jurisdiction. But the Mirandas the courts negligence.” Not “gross used the words dissenting Justice BRISTER filed pleaded The enough. Mirandas facts opinion, which Justice O’NEILL remotely suggesting even joined. Justice SCHNEIDER to fall, aware the limb ivas about JEFFERSON, dissenting. Justice injure less that it would Maria. much First, two I grounds. I dissent on do precedent requires that our agree I on all essen- produce Mirandas to evidence of their cause of action to tial elements Bland, Proper Context establish the trial court’s is holding inconsistent the Court’s a deciding plea the requiring Bland between distinction draws trial court must consider evidence “when plaintiff prove to facts preliminary necessary jurisdictional to resolve the is- to predicate power to the trial court’s en- Bland, 34 at 555. sues raised.” merits, her requiring and to tertain quote That must read context. We pain the merits themselves on present challenges that when defendant an noted Dist. Indep. Bland School dismissal. sue, the organization’s standing organi- to (Tex.2000).1 Blue, present zation must evidence of its nature pursue can purpose and before it its Second, agree I cannot that the Mi- claims—a burden that “does involve pleading alleged randas’ has sufficient inquiry into the substance of significant confer on the trial facts to we Similarly, that the the claims.” Id. at 554. court. The Mirandas assert De- appeals’ holding gateway through which the trial court agree sole I court so, were may consider If that with Bland the extent it holds that evidence. conflicts to are prohibited inquiring have that there limited from could not held the trial court which, in the absence "... circumstances in even into the merits because plaintiff's allege pleading that the specifically that the Mirandas of a defendant's did not sham, pled pleadings were the trial court re- allegations merely were as a sham is for depart obtaining jurisdic- quired to I from purpose wrongfully consider evidence. however, holding, is such 652. Bland does not the Courts tion.” pleading require that form of defensive as the a case. standard, ju- pro- contains challenge personal observed that a to unlike the Court’s may risdiction “touch on the merits of the to that the mer- safeguards cedural ensure case,” but is not aimed “whether the nonmov- its are not determined before may alleged.” defendant be liable as Id. discovery adequate ant has had an time for plaintiff at 555. That theme —that a is not respond. an to opportunity and Tex.R. required litigate to to merits establish 166a(c) court, (“Except P. on leave of Crv. emphasized throughout counsel, —was opposing with notice to the motion our Id. at opinion. 554. We cautioned any affidavits shall be filed supporting that “the function proper dilatory plea of a twenty-one days and served at least before does not authorize an far into inquiry so on specified hearing. Except the time presented the substance of the claims court, not later party, leave of the adverse plaintiffs required put are to on their case days prior day hearing than seven simply jurisdiction.” to establish Id. may or opposing file and serve affidavits I interpret Bland to mean if a 166a(i) (“After response.”); other written to requires the trial court adequate discovery, party time with- merits, deeply to wade into the it lawsuit’s presenting summary judgment out evi- plea. today is not a valid Yet the Court summary judgment dence move for by reaching immerses itself the merits on the that there ground is evidence deciding ultimate issue the case: one or more essential elements of a claim “... the evidence in the record establishes defense....)”. As a uniform rule of that the grossly negli- was not summary procedure, judgment rule gent and that the Mirandas have failed imagination. party leaves little to the A raise a question regarding Depart- fact adjudication claim on whose alleged gross ment’s negligence.” the merits is entitled to advance notice added). (emphasis S.W.3d at 221 This that it must an present evidence and has holding misapplies it per- Bland because adequate opportunity respond.2 defendant, mits a painfully short notice procedure adopts today, the Court in con- and before developed, evidence has been trast, vary county county will from force plaintiff present either to evi- judge judge. lawsuit, dence on the ultimate issue right jury or lose the to a trial on the The Court cites a of federal number merits. holding decisions that when merits, facts are intertwined with the

The Court asserts that its standard court, evidence, considering trial “mirrors that of a should summary judg- employ applicable ment. ...” 133 It either the standard to a poor S.W.3d 228. is a rule, summary jurisdic- reflection. Our judgment summary judgment or leave the 1998); (Tex. prevailing appears 2. The view to be that the S.W.2d 357 Bell Denko v. Showa strictly K.K., 749, timeline is enforced. See Luna v. Es (Tex.App.-Amarillo S.W.2d 759 899 576, (Tex. Rodriguez, tate 906 S.W.2d 582 1995, denied); Stephens writ v. Turtle Creek 1995, writ) ("Because App.-Austin no sum Ltd., 25, (Tex. Apartments, 875 27 S.W.2d mary judgment remedy, strictly is a harsh 1994, writ); App.-Houston Dist.] no Wa [14th limit.”). twenty-one day construe the time Accord Co., 809 wellv. Caller-Times Pub. S.W.2d Motors, Co., Bu rns Inc. v. Ins. Gulf (Tex.App.-Corpus Christi writ de (Tex.App.-Corpus S.W.2d Christi nied); City Angleton, Williams 1998) grounds, rev’d on other 22 S.W.3d 417 (Tex.App.-Houston [1st Dist.] (Tex.2000); Martin, Martin v. Martin & Rich n.r.e.) ards, Inc., disapproved on other writ refd (Tex.App.-Fort 991 S.W.2d 1997) grounds, grounds, Worth rev’d on other 876 S.W.2d 314 suspect had no to trial. The Mirandas reason tional determination 228; summary judgment ap- that a standard see also MooRE Et al., James Wm. 12.30[3], requiring § at them to controvert plied, FEDERAL PRACTICE MOORE’S (3d ed.2003). evidence, Department’s I do not because the De- 12-37 to 12-38 partment’s plea it does to the disagree proposition, but subject to Bland. 34 at 554-55 question. not answer a fundamental This (trial so far procedure governs inquire what court not authorized Court must decide presented to the into the of the claims plea in Texas when substance on their summary judg- plaintiffs required put are treated like a motion jurisdiction). At a simply case to establish ment. minimum, summary I that if a would hold observes, proce- As Justice BRIsteR applies, the trial court judgment standard a trial court currently requires dural rule employ parties must so advise the may that evidence plaintiff to advise the procedures. Rule 166a plea to a presented opposition must be requires rule an and no II discovery adequate time for before the Pleading Requirements on the merits. 133 Under court dismisses case default, then, trial By Recreational Statute Use P. courts will turn to Rule 21. Tex.R. Civ. on the Rather than dismiss the case Presumably, ruling if a trial court’s summary judgment stan merits under 21 n minimum proce- comports with Rule dard, I would examine the on the requirements, dural dismissal alleged determine whether the Mirandas challenge any merits survive based will sufficient to invoke the trial court’s facts an of discretion standard. We abuse jurisdiction. See Tex. Ass’n Bus. v. Tex. ourselves, then, ask whether the should (Tex. Bd., 440, 446 Air Control requirements minimum are ade- Rule’s 1993) facts (plaintiff allege has burden to the stakes are no less than a quate when demonstrating that the trial affirmatively party’s ability present its case on the jurisdiction). matter court has merits. view, plеading falls my the Mirandas’ owes no as the short. Just Under Rule that rattlesnakes duty trespassers to warn may days be served “three before time strike, duty to advise statu it owes no hearing for the unless otherwise specified fall in tree limbs by tory trespassers rules or shortened provided by these allege did not parks. state The Mirandas the court.” Id. The rule does not mention much an had so oppos- that the party’s right present an adverse question would evidence, may explain why inkling branch ing which Depart- fall. See did not controvert the Mirandas Prac. & Rem Code Civ. 41.001(7); Transp. Co. v. § see also Ins. own evidence. ment’s with their Moriel, 21-22 negligence simple evidence of Compiling requires gross negligence that typi- (explaining that days’ three notice—evidence on subjec that the defendant at a minimum discovery months of cally requires —would where, here, awareness of the ex itself; tively “have actual in as daunting but conduct”). by his or her her treme risk created gross negligence, plaintiff prove must Rather, Department that the juris- alleges she Department’s ability to contest fall, just that tree limbs generally aware essentially non-exis- dictional could be natural of countless other it must know tent. in negligence mate of Defendants perils parks. Depart state Because the result duty trespassers failing dangerous ment owes no to warn to make safe the con- campsite that forces of nature cause random Defendant’s dition of its trees. harm, hold, willful, wanton, contrary grossly I would to the Courts conduct was or conclusion, pleading that the Mirandas failed to warn or negligent. Defendant jurisdic not invoke the trial courts reasonably dangerous does make safe tion. it aware and condition of which which Plaintiffs were unaware. allege

The Mirandas did not subjectively any Department was aware of accept can as true the Mirandas’ We Instead, specific injury. risk of id. See “its allegation that the knew they alleged: inspect- tree branches which have not been dangers

Defendant knew of the of its pruned regularly ed or fall” and did not branches, falling inspect, tree failed to That contingency. warn them about that failed to or prune, failed to alleviate however, in a pleading, is of neutral value danger, consciously remove the and and against Department, suit which would deliberately failed to warn Plaintiffs duty it had actual owe no to warn unless extremely dangerous condition. knowledge yet that the branch would fall paid a campsite Plaintiffs rental fee and camp nevertheless instructed Maria to be- specifically assign asked defendant id.; neath it. See see also Lee Lewis them a campsite. safe Defendant knew Constr., Harrison, Inc. v. 70 S.W.Sd hidden, property its contained dan- (Tex.2001) (reiterating gross neg- (sic) gerous defect in that its tree ligence requires that “the actor must have branches which inspected have been actual, subjective awareness of the risk pruned regularly fall. Defendant did involved, proceed but nevertheless con- danger. not warn Plaintiffs of the hidden safety, or rights, scious indifference to the others.”). Indeed,

welfare of nowhere do assert their the Mirandas Plaintiffs would show court that any that the was aware of risk occurrence made the basis of this suit or the associated with either the tree resulting damages and the out set below Instead, they simply re- campsite below. proximate were direct and result of allegations simple negligence into a cast negligence agents, Defendants and its claim servants, negligence. officers, gross both of commis- omission, separately sion or or both however, bound, analyze are their We collectively, in failing properly main- underlying in light policies claims tain inspect campsite where use statute. The statute the recreational injured, in failing Plaintiffs were to allow encourage exists to landowners properly campsite maintain the a safe enjoy public outdoor recreation in failing condition to exercise and/or by limiting liability their property their ordinary protect care to Plaintiffs from personal injury. City Bellmead v. Tor danger. (Tex.2002) (Han res, 611, 617 gross allegations negligence Mirandas’ kinson, dissenting). accomplish To J. stated: objective, Legislature placed has strin duty around the landown gent parameters

Plaintiffs would show the court that “trespassers.” occurrences made the basis of this suit ers owe See Peac. Civ. duty implicit § The resulting injuries damages and and 75.002. the & Rem Code however, would re proxi- pleading, out were a direct and the Mirandas set below Bus., quire Department the to warn all (Tex.2001)(quoting visitors Tex. Assn. 446). of perils commonly by plaintiff plead all hu S.W.2d at confronted The must true, that, scope man interaction nature. facts if would that the The of establish that claims come within an proposed duty obligating express the waiver De — sovereign immunity the partment post before trial court warnings all natu about jurisdiction proceed. has rally Just as mere occurring dangers create —would reference to the Tort Act is such Texas Claims practical an insurmountable and eco Miller, jurisdiction, insufficient confer legisla nomic burden as to the frustrate jurisdic trial the court’s encourage tures intent landowners to is by tion not satisfied mere notice that the property make available recreational plaintiff gross negligence pursuing use. claim. The have to affir Mirandas failed allegations Department Without that the matively jurisdiction establish the court’s that was aware the limb fall would and because, if all alleged even of the facts camp nevertheless instructed Maria to be- true, pleading their were those facts would it, low the have not pleaded Mirandas facts gross not negligence amount and there proceed sufficient to on their claim under fore would not establish a waiver of sover the recreational use statute. I do not eign immunity under use the recreational suggest merely mean to because the statute. alleged injury is to have resulted from a plead When a es- condition, plaintiff fails to facts natural the trial court is thereby tablishing jurisdiction, the is ordi- deprived jurisdiction. For issue example, narily pleading one of and the sufficiency trial courts properly would be plaintiff opportuni- should be afforded the by a pleading Department invoked ty to County amend. Cameron v. told plaintiff it was safe to dive into Brown, (Tex.2002). 549, 555 A knew waters were so shal- grant court may plea to posed low that likelihood dive affording opportunity without an to amend injury, that the plaintiff serious and only “affirmatively ne- when the injured severely diving reliance on that gate” jurisdiction, a cir- the existence of Here, contrast, assurance. the Mi- presented here. In this cumstance not Id. plead randas did not that the case, however, the court trial overruled campsite knowing directed Maria to a Departments jurisdiction, con- plea to an overhanging likely tree branch would cluding implicitly plead- that the Mirandas fall injury. on her cause serious ings jurisdiction, confer were sufficient to I fully holding understand Courts court of affirmed. Conse- appeals that the “fair gave Mirandas notice” that quently, have been Mirandas never they gross pursuing negligence were placed notice that must cure the however, pleadings, claim. Fair-notice It defect. well be through must in this be viewed case not to a the facts will lend themselves prism sovereign immunity, which de that would but pleading confer prives a court of unless the equipped we are not to make that determi- expressly immunity. State has waived stage proceedings. nation at this Jones, Dep’t Tex. Transp. plaintiffs’ plead Ill ings must against affirmatively State Conclusion jurisdiction to the con establish overcome trary into presumption. Dep’t inquire Crim. We need not should Miller, I 587 the ultimate merits of this case. would Justice know.4 everyone to trial to be of what should give remand the cause court warned Department appear an Nor does the Parks оpportunity the Mirandas to amend duty provide campsites safely petition establishing have a plead their facts trees;5 indeed, away one has to ask to use such anyone whether would want BRISTER, joined by Justice Justice “parks” if it did.6 SCHNEIDER, and Justice O’NEILL appears insup- what to be an Faced with dissenting. gross-negli- portable allegation like the Legislature provided has that state here, normally litigants gence pleading park duty visitors are owed the same (1) specif- demand more options: have two thus, trespassers;1 plaintiffs care as (2) by special exception, ic facts or demand prove this case had to the Parks and Wild- by summary motion for specific more facts deliberate, wilful, Department life caused Instead, judgment. filed injury.2 or malicious All members motions, including “plea three agree petition Court that either their or jurisdiction” of cur- elephant7 white —the summary judgment their evidence fails to practice. By rent Texas motion use of this so, though disagree do which. plea, Department was able to force the Court) (and judge ultimately trial alleged The Mirandas Maria suffered se- juris- make an ad hoc decision whether our injuries by vere caused the Department’s by diction be determined reference should gross negligence; specifically, they alleged or evidence. Because it fall, knew tree limbs could litigants judges should be rather than and failed to warn them of that fact or choice, respectfully I making that dissent. assign them a campsite where none would. grave I have doubts whether such facts nothing are Pleas possibly gross negli- could сonstitute new. his Commentaries on the Laws of gence usually conditions cannot England, Blackstone lists them as a cate- —natural (much unreasonably dangerous gory dilatory pleas (along less abatement) wanton),3 trespassers disability deny pleas do not have to 75.002(c)(2), Mgmt., Peavy, §§ 1. Tex. Civ. Prac. & Rem.Code 6. See Home Inc. 75.003(g). (Tex.2002) (holding question of legal duty question requiring is of law balance 75.002(a)(2), 75.003, 101.022, §§ 2. Id. risk, consequences utility, of factors such 101.058. duty, and other relevant individual and interests). social Posse, County 3. See Johnson Inc. Sheriff’s (Tex.1996) Endsley, 926 S.W.2d (1989) English Dictionary (holding rock in dirt did create de- arena The Oxford condition). unreasonably dangerous elephant” fines "white as: variety elephant a. which Brown, A rare albino County Cameron v. Cf. highly venerated in some Asian countries. (holding caused darkness costly fig. possession streetlights open and b. A burdensome failed was not obvi- (from recovery by precluding story kings ous hazard licensee that the of Siam were because it could not be seen from entrance to present to make a of one of accustomed causeway). to courtiers who had ren- these animals obnoxious, dered themselves in order 75.002(c)(1) § 5. See Tex. Civ. Prac. & Rem.Code recipient by the cost of its mainte- ruin the (providing grant permission landowners who scheme, etc., nance). Also, object, ‍​‌​‌​​​​​​​‌‌​‌​‌‌‌‌​​​‌‌‌​​​​​​‌​​​​‌‌​‌​‌​​‌​‌‍an con- that the for recreational use do not assure be without use or value. sidered to premises purpose). are safe for that 240 proce- rules of civil

propriety remedy ply rather than the with the current dure. injury.8 years ago, this One hundred n variety as Court addressed matters law as as amendments Case well rule jurisdiction, including objec- pleas to the away contributed to the trend have personal jurisdiction,9 sub- tions based to the the common-law juris- ject-matter jurisdiction,10 dominant have that a com- example, For held venue,12 diction,11 conflict of capacity,13 and jurisdiction in plaint based on dominant laws.14 by plea another court must be raised court, or it is abatement the second then, a steady Since there has been shift though complaint Again, waived.17 away plead- from the common-law forms of to the could be characterized as a ing specific practice set to the more motion specific motion and more procedure. out in the rules of civil For procedure the common-law has rendered example, objecting to venue defendant term obsolete. today a motion to transfer must file jurisdiction have en- pleas But complies requirements form with the in the field of joyed resurgence a recent of Rule 87.15 Rule 86 and the deadlines immunity. many years, For governmental Similarly, objecting per- nonresident very particu- governmental units were not special ap- sonal must file asserting immuni- lar about the vehicle for pearance requirements that meets the ty, raising by— it sometimes substance, Rule 120a.16 In these motions (cid:127) demurrer;18 general “pleas categorized could still be (cid:127) form, demurrer;19 jurisdiction;” special must com- but Richards, See, e.g., Ry. Co. v. 68 14. Tex. & P. 8. 3 William Blackstone, on the Commentaries 627, 375, (1887). England (1768). Tex. 4 S.W. 629 301-03 Laws of Peteet, 568, (requiring See, Civ. Proc. 86 unverified 15. Tex.R. e.g., v. 66 Tex. 1 S.W. 9. Rice 657, filed first and states counties (1886). motion that is 657 venue); mandatory imprоper, proper, or 45-days' (requiring notice Tex.R. Civ.Proc. 87 See, Todd, e.g., McIlhenny 10. Co. v. 71 Tex. hearing, 30-days' respondents notice 400, 445, (1888) (objecting that 9 S.W. 446 affidavits, 7-days’ notice of movants affi- jurisdiction amount at issue fell below court’s davits). Franklin, 411, limits); al Juneman v. 67 Tex. 3 562, (1887) (objecting 562 that forcible S.W. (requiring sworn mo- 16. Tex.R.Civ.Proc. 120a entry and detainer action was not filed in any before other tion that is filed and heard court). justice matter, days be- served seven affidavits hearing). fore See, Ward, 1, e.g., v. 116 Tex. 285 11. Cleveland 1063, (1926), disapproved on other S.W. 1072 560, 833, Packer, Boyer, 563 n. 2 17. v. grounds, v. Mower Walker Co., Witte, (Tex.1991); (Tex.1992); Wyatt Plumbing 760 v. Shaw v. 72 Tex. 842 Grathaus 245, 1032, 124, (1888). 247 11 S.W. 1032 29, See, Hale, See, e.g., v. 136 Tex. 146 Ry. Thompson, 18. State e.g., N.T. Co. v. 12. Pecos & 731, (1941); 456, 801, (1914); Herring v. 735 Houston 801 106 Tex. 167 S.W. 813, Bank, 264, 118, 639, Jemison, Tex. 253 S.W. Nat’l Exch. 113 86 Tex. 23 S.W. Baines Co., 48, Baker, (1923); Ry. (1893); Stephens v. Tex. & P. 67 Tex. Watson v. (1906); (1886). Thomson 97 S.W. S.W. 375-76 Baker, (1896). 38 S.W. 90 Tex. See, Gay, e.g., 76 Tex. Brown v. Thomson, See, (1890). e.g., S.W. at 22. 472-73 S.W. (cid:127) development exalts exception;20 any sider other.27 This special example, For before form over substance. (cid:127) plea jurisdiction;21 to the amendment, govern- one Legislature’s (cid:127) abatement;22 plea or unsuccessfully im- entity mental asserted (cid:127) summary judgment.23 summary judgment munity by means of a 1997, Legislature amended the Civil immediately after special exceptions; in- date, Practices and Remedies Code to allow entity effective filed the same terlocutory appeals interlocutory “from an objection “plea jurisdiction” to as —and ... grants plea order or denies a [that] prevailed.28 jurisdiction by a governmental unit.”24 reasons, put should For several we strictly have held this section must We be stop resurgence to this of common-law construed, exception as it is an to the First, immunity it is pleadings in cases. general interlocutory rule that orders are uncertainty. hun- fraught Despite appealable.25 rules, only haphazardly-numbered dreds of result, Procedure overnight “plea As a almost once do the Texas Rules of Civil jurisdiction” of to the and then pleas became the motion mention indeed, asserting immunity;26 choice for only regarding permissible parts a rule an answer rather appellate some courts to con- of than permissible have refused mo- 740, See, State, See, 20. 610 S.W.2d 26. e.g., e.g., Duhart v. Natural Res. Texas Conservation (Tex.1980); 849, (Tex. 741 Dep’t Agric. Dir. & Env’t 74 S.W.3d 852 IT-Davy, Comm’n v. Tex., v. 600 S.W.2d Printing Indus. Ass’n 2002); Co., Inc., 39 Little-Tex Insulation 264, (Tex.1980); Stephens, 265 97 S.W. 594; S.W.3d at McClain v. Univ. Tex. 310. 4, (Tex. 119 S.W.3d 5 Tyler, Health Ctr. at 2000, denied); App.-Tyler pet. County Dallas See, Univ., 21. 951 e.g., Sign Fed. v. Tex. S. 465, Bolton, 990 S.W.2d Cmty. v. Coll. Dist. 401, (Tex.1997), superseded by S.W.2d 403 1999, (Tex.App.-Dallas pet.); 466 no Alamo grounds statute on other stated Gen. 980 Obayashi Cmty. Corp., v. Coll. Dist. Co., Servs. Comm'n v. Little-Tex Insulation 745, 1998, (Tex.App.-San 746 Antonio S.W.2d 591, (Tex.2001); Inc., 39 S.W.3d 593 Lowe v. denied); pet. Dept. Tex. Parks & v. 297, (Tex. Univ., 540 S.W.2d Wildlife 298 Tex. Tech 140, (Tex. Place, Inc., 972 S.W.2d 142 Garrett 1976); 549, Lain, 162 Tex. 349 State v. 1998, App.-Dallas pet.); no 579, (1961); Tex. Parks & Wild Hawn, S.W.2d 580 v. 161 Griffin 145, 422, 151, (1960); 971 S.W.2d 147 Dep’t Callaway, v. Tex. 341 S.W.2d 152 Short life 202, 1998, Bro., (Tex.App.-Austin pet.). v. W.T. Carter & no 133 Tex. 126 953, (1938). S.W.2d 955 300, See, S.W.3d 27. 97 e.g., Long, v. Thomas 740, See, State, 22. e.g., 610 Duhart v. 2003, (Tex. App.-Houston [14th Dist.] 302-03 (Tex.1980); Lowe, 298; 741 540 S.W.2d at (refusing interlocutory appeal pet. granted) 422, Hawn, 161 Tex. 341 S.W.2d v. Griffin summary judgment on lack of denial of based 151, (1960); 152 Dodgen, W.D. v. Haden Co. jurisdiction grant matter as no order 74, 838, (1958); 158 Tex. 308 S.W.2d 838 jurisdiction); Baylor plea ed or denied 360, 144 Tex. 190 S.W.2d Harrington, Cobb v. 467, 472 Tate, 77 S.W.3d C oll. Med. v. 709, (1945); Bro., Short v. W.T. Carter & 2002, (Tex.App.-Houston pet.) Dist.] no [1st (1938). 133 Tex. interlocutory appeal (refusing because trial See, McGuire, e.g., Hosp. Overton Mem’l v. summаry judgment court’s order was based curiam); (per 518 S.W.2d liability immunity rather than on from v. Herring, Dept. suit). immunity based on ofCorr. (Tex.1974). Doe, 28. Lamar Univ. v. 51.014(a)(8). § 24. Tex Civ. & Rem.Code Prac. (Tex.App.-Beaumont pet.). Jackson, Bally Corp. Total Fitness (or perhaps until is and no decided even tions.29 There no rule—no case observers, form, deadlines, appeal). later To specifies the some code—that pleas drawing up evidentiary requirements appear rules generally. game played.34 after the has been any vantage point, almost re- Independent In Bland School District From Blue,30 bring surgence pleas some order cre- attempted setting guidelines ates cases. For resurgence by problems to this entities, governmental to it handling pleas. such But due the broad results unnec- case, jurisdiction the Parks range plea essary repetition. of issues a to the address, not be easy not to do. and could sure might that was Wildlife the trial court consider evi- pointed examples, As we out in several whether would necessary, so it three mo- pleas go of should not dence filed consideration some summary of tions—a no-evidence motion for beyond pleadings, the but consideration necessary, judgment, trial a motion for sum- must.31 When traditional others jurisdic- relating mary judgment, evidence to and plea courts must consider a to facts, but should not con- tion. But counsel for merits,32 “all three relating hearing, evidence to the admitted at the relate sider though set of even the two are sometimes the same issues.” specific Nor about same. could we unnecessary is for repetition Such inter- decided, it to pleas leaving when should be in the locutory Nothing review. Civil court’s to ad- the trial discretion whether suggests and Practice Remedies Code hearing or preliminary dress the issue at a Legislature specify intended to a mo- form development fuller merits.33 after for rather purpose, tions had to take Indeed, opposite than examples certainly in Bland their substance. given The by the selection guidance suggested Legislature’s more than provided procedural applicable of a term to a considering before. But without common-law existed motions, rather than a jurisdiction, category of possible pleas all to the we broad rules; any motion in prescribe pointing particular term could not more definitive It us, has procedure. come the current rules civil disputes until all those before meantime, long practice to consider the probably try. In the been our should rather than their often be what the trial court substance motions it will unclear so, history consider, form;35 nothing legislative it should do should or when 31. at 555. Id. Tex.R. Civ. 85: 29. Proc. original may consist of motions answer venue, 32. pleas to transfer Id. abatement, pleas; any dilatory other denial, special exceptions, general 33. Id. at 554. any by way estop- defense of avoidance or cross-action, pel, may present and it (rejecting plaintiffs' demand id. at 555 See place to that will defendant in which extent hearing evidentiary for for full be- remand plaintiff. Matters in avoid- the attitude of a original they did not contest evidence cause may together, estoppel be stated ance hearing). pleas, presenting each special or in several defense, numbered as to a distinct so Stover, See, e.g., Speer separate to be admit of issues formed curiam) (considering plea (per them. though even misnamed added). (Emphasis (stat- abatement); also see Civ. Proc. Tex.R. "[wjhen designat- mistakenly ing party has S.W.3d 547 30. result, jurisdictional ques- interlocutory deciding suggests appeal statute to decid- strong an to that tion bears a resemblance exception was intended to be ing the merits. rule. circumstances, it is difficult problems by created In these plaintiffs,

For the line between judges Texas to detect resurgence pleas must they decide jurisdictional questions uncer- are even more acute. Defendants going liability questions further and present tain about an before how cannot decide without usurping the simply try every- they can defense little Here, contrast, thing; jury. lose function of the the Mirandas plaintiffs, they guess wrong. if In this the lower courts whether their case convinced case, by any evi- example, supported the Mirandas did not their were jury. question solely for the any responses attach evidence to their dence was But is not true if raised no the various motions. The lower courts to, if that could establish a waiver agreed they did not need but we hold material facts otherwise, immunity.37 then the Mirandas will learn of years they three too late that should have contrast, mo- By returning to standard jurisdictional presented evidence govern- asserting tions as the vehicles for hearing. immunity clarify would what thе mental judge’s vantage point, pleas hearing From a trial will be like and sim- For dec- uncertainty, plify many procedural questions. to the create not just ades, applied governmental about the rules to be but units have asserted or mo- judge. immunity by special exceptions38 about the role of the This case is summary many many immunity judgment.39 one of which from suit tions for one), they still do so (including under the Texas Tort Claims Act is coex- cases immunity liability.36 today.40 Relying procedural tensive with from As on standard 531, court, Winters, any plea pleading, justice Dep’t ed Corr. v. 765 S.W.2d or if so Tex. of 1989, denied); requires, plea pleading (Tex.App.-Beaumont writ shall treat the or as if 532 properly designated”). Regents, Colleges it had been Some Bd. State Senior Martine v. of 465, Tex., appear possible (Tex.Civ.App.- courts themselves to use the 578 S.W.2d 469 of Tyler Bunnell, 1979, writ); immunity interchangeably. terms for motions Harrison v. 420 no See, Condos., Inc., 1967, 777, e.g., State v. Executive 673 (Tex.Civ.App.-Austin 778 330, 732, McDonald, (Tex.App.-Corpus writ); 331-32 Christi 220 S.W.2d no State v. 1984, n.r.e.) 1949, (referring writ refused to immu- (Tex.Civ.App.-Texarkana writ re- nity "plea jurisdiction” 1042, fused); motion as to the when Langley, Porter v. 155 S.W. filed, "plea 1913, refused). it was in abatement” when it was (Tex.Civ.App.-Dallas writ denied, it and "motion to dismiss” when was reversed). See, e.g., Arlington, Ho v. Univ. Tex. at 39. 672, (Tex.App.-Amarillo 681-83 984 S.W.2d 101.025(a) § & 36. See Civ. Rem.Code Prac. denied); 1998, Dep’t pet. Russell v. Tex. (waiving immunity to suit to the extent of Res., (Tex.App.- 746 S.W.2d Human (creat- 101), liability chapter § under 101.021 State, denied); Gay writ Texarkana ing governmental liability specified acts (Tex.App.-Amarillo resulting negligence, premises from condi- 1987, writ). tions, property private and use of to the extent liable). persons would be See, e.g., Rapid v. Whit Dallas Area Transit (sover ley, 104 S.W.3d 166a(c). 37. See Tex.R. Civ. Proc. by plea jurisdic eign immunity asserted to the See, Kenedy summary judgment); e.g., tion and motion for John G. & Marie Stella Found, Brown, Mauro, County Cameron v. Mem’l denied); (Tex.2002) (sovereign immunity (Tex.App.-Corpus asserted Christi writ determined, court’s many questions upon not ac- motions would eliminate deadlines, presented forms, deciding questions and evidence. It tion about case, the character upon in a but government make entities rather would power juris- is the judges case itself. Jurisdiction than trial decide whether decide, merely power and not challenge plain- is directed to the dictional correctly.45 facts. decide underlying tiffs or the If wrong,41 governmental unit chooses it course, pro- returning to Of established may always try again. plaintiff But the is motions will not remove all diffi- cedural proce- required guess not what rules governmental with issues of immu- culties judge might apply. the trial dures goodwill and intellect will nity. Judges practice Returning pre-resurgence disagree particular about whether a still change govern- incidence sufficiently specific, would pleading Justices held, Wainwright immunity. recently if mental As we do here. Gov- JeffeRSON only is directed unnecessary units incur ernmental construe them plaintiffs pleadings, discovery judges costs unless delays oppor- plaintiffs and allow an summary judgment favor to hear motions agree tunity affirmatively early to amend unless jurisdictional matters as is, course, jurisdiction.42 negate they might This case as hear governing special ex- identical rules And courts must appellate enti- ceptions.43 govеrnmental And when distinguish still between evidence, (as rely any questions interlocutory appeal ties wish to to which an suit (as he) liability fact that affect issues must immunity of to will not).46 jury,44 the same standard simplification be settled it But which will applies summary judgments. rejected procedures should not be be- our everything. cannot simplify cause we argued can it be that courts exceed Nor jurisdiction by requiring their mandated Legislature If the Texas in- brought to be in standard motions pleas assert- terlocutory review of bar “pleas according ‍​‌​‌​​​​​​​‌‌​‌​‌‌‌‌​​​‌‌‌​​​​​​‌​​​​‌‌​‌​‌​​‌​‌‍procedure. (a to settled rules devoutly to ing development limitations” rules of civil shortly stated after the As we suggest against), would be wished few were enacted: procedure only for was available motions such review of the sum- power trial entitled “Plea Bar” instead had [the court] Since exception forms grant mary judgment special the demurrers and sustain to raise such motions, long have been used power it had to overrule stop making as- a court must should issues.47 We them. See, Brown, e.g., (holding special excep 80 S.W.3d at 556 by plea 44. by plea juris- tions). foreseeability to the issue raised jury). presented-fact question for diction See, Dep’t Herring, e.g., Tex. v. of Corr. (Tex.1974) Tex. (reversing Sheppard, v. sum 45. Martin 9-10 (1947). plaintiff immunity as 812-13 mary judgment based on opportunity replead). not allowed Jones, Dep’t Transp. v. 8 S.W.3d Tex. 46. See Cameron, 555; Dep’t 638-39 80 S.W.3d at Ramirez, (Tex. Transp. v. 74 S.W.3d Co., v. Baker Monsanto 47. See 2002). curiam) (asserting (per Brown, 559; City by summary judgment); Herring, limitations 80 S.W.3d at 43. See Tillman, Port Arthur at 9-10. Legislature intended sumption different pleas govern-

something immunity.

mental

Accordingly, I would reverse and re- (1) De-

mand for the Parks and Wildlife its

partment specify whether challenge is a (by

(by special exception) or the evidence (2)

summary judgment), the Mirandas to

respond compliance with the rules of (3) procedure,

civil the lower courts governmental immunity

address the issue govern-

in accordance with the usual rules mo-

ing disposition and review of those

tions. CORPORATION,

KERR-McGEE et al.

Jimmy HELTON, et al.

No. 02-0356.

Supreme Court Texas.

Argued Jan. 2003.

Decided Jan.

Rehearing May Denied ception). (asserting by special ex limitations

Case Details

Case Name: Texas Department of Parks & Wildlife v. Miranda

Court Name: Texas Supreme Court

Date Published: Apr 2, 2004

Citation: 133 S.W.3d 217

Docket Number: 01-0619

Court Abbreviation: Tex.