County of Hidalgo, Texas v. Fabiana Carlos

NUMBER 13-24-00401-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG COUNTY OF HIDALGO, TEXAS, Appellant, v. FABIANA CARLOS, Appellee. ON APPEAL FROM THE COUNTY COURT AT LAW NO. 7 OF HIDALGO COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Justice Fonseca Appellant County of Hidalgo, Texas argues by two issues that the trial court improperly denied its plea to the jurisdiction based on governmental immunity. It first argues that appellee Fabiana Carlos failed to demonstrate that it had actual knowledge of a dangerous condition. Appellant also argues that appellee was aware of the dangerous condition. We reverse and remand.  I. BACKGROUND This appeal arises from a slip and fall incident that occurred at the Hidalgo County Courthouse. On September 17, 2019, appellee was walking across a makeshift walkway outside of the courthouse when she allegedly fell due to a negligent condition of the property. Appellee alleges that a contractor, Morganti Construction, was responsible for creating the makeshift walkway and that appellant’s employees were responsible for maintaining the walkway and keeping it clean. Appellee’s petition contained photos that she claims demonstrated the area was unsafe. Appellee filed suit on June 2, 2021. Appellant answered on June 28, 2021, and, after appellee amended her petition, appellant filed its own amended pleading that included a plea to the jurisdiction. Appellant filed a brief in support of its plea to the jurisdiction on April 12, 2023, arguing that it is immune from tort liability except in areas where the Texas Legislature specifically waives immunity. Appellee did not file a response to the plea to the jurisdiction. The trial court held a hearing on the plea to the jurisdiction on July 31, 2024, and thereafter denied it via written order on August 5, 2024. This accelerated interlocutory appeal followed. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). II. APPENDIX DOCUMENTS As a preliminary matter, appellee complains that appellant has attached documents to its brief as Appendix D that were not part of the appellate record. It is well- resolved that “we do not consider attachments to briefs that were not part of the trial court record and are not formally included in the appellate record.” Black v. Shor, 443 S.W.3d 170, 174 n.3 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.) (citing Guajardo v. 2 Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (further citations omitted)). Upon review of Appendix D, we have determined that it includes photos that were not part of the trial court record and are not part of the appellate record. As such, we agree with appellee, and we will not consider the two photos included for the first time in Appendix D. III. ANALYSIS Appellant complains that the trial court erred in two regards when it denied the plea to the jurisdiction, both related to appellant’s governmental immunity. First, appellant complains that appellee failed to present any evidence that appellant had actual knowledge of the alleged dangerous condition, which was required to establish a statutory waiver of immunity. Second, appellant argues that it retained immunity because appellee was aware of the alleged dangerous condition. A. Standard of Review “A plea to the jurisdiction challenges the existence of subject matter jurisdiction; that is, the court’s power to decide the case.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024) (citing Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015)). “The trial court’s ruling on a plea to the jurisdiction is a question of law we review de novo.” Id. (citing Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016)). In de novo review, no deference is given to the trial court’s decision. See In re Est. of Slaughter, 305 S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). Challenges to jurisdiction can be based either on pleadings or on the jurisdictional facts. Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022). When reviewing pleadings, this Court must “determine if the pleader has alleged facts that affirmatively demonstrate the 3 court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Pleadings are