Opinion
No. 04-05-00493-CV
Delivered and Filed: June 14, 2006.
Appeal from the 81st Judicial District Court, Atascosa County, Texas, Trial Court No. 02-11-0785-Cva-a, Honorable Stella Saxon, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's dismissal of appellant's lawsuit for lack of jurisdiction. Appellant, Roland Casarez, was a passenger in a vehicle driven by Dina Cisneros, when it was involved in an accident allegedly caused by Cisneros's negligence. Casarez sued the State of Texas, Duval County, Central South Texas Narcotics Task Force, and Cisneros for Casarez's personal injuries. The State filed a plea to the jurisdiction, which the trial court granted. This appeal by Casarez ensued. We affirm.
STANDARD OF REVIEW
Subject matter jurisdiction is essential to the trial court's authority to decide a case. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). To prevail, the party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. Clark v. State, 103 S.W.3d 476, 477 (Tex.App.-San Antonio 2003, no pet.). Because subject matter jurisdiction presents a question of law, we review the trial court's decision under a de novo standard of review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A court deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider evidence relevant to the jurisdictional issue and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We construe the plaintiff's pleadings in the plaintiff's favor and look to the plaintiff's intent. Texas Ass'n of Bus., 852 S.W.2d at 446. We do not address the merits of the case; instead, the defendant must establish why the merits of the plaintiff's claims should not be reached. Bland Indep. Sch. Dist., 34 S.W.3d at 554.
DISCUSSION
In his petition, Casarez asserted that Cisneros "was acting within the course and scope of her employment with Defendant, State of Texas . . ., and as such [the State is] liable for the acts and omissions of . . . Cisneros." In its plea, the State denied that Cisneros was the State's employee, and argued that Cisneros was employed by Duval County at the time of the accident. Casarez contends the trial court erred in granting the State's plea to the jurisdiction because the evidence attached to the State's plea created a genuine issue of material fact as to the identity of Cisneros's employer.
Casarez predicated the State's waiver of governmental immunity on section 101.021 of the Texas Civil Practice and Remedies Code, which states:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law.
Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 2005).
Under this act, an employee is defined as:
[A] person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Id. § 101.001.
Thus, to be an employee, a person must be under the control and direction of the alleged employer. Rodriguez v. Texas Dept. of Mental Health and Mental Retardation, 942 S.W.2d 53, 56 (Tex.App.-Corpus Christi 1997, no writ).
In her deposition, Cisneros testified that she worked for the Central South Texas Narcotic Task Force at the time of the accident. Cisneros also described the task force as "grant-operated" and stated: "I guess the state gives grants out to multiple jurisdictions and that task force is combined of multiple jurisdiction officers." Cisneros continued, "So when you go to work for the task force . . . there [are] three counties that . . . assign people to the task force . . . then you are either working for Duval, McMullen, or Live Oak County." When Cisneros was asked who her employer was at the time of the accident, she responded "Duval County." Although there is evidence the State funded the task force, there is no evidence to what extent the task force received funding, whether the grant money was used to pay the employees of the task force, or that Cisneros was "in the paid service" of the State. See City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 894 (Tex.App.-Fort Worth 2001, pet. denied) (noting the term "pay" or "paid" means to compensate or give something in return for goods or services). Further, there is no evidence that Cisneros was under the control and direction of the State. See Coastal Marine Serv. of Texas, Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999) (noting a "possibility" of control is not a right to control). Accordingly, we conclude the trial court properly granted the State's plea to the jurisdiction.
CONCLUSION
We overrule Casarez's issue on appeal and affirm the trial court's judgment.