Opinion
No. 04-05-00744-CV
Delivered and Filed: March 15, 2006.
Appeal from the 293rd Judicial District Court, Maverick County, Texas, Trial Court No. 05-02-20656-Mcv, Honorable Cynthia L. Muñiz, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Javier Luna sued the City of Eagle Pass (City) and Felix Tamez-Perales (Perales), an employee of the City, for damages arising from a vehicular accident between Perales and Luna. The City filed a plea to the jurisdiction which the trial court denied. We affirm.
Factual and Procedural Background
Perales, a former employee of the City, worked as an umpire and referee for various sports. He was working on July 8, 2003, when he used a City pick-up truck to leave work and purchase breakfast tacos and drinks for other employees. Perales allegedly failed to stop at a stop sign and collided with Luna's vehicle.
Luna filed suit against Perales and the City for personal injuries sustained as a result of the accident. The trial court denied the City's plea to the jurisdiction and motion to dismiss.
On appeal, the City asserts the trial court erred in denying its plea and motion because the City's sovereign immunity from suit was never waived. The City argues that Luna's pleadings failed to establish that Perales was acting in the scope of his employment when the accident occurred.
Standard of Review
Sovereign immunity deprives a trial court of subject matter jurisdiction, and a plea to the jurisdiction is a proper vehicle to challenge the trial court's subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). A trial court's ruling on a plea to the jurisdiction is a question of law, and we review such questions de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
The plaintiff has the burden to plead facts which affirmatively demonstrate the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When determining whether jurisdiction exists, we accept all allegations in the pleadings as true. Herring v. Welborn, 27 S.W.3d 132, 136 (Tex.App.-San Antonio 2000, no pet.). When a plea to the jurisdiction challenges the existence of jurisdictional facts, this court must consider relevant evidence submitted by both parties if such an inquiry is necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If the evidence creates a fact question regarding jurisdiction, the trial court is precluded from granting the plea to the jurisdiction because the fact question is proper for the fact finder. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
Sovereign Immunity
"Sovereign immunity includes two distinct principles, immunity from suit and immunity from liability." Id. at 224. Immunity from suit deprives a court of subject matter jurisdiction while immunity from liability is an affirmative defense. Id. The Texas Tort Claims Act (TTCA), Texas Civil Practice and Remedies Code, Section 101.002 (Vernon 2005), creates a unique scenario in which the two principles are co-extensive. Miranda, 133 S.W.3d at 224. Basically, "[s]overeign immunity to suit is waived and abolished to the extent of liability created by [the TTCA]." Tex. Civ. Prac. Rem. Code Ann. § 101.025(a) (Vernon 2005). Thus, the City is immune from suit except where the TTCA expressly waives immunity. See Miranda, 133 S.W.3d at 224-25.
The TTCA waives immunity for personal injuries arising from the negligent operation or use of a motor-driven vehicle by an employee acting within the scope of his employment. Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 2005); see also County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) (listing the exceptions to the TTCA).
Here, the City argues that the trial court erred in denying its plea to the jurisdiction because the City established that Perales was not acting within the scope of his employment when he caused the accident. Luna filed a response to the City's plea and motion, attaching affidavits to establish that Perales was within the scope of his employment.
It is undisputed that at the time of the accident Perales was en route to a convenience store to buy sodas for himself and his co-workers.
Scope of employment is defined as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Tex. Civ. Prac. Rem. Code Ann. § 101.001(5) (Vernon 2005). The City's evidence provides that driving a City vehicle was not a duty within Perales' employment (which was to referee and umpire games), the City vehicle was never assigned nor authorized for use to Perales, and Perales' leaving during a break for tacos or sodas did not further, directly or indirectly, the City's business.
However, Luna's evidence provides that: (1) Perales was "on the clock" at the time of the accident and was also paid wages during the time he caused the accident; (2) having one employee purchase tacos or sodas for other employees can benefit the employer in several ways; (3) it was a routine practice for an employee to leave and purchase tacos or sodas for the other employees, and the supervisors had given express or implied permission to use City vehicles for that purpose.
See Creekmore v. Horton Horton, Inc., 487 S.W.2d 148, 150 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) (acknowledging that a presumption exists that an employee is acting within the scope of employment when an accident occurs while driving an automobile owned by the employer).
See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 722 (Tex.App.-Austin 2004, no pet.) (concluding that the employer indirectly benefitted from one employee leaving work to pick up breakfast, which had become routine, because it increased the efficiency of work completed with only one employee gone rather than several and because it was important to have a manager present at work at all times).
The evidence adduced by the City and Luna creates a fact issue regarding whether Perales was acting within the scope of employment at the time of the accident; therefore, the trial court did not err when it denied the City's plea to the jurisdiction. See Miranda, 133 S.W.3d at 227-28.
Conclusion
The trial court's order is affirmed.