The court of appeals reversed the trial court's judgment with respect to Texas A M's appeal, holding Texas A M's sovereign immunity from suit barred Koseoglu's breach of contract claim. 167 S.W.3d 374, 384 (Tex.App.-Waco 2005, pet. granted). Rather than dismiss Koseoglu's claim against Texas A M, the court of appeals concluded Koseoglu deserved an opportunity to amend his pleadings and therefore remanded the matter to the trial court.
Until recently, some disagreement existed among courts regarding the point at which a plaintiff must be afforded an opportunity to amend. See Tex. A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 380-84 (Tex.App.-Waco 2005), rev'd in part. 233 S.W.3d 835 (Tex. 2007) (explaining various approaches of courts).
"[A] plaintiff must be given '"a reasonable opportunity to amend" his pleadings to attempt to cure the jurisdictional defects found' unless the pleadings are incurably defective." Koseoglu, 233 S.W.3d at 839 (quoting Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 383 (Tex. App.—Waco 2005, pet. granted), and citing Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004), and Texas Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867-68 (Tex. 2002)). This opportunity is afforded "only if it is possible to cure the pleading defect."
"[A] plaintiff must be given 'a reasonable opportunity to amend' his pleadings to attempt to cure the jurisdictional defects found' unless the pleadings are incurably defective." Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (quoting Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 383 (Tex. App.—Waco 2005, pet. granted), and citing Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004), and Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867-68 (Tex. 2002)). We afford a plaintiff this opportunity "only if it is possible to cure the pleading defect," see id. at 840, which "typically arises when the pleadings fail to allege enough jurisdictional facts to demonstrate the trial court's jurisdiction."
The intermediate appellate court reversed and remanded the case to the trial court so that Koseoglu could amend his pleadings. Tex. A & M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 383–84 (Tex.App.-Waco 2005, pet. granted), rev'd in part, 233 S.W.3d 835 (Tex.2007). The university argued for a dismissal with prejudice, but the Court of Appeals reasoned that Koseoglu had not had a reasonable opportunity to amend his pleadings because the plea to the jurisdiction had been denied by the trial court.
The intermediate appellate court reversed and remanded the case to the trial court so that Koseoglu could amend his pleadings. Tex. A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 383-84 (Tex. App.-Waco 2005, pet. granted), rev'd in part, 233 S.W.3d 835 (Tex. 2007). The university argued for a dismissal with prejudice, but the Court of Appeals reasoned that Koseoglu had not had a reasonable opportunity to amend his pleadings because the plea to the jurisdiction had been denied by the trial court.
In the instant case, the trial court did not determine that the County's plea to the jurisdiction was meritorious; consequently, Genzer was not put on notice that his pleadings were deficient. As a result, and because we determine that Genzer's pleadings do not affirmatively demonstrate an incurable jurisdictional defect, but merely a pleading deficiency, we find that Genzer should be afforded an opportunity to amend his pleadings. Tex. A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 383-84 (Tex.App.-Waco 2005), aff'd in part and rev'd in part, No. 05-0321, 2007 Tex. LEXIS 838 (Tex. Sept. 7, 2007). See County of Cameron, 80 S.W.3d at 559.
Esquire has filed a motion to dismiss Henricks's interlocutory appeal on the grounds that she is not a "governmental unit" authorized to take an interlocutory appeal from the denial of a plea to the jurisdiction. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (West Supp. 2006) (authorizing interlocutory appeal from order granting or denying plea to jurisdiction by "governmental unit" as defined in Texas Tort Claims Act), § 101.001(3) (West 2005) (defining "governmental unit"); see also Texas A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 378 (Tex.App.-Waco 2005, pet. granted). We need not reach that question here.
Id. § 101.001(3) (Vernon 2005). Although Martinez may be aligned as a co-defendant with the TEA and the Commissioner, who are clearly "governmental units" as defined above, individuals employed by governmental units are not themselves governmental units entitled to an interlocutory appeal. See id.; id. § 51.014(a)(8); Tex. A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 378-79 (Tex.App.-Waco 2005, pet. granted); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 780 (Tex.App.-Fort Worth 2001, pet. dism'd w.o.j.) (holding that a teacher was not a "governmental unit" entitled to interlocutory appeal); Univ. of Houston v. Elthon, 9 S.W.3d 351, 354 (Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (holding that university administrators were not "governmental units"), overruled on other grounds by Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 224 n. 4 (Tex. 2004). We hold that Martinez is not a "governmental unit," and therefore, he is not entitled to an interlocutory appeal. Accordingly, we dismiss his appeal for lack of jurisdiction.
Moreover, an interlocutory appeal is not available if the plea to the jurisdiction was not made by a "governmental unit." See Tex. A M Univ. Sys. v. Koseoglu, 167 S.W.3d 374, 377-79 (Tex.App.-Waco 2005, pet. granted); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex.App.-Fort Worth 2004, no pet.); Perry v. Del Rio, 53 S.W.3d 818, 821 (Tex.App.-Austin 2001), pet. dism'd, 66 S.W.3d 239, 264 (Tex. 2001). Thus, to determine the extent to which we have jurisdiction to hear an interlocutory appeal of a plea to the jurisdiction, we must determine whether the issues presented are jurisdictional and whether the plea is made by a statutorily-defined "governmental unit."