IN THE SUPREME COURT OF
TEXAS
════════════
No.
01-0619
════════════
Texas
Department of Parks and Wildlife,
Petitioner,
v.
Maria
Miranda and
Ray Miranda,
Respondents
════════════════════════════════════════════════════
On Petition for Review from
the
Court of Appeals for the
Fourth District of Texas
════════════════════════════════════════════════════
Argued October 30, 2002
Justice Wainwright delivered the
opinion of the Court with respect to parts
I., II.,
III.A.,
III.B.,
III.C.2.,
III.C.3.,
III.D., and IV., in which Chief Justice Phillips, Justice Hecht,
Justice Owen, and Justice Smith
joined, and a plurality opinion with respect to Part
III.C.1., in which Chief Justice Phillips, Justice Hecht,
and Justice Smith
joined.
Justice Jefferson filed a dissenting
opinion.
Justice Brister filed a dissenting
opinion, in which Justice O=Neill and Justice Schneider joined.
Maria
Miranda sustained injuries after a tree limb fell on her at
Garner State
Park in
Uvalde
County. Maria and her husband Ray sued the
Texas
Parks and Wildlife Department,
alleging negligence and gross negligence.
The Department filed a plea to the jurisdiction, to which it attached
supporting evidence, and argued that sovereign immunity barred the Mirandas=
claims. The trial court denied the
plea to the jurisdiction and a unanimous court of appeals affirmed, holding that
the trial court could not consider evidence in support of the plea because the
Department did not allege that the Mirandas=
pleadings were a sham for the purpose of wrongfully obtaining jurisdiction. 55 S.W.3d 648,
652.
In
accord with our decision in Bland Independent School District v. Blue, 34
S.W.3d 547 (Tex. 2000), we hold that the trial court in this case was required
to examine the evidence on which the parties relied to determine if a fact issue
existed regarding the alleged gross negligence of the Department. Due to the unusual confluence of
standards erected by the Legislature for waiver of sovereign immunity in the
Texas Tort Claims Act and the recreational use statute, plaintiffs must plead
gross negligence to establish subject matter jurisdiction. Further, if the plaintiffs=
factual allegations are challenged with supporting evidence necessary to
consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs
must raise at least a genuine issue of material fact to overcome the challenge
to the trial court=s
subject matter jurisdiction.
Because the Mirandas failed to raise a genuine issue of material fact
regarding the alleged gross negligence of the Department, we conclude that the
trial court lacked subject matter jurisdiction over this lawsuit. Therefore, we reverse the judgment of
the court of appeals and render judgment dismissing the case.
I. Factual and
Procedural Background
The
Mirandas=
third amended petition contains the following allegations: In April 1998, the Mirandas and their
family were camping and picnicking as paying guests at
Garner State
Park, owned and operated by the
Texas
Parks and Wildlife Department. The Mirandas asked a park ranger to
recommend a campsite that would be safe for children. While standing next to
a picnic table at the recommended campsite, a falling tree branch approximately
twelve inches in diameter and fifteen feet long struck Maria on the
head. As a result of the
incident, Maria suffered extensive injuries to her head, neck, and spine. Ray suffered mental anguish and other
damages related to his wife=s
injuries.
On
May 7, 1999, the
Mirandas filed suit against the Department, alleging negligence and later
amended their suit to add gross negligence claims. With respect to the gross negligence
claims, the Mirandas alleged that the Department Aknew
of the dangers of its falling tree branches, failed to inspect, failed to prune,
failed to alleviate or remove the danger, and consciously and deliberately
failed to warn Plaintiffs of the extremely dangerous condition,@
Aknew
that its property contained hidden, dangerous defect [sic] in that its tree
branches which have not been inspected or pruned regularly fall,@
failed Ato
make safe the dangerous condition of its campsite trees,@
and Afailed
to warn or make reasonably safe the dangerous condition of which it was
aware.@ In addition, the Mirandas alleged that
the Department=s
conduct was Awillful,
wanton, or grossly negligent.@
Over
a year after the Mirandas filed suit and after the parties conducted discovery,
the Department filed a plea to the jurisdiction and motion to dismiss, arguing
that the Mirandas=
allegations were insufficient to invoke a waiver of the Department=s
sovereign immunity under the standard established in the Tort Claims Act and the
recreational use statute.
Tex. Civ. Prac. & Rem. Code '' 101.001-.109; id.
''
75.001-.004.
The Department attached evidence in support of its plea. The Mirandas filed a response to the
Department=s
plea and their third amended original petition. In their response, the Mirandas stated
that they relied on evidence attached to the Department=s
plea, including written discovery responses from the Department and the
deposition the Mirandas took of assistant park manager Craig VanBaarle. At the trial court=s
hearing on the Department=s
plea, the parties addressed the allegations in the Mirandas=
third amended original petition.
The next day, the trial court denied the plea. The Department filed this interlocutory
appeal claiming that the trial court erroneously denied its plea to the
jurisdiction and motion to dismiss.
Id. '
51.014(a)(8).
The court of appeals affirmed the trial court=s
denial of the plea, stating that the Mirandas pled a premises defect cause of
action based on gross negligence under the recreational use statute. 55 S.W.3d at
652. The court of appeals
rejected the Department=s
argument that there was no evidence to support gross negligence, holding that
Athe
trial court was not authorized to inquire into the substance of the claims
because the Department did not specifically allege that the Mirandas=
allegations were pled merely as a sham for the purpose of wrongfully obtaining
jurisdiction.@
Id. (citing
Bland, 34 S.W.3d at 554 and Rylander v.
Caldwell, 23 S.W.3d 132,
135 (Tex. App.BAustin
2000, no pet.)).
The
Department contends that the court of appeals erred in relying solely upon the
conclusory allegations found in the Mirandas=
petition to affirm the trial court=s
denial of the Department=s
plea to the jurisdiction and in disregarding the Department=s
evidence submitted with its plea.
Specifically, the Department contends that gross negligence is a
jurisdictional prerequisite to the Mirandas=
claims and that its evidence affirmatively negates gross negligence. The Department further argues that
because the Mirandas failed to plead specific facts alleging gross negligence in
their petition or introduce evidence to controvert the evidence in the
Department=s
plea, they failed to establish subject matter jurisdiction to proceed with the
litigation.
After
originally dismissing the petition for want of jurisdiction, we granted the
Department=s
petition on motion for rehearing.
Before we consider the substantive issues presented, we first determine
whether we have jurisdiction over this interlocutory appeal.
II.
Conflicts Jurisdiction
When
there is no dissent in the court of appeals, this Court has jurisdiction over
interlocutory appeals only if the court of appeals=
decision Aholds
differently@
or conflicts with Aa
prior decision of another court of appeals or of the supreme
court on a question of law material to a decision of the case.@ Tex. Gov=t Code '
22.001(a)(2);
Schein v. Stromboe, 102 S.W.3d 675, 687
(Tex. 2002);
Tex. Natural Res.
Conservation Comm=n
v. White, 46 S.W.3d 864, 867
(Tex. 2001). Two decisions conflict for purposes of
establishing our jurisdiction under section 22.001(a)(2) when the two cases are so similar that the decision in
one case is necessarily conclusive of the decision in the other. Schein, 102
S.W.3d at 687-88; White, 46 S.W.3d at 867. AThe
conflict must be on the very question of law actually involved and determined,
in respect of an issue in both cases, the test being whether one would operate
to overrule the other in case they were both rendered by the same court.@ Christy v.
Williams, 298 S.W.2d 565, 568-69 (Tex. 1957)
(citation omitted).
The
Department contends that this Court has jurisdiction over its interlocutory
appeal because the court of appeals=
decision here conflicts with our opinion in Bland. In Bland, we held that a trial
court Amay
consider evidence and must do so when necessary to resolve the jurisdictional
issues raised.@ 34 S.W.3d at 555 (emphasis added). While recognizing that Aa
dilatory plea does not authorize an inquiry so far into the substance of the
claims presented that plaintiffs are required to put on their case simply to
establish jurisdiction,@
we explained that Abecause
a court must not act without determining that it has subject-matter jurisdiction
to do so, it should hear evidence as necessary to determine the issue before
proceeding with the case.@ Id.
at 554. AThe
court should, of course, confine itself to the evidence relevant to the
jurisdictional issue.@ Id. at
555.
In
Bland, we included examples of when relevant evidence may be considered
in determining whether jurisdiction has been established. See id. at 554. We also
observed that when the defendant contends that the amount in controversy falls
below the trial court=s
jurisdictional limit, the trial court should limit its inquiry to the
pleadings.
Id. In that situation, we concluded, Athe
plaintiff=s
pleadings are determinative unless the defendant specifically alleges that the
amount was pleaded merely as a sham for the purpose of wrongfully obtaining
jurisdiction.@
Id.
In
this case, the court of appeals inaccurately stated and then misapplied
Bland=s
holding. 55
S.W.3d at 650-52. The court
of appeals held that an inquiry behind the factual allegations pled in support
of subject matter jurisdiction was improper unless the Department specifically
alleged that the Mirandas=
allegations were pled merely as a sham to wrongfully obtain jurisdiction. Id. at
652. This conflicts with our
holding in Bland that a court must consider evidence when
necessary to resolve the jurisdictional issues raised. 34 S.W.3d at 555; see also County of
Cameron v. Brown, 80 S.W.3d 549, 556-57 (Tex. 2002) (considering pleadings
and limited jurisdictional evidence in evaluating forseeability element of
premises defect claim under the Tort Claims Act); Tex. Dep=t
of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (examining
pleadings and limited jurisdictional evidence to determine whether plaintiff
affirmatively demonstrated waiver of sovereign immunity); White, 46
S.W.3d at 868 (analyzing the facts alleged by the plaintiff and to the extent
relevant, evidence submitted by the parties, in considering whether plaintiff
stated a claim for injuries caused by Amotor-driven
equipment@
under the Tort Claims Act). In
Bland, our preclusion of a trial court=s
inquiry behind the facts pled in determining subject matter jurisdiction was
limited to the jurisdictional amount.
34 S.W.3d at 554. Even this bar could be lifted, and
evidence of the jurisdictional amount considered, in circumstances in which an
adverse party asserts that the amount in controversy was pled as a sham to
obtain jurisdiction.
Id. That circumstance is not at issue
here. Thus, the court of
appeals=
holding conflicts with the same question of law that we decided in Bland, and the opinions cannot stand together. Schein, 102
S.W.3d at 689. This conflict
provides the basis for our jurisdiction to consider the merits of the plea. See Tex. Gov=t Code '
22.001(a)(2).
III. The
Department=s
Plea to the Jurisdiction
A. Sovereign
Immunity
In
Texas, sovereign immunity deprives
a trial court of subject matter jurisdiction for lawsuits in which the state or
certain governmental units have been sued unless the state consents to
suit. Tex.
Dep=t
of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999);
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.
1997), superseded by statute on other grounds as stated in Little-Tex
Insulation Co., 39 S.W.3d at 593; Duhart v. State, 610 S.W.2d 740,
741 (Tex. 1980); Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The Texas Tort Claims Act provides a
limited waiver of sovereign immunity.
Tex. Civ. Prac. & Rem. Code ''
101.001-.109. Sovereign immunity
includes two distinct principles, immunity from suit and immunity from
liablity. Jones, 8 S.W.3d at 638; Fed. Sign, 951
S.W.2d at 405. Immunity from
liability is an affirmative defense, while immunity from suit deprives a court
of subject matter jurisdiction.
Jones, 8 S.W.3d at 638; Fed. Sign,
951 S.W.2d at 405. The Tort Claims Act creates a unique
statutory scheme in which the two immunities are co-extensive: ASovereign
immunity to suit is waived and abolished to the extent of liability created by
this chapter.@ Tex. Civ. Prac. & Rem. Code ' 101.025(a); State ex
rel.
State
Dep=t
of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326
(Tex. 2002);
Miller, 51 S.W.3d at 587.
Thus, the Department is immune from suit unless the Tort Claims Act
expressly waives immunity. See Tex. Civ. Prac. & Rem. Code ''
101.001(3)(A) (defining a governmental unit to include
Aall
departments@
of the state), 101.021, 101.025; White, 46 S.W.3d at 868.
The
Tort Claims Act expressly waives sovereign immunity in three areas: A>use
of publicly owned automobiles, premises defects, and injuries arising out of
conditions or use of property.=@ Brown, 80 S.W.3d at 554 (quoting
Tex. Dep=t
of Transp. v. Able, 35 S.W.3d 608, 611
(Tex. 2000)); see
Tex. Civ. Prac. & Rem Code '
101.021. Section 101.058 of the
Tort Claims Act further modifies a governmental unit=s
waiver of immunity from suit by imposing the limitations of liability
articulated in the recreational use statute. Tex. Civ. Prac. & Rem. Code ' 101.058 (ATo the extent that Chapter 75 limits the liability
of a governmental unit under circumstances in which the governmental unit would
be liable under [the Tort Claims Act], Chapter 75 controls.@).
The
recreational use statute provides:
If
an owner, lessee, or occupant of real property other than agricultural land
gives permission to another to enter the premises for recreation, the owner,
lessee, or occupant, by giving the permission, does not:
(1)
assure that the premises are safe for that purpose;
(2)
owe to the person to whom permission is granted a
greater degree of care than is owed to a trespasser on the premises; or
(3)
assume responsibility or incur liability for any injury
to any individual or property caused by any act of the person to whom permission
is granted.
Id.
'
75.002(c)(1)-(3).
Recreational use includes camping and picknicking, the activities in
which the Mirandas were engaged at the state park when Maria was injured.
Id. '
75.001(3). As applied to a
governmental unit, the recreational use statute limits liability even if the
person pays to enter the premises.
Id. '
75.003(c) (excepting governmental units from the chapter=s
exclusion of landowners who charge a fee for recreational use of land).
The
recreational use statute limits the Department=s
duty for premises defects to that which is owed a trespasser.
Id. The limited duty owed a trespasser is
not to injure that person willfully, wantonly, or through gross negligence. Tex.
Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193
(Tex.
1997). Therefore, a
governmental unit waives sovereign immunity under the recreational use statute
and the Tort Claims Act only if it is grossly negligent. Tex. Civ. Prac. & Rem. Code ' 75.002 (c)-(d); City of
Bellmead
v. Torres, 89 S.W.3d 611, 613 (Tex. 2002);
Timmons, 947 S.W.2d at 193.
A[G]ross
negligence involves two components:
(1) viewed objectively from the actor=s
standpoint, the act or omission complained of must involve an extreme degree of
risk, considering the probability and magnitude of the potential harm to others;
and (2) the actor must have actual, subjective awareness of the risk involved,
but nevertheless proceed in conscious indifference to the rights, safety, or
welfare of others.@ Louisiana-Pacific Corp. v.
Andrade, 19 S.W.3d 245, 246
(Tex. 1999) (citing Transp.
Ins. Co. v. Moriel, 879 S.W.2d 10, 23
(Tex. 1994)).
B. Standard of
Review
Sovereign
immunity from suit defeats a trial court=s
subject matter jurisdiction and thus is properly asserted in a plea to the
jurisdiction. Jones, 8
S.W.3d at 637; see also Hosner, 1
Tex. at 769 (recognizing as
appropriate procedure the challenge of a court=s
subject matter jurisdiction through a plea to the jurisdiction). The trial court must determine at its
earliest opportunity whether it has the constitutional or statutory authority to
decide the case before allowing the litigation to proceed. Austin & N.W.R. Co. v. Cluck, 77
S.W. 403, 405 (Tex. 1903) (A[T]here
can be no doubt that the courts of Texas must look to the Constitution of this
state, the enactments of the Legislature, and the common law for their authority
to proceed . . . .@);
see also State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (AAs
a general proposition, before a court may address the merits of any case, the
court must have jurisdiction over the party or the property subject to the suit,
jurisdiction over the subject matter, jurisdiction to enter the particular
judgment, and capacity to act as a court.@);
Gentry v. Bowser & Lemmon, 21 S.W. 569, 570 (Tex. Civ. App.BFort
Worth 1893, no writ) (ACertainly
the court has the right to hear the necessary evidence to enable it to decide as
to whether or not it has power to try the case it is sought to have it
adjudicate, whether the allegations disclosing such want of jurisdiction appear
in the petition of the plaintiff, or in the plea to the jurisdiction by the
defendant.@).
Whether
a court has subject matter jurisdiction is a question of law. Tex.
Natural Res. Conservation Comm=n
v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002). Whether a pleader has
alleged facts that affirmatively demonstrate a trial court=s
subject matter jurisdiction is a question of law reviewed de novo. Likewise, whether undisputed evidence of
jurisdictional facts establishes a trial court=s
jurisdiction is also a question of law.
However, in some cases, disputed evidence of jurisdictional facts that
also implicate the merits of the case may require resolution by the finder of
fact. See Gates v. Pitts,
291 S.W. 948, 949 (Tex. Civ. App.BAmarillo
1927, no writ); Gentry, 21 S.W. at 570; see also Valentin v. Hosp.
Bella Vista, 254 F.3d 358, 363 n.3 (1st Cir. 2001) (observing that in
certain situations, the predicate facts can be so inextricably linked to the
merits of the controversy that the district court may Adefer
resolution of the jurisdictional issue until the time of trial@);
Cameron v. Children=s
Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir. 1997) (A[W]hether
a district court has subject matter jurisdiction is a question for the court,
not a jury, to decide, even if the determination requires making factual
findings, unless the jurisdictional issue is inextricably bound to the merits of
the case.@);
Williamson v. Tucker, 645 F.2d 404, 413 n.6, 416 n.10 (5th Cir. 1981)
(suggesting that a federal district court=s
role in determining jurisdictional facts may be more limited in cases in which
the jurisdictional attack implicates the merits of plaintiff=s
cause of action). In this case, we
address a plea to the jurisdiction in which undisputed evidence implicates both
the subject matter jurisdiction of the court and the merits of the case.
When
a plea to the jurisdiction challenges the pleadings, we determine if the pleader
has alleged facts that affirmatively demonstrate the court=s
jurisdiction to hear the cause.
Tex.
Ass=n
of Bus. v.
Tex. Air Control
Bd., 852 S.W.2d 440, 446 (Tex.
1993). We construe the pleadings
liberally in favor of the plaintiffs and look to the pleaders=
intent.
Id. If the pleadings do not contain
sufficient facts to affirmatively demonstrate the trial court=s
jurisdiction but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should
be afforded the opportunity to amend.
Brown, 80 S.W.3d at 555. If the pleadings affirmatively negate
the existence of jurisdiction, then a plea to the jurisdiction may be granted
without allowing the plaintiffs an opportunity to amend. Id.
However,
if a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised, as the trial court is
required to do. See Bland,
34 S.W.3d at 555 (confining the evidentiary review to evidence that is relevant
to the jurisdictional issue). When
the consideration of a trial court=s
subject matter jurisdiction requires the examination of evidence, the trial
court exercises its discretion in deciding whether the jurisdictional
determination should be made at a preliminary hearing or await a fuller
development of the case, mindful that this determination must be made as soon as
practicable.
Id.
at 554. Then, in a case
in which the jurisdictional challenge implicates the merits of the plaintiffs=
cause of action and the plea to the jurisdiction includes evidence, the trial
court reviews the relevant evidence to determine if a fact issue exists. The United States Supreme Court and all
of the federal circuits have authorized federal district courts to consider
evidence in deciding motions to dismiss for lack of subject matter
jurisdiction. See
Fed. R. Civ. P. 12(b)(1);
Land v. Dollar, 330 U.S. 731, 735 & n.4, (1947), overruled by
implication on other grounds by Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682 (1949) (observing that as a general rule, district
courts have authority to inquire Ainto
the facts as they exist@
Aby
affidavits or otherwise@
as well as the pleadings when determining whether the court has subject matter
jurisdiction). If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea
to the jurisdiction, and the fact issue will be resolved by the fact
finder. However, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a matter of
law.
We
acknowledge that this standard generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c). We adhere to the fundamental precept
that a court must not proceed on the merits of a case until legitimate
challenges to its jurisdiction have been decided. This standard accomplishes this goal and
more. It also protects the
interests of the state and the injured claimants in cases like this one, in
which the determination of the subject matter jurisdiction of the court
implicates the merits of the parties=
cause of action. The standard
allows the state in a timely manner to extricate itself from litigation if it is
truly immune. However, by reserving
for the fact finder the resolution of disputed jurisdictional facts that
implicate the merits of the claim or defense, we preserve the parties=
right to present the merits of their case at trial. Similar to the purpose of a plea to the
jurisdiction, which is to defeat a cause of action for which the state has not
waived sovereign immunity (usually before the state has incurred the full costs
of litigation), the purpose of summary judgments in
Texas is ">to
eliminate patently unmeritorious claims and untenable defenses.="
Casso v. Brand, 776 S.W.2d 551, 556
(Tex. 1989) (quoting City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5
(Tex. 1979)). By requiring the state to meet the
summary judgment standard of proof in cases like this one, we protect the
plaintiffs from having to Aput
on their case simply to establish jurisdiction.@ Bland, 34
S.W.3d at 554. Instead,
after the state asserts and supports with evidence that the trial court lacks
subject matter jurisdiction, we simply require the plaintiffs, when the facts
underlying the merits and subject matter jurisdiction are intertwined, to show
that there is a disputed material fact regarding the jurisdictional issue. See Huckabee v. Time Warner
Entm=t
Co. L.P., 19 S.W.3d 413, 420
(Tex. 2000); Phan Son Van v.
Pena, 990 S.W.2d 751, 753
(Tex. 1999).
Appellate
courts reviewing a challenge to a trial court=s
subject matter jurisdiction review the trial court=s
ruling de novo.
IT-Davy, 74 S.W.3d at 855. When reviewing a plea to the
jurisdiction in which the pleading requirement has been met and evidence has
been submitted to support the plea that implicates the merits of the case, we
take as true all evidence favorable to the nonmovant. See Sci. Spectrum,
Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex.
1997). We indulge every
reasonable inference and resolve any doubts in the nonmovant's favor.
Id.
In
his dissent Justice Jefferson
criticizes this standard of review as depriving plaintiffs responding to a plea
of the procedural protections of a motion for summary judgment, including a
twenty-one day notice period or an adequate time to conduct discovery. Tex. R. Civ. P. 166a(c), 166a(i).
However, the scheduling of a hearing of a plea to the jurisdiction is
left to the discretion of the trial court, which is in the best position to
evaluate the appropriate time frame for hearing a plea in any particular
case. This procedure does not
dramatically differ from that outlined in Texas Rule of Civil Procedure 120a
governing special appearances.
Although Rule 120a requires any affidavits to be used at a hearing on a
special appearance to be served at least seven days before the hearing, it does
not specify the length of a notice period and is therefore presumably subject to
the three-day notice period of Rule 21.
Tex. R. Civ. P. 21. Rule 120a allows the trial court to
order a continuance and allow time for discovery if the development of the case
requires it. Nothing prevents a
trial court from doing the same with a plea to the jurisdiction where evidence
is necessary.
Many
other procedures in Texas practice B
ranging from a trial court=s
rulings on motions to strike intervention to the timing of a class certification
decision to even the alteration of the summary judgment notice periods - also
Adepend[]
. . . upon the wise exercise of discretion by the trial court.@ Union Carbide Corp. v. B.D. Moye,
798 S.W.2d 792, 794 (Tex. 1990)
(Hecht, J., concurring); see, e.g., Tex. R. Civ. P. 42(c)(1)(A) (directing a trial court to determine whether a suit
may be maintained as a class action Aat
an early practicable time@);
Tex. R. Civ. P. 166a(c) (AExcept
on leave of court, with notice to opposing counsel, the motion and any
supporting affidavits shall be filed and served at least twenty-one days before
the time specified for hearing.@)
(emphasis added); Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657
(Tex. 1990) (observing that the trial court has broad discretion in ruling on a
motion to strike intervention, even though Rule 60 does not provide explicit
guidelines for the scheduling of a hearing or the evaluation of evidence). Thus, the
Texas civil procedural scheme
entrusts many scheduling and procedural issues to the sound discretion of the
trial court, subject to appellate review.
Of course, Texas practice and rules also allow the parties to request
additional time to prepare for certain hearings or to conduct discovery upon a
showing of sufficient cause, and the court=s
ruling on such a motion is reviewed for an abuse of discretion. See, e.g.,
Tex. R. Civ. P. 166a(g), 247, 251, 252. We note, also, that federal practice
does not prescribe a procedure for the consideration of jurisdictional evidence
but instead allows the district courts to tailor a method to suit the
requirements of the cases before them.
Land, 330
U.S. at 735 n.4; Moran, 27 F.3d at 172. In any event, the Mirandas do not
complain that they had an inadequate opportunity to conduct sufficient
discovery, nor did they request a continuance to do so.
C. Waiver of
Immunity Based on Premises Defects
1. The
Mirandas=
Pleadings
The
Mirandas contend that their pleadings fall within the Tort Claims Act=s
waiver of immunity for both premises defects and injuries arising out of
conditions or use of property. The
Act provides that a state agency is liable for injury and death caused by Aa
condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas
law.@ Tex. Civ. Prac. & Rem. Code '
101.021(2). The Mirandas=
pleadings allege injuries caused by a falling tree limb, which falls under the
definition of real property B
i.e., A>land,
and generally whatever is erected or growing upon or affixed to land.