IN THE SUPREME COURT OF TEXAS

 

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No. 01-0619

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Texas Department of Parks and Wildlife, Petitioner,

 

v.

 

Maria Miranda and Ray Miranda, Respondents

 

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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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,^[1] 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.^[2]  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);^[3] 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.^[4]  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.^[5]  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).^[6]  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.=@  San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex. 2000) (quoting Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex. 1985) (Gonzalez, J., concurring)).  The Mirandas= allegation of an injury caused by a tree limb falling on Maria Miranda constitutes an allegation of a condition or use of real property and is an allegation of a premises defect.

To state a claim under the recreational use statute, the Mirandas must allege sufficient facts to establish that the Department was grossly negligent.  See Tex. Civ. Prac. & Rem. Code '' 75.002 (c)-(d), 101.021, 101.025, 101.058.  The Mirandas contend that both their allegations and the evidence presented on the plea establish claims of gross negligence.  Looking first to the relevant factual allegations in the third amended petition, the Mirandas claim that (1) they specifically asked the Department=s employee for a recommendation of a safe camping location; (2) at the campsite, Maria was struck by a falling tree branch that severely injured her; (3) the unpruned, uninspected tree branches created a dangerous, defective condition on the premises of which the Department was aware; (4) the Department knew of the dangers of its falling tree branches but failed to inspect, prune, alleviate the dangers, or otherwise make safe the dangerous conditions of its trees; (5) the Department consciously and deliberately failed to warn the Mirandas of the extremely dangerous condition; and (6) the Department=s conduct was willful, wanton, or grossly negligent.  A liberal construction of these allegations, as required, demonstrates that the Mirandas stated a claim against the Department for gross negligence.  This conclusion should not be read as a suggestion that the Department has a duty to inspect every tree in each of the many parks that the Department manages.  Instead, in this case, the Mirandas alleged sufficient facts to survive a plea to the jurisdiction based solely on the pleadings.

Justice Jefferson=s dissent contends that the Mirandas= third amended petition does not state a claim for gross negligence because the allegations are conclusory and do not assert enough specific facts alleging that the Department had actual subjective awareness of the risk involved and proceeded, nevertheless, with conscious indifference.  He suggests that to state a claim the Mirandas should have pled that the Department had Aactual knowledge that the branch would fall yet nevertheless instructed Maria to camp beneath it.@  __ S.W.3d at __.  The pleading hurdle he seeks to erect would be groundbreaking, indeed, extending beyond current requirements under our rules of civil procedure and case law.  Rules 45 and 47 require that the original pleadings give a short statement of the cause of action sufficient to give the opposing party fair notice of the claim involved.  Tex. R. Civ. P. 45, 47; Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988); Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981).  Rule 45 does not require that the  plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action.  Muhr, 749 S.W.2d 494-95.  While it is clear that A[t]he party suing the governmental entity must establish the state=s consent, which may be alleged either by reference to a statute or to express legislative permission,@  Jones, 8 S.W.3d at 638, and that A[m]ere reference to the Tort Claims Act does not establish the state=s consent to be sued and thus is not enough to confer jurisdiction on the trial court,@ Miller, 51 S.W.3d at 587, the Mirandas= pleadings allege sufficient facts to bring their claims under the recreational use statute and the Tort Claims Act.

Although facts alleged in a petition should not be improperly stretched to state a claim for gross negligence, Justice Jefferson=s pleading standard for gross negligence would be virtually impossible to meet, even when grossly negligent conduct occurred, absent an admission of liability.  His standard requires specific factual allegations in an original petition of what the defendant knew and thought B i.e., its state of mind.  His pleading hurdle would require discovery into the very extrinsic facts which he bemoans consideration of in the plea to the jurisdiction.  The Mirandas= third amended petition provided sufficient notice to ascertain the nature and basic issues of the controversy and the evidence that probably would be relevant.

Justice Jefferson also contends that the Mirandas are entitled to replead.  As a practical matter, the Mirandas have already repled to try to cure the Adefects@ that Justice Jefferson raises.  The Mirandas no doubt filed their third amended petition, in which allegations of gross negligence were raised for the first time in this lawsuit, in response to the Department=s plea to the jurisdiction.  However, because the Mirandas= third amended petition satisfies the notice pleading requirements of our procedural rules, the Mirandas do not need, nor are they entitled to, an opportunity to replead.  See Tex. R. Civ. P. 47.

2.  The Department=s Evidence

The Department challenged the Mirandas= pleadings and also submitted evidence to controvert the factual allegations supporting jurisdiction.  We consider the relevant evidence submitted to decide this jurisdictional challenge.  See Bland, 34 S.W.3d at 555.  The Department attached the deposition testimony of Craig VanBaarle, the assistant park manager for Garner State Park, to its plea to the jurisdiction.  VanBaarle testified that while the park normally inspects and maintains its trees, tree limbs are only pruned or trimmed if they appear to be dead.  According to VanBaarle, the tree limb that fell on Maria was living.  He testified that both dead and living tree limbs have fallen at various locations in the park.  He testified that the park knows that tree limbs can fall and have fallen on approximately twenty occasions.  However, no one had ever been injured by falling tree limbs.  He also testified that the tree limb that injured Maria Miranda fell from fifty feet above the campsite and that the park employees would not have been able to see the limb clearly without climbing the tree even if the limb had been dead.

In addition, the Department attached the affidavit of Roy B. Inks, operations and maintenance specialist at Garner State Park.  Inks= responsibilities included supervision of park maintenance including preservation and maintenance of trees at campsites.  According to his affidavit, Inks inspected the campsite after the accident.  His examination of the tree and the fallen branch failed to reveal any indication that the branch was dead, decaying, or in need of pruning.  Inks opined that there was no reason to conclude that the tree presented a dangerous or hazardous condition.  Inks further opined that the branch that struck Maria Abroke away from the tree as a result of an unpredictable and unforseeable phenomenon known as >sudden branch drop syndrome.=@  Inks explained that A[i]t would be rare for anyone to be able to predict which branches will fall and which ones will not@ as a result of this phenomenon.  The Mirandas cite the Department=s evidence as proof that the Department knew about sudden branch drop syndrome and did nothing about it, thus establishing gross negligence.  The Mirandas did not cite any controverting evidence in their response to the Department=s plea.

We first examine this evidence to determine whether it establishes that the Department was grossly negligent.  We have observed that with regard to the subjective component of gross negligence, it is the defendant=s state of mind B whether the defendant knew about a peril but nevertheless acted in a way that demonstrated that he did not care about the consequences B that separates ordinary negligence from gross negligence.  Louisiana-Pacific, 19 S.W.3d at 246-47.  We search the record for evidence that the Department=s acts or omissions demonstrate that it did not care about the consequences to the Mirandas of a known extreme risk of danger.  The Mirandas fail to point to any evidence, and the record contains no evidence, that shows that sudden branch drop syndrome constitutes an extreme risk of danger or that the Department had actual, subjective knowledge of that risk but nevertheless proceeded in conscious disregard for the safety of others.  Nor is there any evidence that the Department could have taken any reasonable steps to minimize the dangers of an Aunforseeable@ and Aunpredictable@ phenomenon.  We conclude that the evidence in the record establishes that the Department was not grossly negligent and that the Mirandas have failed to raise a fact question regarding the Department=s alleged gross negligence.  The Mirandas fall short of satisfying the requirements for the Legislature=s limited grant of a waiver of sovereign immunity from suit under the applicable statutes.  Therefore, the trial court lacked subject matter jurisdiction.

3.  Dissent

In his dissent, Justice Brister takes the view that all pleas to jurisdiction based on immunity must take the form of two Astandard@ or Aestablished@ motions B either special exceptions or motions for summary judgment.  __ S.W.3d at __.  This approach might be appropriate, if we were starting from scratch.  Given that we are not writing on a blank slate, that pleas have been a useful procedural vehicle in Texas for over 150 years, and that use of its counterpart (Federal Rule of Civil Procedure 12(b)(1)) to challenge subject matter jurisdiction in the federal judicial system when evidence is involved has been authorized by every federal circuit court, the Court declines to abolish by written opinion such pleas to the jurisdiction.

The plea to the jurisdiction was included in procedural rules promulgated by this Court in 1877 and has been used as a procedural vehicle to challenge subject matter jurisdiction in trial courts for over a century and a half.  See Tex. R. Civ. P. 85; Tex. Dist. Ct. R. 7, 47 Tex. 597, 617 (1877); Hosner, 1 Tex. at 769.  In fact, as early as 1893, Texas courts indicated that evidentiary challenges to subject matter jurisdiction raised in pleas to the jurisdiction should be considered by trial courts.  See, e.g., Gates, 291 S.W. at 949; Gentry, 21 S.W. at 570.  With such a long lineage, one wonders why a plea to jurisdiction does not qualify as a Astandard@ or Aestablished@ motion.  Perhaps a second mention in the Texas Rules of Civil Procedure would suffice.

We decide that refining the rules for considering a plea supported by evidence is a better approach than eliminating the motion.  This approach is consistent with precedent, is not disruptive to civil practice going back more than a century, and furthers the legislative purpose of timely adjudicating subject matter jurisdiction when the immunity and liability facts are the same.

There is a suggestion in the dissents that confirming in this opinion the authority of trial courts to consider evidence in a plea to the jurisdiction is unfair to the parties in this case.  The facts undercut this assertion.  At the trial court, both parties relied on extrinsic evidence in briefing the plea, and both parties had extrinsic evidence on file with the court.  Furthermore, plaintiffs expressly stated in their response to the plea that they were relying on ADefendants= responses to discovery requests, and upon the deposition of Craig VanBaarle [the Department=s assistant park manager].@  In fact, the Mirandas deposed VanBaarle months before the Department filed its plea.  There is good reason why Plaintiffs have not argued unfair surprise.  Given Texas precedents and the actions of the parties, there was none.

D.  Waiver of Immunity Based on Condition or Use of Tangible Property

The Mirandas assert that their pleadings also state a cause of action for injuries resulting from a condition or use of tangible property.  The allegations in the Mirandas= third amended petition concern only the Department=s failure to act to reduce risks of falling tree limbs and failure to warn the Mirandas of the risk of falling tree limbs.  These allegations comprise the elements of their premises defect claim.  The Tort Claims Act=s scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in section 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of tangible property.  See State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974) (rejecting the argument that the Tort Claims Act Acreates two entirely separate grounds of liability@ for negligent use or condition of real property and premise defect, but instead interpreting the premises defect provision to further limit the waiver of immunity for negligent use or condition of real property).  Other Texas courts have recognized that to allow plaintiffs to characterize premises defect claims as claims caused by the negligent condition or use of personal or real property would render the Legislature=s heightened requirements for premises defect claims meaningless.  See, e.g., State v. Estate of Horton, 4 S.W.3d 53, 54 (Tex. App.BTyler 1999, no pet.) (stating that once a claim is determined to be a premises defect, the claimant is limited to the provisions delineated by the section on premises defects and may not assert a general negligence theory); accord Laman v. Big Spring State Hosp., 970 S.W.2d 670, 671-72 (Tex. App.BEastland 1998, pet. denied); Univ. of Texas-Pan Am. v. Valdez, 869 S.W.2d 446, 450 (Tex. App.BCorpus Christi 1993, writ denied); Hawley v. State Dep=t of Highways and Pub. Transp., 830 S.W.2d 278, 281 (Tex. App.BAmarillo 1992, no writ).  Accordingly, we conclude that the Mirandas have not established a cause of action under the Tort Claims Act for condition or use of tangible property separate from their premises defect claim.

IV.  Conclusion

Trial courts should decide dilatory pleas early B at the pleading stage of litigation if possible.  Here, the Legislature=s mandate is not so simple.  By statute, waiver of sovereign immunity for recreational use of the Department=s premises can only be effected by a showing that it acted with gross negligence.  Due to the standard erected (gross negligence), the determination of whether immunity was waived may require consideration of extrinsic facts after reasonable opportunity for targeted discovery.  To preclude consideration of extrinsic facts when necessary to decide a plea to the jurisdiction would require a trial on the merits for many cases that do not need it, waste the resources of the courts and the parties in the case, and involve state courts in rulings on the merits in cases over which they have no jurisdiction.

For the reasons explained, we conclude that the Department established that it was not grossly negligent and that the Mirandas failed to raise a fact issue on that point.  Thus, the trial court lacked subject matter jurisdiction over the action.  The judgment of the court of appeals is reversed and the Mirandas= action dismissed for lack of subject matter jurisdiction.

 

 

________________________________________

J. Dale Wainwright

Justice

 

 

OPINION DELIVERED:  April 2, 2004