CITY OF HOUSTON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2025)

OPINION

In this interlocutory appeal arising from a motor vehicle accident between Rique Wright and a municipal employee, the City of Houston (“Houston”) challenges the trial court's denial of its Rule 91a motion to dismiss.¹ In its first two issues, Houston asserts that the trial court erred in denying its motion to dismiss because State Farm's petition failed to demonstrate the trial court's subject matter jurisdiction by alleging sufficient facts to establish a waiver of governmental immunity. In a third issue, Houston asks us to dismiss for want of jurisdiction the petition in intervention filed by Wright because Wright's petition suffers from the same deficits as State Farm's petition and Wright lacks standing to bring a claim for property damage.

We hold that State Farm failed to allege sufficient facts to invoke a waiver of Houston's governmental immunity under the Texas Tort Claims Act (“TTCA”). Thus, State Farm's petition fails to demonstrate jurisdiction over its claim. Even accepting the pleaded facts as true, as we must in the context of a Rule 91a motion to dismiss, State Farm's petition does not plead a claim with a basis in law, and the trial court was required to grant the motion to dismiss. Further, because State Farm had an opportunity to amend its petition and still did not cure this pleading deficiency, we reverse and render judgment dismissing with prejudice State Farm's claim.

We do not address Houston's third issue, in which it challenges Wright's petition in intervention, because Wright is not a party to this appeal and we lack appellate jurisdiction over his claims.

Background

This case arises from a motor vehicle collision that allegedly occurred in February 2022, involving State Farm's insured driver, Wright, and a vehicle driven by a Houston police officer.² State Farm, purportedly as Wright's subrogee, filed suit against Houston for property damage on October 2, 2023. In its Original Petition, State Farm alleged that a Houston employee, “driving in an unsafe and negligent manner, caused a collision” with Wright's vehicle. State Farm alleged that the employee “had a duty to exercise ordinary care and operate his/her vehicle reasonably and prudently,” “was [Houston's] agent, servant, and employee,” and “was acting within the course and scope of his/her authority” as Houston's agent, servant, or employee. State Farm quoted section 101.021(1) of the Civil Practice and Remedies Code, which provides that a governmental unit is liable for “property damage ․ proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if ․ the property damage ․ arises from the operation or use of a motor vehicle ․ and the employee would be personally liable to the claimant ․”³ State Farm did not allege any other facts about the accident (including that the Houston employee was a police officer) or Houston's governmental immunity.

Houston answered with a general denial, asserted that State Farm's claims were “barred by and/or do not fall within the waiver of Chapter 101,” and claimed all exemptions and exceptions from the statutory waiver of immunity under the TTCA. Houston filed a timely Rule 91a motion to dismiss State Farm's claims (the “First Rule 91a Motion”). In this motion, Houston asserted that State Farm's claims had no basis in law and must be dismissed. Specifically, Houston urged that it enjoyed governmental immunity from suit under the TTCA and that State Farm did not plead facts negating application of “official immunity, the TTCA's emergency exception, or 9-1-1 exception.” Houston set the motion for submission on January 19, 2024.⁴

On January 17, 2024, two days before the submission date, State Farm filed an amended petition. In its First Amended Petition, State Farm made the same allegations as described above but added allegations that Houston's employee:

was not acting under an emergency situation; therefore, the emergency exception in § 101.055 and the 9-1-1 exception in § 101.065 of the Texas Civil Practice and Remedies Code do not apply. In the alternative, in the event the emergency exception does apply, [State Farm] asserts the action[s] of [Houston's] employee were taken with conscious indifference or reckless disregard for the safety of others.

State Farm did not plead any additional facts about the accident or the officer's conduct. State Farm did not file a response to the First Rule 91a Motion. The trial court denied the motion by written order signed on January 22, 2024.

Houston timely filed its notice of interlocutory appeal of the court's order denying the First Rule 91a Motion. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). This court acquired jurisdiction upon Houston's filing of the notice of appeal. See City of Houston v. Boodoosingh, 693 S.W.3d 894, 896 n.1 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (court has jurisdiction over interlocutory appeal from denial of Rule 91a motion to dismiss based on governmental entity's challenge to subject matter jurisdiction based on governmental immunity).

Meanwhile in the trial court, on February 2, Wright filed a petition in intervention, seeking personal-injury and property damages for the alleged negligence of Houston's employee. In his amended petition, filed on February 5, Wright alleged the following:

• On February 6, 2022, his vehicle was hit by a Houston police officer, Wendell Ray Scott, in an intersection on the Sam Houston Tollway West service road;

• Wright's traffic signal was green when he entered the intersection;

• Officer Scott's vehicle had “no lights, no sirens, and no vehicle lights engaged at the time of the accident”;

• The officer who investigated the crash indicated in his report that Officer Scott “failed to clear the intersection and struck” Wright's vehicle;

• Wright “believes that [Houston's] employee was not in fact on an emergency call, and/or did not have his emergency lights or other emergency equipment engaged prior to this collision to trigger the protections afforded under [Houston's] claim of governmental immunity”; and

• Because Officer Scott would be personally liable to Wright, Houston was therefore liable for Wright's claims under the TTCA, section 101.021(1).

Houston answered Wright's amended petition in intervention on February 9 and filed an amended answer on February 12. In its amended answer, Houston generally denied Wright's allegations and pleaded governmental immunity under the TTCA. Additionally, Houston claimed “the exemptions and exceptions from, and limitations on, liability provided by the [TTCA sections 101.055(2) and 101.062] as [Houston's] driver, HPD Officer Scott was responding to an emergency call and was operating his vehicle's lights and sirens at the time of the collision.” Houston also alleged that Wright lacked standing to bring a claim for property damage because he assigned that right to plaintiff State Farm.

Houston filed a Rule 91a motion to dismiss Wright's claims on February 9 (the “Second Rule 91a Motion”). In the motion, Houston contended that Wright failed to plead factual allegations showing that Houston's governmental immunity was waived, nor did Wright plead any facts “that would negate application of official immunity, the TTCA's emergency exception, or 9-1-1 exception.” Houston further asserted that Wright lacked standing to assert a claim for property damages because State Farm, Wright's insurer, paid for his loss and State Farm thus owns that claim.

Once Houston perfected its interlocutory appeal from the order denying its First Rule 91a Motion, all proceedings in the trial court were stayed. Tex. Civ. Prac. & Rem. Code § 51.014(b). Houston's Second Rule 91a Motion, on file for merely three days at the time Houston filed its notice of appeal, had not been heard or set for hearing or submission at that time.

Analysis

A. Standard of Review

Houston challenges the denial of its First Rule 91a Motion. If a cause of action has no basis in law or fact, a party may move for dismissal under Rule 91a. Tex. R. Civ. P. 91a; see also In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021). The motion “must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.” Tex. R. Civ. P. 91a.2. In its motion, Houston argued that State Farm's claim has no basis in law.

We review de novo whether a cause of action has any basis in law. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021). We accept as true the factual allegations in the pleadings and liberally construe the pleadings in favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 808 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If needed, the trial court may draw reasonable inferences from the factual allegations to determine if the cause of action has any basis in law or fact. Boodoosingh, 693 S.W.3d at 896-97. A court may not consider evidence and must decide the motion “based solely on the pleading of the cause of action.” Tex. R. Civ. P. 91a.6; see City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).

“A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Tex. R. Civ. P. 91a. This provision may arise in two circumstances: (1) the petition alleges too few facts to demonstrate a viable, legally cognizable right to relief; or (2) the petition alleges additional facts that, if true, bar recovery. Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

B. Governmental Immunity and Waiver

Governmental units are immune from suit unless immunity is waived by state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). Houston, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The TTCA waives immunity of governmental units like Houston when the negligence of an employee acting within the scope of employment proximately causes personal injury arising from the operation or use of a motor-driven vehicle, and if the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code § 101.021(1).

If a governmental unit has immunity from suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). The plaintiff has the burden to affirmatively demonstrate that the trial court has jurisdiction, which includes the burden to plead facts “establishing a waiver of sovereign immunity in suits against the government.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see Rattray v. City of Brownsville, 662 S.W.3d 860, 865-66 (Tex. 2023).

C. Whether State Farm pleaded sufficient facts to establish Houston's governmental immunity is waived

In its first and second issues, Houston asserts that the trial court erred by denying its First Rule 91a Motion because, among other reasons, State Farm failed to allege sufficient facts establishing a waiver of governmental immunity.

1. The relevant pleading is State Farm's Original Petition.

As part of its first issue, Houston asserts that the trial court was prohibited from considering State Farm's First Amended Petition because it was filed less than three business days before the First Rule 91a Motion's submission hearing. We agree.

Rule 91a.5, governing the timing of an amended pleading in response to a Rule 91a motion, provides in pertinent part:

(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.

(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).

Tex. R. Civ. P. 91a.5 (emphasis added).

Houston filed its First Rule 91a Motion on December 18, 2023, setting it for submission on January 19, 2024 at 8:30 a.m. Without responding to the motion, State Farm filed its First Amended Petition on January 17—two days before submission. Because State Farm did not amend its petition three days prior to the submission date, the trial court was required to rule on the First Rule 91a Motion without considering this untimely amendment.⁵ Thus, we review State Farm's Original Petition.

2. State Farm failed to invoke a clear and affirmative waiver of immunity.

The entirety of State Farm's factual allegations concerning this accident are as follows:

This lawsuit is relative to a motor vehicle accident which occurred on or about February 6, 2022, in Houston, Harris County, Texas, when an employee of Defendant, driving in an unsafe and negligent manner, caused a collision with Plaintiff's vehicle. Defendant's employee had a duty to exercise ordinary care and operate his/her vehicle reasonably and prudently. The negligence of Defendant and/or Defendant's employee was the proximate cause of Plaintiff's damages as set forth herein.

At the time of the collision described above, the driver of Defendant's vehicle was the agent, servant, and employee of Defendant, CITY OF HOUSTON, and was acting within the course and scope of his/her authority as such agent, servant, and employee. Furthermore, the driver of Defendant's vehicle was acting with the sponsorship and approval of Defendant, CITY OF HOUSTON. Therefore, Plaintiff sues Defendant, CITY OF HOUSTON, for negligence.

Following these allegations, State Farm quoted TTCA section 101.021(1), which provides that a governmental unit is liable for, as relevant here, property damage caused by the negligence of an employee acting within his scope of employment arising from the use of a motor-driven vehicle, if that employee would be personally liable to the claimant under Texas law. See Tex. Civ. Prac. & Rem. Code § 101.021(1). The Original Petition does not allege any additional facts pertaining to section 101.021(1).

Affording State Farm's pleading the required liberal reading, it alleged that an unnamed Houston employee, driving in an unsafe and negligent manner while acting within the course and scope of his employment, caused a collision with State Farm's insured's vehicle.

State Farm's allegation that Houston's employee driver was negligent is conclusory because it does not provide any underlying factual allegations to support the conclusion that the municipal driver was negligent.⁶ State Farm's Original Petition does not contain even minimal factual details about the accident. For example, State Farm did not allege that the employee failed to control his speed, drove at an excessive speed over the legal limit, or proceeded through an intersection against a red signal. State Farm also did not allege that the Houston driver was a police officer, even though this is undisputed and would have been known to State Farm at the time of pleading. In reviewing a Rule 91a motion to dismiss, we need not accept as true conclusory statements.⁷ Additionally, threadbare recitations of the elements of a cause of action, supported by mere conclusory statements, do not suffice to overcome a Rule 91a motion to dismiss.⁸ A plaintiff must allege facts bringing a claim within a waiver of governmental immunity provided by the TTCA. See Rattray, 662 S.W.3d at 867; cf. also First Reserve, 671 S.W.3d at 661-62. Instead of alleging facts, State Farm's petition contains only legal accusations and conclusory assertions, which as stated are insufficient to survive a Rule 91a motion to dismiss.⁹

If a plaintiff has not shown that a claim affirmatively falls within a statutory waiver, the defendant should say so, as Houston did here. See Rattray, 662 S.W.3d at 868. We conclude that State Farm's Original Petition failed to allege sufficient facts to bring its claim within a waiver of Houston's governmental immunity. Id. at 867. Thus, the trial court erred by denying Houston's First Rule 91a Motion. Cf., e.g., Warren, 2024 WL 5132252, at *4; Hernandez, 2024 WL 3867828, at *2.

We sustain Houston's first issue and reverse the trial court's order denying the First Rule 91a Motion. See, e.g., Warren, 2024 WL 5132252, at *4; Hernandez, 2024 WL 3867828, at *2.

D. Whether State Farm is Entitled to Another Opportunity to Amend its Petition

If a plaintiff's pleading does not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend if it did not have a full and fair opportunity to do so in the trial court. See Rusk State Hosp., 392 S.W.3d at96-97; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). If, being on notice of a pleading deficiency, the plaintiff responds with an amended pleading that “still does not allege facts that would constitute a waiver of immunity,” then the trial court should order the case dismissed with prejudice. Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 101 (Tex. 2023); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 831 (Tex. App.—Austin 2014, no pet.) (observing that appellees had an opportunity to, and did, amend pleadings in response to the city's original Rule 91a motion, and they had a second opportunity to amend their pleadings in response to amended Rule 91a motion but chose not to); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 686 (Tex. App.—Austin 2004, no pet.) (court had no obligation to provide further opportunity to amend pleadings when plaintiffs twice amended their petition after plea to jurisdiction was filed).

State Farm's Original Petition does not allege sufficient facts to support a waiver of governmental immunity under the TTCA, but it does not affirmatively negate jurisdiction either. Houston filed its First Rule 91a Motion challenging the Original Petition by pointing out the pleading's jurisdictional deficiencies. State Farm responded with its First Amended Petition. The factual allegations in the First Amended Petition, however, remained materially unchanged from those in the Original Petition. The only material change in the First Amended Petition was the addition of the following paragraph:

Plaintiff STATE FARM asserts that Defendant's employee was not acting under an emergency situation; therefore, the emergency exception in § 101.055 and the 9-1-1 exception in § 101.065 of the [TTCA] do not apply. In the alternative, in the event the emergency exception does apply, Plaintiff STATE FARM asserts the actions of Defendant's employees were taken with conscious indifference or reckless disregard for the safety of others.

Here again, these allegations are conclusory statements rather than factual allegations because State Farm provides no underlying facts to support its conclusions about the employee's conduct. See Warren, 2024 WL 5132252, at *4; see also Hernandez, 2024 WL 3867828, at *3 (noting that allegation that driver drove with “conscious indifference or reckless disregard for safety of others” is “nothing more than a conclusory statement”); La China, 417 S.W.3d at 520. As explained above, we do not accept conclusory assertions as true. Warren, 2024 WL 5132252, at *4 (citing Vasquez, 492 S.W.3d at 451); see also Stallworth, 510 S.W.3d at 190 (cause of action has no basis in law if plaintiff's petition alleges too few facts to demonstrate a viable, legally cognizable right to relief). State Farm's First Amended Petition did not add any factual allegations to cure the deficiencies with the Original Petition.

Thus, although State Farm responded to Houston's First Rule 91a Motion with an amended pleading, that pleading still did not allege facts that would constitute a waiver of Houston's governmental immunity. See Fraley, 664 S.W.3d at 101. This is true for two reasons: (1) the amended pleading was untimely; and (2) the amended pleading's factual allegations remained deficient.

Because State Farm has had a full and fair opportunity to amend its petition, we conclude that it is not entitled to another opportunity to amend.¹⁰ In its brief, State Farm does not request another opportunity to replead or argue that it is entitled to one. Thus, we render judgment dismissing with prejudice State Farm's claims against Houston.

E. Whether to Address Wright's Claims

In its third issue, Houston asserts that this court should render judgment dismissing intervenor Wright's claims against Houston because (1) they suffer from the same pleading deficits as State Farm's petition and (2) Wright does not have standing to assert a claim for property damage.

Houston relies on the oft-repeated principle that issues concerning subject-matter jurisdiction may be raised for the first time on appeal. E.g., Tex. Dep't of Transp. v. Self, 690 S.W.3d 12, 20-21 (Tex. 2024); see also Rattray, 662 S.W.3d at 867 (explaining that non-waivable jurisdictional problems may be raised at any time). To be sure, as an intermediate appellate court, we always have jurisdiction to assess our own appellate jurisdiction and that of the lower court. See Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 699 (Tex. 2022).

However, our appellate jurisdiction to determine jurisdiction extends only to the parties properly before us.¹¹ Under Texas Rule of Appellate Procedure 25.1(b), the filing of a notice of appeal by any party invokes the appellate court's jurisdiction over “all parties to the trial court's judgment or order appealed from.” Tex. R. App. P. 25.1(b) (emphasis added).

Houston's notice of appeal filed on February 12, 2024 appeals the trial court's January 22, 2024 order. The only parties to that order are Houston and State Farm. When the trial court signed that order, Wright had yet to appear in the trial court. Wright did not file a petition in intervention until February 2, 2024. Although Houston filed a second Rule 91a motion challenging Wright's claims, Houston filed its second motion merely three days before noticing its appeal against State Farm, which stayed all trial court proceedings. The trial court has not considered Houston's Rule 91a motion against Wright's claims nor has Wright had the opportunity to respond to it.

Therefore, Wright is not a party to the “order appealed from,” id., he is not a party to this appeal, and this court's appellate jurisdiction is not invoked as to him or his trial court claims.¹² Under these circumstances, it is inappropriate to pass judgment on the trial court's jurisdiction over Wright's claims, which remain pending in the lower court. For this reason, we do not reach Houston's third issue.

Conclusion

Having sustained Houston's first issue, we reverse the trial court's order denying Houston's First Rule 91a Motion. Because State Farm had a fair opportunity to amend its pleading and yet still failed to plead sufficient facts to invoke a waiver of governmental immunity, we render judgment dismissing with prejudice State Farm's claims. See Sykes, 136 S.W.3d at 639; Hernandez, 2024 WL 3867828, at *4.

FOOTNOTES

1.   See Tex. R. Civ. P. 91a (authorizing dismissal of a cause of action having no basis in law or fact). Appellee State Farm Mutual Automobile Insurance Company filed this lawsuit as Wright's subrogee.

2.   Although not mentioned in State Farm's original or amended petition, it was undisputed that a police officer was the Houston employee involved in this accident.

3.   Tex. Civ. Prac. & Rem. Code § 101.021(1).

4.   Houston originally set the motion for submission on January 18, 2024, but amended its notice to change the submission date. On December 21, 2023, State Farm filed a request for an oral hearing, but no ruling on that request appears in the record. The trial court's docket sheet indicates that the motion was heard by submission on January 19.

5.   See id.; Seger v. Branda, No. 01-21-00224-CV, 2022 WL 17981559, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. denied) (mem. op.) (when amended pleading was not filed “at least 3 days before the date of the hearing,” trial court could not consider it in ruling on the motion); Thoele v. Tex. Dep't of Crim. Justice, No. 10-18-00249-CV, 2020 WL 7687864, at *2 (Tex. App.—Waco Dec. 22, 2020, no pet.) (mem. op.) (no error when trial court did not consider untimely filed amended pleading); Odam v. Texans Credit Union, No. 05-16-00077-CV, 2017 WL 3634274, at *5 (Tex. App.—Dallas Aug. 24, 2017, no pet.) (mem. op.) (same); Est. of Savana, 529 S.W.3d 587, 593 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (trial court must rule on motion without considering untimely nonsuit or amendment).

6.   See La China v. Woodlands Operating Co., 417 S.W.3d 516, 520 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (explaining that a conclusory statement “expresses a factual inference without providing underlying facts to support that conclusion”); see also Gibson v. Santizo, No. 14-22-00876-CV, 2025 WL 310681, at *3 (Tex. App.—Houston [14th Dist.] Jan. 28, 2025, no pet. h.) (mem. op.) (“While Gibson asserts that Santizo knew Zuniga was ‘mentally unstable and prone to unprovoked violence’ we conclude this is not a factual allegation but is instead a conclusory statement because it does not provide underlying factual allegations to support the conclusion.”); City of Houston v. Hernandez, No. 14-23-00916-CV, 2024 WL 3867828, at *3 (Tex. App.—Houston [14th Dist.] Aug. 20, 2024, no pet.) (mem. op.) (“Cervantes recites no facts to support the allegation that Drummond acted in a way that he knew or should have known posed a high degree of risk of serious injury, or that he knew the relevant facts but did not care about the result.”).

7.   Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 451 (Tex. App.—San Antonio 2016, pet. denied) (“In the case at bar, although we take all of Laura's factual allegations as true, we need not afford the same deference to plaintiff's legal conclusions or conclusory statements.”).

8.   See id.; see also, e.g., In re First Reserve Mgmt., L.P., 671 S.W.3d 653, 661-62 (Tex. 2023) (orig. proceeding) (“A cause of action has no basis in law under Rule 91a if it is barred by an established legal rule and the plaintiff has failed to plead facts demonstrating that the rule does not apply․ The plaintiff must plead the essential factual allegations supporting those claims, which must be sufficient to support a judgment if timely proven․ Plaintiffs’ third amended petition makes many legal accusations but no factual allegations to show a cause of action with a basis in law․” (internal quotations and citations omitted)); see also Rattray, 662 S.W.3d at 867 (plaintiff must plead facts satisfying the provisions of the TTCA waiving immunity); cf. City of Houston v. Warren, No. 14-23-00756-CV, 2024 WL 5132252, at *4 (Tex. App.—Houston [14th Dist.] Dec. 17, 2024, no pet. h.) (mem. op.) (holding that courts need not accept conclusory statements as true when deciding an appeal from the denial of a Rule 91a motion to dismiss; plaintiffs must include more than a “threadbare recital of the elements of a cause of action supported by conclusory statements in its petition to survive a Rule 91a motion to dismiss”); Hernandez, 2024 WL 3867828, at *2 (“Thus, even construing his pleadings liberally, we cannot conclude that Cervantes alleged sufficient facts to affirmatively show a waiver of immunity.”).

9.   See First Reserve, 671 S.W.3d at 661-62 (explaining that, to survive a Rule 91a motion to dismiss, allegations in a petition must satisfy notice-pleading rules, which means pleadings must not only give notice of the claim and the relief sought, but also of the essential factual allegations); Rattray, 662 S.W.3d at 867.

10.   See Fraley, 664 S.W.3d at 101; Save Our Springs Alliance, 149 S.W.3d at 686 (court had no obligation to provide further opportunity to amend pleadings when plaintiffs twice amended their petition after plea to jurisdiction was filed); cf. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action. Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined.”); Hernandez, 2024 WL 3867828, at *4 (denying plaintiff another opportunity to amend because his amended pleading “still does not allege facts waiving immunity”).

11.   See Sluder v. Ogden, No. 03-10-00280-CV, 2011 WL 116058, at *2 (Tex. App.—Austin Jan. 13, 2011, pet. denied) (mem. op.) (holding appellate court lacked jurisdiction to decide appeal of attorney who had not joined in party's notice of appeal); Benavides v. Knapp Chevrolet, Inc., No. 01-08-00212-CV, 2009 WL 349813, at *3 (Tex. App.—Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op.); Matbon, Inc. v. Gries, 287 S.W.3d 739, 740 (Tex. App.—Eastland 2009, no pet.); Tex-Hio P'ship v. Garner, 106 S.W.3d 886, 893 (Tex. App.—Dallas 2003, no pet.) (appellate court had no jurisdiction over person's claim in trial court when that person was not a party to the appeal); Gray v. HEB Food Store # 4, 941 S.W.2d 327, 331 (Tex. App.—Corpus Christi 1997, writ denied) (holding appellate court lacked jurisdiction over person who was not party to appeal); see also Dickson v. Am. Gen. Life Ins. Co., 698 S.W.3d 234, 235 (Tex. 2024) (Young, J., concurring in denial of review) (“If an appeal on the merits is properly pending before an appellate court ․, that court needs no separate procedural vehicle ․ before it can and must first discharge its duty to ensure its own jurisdiction”) (emphasis added).

12.   Despite not being a party to the order appealed from, Wright filed an appellate brief.

Kevin Jewell, Justice