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Court of Appeals of Texas,Austin.

AUSTIN INDEPENDENT SCHOOL DISTRICT, Appellant, v. Maria Teresa GUTIERREZ, Individually and as Independent Administratrix of the Estate of Adriana Pamela Gutierrez, Deceased, Appellee.

No. 03-00-00645-CV.

Decided: August 30, 2001

Before Justices KIDD, B.A. SMITH and PURYEAR. Michael L. Slack,Donna J. Bowen, Slack & Davis, L.L.P., Austin, for Appellant. James E. Byrom, Ewbank & Byrom, Austin, for Appellee.

Immediately after disembarking from a school bus, eight-year-old Adriana Gutierrez was struck and killed by a passing motorist.   Appellee Maria Teresa Gutierrez, Adriana's mother, filed suit against several defendants, including appellant, Austin Independent School District (“AISD”).   Even though Gutierrez's pleadings alleged a cause of action against AISD pursuant to the Texas Tort Claims Act, AISD filed a plea to the jurisdiction contending that its immunity from suit deprived the trial court of subject-matter jurisdiction.   The trial court denied AISD's plea to the jurisdiction.   AISD brings this interlocutory appeal from that denial.   We will affirm.


On the afternoon of February 9, 1999, an AISD school bus driven by Barbarita Ruiz stopped in the 2100 Block of Burton Drive in Austin to drop off eight-year-old Adriana and her cousin, Raul. The school bus was parked across the street from Adriana's home, so the two children had to cross Burton Drive.   Ruiz honked the bus's horn to signal the children that it was safe to cross the street.   Raul went across safely, but as Adriana crossed the street she was hit by a third-party vehicle.   It was later determined that the driver of that vehicle was intoxicated.   Adriana was taken to Brackenridge Hospital where she died the following morning.

In Gutierrez's pleadings, she argued that AISD “was negligent in the operation or use of a motor-driven vehicle” and was liable pursuant to section 101.021(1)(A) of the Texas Tort Claims Act (“the Act”).1  Gutierrez claims that through specific actions taken by the bus driver involving negligent use or operation of the school bus, AISD waived its immunity under the Act. The actions described by Gutierrez were (1) the failure to use safe and appropriate procedures during the transportation process, which includes the unloading of school children, and (2) the use of the horn to signal Adriana to cross when it was not safe for her to do so.

In response to Gutierrez's pleadings, AISD filed a plea to the jurisdiction and a motion for summary judgment.   In the district's plea to the jurisdiction, AISD contended that it was immune from suit and its immunity was not waived by the bus driver's actions. AISD alleged that the bus driver's actions did not, through the use or operation of a motor-driven vehicle as case law has defined those terms, cause Adriana's death.   The district argued that any actions taken by the driver as alleged by Gutierrez involved only supervision or control of children (or the failure thereof), which does not waive the school district's immunity from suit.   AISD concluded that as there was no waiver of immunity from suit, the trial court lacked subject-matter jurisdiction.

The trial court denied both the plea to the jurisdiction and the motion for summary judgment.   AISD filed an interlocutory appeal from the denial of the plea to the jurisdiction.2


 This is an interlocutory appeal from the denial of a plea to the jurisdiction.   AISD contends that it is immune from suit and that Gutierrez is barred from bringing an action against the school district.3  Therefore, the only issue before this Court is whether the trial court has subject-matter jurisdiction over Gutierrez's cause of action.   We do not address the denial of the motion for summary judgment as it is not before this Court.

The Texas Supreme Court recently discussed pleas to the jurisdiction in the context of the Texas Tort Claims Act. See Texas Dep't of Criminal Justice v. Miller, 44 Tex. Sup.Ct. J. 963, 51 S.W.3d 583 (2001).   The court found that because the Act defines a narrow set of circumstances in which a government entity waives sovereign immunity, an appellate court must first determine the scope of the waiver granted by the terms of the Act, and second examine the specific facts of the case to determine if they fall within the Act's scope.  Id. at 585 (citing Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996), for the first step).4  To determine the scope of the waiver we will examine the applicable sections of the Act with an emphasis on the terms “use” and “operation” as they relate to a motor-driven vehicle.   In examining the facts of the case, we take the factual allegations of the plaintiff's petition as true, as required for a plea to the jurisdiction.  Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949).

At this jurisdictional stage of the proceedings, we are not permitted to address the merits of this case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).   Gutierrez need not prove that the bus driver's actions did constitute a “use” or “operation” of a motor-driven vehicle for this Court to affirm the trial court's order.   However, for this Court to find that AISD has not waived its immunity from suit, AISD must prove as a matter of law that the driver's actions did not constitute “use” or “operation” of a motor vehicle.


 School districts are immune from liability for personal injuries under the Texas Tort Claims Act, unless the injury arises from a governmental employee's operation or use of a motor-driven vehicle.   See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021(1)(A), .051 (West 1997);  LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992).   To establish a waiver of immunity from suit, a plaintiff need only allege that a government motor vehicle was used or operated, and that there was a nexus between the injury and the operation or use of the motor vehicle by a government employee.  Martinez v. Via Metro. Transit Auth., 38 S.W.3d 173, 176 (Tex.App.-San Antonio 2000, no pet.);   see also LeLeaux, 835 S.W.2d at 51.

The first step in determining if there was a waiver of immunity is to decide if there was a use or operation of a motor vehicle.   The Texas Tort Claims Act does not define the terms “use” or “operation,” so we apply their common and ordinary meanings.  Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969).  “Use” is defined as “to put or bring into action or service;  to employ for or apply to a given purpose.”  Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989) (quoting Beggs v. Texas Dep't of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex.Civ.App.-San Antonio 1973, writ ref'd)).   Gutierrez points to a broad reading of the term “use” by the Texas Supreme Court.   See Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 164 (Tex.1999) (holding in liability insurance contract case that accidental discharge of gun mounted over rear window of parked pickup truck by child while climbing through rear window is “use” of motor vehicle as required by policy).   The definition of “operation” is “a doing or performing of practical work.”  Mount Pleasant, 766 S.W.2d at 211 (citing Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809 (Tex.Civ.App.-Corpus Christi 1972, writ ref'd n.r.e.)).

 In general, when applying the term “use” or “operation” in school bus cases, appellate courts have examined whether the employee's act involved actual use or operation of the vehicle, rather than the supervision of children.  Ransom v. Center for Health Care Servs., 2 S.W.3d 643, 645 (Tex.App.-San Antonio 1999, pet. denied);  Goston v. Hutchison, 853 S.W.2d 729, 733 (Tex.App.-Houston [1st Dist.] 1993, no writ);  Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526, 528 (Tex.Civ.App.-Beaumont 1981, writ ref'd n.r.e.).   If the employee's act involved only supervision or control, immunity has not been waived, even if the act took place on or near the motor vehicle.  Goston, 853 S.W.2d at 733;  see also Estate of Garza, 613 S.W.2d at 528.

The second step requires an understanding of the nexus between the injury and the use or operation of the vehicle that is required.   The Texas Supreme Court determined in LeLeaux that the statutory phrase “arises from” requires that there be some connection between the injury and the act of using or operating the vehicle.  835 S.W.2d at 51.   The school employee's negligent act in using or operating the vehicle must have played some role in causing the injury.   See id.

In the present case, AISD argues that it is immune from suit and that the actions of the bus driver did not result in a waiver of immunity.   AISD contends that the procedures used by the bus driver when unloading passengers, including honking the horn, do not constitute a use or operation of the vehicle.   Instead, AISD claims that these procedures are supervisory in nature and are analogous to the actions taken by an individual supervising children at a crosswalk.

On the other hand, Gutierrez contends that the only “use” of a school bus is to transport students and the process of transporting them does not end until the children have safely crossed the street.   Gutierrez specifically points to the bus driver's use of the horn to signal Adriana that it was safe to cross the street as evidence that this use or operation of the motor vehicle contributed to the accident.   Gutierrez argues that this means of signaling students was an inappropriate use of the vehicle.   For support, she cites the training manual for bus drivers, which describes a preferred method for ensuring students' safety when crossing the street.   Gutierrez argues that although Martinez's drunk driving was a factor contributing to the accident, the incident may have been prevented if the bus driver had followed standard procedures as described in the bus driver training manual.   Instead, the bus driver honked the horn, confusing both Adriana and the other drivers.

The parties have cited us to most of the Texas school bus cases in which injured students attempted to sue the school district on the theory that immunity was waived through the use or operation of a motor vehicle.   Our review, however, reveals that most of these cases are clearly distinguishable.5  We will not discuss cases in which the injury occurred on the bus itself or where the injury occurred before a bus arrived at the scene.   See LeLeaux, 835 S.W.2d at 50-51 (resolving case in which student hit her head jumping through emergency door on parked and unattended school bus);  Luna v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442, 443 (Tex.App.-Corpus Christi 1991, writ denied) (resolving case in which children were hit by third party's vehicle while awaiting arrival of school bus at poorly planned location);  Heyer v. North E. Indep. Sch. Dist., 730 S.W.2d 130, 130-31 (Tex.App.-San Antonio 1987, writ ref'd n.r.e.) (resolving case in which driver lost control of private vehicle and hit students waiting at bus stop on school grounds);  Estate of Garza, 613 S.W.2d at 527 (resolving case in which student was stabbed to death by third party while riding school bus).   We will discuss only those cases in which students were hit by another car after they disembarked from a school bus.

One of the first school bus cases to discuss a school district's waiver of immunity when a student was injured was Hitchcock v. Garvin, 738 S.W.2d 34 (Tex.App.-Dallas 1987, no writ).   A student exited the bus and was crossing the street when a car hit her.  Id. at 35.   The plaintiffs alleged that the bus driver did not activate his flashers to signal that students were exiting the bus, which both the bus driver training guide and Texas traffic statutes required.  Id. at 36.   The Dallas court held that the issue of whether the driver had activated his flashers was a question of fact and remanded the case to the trial court for a trial on the merits.  Id. at 37-38.   In addition, the court stated that if the driver had failed to operate his flashers it would constitute an “act or omission arising from the operation or use” of a motor vehicle which waives immunity.6  Id. at 37.

In Mount Pleasant, the school bus left the scene before the accident occurred.  Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 210 (Tex.1989).   Two students were delivered safely to a bus stop on the east side of the highway.   One student crossed the highway without incident.   The bus driver waited for the seven-year-old girl to cross, but left when she failed to do so.   Another driver also tried to signal the girl to cross, but she remained on the east side of the highway.   Once the bus was approximately 200 yards from the girl, she attempted to cross the highway;  a car hit and killed her.   The Texas Supreme Court did not discuss whether the accident arose from the operation or use of a motor vehicle, but instead found that the district had not waived its immunity because the bus driver acted in the manner expected of a reasonably prudent person in the same position.   Id. at 213.   The court focused its attention on the point that school bus drivers are not common carriers and should not be held to a heightened standard of care.  Id.

A second case in which a student was hit by a car after the school bus left the scene is Contreras v. Lufkin Independent School District, 810 S.W.2d 23, 24 (Tex.App.-Beaumont 1991, writ denied).   In that case, a six-year-old girl's proper bus stop was located across the street from her home.   The bus erroneously delivered her to a stop around the corner.   The school bus had left the scene when the girl attempted to cross the street and was struck by a car.   The court found that dropping the girl off at the wrong stop did arise from the operation and use of the motor vehicle, and therefore immunity was waived.  Id. at 26.

The Contreras decision, however, was criticized in Goston v.. Hutchison, 853 S.W.2d 729, 733 (Tex.App.-Houston [1st Dist.] 1993, no writ).   In that case, a bus driver allowed two students to exit the bus at an undesignated stop at their request.   They got into a car driven by a friend and were involved in a collision.   One of the students was killed and the other was seriously injured.   The Houston court decided that leaving a student at the wrong stop was a failure to properly supervise the student and did not involve the use or operation of a motor vehicle.  Id. at 734.   Thus, the court concluded that the bus driver's actions did not waive immunity. Id.

The final case is Ransom v. Center for Health Care Services, 2 S.W.3d 643 (Tex.App.-San Antonio 1999, pet. denied).  Ransom is not a school bus case, but it does involve a governmental entity transporting an individual, and the San Antonio court relied on previous school bus cases in making its decision.   Ransom, a mentally retarded man, was delivered to the bus stop across the street from his group home at three o'clock in the morning.   The driver waited for Ransom to cross the street, but when he did not, the driver left the scene.   When Ransom attempted to cross the street, a drunk driver hit him.   The court followed the rationale in Goston and held that the plaintiff's suit was barred by sovereign immunity.  Id. at 645.   The court decided that any action taken by the driver was supervisory rather than a use or operation of the motor vehicle.  Id.

The present case has facts that are unique when compared with the above cases.   In both Contreras and Goston, the bus driver dropped the student off at the wrong stop and then left the scene.   The appellate courts in those cases differed regarding whether the drivers' actions were supervisory or were an aspect of a use or operation of the motor vehicle.   In both Mount Pleasant and Ransom, the injured individual was left at the correct stop but delayed crossing the street, and the bus left.   All four of these cases are factually distinguishable from the present case because Adriana's bus was still at the scene when the incident occurred.   It is much easier to find there was not “use” or “operation” when there was no bus present at the scene to use or operate.   Even with this distinction, Contreras provides authority for the argument that use or operation can be found even when the bus is no longer present if the bus driver took affirmative action (leaving the child at the wrong stop) that may have contributed to the accident.

The case closest to the facts in this cause is Hitchcock from the Dallas court of appeals.   See 738 S.W.2d at 34.   In Hitchcock, the bus driver allegedly failed to take action that could have helped the student cross the street safely, in that he did not turn on his flashing lights.   In this case, the driver attempted to take the affirmative action of honking the horn to help the student cross the street.   See id. at 36.   In both cases, the decisions made by the drivers (either to act or not to act) were contrary to their training.   In reviewing all of the other appellate cases, we find that Hitchcock is the most analogous to the current cause.   Its holding, that the bus driver's action constituted a use or operation of a motor vehicle, is highly persuasive and applicable to this case.

AISD has an extremely heavy burden in this appeal from a denial of its plea to the jurisdiction.   AISD must demonstrate from the body of appellate case law that the factual allegations contained in Gutierrez's petition cannot, as a matter of law, constitute an operation or use of a motor vehicle.   After reviewing the cases cited by AISD, we hold that the school district has not met this burden.   Most of the cases upon which AISD relies involve situations in which the school bus was not present at the scene when the accident occurred, or in which the accident occurred on the bus itself, but did not result from actions taken by the bus driver.   It is easy to argue that those cases involved supervisory actions rather than “use” or “operation” of a motor vehicle by a governmental employee.   Here, the bus was present at the time of the accident, and the bus driver took the affirmative action of honking the horn 7 which may have contributed to the accident.   The cases cited by the parties would seem to establish that this constitutes a “use.”   See, e.g., Hitchcock, 738 S.W.2d at 34.   This case may be even stronger than Hitchcock where the bus driver took no action, because the driver of Adriana's bus took affirmative action.   Cases relied on by AISD focus on the fact that the bus was not present at the time of the accident to determine that the bus driver's actions were supervision rather than “use” or “operation.”   Here, the bus's presence at the accident scene distinguishes it from those cases.   Based on these facts, the court was correct in denying AISD's plea to the jurisdiction.


In conclusion, we hold that AISD has not demonstrated as a matter of law that the bus driver's honking of the horn did not constitute “use” or “operation” of a motor vehicle.   We affirm the judgment of the trial court.


1.   Section 101.021of the Act reads: § 101.021. Governmental LiabilityA governmental unit in the state is liable for:(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment․Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (West 1997) (emphasis added);  see also id. § 101.051.

2.   A party may appeal from an interlocutory order only under certain circumstances.   See id. § 51.014 (West Supp.2001).   These include the denial of a plea to the jurisdiction by a government entity.   Id. § 51.014(8).   However, a party is not allowed to appeal an interlocutory order denying summary judgment, unless it is based on the assertion of immunity by an individual officer or employee of the state, or unless the claim involves a member of the print or electronic media.   Id. § 51.014(5), (6).   As neither of these circumstances were present in this case, AISD is unable to appeal the denial of the motion for summary judgment.   Therefore, the denial of AISD's motion for summary judgment will not be considered by this Court.   See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980).

3.   A governmental entity may claim immunity from suit or immunity from liability.  Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999).   Immunity from suit completely bars an action against the state unless the state waives its immunity and consents to suit.  Id. This is a jurisdictional issue because, without the state's consent, a trial court lacks jurisdiction to hear the case.  Id. Immunity from liability protects a government entity from judgment, but does not prevent the case from going to trial.  Id. This is an affirmative defense that must be pleaded, rather than an issue to be raised in a plea to the jurisdiction.  Id. At this stage of the proceeding, the issue of immunity from liability is not before us.   The denial of AISD's plea to the jurisdiction only raises the issue of immunity from suit.

4.   The statute reads as follows: § 101.025. Waiver of Governmental Immunity;  Permission to Sue(a) Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.(b) A person having a claim under this chapter may sue a governmental unit for damages allowed by this chapter.Tex. Civ. Prac. & Rem.Code Ann. § 101.025 (West 1997).

5.   We note at the outset that none of the cases cited by either party involve pleas to the jurisdiction.   Most of the case law regarding the parameters of use of a motor vehicle have arisen in a summary judgment context.

6.   Appellant seeks to distinguish Hitchcock on the basis that failure to activate the flashers was a violation of a statute and therefore negligence per se.   A review of the case demonstrates that the court's decision was not based on this rationale.  Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex.App.-Dallas 1987, no writ).

7.   We take as true, as we must for jurisdictional purposes, Gutierrez's contention that the bus driver honked the horn to signal Adriana to cross the street.  Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949).

KIDD, Justice.

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