Full Opinion (html_with_citations)

                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-23-00239-CV

REMECOS BARLEY,
                                                            Appellant
v.

UNIVERSITY OF TEXAS MEDICAL BRANCH
AND THE STATE OF TEXAS,
                                                            Appellees



                           From the 440th District Court
                              Coryell County, Texas
                           Trial Court No. DC-20-50867


                          MEMORANDUM OPINION


      In two issues, inmate Remecos Barley complains about the trial court’s order

granting a plea to the jurisdiction in favor of appellees, the University of Texas Medical

Branch (“UTMB”) and the State of Texas, and the trial court’s orders denying his motion

for continuance and motion for leave. We affirm.
                                              Background

        Barley sued appellees, alleging that appellees violated their legal duty to properly

diagnose and provide him with adequate medical care. Barley further alleged that UTMB

was negligent in hiring, training, and supervising medical personnel; for failing to

provide proper restrictions for housing and his job; and failing to arrange surgery in a

timely manner. In his live pleading, Barley “invoke[d] the subject matter jurisdiction” of

the trial court under “Section 101.002 of the Texas Civil Practice and Remedies Code.”

        Appellees responded by filing a plea to the jurisdiction, asserting that Barley failed

to plead a valid waiver of sovereign immunity. Barley filed a response to appellees’ plea

to the jurisdiction.       After a hearing, the trial court granted appellees’ plea to the

jurisdiction and dismissed the case.

        Approximately two weeks after the trial court signed the order granting appellees’

plea to the jurisdiction and dismissing Barley’s claims, Barley filed a motion for

continuance and sought leave to file a third amended petition, wherein, Barley asserted,

for the first time, that appellees’ immunity was waived based on an alleged injury he

suffered while operating State-owned property. The trial court denied Barley’s motion

for leave and motion for continuance. This appeal followed.

                                        Plea to the Jurisdiction

        In his first issue, Barley appears to complain that the trial court erred by granting

appellees’ plea to the jurisdiction. See TEX. R. APP. P. 38.9. We disagree.


Barley v. Univ. of Tex. Med. Branch, et al.                                             Page 2
STANDARD OF REVIEW

        Sovereign immunity implicates a trial court’s subject-matter jurisdiction and is

properly asserted in a plea to the jurisdiction. Tex. Dep’t of Criminal Justice v. Rangel,
595 S.W.3d 198
, 205 (Tex. 2020). “A jurisdictional plea may challenge the pleadings, the

existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 770
 (Tex. 2018). Generally, we review the trial court’s ruling on a plea to the

jurisdiction de novo. Houston Belt & Terminal Ry. Co. v. City of Houston,
487 S.W.3d 154, 160
 (Tex. 2016). “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. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226
 (Tex. 2004).

        But when a plea to the jurisdiction challenges the existence of jurisdictional
        facts, we look beyond the pleadings and consider evidence submitted by
        the parties “when necessary to resolve the jurisdictional issues raised,”
        even if the evidence implicates both the court’s jurisdiction and the merits
        of a claim. Miranda,
133 S.W.3d at 227
. For a plea that challenges the
        existence of jurisdictional facts, our standard of review generally mirrors
        that of a traditional summary judgment: a plaintiff must raise a genuine
        issue of material fact to overcome the challenge to the trial court’s
        jurisdiction.
Id. at 221, 228
. In determining whether the plaintiff has met
        that burden, “we take as true all evidence favorable to” the plaintiff and
        “indulge every reasonable inference and resolve any doubts in the
        [plaintiff’s] favor.
Id. at 228
. If the evidence and allegations create a fact
        question regarding jurisdiction, then a court cannot grant a plea to the
        jurisdiction, and the factfinder must resolve the fact issue.
Id. at 227-28
. But
        “if the relevant evidence is undisputed or fails to raise a fact question on
        the jurisdictional issue,” a court rules “on the plea to the jurisdiction as a
        matter of law.”
Id. at 228
.

Rangel, 595 S.W.3d at 205.


Barley v. Univ. of Tex. Med. Branch, et al.                                                Page 3
APPLICABLE LAW

        Generally, the common law doctrine of sovereign immunity prevents the state

from being sued without the state’s consent. Nettles v. GTECH Corp.,
603 S.W.3d 63
, 67

(Tex. 2020). Appellees share this immunity. See Rangel, 595 S.W.3d at 205. The State and

its agencies may be sued if the Legislature waives immunity in “clear and unambiguous

language.” Sampson v. Univ. of Tex. at Austin,
500 S.W.3d 380, 384
 (Tex. 2016). The Texas

Tort Claims Act (“TTCA”) provides a limited waiver of the state’s immunity from suit

for certain negligent acts committed by governmental employees. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021; see also Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie,
578 S.W.3d 506, 512
 (Tex. 2019). The TTCA waives the state’s immunity for personal injuries

or death caused by: (1) use of publicly-owned automobiles; (2) a condition or use of

tangible personal property; and (3) premises defects. TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021; see Sampson,
500 S.W.3d at 384
. The TTCA does not create a cause of action;

it merely waives immunity “‘as a bar to a suit that would otherwise exist.’” El Paso Cnty.

Water Improvement Dist. #1 v. Ochoa,
554 S.W.3d 51, 55
 (Tex. App.—El Paso 2018, no pet.)

(quoting City of Tyler v. Likes,
962 S.W.2d 489, 494
 (Tex. 1997)). The TTCA’s waiver of

immunity is applicable only if “the government unit would, were it a private person, by

liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. §

101.021(2).




Barley v. Univ. of Tex. Med. Branch, et al.                                          Page 4
DISCUSSION

        Although Barley mentioned the trial court’s granting of appellees’ plea to the

jurisdiction in his issues presented and the summary of the argument, Barley does not

complain about or cite authority addressing the merits of the trial court’s granting of

appellees’ plea to the jurisdiction. Rather, his argument appears to focus on whether he

should have been afforded the opportunity to replead a waiver of sovereign immunity.

Regardless, Barley’s failure to complain about the merits of the trial court’s granting of

appellees’ plea to the jurisdiction in his appellant’s brief waives the issue. See TEX. R. APP.

P. 38.1(i) (“The brief must contain clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.”); see also Washington v. Bank

of N.Y.,
362 S.W.3d 853, 854
 (Tex. App.—Dallas 2012, no pet.) (“Bare assertions of error,

without argument or authority, waive error.” (citations omitted)).

        However, to the extent that Barley’s briefing could be construed as a challenge the

merits of the plea to the jurisdiction, we note that Barley did not plead a clear and

unambiguous waiver of appellees’ immunity. Specifically, Barley alleged that appellees’

sovereign immunity was waived under the TTCA by negligently diagnosing his alleged

injuries; negligently hiring, training, and supervising medical personnel; failing to

provide proper restrictions for housing and his job; and failing to arrange surgery in a

timely manner.         These bare assertions do not involve the use of publicly-owned

automobiles, a condition or use of tangible personal property, or a premises defect. See


Barley v. Univ. of Tex. Med. Branch, et al.                                             Page 5
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; see also Sampson,
500 S.W.3d at 384
.

Accordingly, we cannot say that the trial court erred by granting appellees’ plea to the

jurisdiction. We overrule Barley’s first issue.

                         Motion for Continuance and Motion for Leave

        In his second issue, Barley complains that the trial court erred by denying his

motion for continuance and motion for leave to file an amended petition to cure

jurisdictional defects pertaining to immunity.

        We review the trial court’s denial of leave to file a post-judgment amended

pleading for an abuse of discretion. See Wal-Mart Stores, Inc. v. McKenzie,
997 S.W.2d 278, 280
 (Tex. 1999); Greenhalgh v. Service Lloyds Ins. Co.,
778 S.W.2d 938, 939
 (Tex. 1990); Menix

v. Allstate Indem. Co.,
83 S.W.3d 877, 881
 (Tex. App.—Eastland 2002, pet. denied). Under

Texas Rules of Civil Procedure 63 and 66, a trial court has no discretion to refuse an

amendment unless (1) the opposing party presents evidence of surprise or prejudice, or

(2) the amendment contains the assertion of a new cause of action or defense and, thus,

is prejudicial on its face, and the opposing party objects to the amendment. Menix,
83 S.W.3d at 881
 (citing Greenhalgh, 787 S.W.2d at 939; Hardin v. Hardin,
597 S.W.2d 347
, 349-

50 (Tex. 1980); Resolution Trust Corp. v. Cook,
840 S.W.2d 42, 46
 (Tex. App.—Amarillo 1992,

writ denied); Whole Foods Market Sw., L.P. v. Tijerina,
979 S.W.2d 768, 775-76
 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied)). Ordinarily, the burden of showing prejudice or

surprise rests on the party resisting the amendment. Greenhalgh,
778 S.W.2d at 939
.


Barley v. Univ. of Tex. Med. Branch, et al.                                             Page 6
However, “where the amendment is prejudicial on its face, the burden is on the offering

party to show that the court abused its discretion by failing to permit the amendment.”

Favor v. Hochheim Prairie Farm Mut. Ins. Ass’n,
939 S.W.2d 180, 181-82
 (Tex. App.—San

Antonio 1996, writ denied) (citing Greenhalgh, 787 S.W.2d at 939 (recognizing that an

amendment asserting a new cause of action or defense is prejudicial on its face); Hardin,
597 S.W.2d at 349
 (placing the burden on the complaining party to show an abuse of

discretion where the trial court refuses amendment that introduces “new substantive

matter”)).

        Here, the trial court granted appellees’ plea to the jurisdiction and dismissed

Barley’s claims on June 29, 2023. Barley filed his motion for continuance and motion for

leave to file a third amended petition on July 14, 2023. In his motion for leave, Barley

added a new claim that he was injured due to a premises defect on appellees’ property—

namely, he was injured lifting appellees’ property while working behind steam tables.

By asserting this new negligence theory against appellees, Barley’s third amended

petition is prejudicial on its face. As such, Barley has the burden of proving that the trial

court abused its discretion by denying him leave to file his third amended petition. Barley

has not met this burden. Because Barley filed his motion for leave to amend his pleadings

after the trial court entered judgment dismissing his claims against appellees, we cannot




Barley v. Univ. of Tex. Med. Branch, et al.                                            Page 7
say that the trial court abused its discretion by denying Barley leave to file his third

amended petition.1 Accordingly, we overrule Barley’s second issue.

                                              Conclusion

        Having overruled both of Barley’s issues on appeal, we affirm the judgment and

orders of the trial court.




                                                          STEVE SMITH
                                                          Justice

Before Chief Justice Gray,
       Justice Johnson, and
       Justice Smith
(Chief Justice Gray concurs.)
Affirmed
Opinion delivered and filed December 28, 2023
[CV06]




        1 In both his motion for continuance and his motion for leave, Barley sought additional time to cure
the jurisdictional defect in his second amended pleading. Because both motions requested similar relief,
and because we have concluded that the trial court did not abuse its discretion by denying Barley’s motion
for leave, we also conclude that the trial court did not abuse its discretion by denying Barley’s motion for
continuance.

Barley v. Univ. of Tex. Med. Branch, et al.                                                          Page 8