Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:George Sykes and his wife, Faye, brought this suit for injuries George allegedly sustained in the Harris County jail. While incarcerated there, George was assigned to a bed next to an inmate who was infected with tuberculosis. The Sykeses claimed that the county was negligent in failing to quarantine the infected inmate and in failing to warn George of the inmate’s infection. By amended petition, Sykes added Carl Borchers, the major of the Harris County jail, as a defendant, both individually and in his official capacity. The trial court subsequently granted Harris County’s plea to the jurisdiction and dismissed Sykes’ claims against Harris County with prejudice. Borchers then moved for summary judgment, urging that the trial court’s dismissal of Harris County entitled him to derivative immunity under Texas Tort Claims Act �101.106. The trial court granted Borchers’s motion and ordered that Sykes take nothing. The court of appeals affirmed the trial court’s dismissal of Harris County, holding that Sykes’ amended petition did not affirmatively plead facts sufficient to confer jurisdiction on the trial court. But the court decided that, in granting the plea to the jurisdiction, the trial court could only dismiss the suit without prejudice, which did not qualify as a judgment under �101.106. Accordingly, the court of appeals reversed Carl Borchers’s summary judgment and remanded the case to the trial court. This court granted Carl Borchers and Harris County’s petition for review. HOLDING:The court of appeals erred in holding that the claims against Harris County should be dismissed without prejudice and that such a dismissal is not a judgment under �101.106. The court modifies the judgment of the court of appeals and renders judgment that the plaintiff’s suit is dismissed with prejudice. The court also reverses the portion of the court of appeals’ judgment reversing Carl Borchers’s summary judgment and renders judgment that the plaintiff take nothing. After Harris County filed its plea to the jurisdiction, Sykes amended her petition to state with greater particularity the theory that Harris County waived governmental immunity by placing George in the same room with, and assigning him a bed near, an inmate infected with tuberculosis. The trial court dismissed Sykes’ claims, and the court of appeals agreed that “any effect that the room’s walls and Sykes’s bed had on Sykes’s alleged exposure to tuberculosis is too attenuated to constitute a waiver of immunity under the [Texas Tort Claims Act].” The court of appeals disagreed with the trial court, however, on whether such a dismissal should be with or without prejudice. In general, a dismissal with prejudice is improper when the plaintiff is capable of remedying the jurisdictional defect. The court of appeals in this case relied on Bell v. State Dep’t of Highways & Pub. Transp., 945 S.W.2d 292 (Tex. App. � Houston [14th Dist.] 1997, writ denied) to hold that Sykes’ claims should have been dismissed without prejudice. In so doing, the court ruled contrary to a line of decisions stating that dismissal with prejudice is appropriate when a trial court lacks subject matter jurisdiction because of the sovereign immunity bar. 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. Before dismissing this case, the trial court allowed Sykes to file an amended petition, after which the court made a final adjudication that the Legislature has not waived governmental immunity under the Texas Tort Claims Act with respect to any claim that Sykes brought against Harris County. Therefore, Sykes is foreclosed from relitigating whether the Texas Tort Claims Act waives immunity in this case. Sykes argues that a granted plea to the jurisdiction does not qualify as a judgment because it does not dispose of the claims’ merits. A dismissal constitutes a final determination on the merits of the matter actually decided. In this case, there is a final adjudication that the Legislature has not waived Harris County’s immunity on the facts of this case. Since the trial court properly dismissed Sykes’ claims against Harris County with prejudice, Carl Borchers is entitled to derivative immunity under �101.106. OPINION:Thomas R. Phillips, C.J.; Hecht, Owen, Jefferson, Smith and Wainwright, JJ., join. Brister, J., filed a concurring opinion, in which O’neill, J., joins. Schneider, J., did not participate.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.