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Click here for the full text of this decision FACTS: E. E. Lowrey Realty and the estate of E. E. Lowrey sued the Texas Parks and Wildlife Department and two individual department employees — Doug Hammitt and Marvin Wills Jr. — for fire damage to a boat stored at a facility owned by Lowrey Realty and leased by the department. TPWD, Hammitt and Wills filed pleas to the jurisdiction, citing sovereign immunity. The trial court overruled the plea, and the defendants appeal. HOLDING: Dismissed in part; reversed and remanded in part. To begin with, the court considers whether the defendants can bring this interlocutory appeal. Civil Practice & Remedies Code 51.014(a)(8) allows a governmental unit to appeal a denial of a plea to the jurisdiction. The court notes that Hammitt and Wills, sued in their individual capacities, are not governmental units. Consequently, the court dismisses the appeal of these two parties. The court, however, finds that the trial court erred in denying TPWD’s plea, as Lowrey does not allege operation or use of a motor vehicle and does not thus fall within the exception to sovereign immunity of the Tort Claims Act. As Lowrey did not respond on appeal, the court also sides with TPWD’s argument that it was entitled to sovereign immunity on Lowrey’s breach-of-contract claim. OPINION: Vance, J.; Gray, C.J., Vance and Reyna, JJ. Gray, C.J., not participating. DISSENT TO ORDER WITHDRAWING PRIOR OPINION: Gray, C.J. “On July 21, 2004, over ninety days ago, we issued an opinion in this accelerated appeal that had been on file since November 14, 2002. A motion for rehearing was filed and we requested a response. We denied the motion on October 5, 2004. Now, because of issues and developments not raised in this case, a majority of the Court wants to change the result. I have not had the time, nor the opportunity, to consider adequately the merits of the changes in the new opinion. Moreover, I believe that we should notify the parties of the issue that is being redetermined and ask that they fully brief it before we reconsider it.”

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