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Click here for the full text of this decision FACTS:After a fire damaged its storage facility, E.E. Lowrey Realty Ltd., doing business as Gatesville Storage, along with the estate of E.E. Lowrey (collectively Lowrey), sued the Texas Parks and Wildlife Department (TPWD) and two of its employees, Marvin C. Wills Jr., a game warden, and Doug Hammitt, a field radio technician. Lowrey alleged negligence claims relating to Wills’ and Hammitt’s installation of a radio, siren and lights on a TPWD patrol boat stored in Lowrey’s facility and alleged that TPWD breached its storage contract by refusing to pay for damages caused by the fire. TPWD and its employees filed a joint plea to the jurisdiction, contending that Lowrey’s claims were barred by sovereign immunity. The trial court denied the plea, and TPWD and its employees appealed. The 10th Court of Appeals determined that Lowrey’s negligence and breach of contract claims fell outside any waiver of sovereign immunity and remanded the jurisdictionally defective claims to the trial court to provide Lowrey an opportunity to amend its pleadings before the case would be dismissed with prejudice. TPWD sought review by the Texas Supreme Court. HOLDING:Reversed and rendered. In their appeal to the Texas Supreme Court, TPWD and its employees first argued that Texas Civil Practice & Remedies Code �51.014(a) authorized interlocutory review of a state entity’s jurisdictional plea on claims brought against government officials in their official capacity. Earlier, the 10th Court held that the right to interlocutory appeal afforded under �51.014(a)(8) did not extend to an employee of a governmental unit, even when the employee is a codefendant with the governmental unit. The court disagreed with the 10th Court. Section 51.014(a)(8) vests appellate courts with jurisdiction to consider an interlocutory appeal of a jurisdictional plea brought by employees of a government unit. The court then considered whether the 10th Court erroneously remanded Lowrey’s claims against TPWD to the trial court for additional proceedings. The 10th Court determined that Lowrey’s negligence and breach of contract claims fell outside any waiver of sovereign immunity and remanded the jurisdictionally defective claims to provide Lowrey an opportunity to amend its pleadings before the case would be dismissed with prejudice. Incurably defective claims, however, should not be remanded, because amending the pleadings would serve no legitimate purpose, the court stated. Lowrey’s pleadings are incurably defective, the court stated, because he did not obtain legislative consent to sue under Chapter 107 of the Texas Civil Practice & Remedies Code. The court also disputed that Lowrey could sue under a waiver provided by the Texas Tort Claims Act. The act, the court stated, provides a limited waiver of sovereign immunity when property damage arose “from the operation or use of a motor-driven vehicle or motor-driven equipment.” Lowrey argued in its jurisdictional plea that the fire may have been caused by an electrical fault in the boat’s wiring, which was “use” of a motor vehicle sufficient to invoke the act’s waiver. The court agreed with the 10th Court, however, that Lowrey did not meet its burden of showing a sufficient nexus between the operation or use of a motor vehicle and the injury, which is required for a waiver of sovereign immunity. As the 10th Court noted, Lowrey’s petition did not allege operation or use of the boat, or any other item, as a vehicle or motor-driven equipment. Lowrey’s negligence claims, the court stated, related not to the active use or operation of a motor vehicle or motor-driven equipment but to the condition of state property. All parties, the court stated, agreed that Wills and Hammitt were not present at the storage facility when the property damage occurred. When an injury is caused by a property condition, the state’s liability is limited. Thus, the jurisdictional defect in Lowrey’s negligence claims could not be cured by allowing Lowrey to plead additional facts. Similarly, merely pleading more facts in support of Lowrey’s breach of contract claim would not overcome TPWD’s immunity from suit. The court therefore reversed the 10th Court’s remand order and dismissed Lowrey’s claims against TPWD. OPINION:Per curiam.

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