dissenting.
Finding myself in disagreement with the other members of the court, I would like to record my respectful dissent.
Appellant, Sashia Joleen Augustine b n/f Karen Augustine and Karen Augustine, individually appeal from a judgment dismissing their suit against appellees, Pamela Nusom and Kathy Penniek. After reviewing the parties’ submitted memoranda of law and facts, the trial court granted appel-lees’ Plea in Abatement. I would reverse.
The pleadings reveal the following facts. On July 19, 1982, Sashia Joleen Augustine, a twenty-three month old child, was in the care of Glenn and Theresa Clary, who own a day care facility. After a trip conducted by the Clarys, Sashia was left in a van. Subsequently, due to the heat and her crying, she died of Mallory-Weiss syndrome (rupture of the esophagus with pulmonary collapse).
On the day in question, the Clarys were operating their day care center without the license required by the state, but were advertising that the facility was licensed. Pamela Nusom and her immediate supervisor, Kathy Penniek, both of the Texas Department of Human Resources Day Care Licensing Division, knew that the facility *116was unlicensed. On June 30, 1982, the Clarys had applied for a license. At that time, inspections by the Health Department and the Fire Department revealed some inadequacies (needed a fence, fire doors and a smoke alarm in the rest area, and to clean the outside), the Texas Department of Human Resources approved the facility.
Upon reinspeetion on July 6, 1982, Pamela Nusom observed no hazards which posed an immediate danger to the children. Because of this finding, appellants made no report to their director and no effort to close the facility.
Appellees responded to appellants’ petition by filing a Plea in Abatement raising appellants’ immunity as state employees. The trial court granted the plea. I would reverse.
Appellants bring two points of error on appeal. Appellants’ first point of error asserts that the trial court erred in granting appellees’ Plea in Abatement, because a Plea in Abatement is not an acceptable method to dispose of claims made under the Texas Tort Claims Act or against state employees. In response, appellees make three arguments: (1) that appellants, in failing to plead that appellees were state employees, failed to plead a cause of action under the Texas Tort Claims Act, Tex.Rev. Civ.Stat.Ann., art. 6252-19 (Vernon 1979), (2) that a Plea in Abatement is proper when a defendant must rely on extrinsic facts outside the pleadings, and (3) that, in failing to amend their pleadings or allege that they could amend their pleadings between the time when appellees filed their Plea in Abatement on October 22, 1982, and the filing of the order granting of the plea on May 5, 1983, appellants elected to stand on their pleadings.
While appellants pleadings were insufficient to state a cause of action, a plea in abatement was not a proper challenge to this deficiency. Norton v. Brazos County, 640 S.W.2d 690 (Tex.App.—Houston [14th Dist.] 1982, no writ). Had appellees filed special exceptions which were sustained by the court, appellants would have had an opportunity to amend as a matter of right. McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.). A cause may be dismissed for failure to state a cause of action only after a party has had an opportunity to amend after special exceptions have been sustained. Texas Dept, of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974).
To use a Plea in Abatement to resolve claims raised under the Texas Tort Claims Act is to revive the general demurrer discarded by Rule 90, Tex.R. Civ.P.; See Herring v. Texas Department of Corrections, 500 S.W.2d 718 (Tex.Civ.App.—Houston [14th Dist.] 1973), aff'd 513 S.W.2d 6 (Tex.1974). We therefore do not believe the protective features of special exception procedures should have been circumvented by a Plea in Abatement under the facts of this case.
Norton, 640 S.W.2d at 694; Rawlings v. Angelo State University, 648 S.W.2d 430 (Tex.App.—Austin 1983, writ ref’d n.r.e.).
Appellees, citing Salcedo v. Diaz, 647 S.W.2d 51 (Tex.App.—El Paso 1983, writ granted), 650 S.W.2d 67 (Tex.1983), allege that our case differs from Herring and its progeny in that their response was based on extrinsic facts outside the pleadings. Salcedo concerned pre-filing notice required by Section 16 of the Texas Tort Claims Act. Because actual notice had to be proven, amended pleadings alleging actual notice would not have been sufficient. The court held, therefore, that a proper response would have been a plea in abatement, or in bar or a motion for summary judgment, but not special exceptions. This holding was based on the fact that amended pleadings would not have cured the defect. In our case, however, amended pleadings alleging that appellees were state employees would have been sufficient.
Finally, appellees claim that in failing to amend or to allege that they could amend their pleadings, appellants elected to stand on their pleadings, or in other words, waived the opportunity to amend. When a defendant’s special exceptions are sustained, the plaintiff has a right to amend *117his pleadings or refuse to amend. McCamey v. Kinnear, 484 S.W.2d at 152. Appel-lees in our case did not file special exceptions. Appellants’ right to amend was never invoked, and therefore, could not be waived. I would sustain appellants’ point of error one; therefore, I need not address appellants’ point of error two that the trial court erred in sustaining appellees’ Plea in Abatement because the evidence presented a theory of law under which appellants could recover. It is difficult for me to see how, under the facts of this case, appellants could raise a cause of action for which they could recover. I would, however, adhere to procedural rules and allow appellants an opportunity to amend their pleadings. See TEX.R.CIV.P. 90, 91.
Accordingly, I would reverse the judgment of the trial court, and remand this cause for further proceedings consistent with this opinion.