COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00205-CV
ARTHUR DELGADO, JR. APPELLANT
V.
RIVER OAKS POLICE APPELLEES
DEPARTMENT AND CITY OF
RIVER OAKS
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-277180-15
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MEMORANDUM OPINION1
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Appellant Arthur Delgado, Jr., pro se, filed this interlocutory appeal
challenging the trial court’s orders sustaining the pleas to the jurisdiction and the
special exceptions filed by Appellees River Oaks Police Department (the Police
Department) and City of River Oaks (the City). See Tex. Civ. Prac. & Rem. Code
1
See Tex. R. App. P. 47.4.
Ann. § 51.014(a)(8) (West Supp. 2016) (authorizing interlocutory appeal from
order granting or denying a plea to the jurisdiction filed by a governmental unit).
We affirm.
Delgado sued the City and the Police Department for claims arising from
his arrest for driving while intoxicated on April 10, 2013.2 Specifically, Delgado
alleged that after his arrest, he was subjected to an involuntary blood draw
without a warrant in violation of his Constitutional rights. Delgado alleged only
negligence per se claims against the City and the Police Department, claiming
that they were negligent in failing to keep abreast of the law and in allowing
police officers to violate the law.
The City and the Police Department answered, denied Delgado’s
allegations, and asserted affirmative defenses. The City and the Police
Department filed pleas to the jurisdiction and special exceptions wherein the City
asserted sovereign immunity and the Police Department asserted that it lacked
capacity to be sued because it is not a separate jural entity subject to suit. The
trial court sustained the pleas to the jurisdiction and the special exceptions and
dismissed Delgado’s negligence per se claims with prejudice. Delgado has
appealed.
2
Delgado also sued an unknown arresting officer employed by the Police
Department. The record does not reflect that the unknown arresting officer was
served with citation, nor does it reflect that he entered an appearance in this
case. He is not a party to this appeal.
2
In parts of his first and second issues, Delgado complains that the trial
court erred by sustaining the City’s and the Police Department’s pleas to the
jurisdiction and dismissing his negligence claims without affording him the
opportunity to amend his pleadings. As pointed out by the City and the Police
Department, Delgado does not challenge the trial court’s findings that his
negligence per se claim against the City was barred by governmental immunity
and that his negligence per se claim against the Police Department should be
dismissed because the Police Department lacks the capacity to be sued. Nor
does he cite to any legal authority for holding that there was error in these
findings. He has therefore waived any complaint on appeal regarding these
findings by the trial court. See Tex. R. App. P. 38.1(f), (i).
Delgado argues that the trial court should have given him the opportunity
to amend his pleadings to add additional claims based on violations of federal
law and his Constitutional rights before dismissing his negligence per se claims.
He does not contend that, nor does he articulate how, any amendment would
have cured the jurisdictional defects alleged in the pleas to the jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004)
(explaining that if the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the
plaintiff should be afforded an opportunity to amend). After the City and the
Police Department filed their pleas to the jurisdiction, Delgado did not request an
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opportunity to amend his pleadings to add federal statutory and Constitutional
claims nor did he attempt to amend his pleadings. Accordingly, we conclude
Delgado waived his complaint that the trial court should have afforded him the
opportunity to amend his pleadings. See Tex. R. App. P. 33.1(a); Robinson v.
Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) (holding plaintiff waived right to cure any jurisdictional defects
by amendment when he did not respond to plea to the jurisdiction with additional
jurisdictional facts reflecting a live controversy, did not request an opportunity to
replead, and did not attempt to replead); Gray v. City of Galveston, No. 14-03-
00298-CV, 2003 WL 22908145, at *2 (Tex. App.—Houston [14th Dist.] Dec. 11,
2003, no pet.) (mem. op.) (“[A]ppellant did not request an opportunity to amend in
the trial court, so she has waived any complaint that she has been denied this
opportunity.”). We therefore overrule Delgado’s complaint that the trial court
erred by sustaining the City’s and the Police Department’s pleas to the
jurisdiction and dismissing his negligence per se claims without giving him the
opportunity to amend his pleadings to add federal statutory and Constitutional
claims.
We do not address Delgado’s complaints regarding the trial court’s orders
sustaining the City’s and the Police Department’s special exceptions in the
remaining portions of this two issues because a trial court’s rulings on special
exceptions are not subject to review by interlocutory appeal. See Harris Cty.
Flood Control Dist. v. Adam, 56 S.W.3d 665, 670 n.8 (Tex. App.—Houston [14th
4
Dist.] 2001, pet. dism’d w.o.j) (citing McCamey v. Kinnear, 484 S.W.2d 150,
153 (Tex. App.—Beaumont 1972, writ ref’d n.r.e.)); see also Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a). We therefore overrule Delgado’s two issues and
affirm the trial court’s orders sustaining the City’s and the Police Department’s
pleas to the jurisdiction.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.
DELIVERED: November 23, 2016
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