Preview
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
CAUSE NO. C-4198-21-F
MARCOS ANTONIO § IN THE DISTRICT COURT
HERNANDEZ, VERONICA §
GONZALEZ INDIVIDUALLY AND §
AS NEXT FRIEND TO MELANIE §
HERNANDEZ (MINOR) AND §
DEREK HERNANDEZ (MINOR) § 332ND JUDICIAL DISTRICT
PLAINTIFFS §
§
VS. §
§
§
CITY OF ALAMO, TEXAS § HIDALGO COUNTY, TEXAS
DEFENDANT
DEFENDANT HIDALGO COUNTY SHERIFF’S OFFICE’S PLEA TO THE
JURISDICTION AND ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES DEFENDANT, HIDALGO COUNTY SHERIFF’S OFFICE, in the above-
entitled and numbered cause and files this, Defendant, Hidalgo County Sheriffs Office’s, Plea to
the Jurisdiction and Original Answer, and in support thereof would show the Court as follows:
I.
GENERAL DENIAL
1. Defendant denies each and every allegation of Plaintiffs’ Frist Amended Petition,
and subsequent petitions, and demand strict proof thereof as required by the Texas Rules of Civil
Procedure and the Texas Government Code.
II.
PLEA TO THE JURISDICTION
2. Defendant Hidalgo County Sheriff’s Office, Texas asks the Court to dismiss
Plaintiffs’ suit for lack of jurisdiction, because the Texas Legislature has not waived Defendant’s
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
immunity from suit for this claim. This lawsuit involves a suit against the County of Hidalgo, a
political subdivision of the State of Texas, for damages arising out of an alleged vehicular pursuit
involving employees of the Hidalgo County Sherriff’s Office, performing discretionary duties,
within the scope of their authority and which were undertaken in good faith. Plaintiffs have not
obtained the State’s consent to sue, nor have they affirmatively demonstrated the court’s
jurisdiction to hear the lawsuit under the Texas Tort Claims Act or some other statute that waives
the government’s immunity from suit. Therefore, the suit should be dismissed. Texas Dept. of
Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001).
III.
GOVERNMENTAL/SOVEREIGN IMMUNITY
3. Defendant has full governmental/sovereign immunity both from suit and from
liability, save only to the extent of the partial waiver of same given by the Texas Tort Claims Act
(Texas Civil Practice & Remedies Code, Chapter 101 et. seq.), and it hereby pleads and asserts its
claim to and defense of governmental/sovereign immunity and the limits, exemptions and
exclusions of the Texas Tort Claims Act.
IV.
SUIT LIMITATIONS
4. Plaintiffs’ claim for a damage award is limited to the cap imposed by the Texas Tort
Claims Act. Defendant specifically pleads and incorporates herein by reference, as an affirmative
defense, all applicable caps and limitations upon any award of damage or relief, both compensatory
and punitive, which are provided by law, including but not limited to the provisions of the Texas
Tort Claims Act (Texas Civil Practice & Remedies Code, Chapter 101 et. seq.).
V.
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
AFFIRMATIVE DEFENSES
5. Defendant pleads all available immunities from suit due to the doctrines of
sovereign, governmental, official, and/or statutory immunity.
6. Defendant would further invoke all defenses authorized under the Texas Tort
Claims Act, including, but not limited to, the defenses set forth in sections 101.055, 101.056,
101.106 and 101.057(2) of the Texas Civil Practice and Remedies Code.
7. Defendant would show costs of litigation and reasonable attorneys’ fees incurred
by Plaintiffs are not recoverable against this party by law. See. §552.323 of the Texas Government
Code.
8. Defendant pleads the maximum amount of damages allowed under chapter 101, et.
seq. of the Texas Civil Practice and Remedies Code.
9. Without waiving any of the foregoing, Defendant pleads Chapter 32 et. seq. of the
Texas Civil Practice & Remedies Code, regarding contribution, right of action and recovery as
prescribed by the statute, and accord Defendant full benefit of said law.
10. Without waiving any of the foregoing, Defendant pleads Chapter 33 et. seq.,
Proportionate Responsibility, of the Texas Civil Practice & Remedies Code and asks the Court and
Jury to consider the relative damages and conduct of the parties, all tortfeasors, including the
Plaintiffs, any settling persons, and any designated third parties and accord the Defendant full
benefits of said law.
11. Pleading further, and for the Court’s eyes only, Defendant asserts the provision of
Chapter 41, §41.0105 Texas Civil Practice & Remedies Code, to plead and limit the evidence and
recovery of medical and health care expenses to the amounts of reasonable and necessary medical
expenses which were actually paid or incurred by or on behalf of the Plaintiffs and/or accepted
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
rather than the total of the charged medical expenses. Defendant is entitled to an offset against
any medical expense for amounts not charged, amounts written off or discounted, or, in any event,
in an amount equal to the difference between the total charges and the sum which was paid and
accepted as payment in full by Plaintiffs’ medical provider(s). See also Haygood v. De Escabedo,
356 S.W.3d, 390 (Tex. 2011).
12. Pleading in the alternative, Defendant would show that Plaintiffs were themselves
guilty of negligent acts or omissions, all of which may have caused or contributed to the occurrence
made the basis of Plaintiffs’ suit and the damages claimed. Tex. R. Civ. P. 94.
13. For further answer herein and in the alternative, should such be necessary, Defendant
alleges that the acts of Plaintiffs, in failing to supervise, and in failing to provide ordinary care for
their safety, was 51% percent of the cause of the alleged injuries, if any, or in the alternative, that they
were the sole cause.
14. Pleading in the alternative should such be necessary, Defendant would state that at all
relevant times herein, the employees of Hidalgo County were acting in good faith on behalf of the
State of Texas and/or Hidalgo County in their official capacity and, under the doctrine of qualified or
official immunity, all are immune from liability for any such acts or failures to act. Moreover, Hidalgo
County is immune from liability for any such acts or failures to act by any such persons determined
to be employees of Hidalgo County.
15. Without waiving any of the foregoing Defendant would show that at the time and on
the occasion in question, the Hidalgo County Sheriff’s Office was confronted by an emergency which
arose suddenly and unexpectedly, which was not proximately caused by any negligence on their part,
and which, to a reasonable person, would require immediate action without time for deliberation. On
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
the occasion in question, employees for Hidalgo County acted as persons of ordinary prudence would
have acted under the same circumstances.
16. Pleading in the alternative, should such be necessary, Defendant says that if the
Plaintiffs sustained any injuries or damages in the occurrence made the basis of this lawsuit, such
were not the cause by any acts or omissions on the part of this Defendant, but were the results of
others over who this Defendant has no control.
17. Pleading in the alternative should such be necessary, Defendant further alleges that if
Plaintiffs were damaged, as alleged, which is not admitted but is expressly denied, such damages were
the result of an unavoidable accident.
VI.
T.R.C.P. §193.7 NOTICE OF INTENT TO USE
18. Pursuant to Tex. R. Civ. P. §193.7, notice is hereby given of the intention to use any
of the documents exchanged or produced between any party at the time of trial of this cause.
VII.
REQUIRED DISCLOSURES
19. Under the authority of Rule 194 of the Texas Rules of Civil Procedure, Defendant
requests that Plaintiff comply with Rule 194.1 of the Texas Rules of Civil Procedure and disclose
the information or materials described in Rule 194.2, within 30 days of the filing of the first answer
or general appearance and comply with those requirements imposed by rules 194.3 and 194.4.
VIII.
JURY DEMAND
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
20. Pursuant to Tex. R. Civ. P. §216, Defendant hereby demands a trial by jury on all
issues so triable in the foregoing cause of action. Defendant would show that pursuant to §6 of
the Texas Civil Practice and Remedies Code, it is exempt from payment of jury fees at this time.
PRAYER
Defendant prays the Court, after notice and hearing or trial enter judgment in favor of
Defendant, and for such other and further relief to which this Defendant may be entitled to in law
or in equity.
Respectfully submitted,
Office of Criminal District Attorney
RICARDO RODRIGUEZ, JR.
100 East Cano, Courthouse Annex III, 1st Flr.
Edinburg, Texas 78539
(956) 292-7609 Telephone
(956) 292-7619 Facsimile
Email: jaclyn.erasmus@da.co.hidalgo.tx.us
/s/ Jaclyn M. Erasmus
By: _______________________________
Jaclyn M. Erasmus
State Bar No. 24102786
Assistant District Attorney
Josephine Ramirez-Solis
State Bar No. 24007894
Assistant District Attorney
Victor M. Garza
State Bar No. 24029568
Assistant District Attorney
ATTORNEYS FOR DEFENDANT
Electronically Filed
4/13/2022 4:15 PM
Hidalgo County District Clerks
Reviewed By: Noemi Lamas
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Defendant, County of Hidalgo County Sherriff’s
Office’s, Plea to the Jurisdiction and Original Answer has been e-filed and served in accordance
with the Texas Rules of Civil Procedure on this the 13 th day of April, 2022, to the following
attorney of record:
VIA E-FILE/E-SERVE
Attorney for Plaintiffs:
Stephen P. Carrigan
CARRIGAN & ANDERSON, P.L.L.C.
101 N. Shoreline Blvd., Ste 420
Corpus Christi, Texas 78401
(361) 884-4433
scarrigan@ccatriallaw.com
Attorney for Defendant City of Alamo:
Rosemary Conrad-Sandoval
ROERIG, OLIVEIRA & FISHER, L.L.P.
10225 N. 10th Street
McAllen, Texas 785404
(956) 393-6300
rsandoval@rofllp.com
ATTORNEYS FOR PLAINTIFF
/s/ Jaclyn M. Erasmus _______________
Jaclyn M. Erasmus
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Jaclyn Erasmus
Bar No. 24102786
jaclyn.erasmus@da.co.hidalgo.tx.us
Envelope ID: 63554949
Status as of 4/13/2022 4:34 PM CST
Associated Case Party: City of Alamo, Texas
Name BarNumber Email TimestampSubmitted Status
Rosemary Conrad-Sandoval rsandoval@rofllp.com 4/13/2022 4:15:52 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Wendy Watson wwatson@ccatriallaw.com 4/13/2022 4:15:52 PM SENT
Renee Kubik rkubik@ccatriallaw.com 4/13/2022 4:15:52 PM SENT
Pat Garza pgarza@ccatriallaw.com 4/13/2022 4:15:52 PM SENT
STEPHEN P.CARRIGAN SCARRIGAN@CCATRIALLAW.COM 4/13/2022 4:15:52 PM SENT
Preview
Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas CAUSE NO. C-4198-21-F MARCOS ANTONIO § IN THE DISTRICT COURT HERNANDEZ, VERONICA § GONZALEZ INDIVIDUALLY AND § AS NEXT FRIEND TO MELANIE § HERNANDEZ (MINOR) AND § DEREK HERNANDEZ (MINOR) § 332ND JUDICIAL DISTRICT PLAINTIFFS § § VS. § § § CITY OF ALAMO, TEXAS § HIDALGO COUNTY, TEXAS DEFENDANT DEFENDANT HIDALGO COUNTY SHERIFF’S OFFICE’S PLEA TO THE JURISDICTION AND ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES DEFENDANT, HIDALGO COUNTY SHERIFF’S OFFICE, in the above- entitled and numbered cause and files this, Defendant, Hidalgo County Sheriffs Office’s, Plea to the Jurisdiction and Original Answer, and in support thereof would show the Court as follows: I. GENERAL DENIAL 1. Defendant denies each and every allegation of Plaintiffs’ Frist Amended Petition, and subsequent petitions, and demand strict proof thereof as required by the Texas Rules of Civil Procedure and the Texas Government Code. II. PLEA TO THE JURISDICTION 2. Defendant Hidalgo County Sheriff’s Office, Texas asks the Court to dismiss Plaintiffs’ suit for lack of jurisdiction, because the Texas Legislature has not waived Defendant’s Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas immunity from suit for this claim. This lawsuit involves a suit against the County of Hidalgo, a political subdivision of the State of Texas, for damages arising out of an alleged vehicular pursuit involving employees of the Hidalgo County Sherriff’s Office, performing discretionary duties, within the scope of their authority and which were undertaken in good faith. Plaintiffs have not obtained the State’s consent to sue, nor have they affirmatively demonstrated the court’s jurisdiction to hear the lawsuit under the Texas Tort Claims Act or some other statute that waives the government’s immunity from suit. Therefore, the suit should be dismissed. Texas Dept. of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). III. GOVERNMENTAL/SOVEREIGN IMMUNITY 3. Defendant has full governmental/sovereign immunity both from suit and from liability, save only to the extent of the partial waiver of same given by the Texas Tort Claims Act (Texas Civil Practice & Remedies Code, Chapter 101 et. seq.), and it hereby pleads and asserts its claim to and defense of governmental/sovereign immunity and the limits, exemptions and exclusions of the Texas Tort Claims Act. IV. SUIT LIMITATIONS 4. Plaintiffs’ claim for a damage award is limited to the cap imposed by the Texas Tort Claims Act. Defendant specifically pleads and incorporates herein by reference, as an affirmative defense, all applicable caps and limitations upon any award of damage or relief, both compensatory and punitive, which are provided by law, including but not limited to the provisions of the Texas Tort Claims Act (Texas Civil Practice & Remedies Code, Chapter 101 et. seq.). V. Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas AFFIRMATIVE DEFENSES 5. Defendant pleads all available immunities from suit due to the doctrines of sovereign, governmental, official, and/or statutory immunity. 6. Defendant would further invoke all defenses authorized under the Texas Tort Claims Act, including, but not limited to, the defenses set forth in sections 101.055, 101.056, 101.106 and 101.057(2) of the Texas Civil Practice and Remedies Code. 7. Defendant would show costs of litigation and reasonable attorneys’ fees incurred by Plaintiffs are not recoverable against this party by law. See. §552.323 of the Texas Government Code. 8. Defendant pleads the maximum amount of damages allowed under chapter 101, et. seq. of the Texas Civil Practice and Remedies Code. 9. Without waiving any of the foregoing, Defendant pleads Chapter 32 et. seq. of the Texas Civil Practice & Remedies Code, regarding contribution, right of action and recovery as prescribed by the statute, and accord Defendant full benefit of said law. 10. Without waiving any of the foregoing, Defendant pleads Chapter 33 et. seq., Proportionate Responsibility, of the Texas Civil Practice & Remedies Code and asks the Court and Jury to consider the relative damages and conduct of the parties, all tortfeasors, including the Plaintiffs, any settling persons, and any designated third parties and accord the Defendant full benefits of said law. 11. Pleading further, and for the Court’s eyes only, Defendant asserts the provision of Chapter 41, §41.0105 Texas Civil Practice & Remedies Code, to plead and limit the evidence and recovery of medical and health care expenses to the amounts of reasonable and necessary medical expenses which were actually paid or incurred by or on behalf of the Plaintiffs and/or accepted Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas rather than the total of the charged medical expenses. Defendant is entitled to an offset against any medical expense for amounts not charged, amounts written off or discounted, or, in any event, in an amount equal to the difference between the total charges and the sum which was paid and accepted as payment in full by Plaintiffs’ medical provider(s). See also Haygood v. De Escabedo, 356 S.W.3d, 390 (Tex. 2011). 12. Pleading in the alternative, Defendant would show that Plaintiffs were themselves guilty of negligent acts or omissions, all of which may have caused or contributed to the occurrence made the basis of Plaintiffs’ suit and the damages claimed. Tex. R. Civ. P. 94. 13. For further answer herein and in the alternative, should such be necessary, Defendant alleges that the acts of Plaintiffs, in failing to supervise, and in failing to provide ordinary care for their safety, was 51% percent of the cause of the alleged injuries, if any, or in the alternative, that they were the sole cause. 14. Pleading in the alternative should such be necessary, Defendant would state that at all relevant times herein, the employees of Hidalgo County were acting in good faith on behalf of the State of Texas and/or Hidalgo County in their official capacity and, under the doctrine of qualified or official immunity, all are immune from liability for any such acts or failures to act. Moreover, Hidalgo County is immune from liability for any such acts or failures to act by any such persons determined to be employees of Hidalgo County. 15. Without waiving any of the foregoing Defendant would show that at the time and on the occasion in question, the Hidalgo County Sheriff’s Office was confronted by an emergency which arose suddenly and unexpectedly, which was not proximately caused by any negligence on their part, and which, to a reasonable person, would require immediate action without time for deliberation. On Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas the occasion in question, employees for Hidalgo County acted as persons of ordinary prudence would have acted under the same circumstances. 16. Pleading in the alternative, should such be necessary, Defendant says that if the Plaintiffs sustained any injuries or damages in the occurrence made the basis of this lawsuit, such were not the cause by any acts or omissions on the part of this Defendant, but were the results of others over who this Defendant has no control. 17. Pleading in the alternative should such be necessary, Defendant further alleges that if Plaintiffs were damaged, as alleged, which is not admitted but is expressly denied, such damages were the result of an unavoidable accident. VI. T.R.C.P. §193.7 NOTICE OF INTENT TO USE 18. Pursuant to Tex. R. Civ. P. §193.7, notice is hereby given of the intention to use any of the documents exchanged or produced between any party at the time of trial of this cause. VII. REQUIRED DISCLOSURES 19. Under the authority of Rule 194 of the Texas Rules of Civil Procedure, Defendant requests that Plaintiff comply with Rule 194.1 of the Texas Rules of Civil Procedure and disclose the information or materials described in Rule 194.2, within 30 days of the filing of the first answer or general appearance and comply with those requirements imposed by rules 194.3 and 194.4. VIII. JURY DEMAND Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas 20. Pursuant to Tex. R. Civ. P. §216, Defendant hereby demands a trial by jury on all issues so triable in the foregoing cause of action. Defendant would show that pursuant to §6 of the Texas Civil Practice and Remedies Code, it is exempt from payment of jury fees at this time. PRAYER Defendant prays the Court, after notice and hearing or trial enter judgment in favor of Defendant, and for such other and further relief to which this Defendant may be entitled to in law or in equity. Respectfully submitted, Office of Criminal District Attorney RICARDO RODRIGUEZ, JR. 100 East Cano, Courthouse Annex III, 1st Flr. Edinburg, Texas 78539 (956) 292-7609 Telephone (956) 292-7619 Facsimile Email: jaclyn.erasmus@da.co.hidalgo.tx.us /s/ Jaclyn M. Erasmus By: _______________________________ Jaclyn M. Erasmus State Bar No. 24102786 Assistant District Attorney Josephine Ramirez-Solis State Bar No. 24007894 Assistant District Attorney Victor M. Garza State Bar No. 24029568 Assistant District Attorney ATTORNEYS FOR DEFENDANT Electronically Filed 4/13/2022 4:15 PM Hidalgo County District Clerks Reviewed By: Noemi Lamas CERTIFICATE OF SERVICE I certify that a true and correct copy of Defendant, County of Hidalgo County Sherriff’s Office’s, Plea to the Jurisdiction and Original Answer has been e-filed and served in accordance with the Texas Rules of Civil Procedure on this the 13 th day of April, 2022, to the following attorney of record: VIA E-FILE/E-SERVE Attorney for Plaintiffs: Stephen P. Carrigan CARRIGAN & ANDERSON, P.L.L.C. 101 N. Shoreline Blvd., Ste 420 Corpus Christi, Texas 78401 (361) 884-4433 scarrigan@ccatriallaw.com Attorney for Defendant City of Alamo: Rosemary Conrad-Sandoval ROERIG, OLIVEIRA & FISHER, L.L.P. 10225 N. 10th Street McAllen, Texas 785404 (956) 393-6300 rsandoval@rofllp.com ATTORNEYS FOR PLAINTIFF /s/ Jaclyn M. Erasmus _______________ Jaclyn M. Erasmus Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jaclyn Erasmus Bar No. 24102786 jaclyn.erasmus@da.co.hidalgo.tx.us Envelope ID: 63554949 Status as of 4/13/2022 4:34 PM CST Associated Case Party: City of Alamo, Texas Name BarNumber Email TimestampSubmitted Status Rosemary Conrad-Sandoval rsandoval@rofllp.com 4/13/2022 4:15:52 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Wendy Watson wwatson@ccatriallaw.com 4/13/2022 4:15:52 PM SENT Renee Kubik rkubik@ccatriallaw.com 4/13/2022 4:15:52 PM SENT Pat Garza pgarza@ccatriallaw.com 4/13/2022 4:15:52 PM SENT STEPHEN P.CARRIGAN SCARRIGAN@CCATRIALLAW.COM 4/13/2022 4:15:52 PM SENT