OPINIONFive-year-old C.B.D. was injured during an incident at his elementary school. C.B.D.’s father, appellee Albert Durrell, acting individually and as C.B.D’s next friend, filed a petition pursuant to Texas Rule of Civil Procedure 202, seeking a pre-suit investigatory deposition of a representative of Houston Independent School District (HISD) regarding the incident. In response, HISD filed a plea to the jurisdiction, asserting governmental immunity. The trial court denied the plea, and HISD brings this interlocutory appeal.[1] We affirm.I. BackgroundIn his first amended Rule 202 petition, Durrell alleged that between 10:15 a.m. and 11:15 a.m. on August 25, 2016, C.B.D. was injured while being escorted to the principal’s office of Wilson Montessori Elementary following a “behavior incident” in the cafeteria. Durrell further alleged that, based on available information, C.B.D. was escorted to the principal’s office by school staff and possible persons not employed by HISD. According to the petition, Durrell was called to the school by the school’s magnet coordinator, who told him that C.B.D. had been injured and had blood on his clothing, although she said she did not know whose blood it was. When Durrell arrived at the principal’s office, the principal, magnet coordinator, school nurse, and others were present, and the nurse was restraining C.B.D. Durrell additionally asserted that, during the discussion that followed, the magnet coordinator stated that her elbow had contacted C.B.D.’s face in the hallway, and the principal also acknowledged that she had contact with C.B.D. “C.B.D. had obvious bruising and bleeding around his lower teeth.” Durrell rushed C.B.D. to a dentist’s office where he was diagnosed with a jaw fracture and had three teeth removed.Durrell further alleged that he had been informed that surveillance video existed from the areas of the school where C.B.D. was injured. Durrell made an oral request of the principal to be allowed to view the video, and this request was followed up with a written request. The principal responded with an email telling Durrell that he needed to request the tapes in writing at HISD police headquarters. Durrell did so but to date has not been allowed to view the video. At first, Durrell was told that he could see thevideo after the faces of other children were obscured, and then later he was told he would not be allowed to view the video at all.[2]In his petition, Durrell sought to depose an HISD representative who was knowledgeable regarding the incident, the contents of the surveillance video, the investigation into the incident, HISD policies concerning such incidents, and the identity of all persons involved in, or with knowledge regarding, the incident. Durrell further requested that HISD be directed to produce, at the time of the deposition, all documents related to the investigation and copies of all surveillance videos showing the incident. Regarding the purpose of his requests, Durrell stated that he sought to investigate potential claims against HISD or other culpable parties. He specifically mentioned intentional acts, gross negligence, and possible criminal charges.In response to Durrell’s original petition, HISD filed a plea to the jurisdiction, asserting that the trial court lacked subject matter jurisdiction over Durrell’s requests pursuant to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code §§ 101.001.109.[3] Specifically, HISD stated that it possessed “sovereign immunity from any lawsuit involving an injury event due to alleged activities on school owned premises, not [due to] the actual operation of a school owned vehicle.” HISD further pointed out that the Texas Supreme Court has held that “[f]or a party to properly obtain Rule 202 pre-suit discovery, the court must have subject-matter jurisdiction over the anticipated action.” In Re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016). HISD then concluded that the trial court had no jurisdiction in this case because Durrell did not allege that an HISD employee caused injury through the operation of a motor vehicle.In his response to HISD’s plea, Durrell pointed out that the Texas Education Code provides that school district employees may be liable for incidents outside the scope of their employment duties as well as for the use of excessive force in the discipline of students or acts negligently resulting in bodily injury to students, citing Education Code section 22.0511(a) and Grimes v. Stringer, 957 S.W.2d 865, 868 (Tex. App.—Tyler 1997, pet. denied).[4] Durrell further noted in his response that since HISD had not provided much information regarding the incident that resulted in C.B.D.’s injuries, it was possible that the injuries were the result of actions outside an employee’s duties, the use of excessive force or negligence in disciplining C.B.D, or the actions of a nonemployee of HISD.Durrell also filed the amended petition discussed above in which he added allegations that school employees had acted negligently outside the scope of their duties, excessive force had been used in disciplining C.B.D., and, to the extent nonemployees were involved in causing C.B.D.’s injuries, HISD had negligently supervised such nonemployees. HISD filed an original answer in which it asserted that the trial court lacked jurisdiction over Durrell’s allegations. In this pleading, HISD also asserted that Durrell failed to exhaust his administrative remedies, but it did not assert what, if any, administrative remedies were available to address the alleged incident. HISD did not file an amended or supplemental plea to the jurisdiction.The trial court denied HISD’s plea, and HISD filed this interlocutory appeal. In two issues, HISD contends that (1) allegations of injury not caused by the operation of a school-owned vehicle to a student at a public school do not trigger a waiver of governmental immunity to suit, and (2) an allegation of an injury to a student at a public school triggers a waiver of governmental immunity to suit only when available administrative remedies have been exhausted.[5]II. Governing LawA. Plea to the JurisdictionA plea to the jurisdiction is a dilatory plea used to defeat a claim without regard to whether the claim has merit. BlandI.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Such a plea challenges a trial court’s subject-matter jurisdiction. Id. We therefore review de novo a trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass ‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether this burden has been satisfied, we must construe the pleadings liberally in the plaintiff’s favor and deny the plea if the plaintiff has alleged facts affirmatively demonstrating jurisdiction to hear the case. Miranda, 133 S.W.3d at 226.When pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but also do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff, or in this case, the petitioner, should be afforded an opportunity to amend. See Miranda, 133 S.W.3d at 226-27. However, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.[6]B. Governmental Immunity“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Unless waived, the common law doctrine of governmental immunity protects political subdivisions of the state, including independent school districts, from lawsuits when they perform governmental functions. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Texas courts generally defer to the legislature to waive immunity from suit because doing so protects the legislature’s policymaking function. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375, 377 (Tex. 2006); Tex. Natural Res. Conservation Comm’n v. IT— Davy, 74 S.W.3d 849, 854 (Tex. 2002). For a statute to provide a waiver of immunity, the waiver must be expressed by clear and unambiguous language. Tex. Gov’t Code § 311.034. Governmental immunity deprives a trial court of subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 22527.C. Rule 202Texas Rule of Civil Procedure 202 provides a mechanism for requesting court authorization of pre-suit depositions to either (1) perpetuate or obtain testimony for use in an anticipated lawsuit, or (2) investigate a potential claim or suit. Tex. R. Civ. P. 202.1. Here, Durrell sought to investigate a potential claim or suit. In such cases, Rule 202 does not require a petitioner to plead a specific claim. See In re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding); City of Houston v. U.S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We must construe Durrell’s Rule 202 petition liberally. Vestal v. Pistikopoulos, No. 10-16-00034-CV, 2016 WL 4045081, at *2 (Tex. App.—Waco July 27, 2016, no pet.) (mem. op.).When, as here, the petition is brought for investigatory purposes, the trial court must order the requested deposition if it finds that the likely benefit of the deposition outweighs the burden and expense. Tex. R. Civ. P. 202.4(a)(2); Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 531 (Tex. App.—Austin 2013, pet. denied).[7] Rule 202 depositions, however, are not intended for routine use. In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding). The rule does not authorize a party to obtain otherwise unobtainable discovery. See In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (noting that petitioner “cannot obtain by Rule 202 what it would be denied in the anticipated action”). Indeed, Rule 202 expressly limits the scope of discovery in pre- suit depositions to “the same as if the anticipated suit or potential claim had been filed.” Id. (quoting Tex. R. Civ. P. 202.5).A proper court to entertain a Rule 202 petition is a court that would have subject- matter jurisdiction over the underlying dispute or anticipated lawsuit; thus, we must look to the substantive law of the underlying dispute or anticipated action to determine jurisdiction. See Vestal, 2016 WL 4045081, at *2; Combs, 410 S.W.3d at 534; City of Dallas v. Dallas Black Fire Fighters Ass’n, 353 S.W.3d 547, 554-57 (Tex. App.— Dallas 2011, no pet.); see also City of Dallas, 501 S.W.3d at 73 (“For a party to properly obtain Rule 202 pre-suit discovery, the court must have subject-matter jurisdiction over the anticipated action.”).III. Discussion A. Jurisdiction over School DistrictIn its first issue, HISD contends that the trial court lacked subject matter jurisdiction over this Rule 202 proceeding because under the Texas Tort Claims Act, HISD can only be sued for injuries caused by the operation of a school-owned motor vehicle and Durrell’s petition did not allege the incident in question involved the operation of a motor vehicle. In support, HISD cites Texas Civil Practice and Remedies Code sections 101.021(1)(A) and 101.051. Tex. Civ. Prac. & Rem. Code §§ 101.021(1)(A), 101.051. As HISD suggests, under the Texas Tort Claims Act, waiver of the school district’s governmental immunity encompasses only tort claims involving the use or operation of motor vehicles. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008) (citing Tex. Civ. Prac. & Rem. Code § 101.051).[8]However, even if HISD is correct regarding the scope of these provisions, its first issue misses the mark. To obtain a pre-suit investigatory deposition from HISD under Rule 202, Durrell does not have to establish the court would have jurisdiction over HISD in a possible future action; he need only show that the trial court would have subject-matter jurisdiction over the anticipated action. See, e.g., City of Dallas, 501 S.W.3d at 73; see also Univ. of Tex. M.D. Anderson Cancer Ctr. v. Tcholakian, No. 01-11-00754-CV, 2012 WL 4465349, at *4-5 (Tex. App.—Houston [1st Dist.] Sept. 27, 2012, no pet.) (mem. op.) (affirming denial of government entity’s plea to the jurisdiction where Rule 202 petition sought discovery related to potential claims again nongovernmental third party). Rule 202 petitions themselves do not constitute lawsuits that would be barred across-the-board by governmental immunity. Combs, 410 S.W.3d at 534; Lee v. GST Transp. Sys, LP, 334 S.W.3d 16, 19 (Tex. App.—Dallas 2008, pet. denied). Indeed, Rule 202 does not even require that the person or entity from whom a deposition is sought be a potentially liable defendant in the possible action being investigated. In re Donna I.S.D., 299 S.W.3d 456, 460 (Tex. App.—Corpus Christi 2009, orig. proceeding); U.S. Filter, 190 S.W.3d at 245. As set forth above, Durrell’s pleadings explained the possibility of claims against HISD employees as well as against unknown nonemployees who may have been involved in causing C.B.D.’s injuries.[9]The fact that Durrell did not allege C.B.D.’s injuries resulted from the use of a motor vehicle—and thus HISD may be immune in an eventual lawsuit regarding C.B.D’s injuries—does not deprive the trial court of jurisdiction over Durrell’s Rule 202 petition. Accordingly, we overrule HISD’s first issue.B. Exhaustion of RemediesIn its second issue, HISD asserts that even if Durrell’s claims are not barred by governmental immunity, the trial court would not have jurisdiction over his claims because Durrell failed to plead that he exhausted his administrative remedies. HISD bases this argument on Education Code section 22.0514, which states that “[a] person may not file suit against a professional employee of a school district unless the person has exhausted the remedies provided by the school district for resolving the complaint.” Tex. Educ. Code § 22.0514.[10]We begin by noting that, to the extent HISD intended to argue that Durrell actually failed to exhaust administrative remedies in this case that were applicable to his requests for information and adequate, HISD failed to establish such facts in the trial court. See Mission Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (explaining that when a plea to the jurisdiction challenges the existence of jurisdictional facts, a trial court’s review mirrors that of a traditional summary judgment proceeding); see also supra n.6. HISD has neither identified any procedures it might offer to address requests such as Durrell makes in this case nor offered any evidence to establish Durrell has not utilized such procedures. See Moreno v. Northside I.S.D., No. CV SA-11-CA- 0746-XR, 2012 WL 13029076, at *2-3 (W.D. Tex. Jan. 23, 2012) (applying Texas law in denying motion to dismiss for lack of jurisdiction based on alleged failure of plaintiff to exhaust administrative remedies where school district failed to identify any available administrative remedies). Accordingly, we consider HISD’s arguments only to the extent it asserts Durrell failed to properly plead the exhaustion of remedies.The interplay between Rule 202 procedures and the analysis of an exhaustion- of-remedies requirement for a potential, but not yet known, claim presents an unusual jurisdictional question, as Rule 202 petitioners often may not possess sufficient information to determine either the exact nature of the potential claims or parties or the availability or adequacy of administrative remedies. See generally Combs, 410 S.W.3d 535-36 (noting pleading obstacles inherent in Rule 202 context); Emergency Consultants, 292 S.W.3d at 79 (same). Indeed, Texas intermediate courts of appeals appear to disagree whether an unmet exhaustion-of-remedies requirement for a potential claim precludes a trial court from authorizing depositions to investigate the potential claim in a Rule 202 proceeding. Compare In re Bailey-Newell, 439 S.W.3d 428, 432 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (directing trial court to vacate order authorizing Rule 202 depositions because such depositions would circumvent statutorily required administrative procedures outlined in the Texas Labor Code), with In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374, at *3 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.) (holding the exhaustion-of-remedies doctrine did not preclude Rule 202 depositions in a worker’s compensation case because a Rule 202 petition “does not request final or even preliminary adjudication of the petitioner’s claims” and therefore does not interfere with the exclusive jurisdiction of an administrative agency), and City of Willow Park v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 341 (Tex. App.—Fort Worth 2005, no pet.) (holding the primary jurisdiction doctrine did not preclude Rule 202 depositions regarding a potential claim over municipal water service because a Rule 202 petition does not seek final or even preliminary adjudication but only seeks an investigation of potential claims).[11]Durrell’s allegations in the present case, however, not only encompass potential claims against HISD employees, which HISD asserts required exhaustion of remedies under section 22.0514, but also potential claims against unknown nonemployees, for whom HISD makes no such assertion.[12] In fact, even if Durrell were required at this stage to exhaust remedies regarding his potential claims rather than his requests for information (a matter on which we express no opinion), nothing in section 22.0514 suggests that Durrell would be required to exhaust available administrative remedies before filing suit against someone who may have been involved in the incident but was not a professional employee of the school district.At this pre-suit stage, Durrell knows only that C.B.D. was injured while at school but does not know how the injury occurred or who may have been involved. Without this information—information HISD possesses and thus far has withheld—Durrell cannot know whether his claims will require exhaustion of remedies or, if exhaustion is required, whether HISD offers adequate procedures to address C.B.D.’s injuries.Because Durrell’s allegations encompass potential claims against nonemployees on which he would not have to exhaust his administrative remedies, Durrell’s failure to plead that he exhausted his administrative remedies as to his potential claims against professional employees of HISD did not deprive the trial court of subject matter jurisdiction over his Rule 202 petition. See Tcholakian, 2012 WL 4465349, at *4-5 (affirming denial of government entity’s plea to the jurisdiction where Rule 202 petition sought discovery related to potential claims again nongovernmental third party); Donna I.S.D., 299 S.W.3d at 460-61 (explaining that if evidence obtained through pre-suit discovery established that suit was warranted on causes of action against non-employees, petitioner would not be required to exhaust administrative remedies before filing suit). Accordingly, we overrule HISD’s second issue.We affirm the trial court’s order denying HISD’s plea to the jurisdiction./s/ Martha Hill Jamison JusticePanel consists of Chief Justice Frost and Justices Jamison and Busby. (Frost, C.J., concurring)
