Los Fresnos Volunteer Fire Department, Inc. (Incorrectly named by Los Fresnos Emergency Medical Services), Dr. Carlos Chavez, M.D., Joseph Hernandez, Gene Daniels, and L. Arevalo v. Angie Jeanette Davalos, Individually, and on Behalf of the Estate of Juan Luis Gonzalez, Deceased, and on Behalf of the Beneficiaries of the Estate of Juan Luis Gonzalez, Deceased--Appeal from 103rd District Court of Cameron County

   NUMBER 13-05-491-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

LOS FRESNOS VOLUNTEER FIRE DEPARTMENT,

INC., (INCORRECTLY NAMED AS LOS FRESNOS

EMERGENCY MEDICAL SERVICES), DR. CARLOS

CHAVEZ, M.D., JOSEPH HERNANDEZ, GENE

DANIELS, AND L. AREVALOS,   Appellants,

v.

ANGIE JEANETTE DAVALOS, INDIVIDUALLY,

AND ON BEHALF OF THE ESTATE OF JUAN

LUIS GONZALEZ, DECEASED, AND ON BEHALF

OF THE BENEFICIARIES OF THE ESTATE OF

JUAN LUIS GONZALEZ, DECEASED,   Appellees.

 On appeal from the 103rd District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez

This is an interlocutory appeal by appellant, the Los Fresnos Volunteer Fire Department, Inc., from the trial court=s denial of appellant=s plea to the jurisdiction asserted against appellee, Angie Jeanette Davalos, individually and on behalf of the estate of Juan Luis Gonzalez. We affirm.

Background

On May 10, 2003, employees of Los Fresnos Emergency Medical Services (ALos Fresnos EMS@) responded to a medical emergency call in San Benito, Texas. Upon their arrival, they found Juan Luis Gonzalez, injured and in need of medical assistance. According to the suit filed by appellee, the Los Fresnos EMS employees failed to properly intubate Gonzalez while being transported, depriving him of oxygen while en route to the hospital. Gonzalez ultimately went into cardiac arrest, fell into a coma from which he never awoke, and died a few weeks later.

Appellee, decedent=s wife, filed suit against Los Fresnos EMS, among others, for negligence. A process server delivered notice of the suit to ALos Fresnos [EMS] by serving its medical director, Dr. Carlos Chavez, M.D.@ Los Fresnos EMS then filed its original answer, referring to itself as Los Fresnos EMS and denying all allegations.

This party then filed a plea to the jurisdiction, this time referring to itself as ALos Fresnos Volunteer Fire Department, Inc.@ (AFire Department@), and claiming it had been Aimproperly named as Los Fresnos [EMS] in this matter.@ It further claimed that as an emergency service organization, it was a Agovernmental unit@ as defined by the Texas Tort Claims Act and, thus, entitled to immunity from suit. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(1) (Vernon 2005).

The trial court determined that the Fire Department was not entitled to immunity as a governmental unit and denied the plea to the jurisdiction. The Fire Department filed a renewed plea to the jurisdiction alleging that the trial court had based its decision on a misinterpretation of the tort claims act and the tax code. The trial court reviewed the renewed plea, determined that Anothing has changed from its previous rulings,@ and again denied the Fire Department=s plea to the jurisdiction. The Fire Department now appeals to this Court.

Plea to the Jurisdiction

A party may submit a plea to the jurisdiction in order to assert that it enjoys sovereign immunity from suit and therefore is not properly within the subject matter jurisdiction of the trial court. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). The limits of the trial court's subject matter jurisdiction is a question of law and subject to de novo review by this Court. Tex. Natural Res. Conservation Comm'n v. IT Davy, 74 S.W.3d 849, 855 (Tex. 2000).

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). To determine if the plaintiff has met that burden, "we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). The court of appeals may look beyond the pleadings in its de novo review and evaluate the jurisdictional evidence submitted by both parties. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The court of appeals must also take the pleadings as true when evaluating them for purposes of jurisdiction and must construe them liberally in favor of jurisdiction. Texana Cmty. MHMR Ctr. v. Silvas, 62 S.W.3d 317, 320 (Tex. App.BCorpus Christi 2001, no pet.).

Sovereign Immunity

A governmental unit is immune from tort liability for its own acts or the acts of its agents unless the Texas Tort Claims Act waives immunity from suit.[1] See Guillen v. City of San Antonio, 13 S.W.3d 428, 432 (Tex. App.BSan Antonio 2000, pet. denied). The term Agovernmental unit@ includes Aemergency service organization,@ which is statutorily defined as Aa volunteer fire department, rescue squad, or an emergency medical services provider that is: (A) operated by its members, and (B) exempt from state taxes by being listed as an exempt organization under Section 151.310 or 171.083, Tax Code.@ See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001. Section 151.310 of the tax code further defines an Aexempt organization@ as an organization qualifying for an exemption from federal income taxes under Section 501(c)(3), (4), (8), (10), or (19), Internal Revenue Code. Tex. Tax Code Ann. ' 151.310 (Vernon 2002). Section 171.083 exempts Aa nonprofit corporation that is organized for the sole purpose of and engages exclusively in providing emergency medical services, including rescue and ambulance services.@ Id. ' 171.083.

Thus, the first question to be decided here is whether appellant fulfills the statutory definition of being an Aemergency service organization,@ as this is necessary for appellant to qualify as a Agovernmental unit.@ The record establishes the following relevant facts: the Fire Department received its articles of incorporation on July 3, 1974. The stated purpose of the corporation was Ato operate a non-profit volunteer fire department to serve the residents and property owners of the City of Los Fresnos and the surrounding area, and for such purpose to acquire, by purchase or otherwise, maintain and operate fire trucks and other fire fighting equipment.@ Fire fighting was therefore the sole purpose of the corporation; there was no provision for emergency medical services or any other services. In September of 1999, the Fire Department received a determination letter from the IRS notifying it that the IRS considered it a 501(c)(3) exempt organization. See 26 U.S.C. 501(c)(3) (1988). The determination letter and other IRS materials warned, however, that A[a] ruling or determination letter recognizing exemption may not be relied upon if there is a material change, inconsistent with exemption, in the character, the purpose, or the method of operation of the organization.@

In October of 2002, the City of Los Fresnos decided to divest itself of the Los Fresnos EMS, which it had previously operated, and the City entered into a contract with the Fire Department such that the Fire Department would take over operation of the Los Fresnos EMS. The Fire Department then began paying taxes and wages for the Los Fresnos EMS employees; as a volunteer organization, it had apparently not previously engaged in paying employee wages and taxes.

The Gonzalez incident that triggered this litigation occurred in May of 2003, while the Fire Department continued to operate the Los Fresnos EMS. The Los Fresnos EMS subsequently filed its own articles of incorporation in August of 2003 and became a separate entity called ALos Fresnos Ambulance Service, Inc.@

Case law regarding immunity draws a distinction between volunteer organizations and those staffed by paid employees, as they are treated differently under relevant legislative codes. See Norrell v. Gardendale Volunteer Fire Dep't, 115 S.W.3d 114, 117-18 (Tex. App.BSan Antonio 2003, no pet.) (relying on Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994)). Thus, when the Fire Department took on the responsibilities of running the Los Fresnos EMS from October 2002 to August 2003, its legal status as a potentially exempt organization changed. It could not claim to be exempt under section 171.083 of the tax code because it was not exclusively involved in the provision of emergency medical services but, rather, continued to retain its fire-fighting and rescue duties. See Tex. Tax Code Ann. ' 171.083. It also could no longer rely on its determination letter from the IRS establishing its 501(c)(3) exempt status, given that it had substantially changed its character and purpose. It was no longer a volunteer organization with the sole purpose of fighting fires but instead had the dual purposes of fire fighting and providing emergency medical services, and also had wage-making employees. See Rev. Proc. 80 25, 1980 1 C.B. 667, 671, 1980 IRB LEXIS 595, *18 (effective June 30, 1980). Thus, without being able to rely on its 501(c)(3) status, the Fire Department also could no longer claim to be exempt under section 151.310 of the tax code. See Tex. Tax Code Ann. ' 151.310.

We are not determining, by this opinion, that the Fire Department could not operate as a dual-purpose organization without losing its tax-exempt status; we are simply noting that, under the standard of review for pleas to the jurisdiction, we are constrained to rely upon our conclusion that the original letter establishing tax-exempt status for the organization is no longer necessarily valid following the changes made to the organization. Given this uncertainty, we cannot uphold a ruling that requires little to no uncertainty about the underlying jurisdictional facts.

Construing the pleadings liberally in favor of jurisdiction, we conclude that the Fire Department, as of the date of the Gonzalez incident, was unable to claim immunity as an Aemergency service organization@ under the tort claims act. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001; Silvas, 62 S.W.3d at 320. It is therefore subject to suit for the allegedly negligent acts of its employees or itself. The trial court properly denied the Fire Department=s plea to the jurisdiction.

Conclusion

The trial court=s order denying appellant=s plea to the jurisdiction is affirmed.

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion delivered

and filed this 27th day of April, 2006.

[1] Section 101.055(2) states that immunity will attach "from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action. . . ." See Tex. Civ. Prac. & Rem. Code Ann. ' 101.055(2) (Vernon 2005). Section 101.062(b) provides a public agency with immunity from suit for an employee's actions in connection with 9-1-1 claims, unless the action violates a statute or ordinance applicable to the action. See id. ' 101.062(b).