In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-26-00050-CV
JASON BEENE AND MEREDITH BEENE, INDIVIDUALLY AND AS NEXT FRIENDS OF
H.A.B., A MINOR AND H.R.B., A MINOR, Appellants
V.
THE WOODLANDS TOWNSHIP, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Court No. 25-08-13140
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Jason Beene and Meredith Beene’s minor child, H.R.B., was riding his electric scooter
across a crosswalk when he was stuck by a vehicle driven by Andrew Richard Temple. H.R.B.
suffered serious injuries, and Jason and Meredith, individually and as next friends of H.R.B.
(collectively, the Beenes), sued The Woodlands Township,1 where the crosswalk was located, for
negligence. The Woodlands, a governmental entity,2 filed a plea to the jurisdiction, which the
trial court granted.
On appeal, the Beenes argue that the trial court erred (1) by granting The Woodlands’
plea to the jurisdiction and (2) by dismissing their claims against The Woodlands with
prejudice.3 We find that the trial court properly granted the plea to the jurisdiction. We further
find that the Beenes’ second complaint is moot because the trial court vacated its original order
and entered a new order dismissing the Beenes’ claims without prejudice. As a result, we affirm
the trial court’s judgment.
I. The Woodlands’ Plea to the Jurisdiction Was Properly Granted
The Beenes argue that the trial court erred by granting The Woodlands’ plea to the
jurisdiction because they introduced evidence showing that there was a genuine issue of material
1
The Beenes also sued Temple, Brightview Landscapes, LLC, and Montgomery County, but they are not parties to this appeal.
2
See TEX. SPEC. DIST. CODE ANN. §§ 11011.001–11011.003; Johnson v. Woodlands Twp., No. 09-18-00247-CV, 2020 WL 1479715, at *1 (Tex. App.—Beaumont Mar. 26, 2020, pet. denied) (mem. op.); Tex. Att’y Gen. Op. OR2011-13685.
3
Originally appealed to the Ninth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Ninth Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3.
2
fact as to whether The Woodlands had a duty to maintain visibility of the crosswalk where
H.R.B. was injured. Even assuming that duty, we find that the trial court properly granted the
plea to the jurisdiction.
A. Factual and Procedural Background
In their operative petition, the Beenes alleged that H.R.B.’s and Temple’s visibility “was
obstructed by the overgrown trees, bushes, branches[,] and various other vegetation growing
along the roadway including the crosswalk,” which constituted an unreasonably dangerous
condition. Specifically, they alleged, “The brush and vegetation created a visual obstruction for
the driving public concealing pedestrians who were attempting to enter the pathway into the
crosswalk as well as blocking the pedestrians’ view of the roadway of oncoming traffic.” The
Beenes included the following picture in their live petition to show the alleged overgrowth:
The Beenes asserted one cause of action against The Woodlands and the County for negligence.
The Woodlands answered the Beenes’ petition, alleging that H.R.B. was contributorily
negligent. While the case was pending, the County filed a plea to the jurisdiction, which the trial
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court granted. As a result, the trial court dismissed the Beenes’ claims against the County, with
prejudice. The Woodlands filed its own plea to the jurisdiction that, among other things, adopted
the County’s plea to the jurisdiction and argued that H.R.B. had knowledge about the premises
defect4 and that there was an “absence of facts establishing willful, wanton or grossly negligent
conduct by a governmental entity to create liability for a premise defect.”5 In support, The
Woodlands recited the portion of the Beenes’ petition alleging that the brush and vegetation
blocked pedestrian view of oncoming traffic in support of the argument that H.R.B. had
knowledge of the alleged dangerous condition.
The Woodlands also attached an affidavit from its Chief Operating Officer, Chris Nunes,
in support of its plea. Nunes swore in his affidavit that the “vegetation/tree branches extending
to the west edge of Branch Crossing Dr[ive] from the east edge of the pathway is within County
Rights of Way and [the County] is contractually obligated to maintain such vegetation/tree
branches.” To support that proposition, The Woodlands attached an interlocal agreement
between itself and the County specifying that “the County is responsible for improving and
maintaining County Rights of Way and Roads,” and that “The [Woodlands] does NOT have the
4
The County’s plea to the jurisdiction referenced the picture included in the Beenes’ petition and included the following argument adopted by The Woodlands:
[Beenes] own acknowledgments and evidence make it clear that the condition was perceptible by
the [Beenes], legally meaning [the Beenes] had actual knowledge, [their] allegation that “the
minor plaintiff ha[d] no knowledge” [wa]s insufficient. [The Beenes] cannot have it both ways,
they cannot on the one hand allege that “it was obvious that the overgrowth of vegetation created a
sight visibility obstruction,” and at the same time deny that the condition was perceptible to the
[Beenes].
5
The Beenes did not allege that the vegetation constituted a special defect. See Sipes v. Tex. Dep’t of Transp., 949 S.W.2d 516, 521 (Tex. App.—Texarkana 1997, writ denied) (concluding that overgrown vegetation does not constitute a special defect).
4
responsibility to trim or remove vegetation or trees in the County Rights of Way and Roads
(middle median or roadside), unless otherwise specified [by the Agreement].” Further, it was
undisputed that The Woodlands had a streetscape maintenance-service agreement with
Brightview Landscapers, LLC. Even so, as noted by the Beenes, an August 30, 2023,
Amendment to the Interlocal Agreement (Agreement) provided:
Tree and Vegetation Removal and Maintenance. Each Party shall work in good
faith to assure that any trees or other vegetation requiring removal or other
maintenance for safety and/or other operational reasons will be handled by the
respective Parties using established standards and procedures (the County having
primary responsibility for such in the County Rights of Way and Roads and [The
Woodlands] having such rights within areas subject to [The Woodlands] Enhanced
Maintenance).
Accordingly, the Beenes’ response to the plea stated that The Woodlands “had a duty
under the First Amended Interlocal Agreement to (at least) warn or make it safe, including
notifying the County or Brightview Landscaping, LLC of the needed removal and maintenance”
of the offending vegetation.6 The Beenes’ response attached evidence, including H.R.B.’s
hospital-discharge records, which showed that he was “struck by vehicle while on scooter going
about 30-40 mph,”7 the Agreement, and the streetscape maintenance-service agreement.
After the plea to the jurisdiction was submitted, the trial court granted The Woodlands’
plea and dismissed the Beenes’ claim, with prejudice. The Beenes moved for the trial court to
modify the dismissal to be without prejudice, and the trial court agreed, vacated its prior order,
6
The Beenes’ briefing focuses heavily on The Woodlands’ duty to warn of an unreasonably dangerous condition. Even so, our ruling below is dispositive of this issue.
7
The Woodlands’ plea included a picture of the police report, which stated that H.R.B. “entered the roadway . . . at a high rate of speed, exceeding the pace of a pedestrian.”
5
and entered a new order dismissing “all claims . . . against The Woodlands . . . WITHOUT
PREJUDICE.”
B. Standard of Review
“Generally, ‘immunity from suit implicates courts’ subject-matter jurisdiction’ for
lawsuits in which the [S]tate or certain governmental units have been sued, unless the [S]tate
consents to suit.” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016) (quoting
Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012)). Governmental units, like The
Woodlands, share this governmental immunity. See id. (citing Lowe v. Tex. Tech Univ., 540
S.W.2d 297, 298 (Tex. 1976)). Accordingly, The Woodlands “can be sued only if the
Legislature waives immunity in ‘clear and unambiguous language.’” Id. (quoting TEX. GOV’T
CODE ANN. § 311.034).
Such waivers are provided by the Texas Tort Claims Act (TTCA), which “creates ‘a
unique statutory scheme in which the two immunities are co-extensive: “Sovereign immunity to
suit is waived and abolished to the extent of liability created by [the Tort Claims Act].”’” Id.
(quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (alteration
in original) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a)). Accordingly, “a
governmental unit is immune from suit unless the Tort Claims Act expressly waives immunity,
which it does in three areas when the statutory requirements are met: (1) use of publicly owned
automobiles; (2) injuries arising out of a condition or use of tangible personal property; and
(3) premises defects.” Id. (citing Miranda, 133 S.W.3d at 224–25); see Tex. Dep’t of Transp. v.
6
Camarillo, No. 09-24-00180-CV, 2026 WL 775765, at *7–8 (Tex. App.—Beaumont Mar. 19,
2026, pet. filed) (mem. op.). Here, the third category is in issue.
“In premises-liability cases” like this one, “the scope of [a landowner’s responsibility]
turns on the plaintiff’s status.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.
2010); see Sampson, 500 S.W.3d at 385–86 (citing Miranda, 133 S.W.3d at 230, 233) (holding
that “a claim for a condition or use of real property is a premises defect claim” and “a plaintiff
cannot plead around the heightened standard for premises defects, which requires proof of
additional elements such as actual knowledge, by casting his claim instead as one for a condition
or use of tangible personal property”). The TTCA provides that where, as here, “a claim arises
from a premise defect, the governmental unit owes to the claimant only the duty that a private
person owes to a licensee on private property.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.022(a).
The Texas Supreme Court has explained that
[t]he duty owed to a licensee requires that “a landowner not injure a licensee by
willful, wanton or grossly negligent conduct, and that the owner use ordinary care
either to warn a licensee of, or to make reasonably safe, a dangerous condition of
which the owner is aware and the licensee is not.”
Sampson, 500 S.W.3d at 391 (quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 237 (Tex. 1992)). The Beenes’ raised only a simple negligence claim in their
petition and thus failed to allege any willful, wanton, or grossly negligent conduct.
Where there is no “willful, wanton, or grossly negligent conduct, a licensee must prove”
five “elements to establish the breach of duty owed to him,” including the following:
7
(1) a condition of the premises created an unreasonable risk of harm to the
licensee; (2) the owner actually knew of the condition; (3) the licensee did not
actually know of the condition; (4) the owner failed to exercise ordinary care to
protect the licensee from danger; (5) the owner’s failure was a proximate cause of
injury to the licensee.
Id. (quoting Payne, 838 S.W.2d at 237). If The Woodlands “can show there was no evidence of
one of these elements, its plea to the jurisdiction should be granted.” Id.
The Woodlands’ argument that there was no evidence to show that H.R.B. did not
actually know of the condition involves the merits. See id.; City of Groves v. Lovelace, No. 09-21-00281-CV, 2023 WL 2533188, at *4 (Tex. App.—Beaumont Mar. 16, 2023, no pet.) (mem.
op.). As a result, The Woodlands’ “burden is similar to that of a movant for summary
judgment.” Sampson, 500 S.W.3d at 391 (citing Miranda, 133 S.W.3d at 227–28). Thus, the
Beenes need “to show only that there is a disputed material fact regarding the jurisdictional
issue.” Id. (citing Miranda, 133 S.W.3d at 228). “‘If the evidence raises a fact question on
jurisdiction, then the trial court cannot grant the plea to the jurisdiction,’ and the fact question
will instead be resolved by the fact finder.” Id. at 392 (quoting City of Corsicana v. Stewart, 249
S.W.3d 412, 414 (Tex. 2008) (per curiam) (citing Miranda, 133 S.W.3d at 227–28)). “If the
evidence ‘fails to raise a fact question, the trial court rules on the plea to the jurisdiction as a
matter of law.’” Id. (quoting Stewart, 249 S.W.3d at 414). “When examining evidence on a
plea, we take as true the evidence favoring the party opposing the plea and we indulge every
reasonable inference and resolve any doubts in that party’s favor.” Lovelace, 2023 WL 2533188,
at *4 (citing Miranda, 133 S.W.3d at 228).
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C. Analysis
“If a licensee is aware of a dangerous condition, he has all that he is entitled to expect,
that is, an opportunity for an intelligent choice as to whether the advantage to be gained by
coming on the land is sufficient to justify him in incurring the risks involved.” Jefferson Cnty. v.
Akins, 487 S.W.3d 216, 229 (Tex. App.—Beaumont 2016, pet. denied) (quoting Cnty. of
Cameron v. Brown, 80 S.W.3d 549, 557–58 (Tex. 2002)). For this reason, “claimants under the
Tort Claims Act are required to allege and prove that they did not actually know of the allegedly
dangerous condition to allege a valid claim under the Tort Claims Act.” Port of Beaumont
Navigation Dist. of Jefferson Cnty. v. McCarty, No. 09-16-00356-CV, 2017 WL 1089604, at *4
(Tex. App.—Beaumont Mar. 23, 2017, no pet.) (mem. op.) (citing Payne, 838 S.W.2d at 237);
see Montgomery Cnty. v. Lanoue, No. 09-16-00195-CV, 2016 WL 7473896, at *2 (Tex. App.—
Beaumont Dec. 29, 2016, no pet.) (mem. op.) (citing Payne, 838 S.W.2d at 237) (“A licensee
must prove that he did not actually know of the dangerous condition.”).
“A licensee has actual knowledge of the condition if the condition was perceptible to
h[im] or if []he could infer the condition’s existence from facts within h[is] present or past
knowledge.” Akins, 487 S.W.3d at 229 (citing Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706,
709 (Tex. 2003) (per curiam)). “If the licensee has the same knowledge about the dangerous
condition as the licensor, then no duty to the licensee exists.” San Jacinto River Auth. v.
Simmons, 167 S.W.3d 603, 610 (Tex. App.—Beaumont 2005, no pet.).
Here, the Beenes failed to allege in their petition a critical element—that H.R.B. was not
aware of the alleged dangerous condition. Instead, they specifically alleged that H.R.B.’s
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visibility “was obstructed by the overgrown trees, bushes, branches and various other
vegetation.” They also alleged that the vegetation “block[ed] the pedestrians’ view of the
roadway of oncoming traffic.” The picture included in their petition showed the view and was
the evidence relied on by The Woodlands to show that, whatever the condition of the vegetation
was, it was visible to H.R.B.8 Because “the condition was perceptible” to H.R.B., he had actual
knowledge of the condition. See Akins, 487 S.W.3d at 229; City of Keller v. Wilson, 168 S.W.3d
802, 815 (Tex. 2005). Thus, The Woodlands “assert[ed] and supported with evidence [its
argument] that the trial court lack[ed] jurisdiction.” Sampson, 500 S.W.3d at 391.
Since there was evidence showing that a “condition . . . [wa]s apparent to all,” it became
the Beenes’ burden to “submit . . . summary judgment evidence which raised a fact issue on
whether [H.R.B. was] aware of the danger” posed by the vegetation. See Payne v. City of
Galveston, 772 S.W.2d 473, 477 (Tex. App.—Houston [14th Dist.] 1989, writ denied); Sampson,
500 S.W.3d at 391; Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561, 563 (Tex. 1976).
The Beenes do not point to any evidence showing that H.R.B. was not aware of any risk posed
by the vegetation, and we find none in the record.
We conclude that the trial court properly granted The Woodlands’ plea to the jurisdiction.
II. The Beenes’ Second Complaint is Moot Since Dismissal Was Without Prejudice
“An interlocutory appeal [from the grant of a plea to jurisdiction] stays proceedings in the
trial court pending resolution of that appeal.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b)
(Supp.). Citing to this rule and the cases interpreting it, the Beenes argue that (1) any order
8
The Beenes argue that the picture included in their petition was taken “three weeks after the occurrence . . . before . . . .the vegetation and trees w[ere] cut.”
10
signed by the trial court after an appeal is noticed is a nullity, and (2) the trial court’s order
vacating the order dismissing their claims with prejudice is a nullity.9
On March 9, the Beenes filed a motion to modify the judgment and attached a proposed
order. The trial court signed the order vacating its original grant of The Woodlands’ plea to the
jurisdiction in amending the dismissal to be without prejudice. The Beenes requested that the
trial court sign a proposed order agreed to by The Woodlands. The trial court signed the Beenes’
proposed order in which it dismissed the Beenes’ claims against The Woodlands on March 12,
2026, without prejudice. The Beenes noticed their appeal on March 12, the same day. However,
the notice of appeal was filed before the trial court signed the Beenes’ proposed order.
The Beenes argue that we should disregard the trial court’s amended order denying The
Woodlands’ plea to the jurisdiction without prejudice because it was signed during the automatic
stay under Section 51.014(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(b). However, because the trial court signed the order on the
Beenes’ request, we will not sustain the Beenes’ point of error.
“The invited-error doctrine, like estoppel, may operate when a party has taken some
previous action or position that is inconsistent with its current position.” In re G.X.H., 627
S.W.3d 288, 301 (Tex. 2021). “[U]nder the doctrine of invited error, a party cannot request a
specific action in the trial court and then complain on appeal that the trial court committed error
9
The Texas Supreme Court has held that actions taken by a trial court during an appellate stay are “voidable, not void,” and that “failure to object to the trial court’s actions waived any error related to the stay.” Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011). Moreover, “[a]lthough the statutory stay is mandatory, parties must seek the stay and object to court actions in violation of the stay.” Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 639 n.18 (Tex. 2021) (orig. proceeding) (citing In re Geomet Recycling LLC, 578 S.W.3d 82, 87 n.1 (Tex. 2019) (orig. proceeding)).
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in granting that request.” Osagiede v. Aguilar, No. 09-15-00086-CV, 2017 WL 627529, at *2
(Tex. App.—Beaumont Feb. 16, 2017, no pet.) (mem. op.) (citing Tittizer v. Union Gas Corp.,
171 S.W.3d 857, 862 (Tex. 2005) (“a party cannot complain on appeal that the trial court took a
specific action that the complaining party requested”); Lamell v. OneWest Bank, FSB, 485
S.W.3d 53, 64 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)). “This rule, ‘grounded in
even justice and dictated by common sense,’ is based on estoppel.” Id. (citing Ne. Tex. Motor
Lines, Inc. v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942); Neasbitt v. Warren, 22 S.W.3d 107,
112 (Tex. App.—Fort Worth 2000, no pet.)). Applying the invited-error doctrine to the facts
before us, we conclude that the Beenes are estopped from arguing on appeal that the trial court
erred in making the very ruling that they requested. See id.
Because the trial court’s March 12 order specified that the dismissal of the Beenes’
claims against The Woodlands was without prejudice, we find the Beenes’ second point of error
moot.
III. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: June 29, 2026
Date Decided: August 20, 2026
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