Misuse of information in the operation of cemetery does not waive governmental immunity because operation of a cemetery is a governmental function.  


Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Raymondville v. Isabel Elizondo, Noe Espinoza Jr., Roxanne Franco, and Antonio Espinoza, 13-21-00375-CV, (Tex. App – Corpus Christi – Edinburg, May 26, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction, the city appealed that governmental immunity has not been waived because the misuse of information is insufficient to waive immunity under the Tort Claims Act and because the operation of a cemetery is a governmental function. The Thirteenth Court of Appeals reversed the trial court’s judgment because there was no waiver of governmental immunity for the misuse of information.

The plaintiff sued the city after the plaintiff’s relative was buried in the wrong burial plot and had to be moved.  The plaintiff did not agree to the move but was not informed prior to the move taking place.  Plaintiff sued the city, and the church that performed the burial, for negligence, intentional infliction of emotional distress (IIED), breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act (DTPA), as well as premises defect.  The city filed a plea to the jurisdiction arguing that: (1) the use of tangible personal property was by independent contractors, the church; (2) the claim was for the misuse of information; and (3) misuse of information does not waive governmental immunity under the Texas Tort Claims Act.   The trial court denied the city’s plea to the jurisdiction and the city appealed.

Immunity is waived if a governmental entity causes personal injury or property damage with the use of tangible personal property or through premises defect on the property of the governmental entity.  Tex. Civ. Prac. & Rem. Code § 101.021.  “Use or misuse of information does not amount to use or misuse of tangible property so as to waive governmental immunity under [§] 101.021(2).”  City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex. App.-Corpus Christi-Edinburg 2000, no pet.).  To determine whether a claim is one for misuse of information the court looks at the basis of the claim.  In this case, the Court of Appeals held that the claim for damages for burying their deceased relative in the wrong plot and then moving the individual was one for the misuse of information of where the burial plot was located and therefore the City’s immunity was not waived.

The court of appeals reversed the trial court’s judgment and dismissed the claim because the plaintiff’s claim was for misuse of information by the City and therefore immunity was not waived under the Texas Tort Claims.

If you would like to read this opinion click here.   Panel consists of Justices Longoria, Hinojosa,  and Silva.  Memorandum opinion by Justice Silva.


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