Jose Esquivel v. City of San Juan

NUMBER 13-25-00637-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOSE ESQUIVEL, Appellant,

v.

CITY OF SAN JUAN, Appellee.

ON APPEAL FROM THE 398TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva

This is a restricted appeal from a judgment granting a plea to the jurisdiction and

motion for summary judgment in favor of appellee, the City of San Juan (City). Appellant

Jose Esquivel sued the City for personal injuries he sustained in a motor vehicle accident

with a City police officer. The City filed a combined plea to the jurisdiction and motion for

summary judgment arguing that its sovereign immunity had not been waived. Esquivel’s
sole issue is that the judgment should be set aside because he did not receive notice of

the hearing. We affirm.

I. BACKGROUND

On October 3, 2024, Esquivel filed his original petition against the City alleging

negligence by a San Juan Police Department (SJPD) Officer Rodrigo Angel Vidal in the

operation of his vehicle, faulting him for a collision that occurred on February 27, 2023.

See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). The petition was signed by attorneys

Marion M. Reilly with a personal email address of Marion@mrtrial.com and a service

email address of Service@mrtrial.com; and Mark A. Carrigan with a personal email

address of mcarrigan@carriganlawgroup.com and a service email address of

eservice@carriganlawgroup.com. On November 18, 2024, the City filed its combined

special exceptions to Esquivel’s petition and original answer generally denying Esquivel’s

claims. The City also asserted sovereign immunity and various affirmative defenses.

On January 8, 2025, Esquivel filed his first amended petition. The automatic

certificate of electronic service regarding the first amended petition indicated several

persons were electronically served, including the City’s counsel and three people

associated with Esquivel: Cait Salinas with a personal email address of

Caitlin@mrtrial.com; “MARIAN REILLY [sic]” with a service email address of

Service@mrtrial.com; and “SHIRLEY MRTRIAL [sic]” with a personal email address of

Shirley@mrtrial.com. The certificate indicated that all the listed persons were successfully

sent the first amended petition except for Marian Reilly, whose status reflected “ERROR.”

On April 15, 2025, the City filed a combined plea to the jurisdiction and motion for

summary judgment arguing that its immunity from suit was not waived under the Texas

2
Tort Claims Act, and, therefore, the trial court lacked subject-matter jurisdiction over

Esquivel’s claims. Specifically, the City argued that the emergency-response exception

to the statutory waiver of immunity applied in this case because Officer Vidal was

responding to an emergency call or in an emergency situation at the time of the accident.

See id. § 101.055(2). The City supported its plea with the official crash report from SJPD;

affidavits from SJPD Assistant Chief Jorge Moya, SJPD Officer Jose Chacon, SJPD

Officer Carlos Sanchez, and Officer Vidal; and Esquivel’s Department of Public Safety

records. The automated certificate of electronic service pertaining to the City’s combined

motion reflected the following:

On April 29, 2025, the trial court signed an order setting the City’s plea to the

jurisdiction for a hearing on June 3, 2025. The order itself indicates that it was sent to

3
Esquivel’s counsel at service@mrtrial.com. No other information concerning service of

notice of this hearing is in the record. Further, the record does not reflect Esquivel’s

counsel provided the trial court clerk with any updated email address. See id. § 30.015(d)

(requiring parties to notify the clerk of the court with written notice if the party changes its

address during the course of civil litigation).

At the June 3, 2025 hearing, City’s counsel was present but Esquivel did not

appear. The following exchanged occurred:

[City’s counsel]: Your Honor, I have a contested case, but there’s
been no response on file, and I haven’t heard
from the attorney . . . .

....

THE COURT: Who’s opposing counsel?

[City’s counsel]: Marion Reilly of Corpus Christi. I’ve had the plea
on file for a long time. . . . I’ve never heard a
response from [Reilly], and I don’t anticipate
one, I guess.

THE COURT: Have you even heard from them? Have you
corresponded with [Reilly]?

[City’s counsel]: I did when we first started the case.

....

THE COURT: All right.

[City’s counsel]: And there were two attorneys that were
involved, and one dropped out of the case,
because he understood the legal question. And
then [Reilly] was left. And so, I told [Reilly] I was
going to file something if I didn’t hear from them,
and nothing. So, I went ahead and filed my plea,
and I still haven’t heard from anybody.

THE COURT: Okay. I’ve read your plea to the jurisdiction, and

4
your brief. I read it this morning. And this is going
to be on C-4631-24-I, and I was looking for a
response, and I did not find one, but—

[City’s counsel]: Yeah. I checked the docket last night, and had
it printed out just to make double sure that[—]

THE COURT: All right. So, your plea to the jurisdiction shall be
granted.

Following the hearing, the trial court signed its June 5, 2025 order granting the

City’s plea to the jurisdiction and motion for summary judgment and dismissed Esquivel’s

claims with prejudice. On November 21, 2025, Esquivel filed a notice of restricted appeal.

II. RESTRICTED APPEAL

To prevail on a restricted appeal, an appellant must demonstrate:

(1) he filed notice of the restricted appeal within six months after the
judgment was signed;

(2) he was a party to the underlying lawsuit;

(3) he did not participate in the hearing that resulted in the judgment
complained of, and did not timely file any post-judgment motions or
requests for findings of fact and conclusions of law; and

(4) error is apparent on the face of the record.

Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (quoting Pike-Grant v. Grant, 447 S.W.3d

884, 886 (Tex. 2014) (per curiam)); see TEX. R. APP. P. 30. “For these purposes, the ‘face

of the record’ consists of all the papers that were before the trial court at the time it

rendered judgment.” Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi–

Edinburg 2016, no pet.) (quoting Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 384

(Tex. App.—Austin 2010, pet. denied)). “Error is apparent from the face of the record

when extrinsic evidence is not necessary to determine that an error was made; in other

5
words, the error is apparent upon review of only what is contained within the lower court’s

record.” Parimi v. Oliver, No. 05-24-00012-CV, 2024 WL 5001914, at *2 (Tex. App.—

Dallas Dec. 6, 2024, no pet.) (mem. op.). 1 In addition, “‘error that is merely inferred [from

the record] will not suffice.’” Ex parte Vega, 510 S.W.3d at 547 (alteration in original)

(quoting Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam)).

Esquivel established the first three elements for a restricted appeal. See Ex parte

E.H., 602 S.W.3d at 495. Thus, the only remaining issue is whether Esquivel has

demonstrated that any part of the error he complains of—namely, that the trial court failed

to notify him of the hearing on the City’s plea to the jurisdiction—is apparent from the face

of the record. See id.; TEX. R. APP. P. 30.

III. NOTICE

Esquivel argues he did not participate in the hearing that resulted in the order

granting the City’s plea to the jurisdiction because the trial court failed to notify him of the

setting for the City’s plea to the jurisdiction, and that such error is apparent from the

record. Having reviewed the record, we cannot agree. See Ginn, 282 S.W.3d at 432–33;

Ex parte Vega, 510 S.W.3d at 547.

“An appellant who alleges error apparent on the face of the record due to lack of

notice carries a heavy burden, because the record is usually barren of affirmative proof

of the error claimed.” Parimi, 2024 WL 5001914, at *2 (citing Langdale v. Villamil, 813

S.W.2d 187, 189 (Tex. App.—Houston [14th Dist.] 1991, no writ)). “Unless a procedural

1“When extrinsic evidence is necessary to challenge a trial court’s judgment, it should be
presented in a motion for new trial or a bill of review.” Parimi v. Oliver, No. 05-24-00012-CV, 2024 WL
5001914, at *2 (Tex. App.—Dallas Dec. 6, 2024, no pet.) (mem. op.) (citing Alexander v. Lynda’s Boutique,
134 S.W.3d 845, 848 (Tex. 2004)).

6
rule specifically imposes a duty on a party or the district clerk to ensure the record

affirmatively shows notice was given, absence of such affirmative proof will not establish

error.” Id. (citing Brown v. Brookshires Grocery Store, 10 S.W.3d 351, 354 (Tex. App.—

Dallas, 1999, pet. denied)); see also Ginn, 282 S.W.3d at 433 (observing additionally that

“rules do not impose upon the [trial court] clerk an affirmative duty to record the mailing

of the required notices”).

In his brief, Esquivel acknowledges that the clerk’s record contains “no entries for

the notice of hearing” on the City’s plea to the jurisdiction, but also states that:

Counsel for Esquivel requested copies of the notices from the e-file system
that were to have been delivered to counsel for Esquivel, but the . . . notices
were not delivered as part of the clerk’s record. From them, it is apparent
that on April 30, 2025, court staff entered a Notice of Hearing into the Texas
e-file system. The system records indicate that the only email address used
to deliver notice to Esquivel’s counsel received an ERROR message.[2]

The trial court’s case summary sheet that is included in the appellate record before us

indicates notice was sent to Reilly on April 30 regarding the June 3 hearing. However, as

acknowledged by Esquivel above, the appellate record before us does not contain the

purported April 30 notice of hearing, nor any accompanying certificate of electronic

service affirmatively showing Esquivel was not served with said notice. In addition, the

record contains no motion by Esquivel requesting the trial court clerk to include the

purported April 30 notice of hearing in the appellate record.

2 Esquivel’s brief also contains a screenshot of what appears to be a certificate of electronic service

for the purported April 30, 2025 notice of hearing sent by the trial court clerk. The screenshot indicates an
“ERROR” status regarding service to the email address Service@mrtrial.com. We do not consider this
screenshot in resolving this restricted appeal because it is not part of the appellate record before us. See
Arbor E & T, LLC v. Lower Rio Grande Valley Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29 (Tex. App.—
Corpus Christi–Edinburg 2013, no pet.) (noting “[a]n appellate court cannot consider documents cited in a
brief and attached as appendices if they are not formally included in the record on appeal”).

7
Generally speaking, the appellant bears the ultimate burden to bring forth a record

showing reversible error. See Garcia v. Sasson, 516 S.W.3d 585, 590 (Tex. App.—

Houston [1st Dist.] 2017, no pet.). We are unable to determine from the face of the record

whether notice was issued erroneously as Esquivel claims. The April 29 order setting

hearing signed by the trial court indicates it was sent to Esquivel’s service email address.

In addition, the record is silent regarding whether Esquivel received the purported April

30 notice of hearing on the City’s plea to the jurisdiction, and we may not infer error from

a silent record. See Ginn, 282 S.W.3d at 433 (“As to what does constitute error on the

face of the record, we have clearly said that silence is not enough.”); Ex parte Vega, 510

S.W.3d at 547; Parimi, 2024 WL 5001914, at *2. Accordingly, we conclude that Esquivel

has not established error apparent on the face of the record. See Ex parte E.H., 602

S.W.3d at 495; Garcia, 516 S.W.3d at 590; TEX. R. APP. P. 30. We overrule Esquivel’s

sole issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA
Justice

Delivered and filed on the
21st day of May, 2026.

8