Opportunity to Amend Pleadings After Failure to Establish Jurisdiction

If the facts alleged fail to establish the trial court's jurisdiction, the plaintiff should be allowed the opportunity to amend the petition. Texas Ass'n of Bus., 852 S.W.2d at 446; Blue, 989 S.W.2d at 446. However, the court can dismiss the claim without allowing the opportunity to amend if it can determine that no claim within the court's jurisdiction can be stated consistent with the facts alleged. City of Saginaw v. Carter, 996 S.W.2d 1, 3 (Tex. App.--Fort Worth 1999, pet. filed); Ramirez v. Lyford Consol. Indep. Sch. Dist., 900 S.W.2d 902, 906 (Tex. App.--Corpus Christi 1995, no writ). Stated another way, "the trial court must allow a plaintiff the opportunity to amend its pleadings to cure a jurisdictional defect so long as the plaintiff has not affirmatively pled itself out of court." Ramirez, 900 S.W.2d at 906. A plea to the jurisdiction urges that the court lacks the power to determine the subject matter of the suit. City of Cleburne v. Trussell, 10 S.W.3d 407, 410 (Tex. App.--Waco 2000, no pet.); Bland Indep. Sch. Dist. v. Blue, 989 S.W.2d 441, 445 (Tex. App.--Dallas 1999, pet. granted). The plaintiff must plead facts which affirmatively show that the trial court has jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Absent an allegation that the plaintiff's jurisdictional pleadings are fraudulent, the court must take the allegations in the petition as true and must construe them liberally in favor of the plaintiff when ruling on the plea. Id.; Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996); Texas Dep't of Mental Health and Mental Retardation v. Pearce, 16 S.W.3d 456, 2000 Tex. App (Tex. App.--Waco 2000, no pet. h.); Trussell, 10 S.W.3d at 409; Blue, 989 S.W.2d at 446, 447. Because jurisdiction is a question of law, we review the trial court's ruling on a plea to the jurisdiction de novo, applying the same standards that the trial court applies. City of Saginaw, 996 S.W.2d at 2; Blue, 989 S.W.2d at 446. We apply the de novo standard to both the granting of a plea to the jurisdiction and to the denial of such a plea. See City of Houston v. Morua, 982 S.W.2d 126, 127 (Tex. App.--Houston [1st Dist.] 1998, no pet.). A plea to the jurisdiction may be an appropriate vehicle for raising a fai ure-to-exhaust-administrative-remedies challenge to the plaintiff's suit. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 893 (Tex. 1986). Subject to certain exceptions, Texas law requires a party whose claim concerns the administration of school laws and involves disputed fact issues to exhaust the statutorily provided administrative remedies with the Commissioner of Education before turning to the courts for relief. See: Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992); Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 201 (Tex. App.--Waco 1998), rev'd on other grounds (Tex. 2000); Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 323 (Tex. App.--Houston [1st Dist.] 1997, writ denied).