law-waiver-of-opportunity-to-replead |



OPPORTUNITY TO AMEND

In the alternative, Robinson complains that the trial court erred in dismissing his claims without first affording
him the opportunity to amend his pleadings to cure any jurisdictional defect.  While the general rule
expresses a preference to allow a plaintiff the opportunity to amend, a plaintiff can waive this opportunity
through inaction.  See Kassen v. Hatley, 887 S.W.2d 4, 13-14 n.10 (Tex. 1994); Dahl v. State, 92 S.W.3d
856, 862B63 n.6 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (noting that plaintiffs arguably waived
complaint that the trial court failed to provide them with an opportunity to amend their pleadings when they did
not seek leave to amend); Gray v. City of Galveston, No. 14-03-00298-CV, 2003 WL 22908145, at *2 (Tex.
App.-Houston [14th Dist.] Dec. 11, 2003, no pet.) (mem. op.) (“[A]ppellant did not request an opportunity to
amend in the trial court, so she has waived any complaint that she has been denied this opportunity.").
Robinson v. Alief ISD (Tex.App.- Houston [14th Dist.] Aug. 25, 2009) (public employment, school law)
(school employee record
expunction dispute, lack of jurisdiction due to mootness, no declaratory judgment on
constitutional violations that have ceased, plaintiff no longer an employee subject to alleged unconstitutional
conduct,
opportunity to amend waived )
AFFIRMED: Opinion by Chief Justice Hedges    
Before Chief Justice Hedges, Justices Brock Yates and Frost  
14-08-00949-CV Adrian Robinson v. Alief Independent School District and Louis Stoerner, In his Official
Capacity Only   
Appeal from 80th District Court of Harris County
Trial Court Judge: LYNN M. BRADSHAW-HULL
Dissenting Opinion by Justice Frost  in Adrian Robinson v. Alief Independent School District and Louis
Stoerner, In his Official Capacity Only   
After AISD and Stoerner filed their plea to the jurisdiction, Robinson neither responded to the plea with
additional jurisdictional facts reflecting a live controversy nor requested an opportunity to replead or amend
his pleadings.  Despite ample notice of AISD and Stoerner's jurisdictional argument, Robinson did not attempt
to replead.  Accordingly, Robinson has waived his right to cure any jurisdictional defects by amendment.