City of Dallas v. Reata Const. Corp.

Decision Date14 August 2002
Docket NumberNo. 05-01-01780-CV.,05-01-01780-CV.
Citation83 S.W.3d 392
CourtTexas Court of Appeals

Charles S. Black, Jr., Assistant City Attorney, Dallas, for Appellant.

Lee L. Cameron, Jr., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Rebecca M. Alcantar, Dallas, for Appellee.



Opinion By Justice FITZGERALD.

In this interlocutory appeal, the City of Dallas contends the trial judge erred in denying its plea to the jurisdiction. The City contends appellee's allegations do not fall within any waiver of governmental immunity. We agree. Accordingly, we reverse the trial court's order and dismiss appellee's claims against the City.


In July 2000, the City granted a temporary license to Dynamic Cable Construction Company, Inc. ("Dynamic Cable") to install fiber optic cable conduit in downtown Dallas. Dynamic Cable subcontracted with appellee Reata Construction Corporation to do the necessary drilling work for the project. While appellee was drilling, it struck a thirty-inch water main buried below Young Street. As a result, a building owned by Southwest Properties Group, Inc. ("Southwest Properties") was flooded.

Southwest Properties sued both appellee and Dynamic Cable for property damage caused by the flooding. Appellee filed a third-party action against the City, urging the City's negligence caused the damages. Appellee's claims fell into two major categories: negligence and premises liability. The negligence claims charged the City failed properly (a) to map and plot the location of the water main when it was constructed and installed in 1948, and (b) to locate, identify, and mark the water main in response to appellee's request in 2000. The City answered this action, asserting the defense of sovereign immunity. The City also filed a plea in intervention asserting claims against appellee and Dynamic Cable, alleging their negligence caused property damage to the City. Finally, residents of the flooded building intervened in the lawsuit, claiming property damage and mental anguish.

The City filed a plea to the jurisdiction concerning appellee's claims. The trial court denied the plea, and this appeal followed. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2002) (allowing interlocutory appeal from order denying plea to jurisdiction).


A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court's authority to determine the subject matter of a pleaded cause of action. Tex. State Employees Union/CWA Local 6184 A.F.L.C.I.O. v. Tex. Workforce Comm'n, 16 S.W.3d 61, 65 (Tex.App.-Austin 2000, no pet.). The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the trial court's ruling on a plea to the jurisdiction. Id.

The plaintiff has the burden to allege facts affirmatively demonstrating the trial court has subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). A district court is required to construe liberally the allegations in favor of jurisdiction unless the face of the petition affirmatively demonstrates a lack of jurisdiction. Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). Dismissing a cause of action for lack of subject matter jurisdiction is proper only when it is impossible for the plaintiff's petition to confer jurisdiction on the trial court. TRST Corpus, Inc. v. Fin. Ctr., Inc., 9 S.W.3d 316, 320 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). In our review of the trial court's order dismissing a cause for want of jurisdiction, we must "construe the pleadings in favor of the plaintiff and look to the pleader's intent." Tex. Air Control Bd., 852 S.W.2d at 446. Our task is to determine whether appellee pleaded a claim that appropriately invoked the trial court's jurisdiction.


In Texas, a governmental unit is immune from tort liability unless the legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). There is no dispute that the City, as a municipality, is a governmental unit; rather, the question is whether the City's immunity has been waived so as to allow appellee to proceed with its claims against the City.

Texas Tort Claims Act

The Texas Tort Claims Act (the "Act") identifies the categories of tort liability for which the legislature has and has not waived immunity. See generally TEX. CIV. PRAC. & REM.CODE ANN. ch. 101 (Vernon 1997). A governmental unit's sovereign immunity is waived to the extent chapter 101 allows, and a person may sue that governmental unit for damages to the extent allowed by that chapter. Id. § 101.025. The provisions of chapter 101 apply to tort claims based on acts or omissions that occurred on or after January 1, 1970. Id. § 101.061.

The Act speaks specifically to a municipality's liability, pronouncing that a municipality will be liable for its tortious conduct to the extent provided by chapter 101 "for damages arising from its governmental functions." Id. § 101.0215(a) (Vernon Supp.2002) (emphasis added). Texas law has long made a distinction between a municipality's "governmental" functions (for which the municipality could not be liable) and its "proprietary" functions (for which the municipality could be liable). Before 1987, the judiciary categorized municipal functions as either governmental or proprietary. However, in that year:

the Constitution was amended to authorize the Legislature to exercise this power, TEX. CONST. art. 11, § 13, and the Legislature did so by adding section 101.0215 to the Tort. Claims Act. Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.02, 1987 Tex. Gen. Laws 37, 47-48. The Legislature defined almost all the functions of a municipality as governmental, thus shrouding them with immunity from liability. Id. In exchange for this added protection, the Legislature increased the liability limits on bodily injury and death liability for municipalities .... This legislation was part of a "tort reform" package enacted as Senate Bill 5.

Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 83 (Tex.1997). The supreme court concluded the purpose of Senate Bill 5 was "to give municipalities greater certainty as to the extent of their liability." Id. at 84. To that end, the legislature reclassified a significant number of municipal functions that had been treated as proprietary at common law, making them governmental under the Act. Id. On the other hand, the legislature raised the limits of municipalities' liability. Id. (citing TEX. CIV. PRAC. & REM.CODE ANN. § 101.023(c)). "As a result, municipalities enjoyed immunity for more of their functions even though their maximum liability exposure when immunity was waived increased." Id.

We read the entries on the legislature's list of governmental functions with the section's purpose and its "tort reform" roots in mind. We agree with our sister court, for example, that a city's motives are irrelevant when the city is performing an act encompassed within the list of governmental functions; so long as the actions are so encompassed, "we have no discretion to declare the actions proprietary, regardless of the [c]ity's motives." Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 357 (Tex.App.-San Antonio 2000, no pet.); see also TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(c) ("The proprietary functions of a municipality do not include those governmental activities listed under Subsection(a).") (emphasis added). Further, we recognize that when the legislature changed a classification from proprietary to governmental, it intended all actions taken by a city within that category to be reclassified. See Mitchell v. City of Dallas, 855 S.W.2d 741, 744 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (1994).

Among the thirty-plus governmental functions identified by the Legislature in 1987 as "governmental" are waterworks and water and sewer service. TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a)(11), (32).1 The Act does not define "waterworks," so we apply its plain meaning: "the whole system of reservoirs, channels, mains, and pumping and purifying equipment by which a water supply is obtained and distributed to consumers." WEBSTER'S INTERNATIONAL DICTIONARY 2585 (3rd ed. 1981). The damages claimed by appellee against the City in this lawsuit are grounded in the City's marking of the location of its buried water main. We conclude the act of marking the location of the parts of the City's water delivery system is encompassed by the broad legislative concepts of waterworks and water services. We further conclude, based on the specific directive of the legislature in subsections 101.0215(a)(11) and (32), this conduct is governmental in nature. Accordingly, the City can only be liable for negligently marking its water lines if its conduct fits within one of the limited waivers of liability found in the Act.

Appellee's pleading identified two such statutory waivers as alternative grounds for liability if the City's actions were indeed governmental functions: sections 101.021 and 101.022.2 Neither of these provisions supports appellee's arguments for waived immunity.

Section 101.021 waives immunity when the plaintiff urges a claim for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to...

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