City of Houston v. Morua, 01-97-01128-CV

• Decision Date: 09 July 1998
• Docket Number: No. 01-97-01128-CV,01-97-01128-CV
• Citation: 982 S.W.2d 126
• Parties: CITY OF HOUSTON, Appellant, v. Feliciano MORUA and Silvia Morua, Individually and as Next Friends of M.M., a Minor, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 126

982 S.W.2d 126

CITY OF HOUSTON, Appellant, v. Feliciano MORUA and Silvia Morua, Individually and as Next Friends of M.M., a Minor, Appellees.

No. 01-97-01128-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

July 9, 1998.

Rehearing Overruled Sept. 24, 1998.

Laura Anne Coats, Houston, for Appellant.

Roy Huddle, Howard H. Singleton, Houston, for Appellees.

Before MIRABAL, WILSON and TAFT, JJ.

OPINION

TAFT, Justice.

This case involves an interlocutory appeal from the trial court's refusal to grant a motion to dismiss for lack of subject matter jurisdiction filed by appellant, the City of Houston. We address whether the 1995 legislative amendments to the Texas Tort Claims Act and the recreational use statute found in the Civil Practice and Remedies Code deprived the trial court of subject matter jurisdiction over claims on behalf of a child bitten by a wolf at the city zoo. We affirm.

Factual Background

On March 31, 1996, M.M., a three-year-old child, visited the Houston Zoological Gardens with his family. While viewing the Mexican wolf exhibit, M.M. went over or through a wooden fence and placed his hand into the exhibit through a chain-link fence. He was bitten by one of the wolves, losing one finger and portions of two others.

Procedural Background

Appellees, M.M.'s parents, individually, and as next friend of M.M., (the Moruas) initially brought claims against the City of Houston (the City) based on strict liability, negligence, gross negligence, and attractive nuisance. The City filed a motion to dismiss for lack of subject matter jurisdiction, claiming the Moruas' petition failed to show that the City had waived governmental immunity, thereby allowing the suit to be brought under the Texas Tort Claims Act (the Act). See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp.1998). The Moruas filed an amended petition alleging, in addition to their earlier claims, that the City took on duties and responsibilities outside its governmental functions, and, therefore, was liable under the common law notwithstanding the limitations on liability found in the Act. The trial court denied the City's motion, and the City brought this interlocutory appeal. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(8) (Vernon Supp.1998) (allowing for an interlocutory appeal from a grant or denial of a plea to the jurisdiction filed by a governmental unit).

Standard of Review

A plea to the court alleging lack of jurisdiction is proper to challenge a suit filed against a governmental entity when it is apparent from the pleadings on file that the plaintiff does not have standing to sue. Liberty Mutual Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.--Austin 1994, writ denied). To invoke the subject matter jurisdiction of the trial court, the pleader must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In this case, the Act vests the Court with subject matter jurisdiction, and the plaintiff must plead the presence of such jurisdiction on the face of the petition. See Vincent v. West Texas State Univ., 895 S.W.2d 469, 472 n. 3 (Tex.App.--Amarillo 1995, no writ). When reviewing a trial court's order dismissing a cause for want of jurisdiction, Texas appellate courts construe the pleadings in favor of the plaintiff and look to the pleader's intent. Texas Ass'n of Bus., 852 S.W.2d at 446. We conclude that the same standard should guide us in reviewing an interlocutory appeal of a trial court's denial of a motion to dismiss for lack of subject matter jurisdiction. ¹

Subject Matter Jurisdiction Under the Act

In one point of error, the City contends that the trial court erred in denying its motion to dismiss because the Moruas have failed to plead a cause of action within the waiver of governmental immunity created by the Act. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp.1998). To explain the context of this dispute, we begin with an overview of the relevant statutes.

Under the common law, a municipality is immune from liability only for its governmental conduct, not its proprietary conduct. See Simons v. City of Austin, 921 S.W.2d 524, 529 (Tex.App.--Austin 1996, writ denied). The legislature has statutorily defined almost every function of a municipality, including the operation of a zoo, as governmental, thus shrouding it with immunity from liability. TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(13) (Vernon Supp.1998). However, under the Act, a governmental unit waives its immunity for governmental functions to the extent it would be liable for personal injuries caused by a condition or use of tangible personal or real property if it were a private person. TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1997). Subchapter C of the Act sets forth several exceptions to the waiver of immunity found in section 101.021. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.051-.065 (Vernon 1997 & Supp.1998).

Chapter 75 of the Civil Practices and Remedies Code, commonly known as the recreational use statute, provides for limited liability to land owners who permit others to use their property for recreational purposes. TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.001-.004 (Vernon 1997 & Supp.1998). The statute specifies the standard of care, lower than that found at common law, owed by a landowner to those he allows on his property for recreational purposes. TEX. CIV. PRAC. & REM.CODE ANN. § 75.002(b) (Vernon 1997 & Supp.1998) (stating that landowner must meet standard of care owed to a trespasser).

In 1994, the supreme court addressed an apparent conflict between the Act and the recreational use statute arising when a governmental entity grants implied permission to use its property for recreational purposes. See City of Dallas v. Mitchell, 870 S.W.2d 21, 22 (Tex.1994). Section 101.022 of the Act specified that, for claims arising from premise defects, the governmental unit owes to the claimant the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. TEX. CIV. PRAC. & REM.CODE ANN. § 101.022(a) (Vernon 1997); Mitchell, 870 S.W.2d at 22. However, the recreational use statute provided that, when a real property owner gives permission to others to enter his land for recreational purposes, he owes to them only the duty owed a trespasser. TEX. CIV. PRAC. & REM.CODE ANN. § 75.002(c)(2) (Vernon 1997). The Mitchells sued the City of Dallas for injuries sustained by their son when he fell from his bike into a creek bed in a public park owned and maintained by the City. Mitchell, 870 S.W.2d at 21. The City of Dallas argued that the recreational use statute applied and, therefore, it owed the Mitchell's son only the duties owed to a trespasser. Id. at 22. In resolving the conflict, the Supreme Court resorted to rules of statutory construction and concluded that the recreational use statute did not apply to governmental entities because the standard of care owed to recreational users on government property is specified in section 101.022 of the Act. Mitchell, 870 S.W.2d at 23.

In 1995, the legislature amended both the Act and the recreational use statute. Act of May 26, 1995, 74th Leg., R.S., ch. 520, 1995 Tex. Gen. Laws 3276, 3276-77 (amending TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.003, 101.058). That enactment amended section 75.003 of the recreational use statute, dealing with the application and effect of chapter 75, as follows: ²SECTION 2. Section 75.003, Civil Practice and Remedies Code, is amended by amending Subsection (c) and adding Subsections (e), (f), and (g) to read as follows:

(c) Except for a governmental unit, this [] chapter applies only to an owner, lessee, or occupant of real property who:

(1) does not charge for entry to the premises; []

(2) charges for entry to the premises, but whose total charges collected in the previous calendar year for all recreational use of the entire premises of the owner, lessee, or occupant are not more than twice the total amount of ad valorem taxes imposed on the premises for the previous calendar year; or

(3) has liability insurance coverage in effect on an act or omission described by Section 75.004(a) and in the amounts equal to or greater than those provided by that section.

(e) Except as otherwise provided, this chapter applies to a governmental unit.

(f) This chapter does not waive sovereign immunity.

(g) To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls.

The Act was amended as follows:

SECTION 4. Subchapter C, Chapter 101, Civil Practice and Remedies Code, is amended by adding Section 101.058 to read as follows:

Sec. 101.058. LANDOWNER'S LIABILITY. To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.

Act of May 26, 1995, 74th Leg., R.S., ch. 520, 1995 Tex. Gen. Laws 3276, 3276-77 (amending TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.003, 101.058). Based on these amendments to both the Act and the recreational use statute, the City contends that the Moruas' claims are controlled by the recreational use statute, and that, as amended, section 75.003(f) specifically states that chapter 75 does not waive sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.003(f), 101.058 (Vernon 1997). To the contrary, the Moruas contend that section 75.003(f) did not abolish the waiver of immunity found in section 101.021(2), but, rather, limited a governmental unit's liability created under section 101.021(2). See TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.003(f), 101.058. These conflicting interpretations give rise to the present dispute.

In construing a statute, our primary objective is to give effect to the legislature's...