TX Nat. Resource & Conserv. Comm'n v. White

• Decision Date: 24 February 2000
• Parties: (Tex.App.-Fort Worth 2000) TEXAS NATURAL RESOURCE AND CONSERVATION COMMISSION, APPELLANT v. TAMMY WHITE f/k/a TAMMY HAND, APPELLEE NO. 2-99-281-CV
• Court: Texas Court of Appeals

Page 819

13 S.W.3d 819 (Tex.App.-Fort Worth 2000)

TEXAS NATURAL RESOURCE AND CONSERVATION COMMISSION, APPELLANT v. TAMMY WHITE f/k/a TAMMY HAND, APPELLEE

NO. 2-99-281-CV

COURT OF APPEALS, SECOND DISTRICT OF TEXAS FORT WORTH

February 24, 2000

From the 90th District Court of Young County

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Panel B: Day, Livingston, and Richards, JJ.

OPINION

TERRIE LIVINGSTON, Justice

INTRODUCTION

Appellant, Texas Natural Resource and Conservation Commission (TNRCC), a state agency, appeals the trial court's denial of its motion to dismiss for want of jurisdiction based upon sovereign immunity. Because we find appellee has alleged sufficient facts in her original petition to raise the issue of waiver pursuant to Texas Tort Claims Act (TTCA) section 101.021(1)(A), we affirm the trial court's denial of TNRCC's motion.

STANDARD OF REVIEW

In its first issue, TNRCC argues that governmental immunity from suit-as opposed to immunity from liability-is a jurisdictional defense. At oral argument, appellee Tammy White conceded this issue and we agree that this is an accurate statement of the law. Governmental immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. See Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Dec. 2, 1999); City of San Augustine v. Parrish, 10 S.W.3d 734, 738 (Tex. App.-Tyler Dec. 30, 1999, no pet. h.); City of Houston v. Morua, 982 S.W.2d 126, 127 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Because we sustain TNRCC's first issue, we reach the merits of its second.

In its only other issue, TNRCC contends that White failed to allege sufficient facts in her petition to establish legislative consent for her suit. The plaintiff has the burden to allege facts that affirmatively demonstrate the lack of governmental immunity and, hence, the court's jurisdiction to hear the cause. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. See Bush v. Texas Dep't of Protective & Regulatory Servs., 983 S.W.2d 366, 368 (Tex. App.-Fort Worth 1998, pet. denied) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 119 S. Ct. 2018 (1999)). When reviewing a trial court 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. See Texas Ass'n of Bus., 852 S.W.2d at 446. The same standard applies when, as here, we review an interlocutory appeal of a trial court's denial of a motion to dismiss for lack of subject matter jurisdiction. See Morua, 982 S.W.2d at 127. The court must look solely to the allegations in the plaintiff's petition, and must assume those allegations are correct. See Green Int'l, Inc. v. State, 877 S.W.2d 428, 431 n.3 (Tex. App.-Austin 1994, writ dism'd); Liberty Mut. Ins. Co v. Sharp, 874 S.W.2d 736, 739 (Tex. App.-Austin 1994, writ denied) (citing Texas Ass'n of Bus., 852 S.W.2d at 446). Thus, if the plaintiff alleges sufficient facts in its petition to establish a waiver of immunity, dismissal for want of jurisdiction is inappropriate. Of course, the government may always reassert its immunity defense if and when discovery or other evidence later demonstrates that under the specific facts of the case, immunity has not been waived. See Methodist Hosps. v. Texas Workers' Compensation Comm'n, 874 S.W.2d 144, 149 (Tex. App.-Austin 1994, no writ) (lack of trial court jurisdiction may be raised at any time, even on appeal, by the parties or by the court itself). We thus present the facts as pled in White's petition.

BACKGROUND FACTS

White owned and operated a business adjacent to Asa Smith's land in Graham, Texas. At some point, gasoline storage tanks located beneath Smith's property began to leak, and as a result gas fumes migrated onto White's property. After White complained to authorities about the fumes, TNRCC came onto appellee's land and, in an effort to remedy the situation, dug a trench and installed a motor-driven pump system to remove and dissipate the vapors. Two weeks later, however, TNRCC disengaged and removed the pump system. Six days later, the fumes migrated onto White's property, pooled in the corner of her store, ignited, and caused a fire that destroyed the building.¹

DISCUSSION

Judicial Construction of the TTCA

In 1976, the Texas Supreme Court held that "the statute calls for liberal construction to effectuate its purposes." Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Indeed, the original version of the TTCA contained a provision calling for the liberal construction of its provisions to achieve the purposes of the act. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, 13, 1969 Tex. Gen. Laws 874, 877, repealed by, Act of May 2, 1985, 69th Leg., R.S., ch. 479, 1, 1983 Tex. Gen. Laws 1652. Unfortunately, without clear legislative explanation of the purposes of the act, such a call is inherently ambiguous. It is unclear whether the legislature intended the waiver provisions to be liberally construed, or whether governmental immunity should be liberally construed through narrow interpretation of the waiver provisions.² The Texas Supreme Court is not unaware of this problem.

In Lowe, Chief Justice Greenhill wrote a concurrence "encourag[ing] the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived." Lowe, 540 S.W.2d. at 301 (Greenhill, C.J., concurring). In 1983, the court had occasion to remark that "[s]even years have passed since our opinion in Lowe, yet the legislature has not changed the troublesome waiver provision. Thus, the statute has remained susceptible to broad or narrow interpretations." Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983). Salcedo then followed Lowe, refusing to give the waiver provisions of the act a restrictive interpretation. Id.

Both of these cases were decided before the act was codified into the civil practice and remedies code. However, even after codification, the confusion and ambiguity remained unresolved. See Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 170-71 (Tex. 1989) ("Regrettably, seven legislative sessions have come and gone since Chief Justice Greenhill's request for clarification in Lowe. . . . We once again call on the legislature to clarify, as soon as possible, the extent to which it intended to waive governmental immunity."). Robinson then invoked the rule that "when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction." Id. (quoting Coastal Indus. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916, 918 (Tex. 1978)). Accordingly, Robinson again construed the subsection at issue as a broad waiver of immunity.

In 1994, without discussing Robinson or its recital of the presumption that legislative silence reflects an endorsement of judicial interpretations, the court revisited the 1985 amendment and codification of the act. See University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 & n.3 (Tex. 1994). The court noted that the prior version of the TTCA itself provided that its provisions "shall be liberally construed to achieve the purposes hereof." Id. at 177 n.3. When the statute was codified in 1985, however, the call to liberally construe its provisions was deleted. See TEX. CIV. PRAC. & REM. CODE ANN. 101.001-.066 (Vernon 1997 & Supp. 2000).

In York, the court concluded that by removing this provision, the legislature subjected the act to the general principles of statutory construction, allowing courts to take into account (among other things) legislative history and the objectives sought to be obtained by the statute. York, 871 S.W.2d at 177 (citing TEX. GOV'T CODE ANN. 311.023 (Vernon 1988)). Unfortunately, the TTCA's legislative history and objectives are precisely what the prior decisions had found to be ambiguous and susceptible of either broad or narrow interpretation. We note that despite its comments, York neither attempted to discern the objectives of the act, nor in fact advocated a narrow construction of the act. Id. at 177-78. However, the court concluded that immunity had not been waived in that case. See id. at 179.

Finally, in 1998, the supreme court cited Chief Justice Greenhill's concurrence in Lowe for the proposition that the "Act's basic purpose [is to] waiv[e] immunity only to a limited degree." Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.) (citing Lowe, 540 S.W.2d at 302-03 (Greenhill, C.J., concurring)), cert. denied, 119 S. Ct. 541 (1998). Even though the court did not expressly adopt a narrow construction of the waiver provisions, it again found under the facts of its case that immunity had not been waived. See id. at 344.

In light of this conflicting case history, we take some comfort in the fact that we are not alone in our confusion. The Austin Court of Appeals recently suggested a compromise approach that we now adopt until instructed otherwise by either the supreme court or the legislature. See Michael v. Travis County Hous. Auth., 995 S.W.2d 909, 912 (Tex. App.-Austin 1999, no pet.). That court stated:

[Waiver under the TTCA] is to be liberally construed in order to effectuate the purposes of the Texas Tort Claims Act. Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex. 1989). The Texas Supreme Court has stated that in order to fulfill the requirement of liberal construction, we must be careful not to place such a restrictive interpretation . . . that we require more than what is expressed or implied in the language of the Act. See Salcedo v....