Texas Natural Resource Conservation Commission v. White , 44 Tex. Sup. Ct. J. 667 ( 2001 )

Justice O’NEILL,

dissenting.

The issues this case raises are specialized, but important, and I understand the Court’s interest in addressing them. Our jurisdiction, however, does not extend to every case in which we have an interest, or even to every case in which we believe the court of appeals erred. In this interlocutory appeal, we have jurisdiction to review the court of appeals’ decision only if it directly conflicts with a decision of this Court or of another court of appeals. See Tex. Gov’t Code §§ 22.225(b)(3), (c); Resendez v. Johnson, -S.W.3d-, 2000 WL 33114428 (Tex.2001). Upon closer inspection, the conflict upon which the Court bases its jurisdiction is no conflict at all. Because I would dismiss this petition for want of jurisdiction, I respectfully dissent.

As the Court notes, a conflict exists only when the court of appeals’ decision is irreconcilable with the decision in another case such that one would overrule the other. See Coastal Corp. v. Garza, 979 S.W.2d 318, 319-20 (Tex.1998). To exercise conflicts jurisdiction, the rulings in the two cases must be “ ‘so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.’ ” Id. at 319 (quoting Gonzalez v. Avalos, 907 S.W.2d 443, 444 (Tex.1995)). The Court reads the court of appeals’ decision in this case to conflict with Schaefer v. City of San Antonio, 838 S.W.2d 688 (Tex. App.—San Antonio 1992, no writ). But the court below considered Schaefer and concluded that the decisions do not conflict. 13 S.W.3d 819, 826 n. 3. Because of the procedural and factual differences between the two cases, I agree.

In this case, the court of appeals had to decide whether White’s petition alleged facts placing her claim within the Texas Tort Claims Act’s limited waiver of sovereign immunity. 13 S.W.3d at 822-23. The court held that the pump the governmental defendant used to move gasoline vapors away from a leak might or might not qualify as “motor-driven equipment” under the Act, depending upon further factual development:

At this early stage of the proceedings, we are reluctant to hold White accountable for knowing precisely what sort of equipment TNRCC used at the time. Considering the elastic definition of “equipment,” and the early stage of the proceeding, we conclude that White has alleged sufficient facts to establish that TNRCC’s pump was “motor-driven equipment” as that term is used in the act. If after discovery the fact-finder determines that the pump was not motor-driven equipment, TNRCC would be able to reassert its immunity defense ....

13 S.W.3d at 826.

The court’s decision simply upheld the trial court’s order denying TNRCC’s motion for summary judgment, allowing White to develop facts showing the precise type of equipment the defendant actually used. The court noted the importance of the case’s procedural posture in distinguishing its holding from Schaefer’s, in which the court considered the question after a full bench trial on the merits. 13 S.W.3d at 826 n. 3. This same type of distinction formed the basis upon which we found no conflicts jurisdiction in Resendez, — S.W.3d at -, 2000 WL 33114428. The Court fails to account for this distinction, even though the appeals court considered “the procedural posture of the case [to be] significant.” 13 S.W.3d at 827. I, too, consider this procedural distinction to be significant. Ignoring it requires the Court to take a categorical approach that is unwise and unnecessary, as demonstrated by applying its holding to the facts presented in Schaefer.

In Schaefer, the plaintiffs home was damaged by a water leak from a broken water pipe across the street. At trial, a claims adjuster with the San Antonio Water Board testified that electric motor-driven pumps propel water through the city’s water mains, thus maintaining a constant water pressure throughout the city’s water system. The plaintiff claimed that these pumps qualified as “motor-driven equipment” under the Texas Tort Claims Act, but the trial court found that the water leak did not arise from the use of motor-driven equipment as contemplated by the Act. Schaefer, 838 S.W.2d at 690. The court of appeals affirmed, holding that “controlling water pressure by use of the electric motor-driven water pumps is not operating or using motor-driven equipment within the meaning of the Act....” Id. at 693. Thus, the court’s holding was based on the pump’s “operation or use” rather than its status as “motor-driven equipment.” Id. The court went on to question the propriety of considering any stationary electric pump to be motor-driven equipment, noting: “[T]he status of stationary electric motor-driven pumps as ‘motor-driven equipment’ is questionable at best....” Id. But the court was sure that water pressure control, generally, was not an activity for which the Act waived immunity, and concluded that “the water pump in question is not ‘motor-driven equipment’ for purposes of the Act.” Id.

The Schaefer opinion is clearly limited to the type of pump at issue, the identity, location, and operation of which were fully factually developed. Id. at 689. The most expansive fair reading of Schaefer’s holding would be that centrally-located electric pumps used to maintain water pressure in a city’s water lines are not “motor-driven equipment” within the Act’s meaning. Schaefer says nothing about the type of pump involved in the present case, which was brought on-site to remove gasoline fumes, or about all pumps in general. If, as the Court says, White is correct and conflicts with Schaefer on this point, then Schaefer was wrongly decided and all stationary electric motor-driven pumps in a city’s water works are, as a matter of law, “motor-driven equipment” under the Act. Indeed, the transmission of electricity over a power line would come within the Act’s waiver under the Court’s opinion, no matter how widespread or remote, as long as it is generated by a motor at the source.

I find no inconsistency between the Schaefer court’s conclusion, upon a fully developed record, that the centrally-located pumps at the San Antonio Water Works are not “motor-driven equipment” under the Act, and the court of appeals’ conclusion here that portable pumps used to remove gasoline vapors might prove to be “motor-driven equipment” upon further factual development.

Accordingly, I dissent.