State v. the City of Galveston ( 2004 )

Opinion issued September 10, 2004  

In The  

Court of Appeals

For The  

First District of Texas

____________

NO. 01-03-00557-CV

____________

THE STATE OF TEXAS, Appellant

V.

THE CITY OF GALVESTON, Appellee  

---

On Appeal from the 212th District Court

Galveston, County, Texas

Trial Court Cause No. 03CV0018

---

    OPINION DISSENTING FROM

THE DENIAL OF EN BANC CONSIDERATION  

          The panel opinion and this court’s denial of en banc consideration of this case will send a shockwave of grave concern through every local governmental unit throughout the entire state—every city, every county, every school district, every municipal utility district. The panel’s holding that “governmental immunity does not shield a municipality from the State’s suit asserting tort claims for actual damages because any immunity that a municipality enjoys derives from the State’s own immunity,” in effect, judicially creates a state sovereignty exception to governmental immunity for all local governmental units, subjecting them to unlimited tort liability when they are sued by a state governmental unit—all without express consideration of or approval by the Texas Legislature. Accordingly, I agree with Justice Keyes’s dissent, and I respectfully dissent from the denial of en banc consideration.

Background

          In its original petition, the Texas Department of Transportation (the Department) alleges that the City of Galveston (the City) “negligently caused damage to property belonging to Plaintiff, [the Department].” It is undisputed that the Department’s negligence cause of action for property damages arises out of the City’s performance of a governmental function.  

Municipal Liability

          Under Texas law, “[a] city is immune from liability for its governmental actions,” unless the Legislature has expressly waived governmental immunity. City of La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). Governmental immunity from suit defeats a court’s subject matter jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). In a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Id.  

          The Texas Supreme Court has long recognized that “it is the Legislature’s sole province to waive or abrogate” governmental immunity. Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002) (emphasis added); see also Barfield, 898 S.W.2d at 291 (“The waiver of governmental immunity is a matter addressed to the Legislature.”). The Texas Supreme Court has consistently deferred to the Legislature to waive sovereign immunity from suit “because this allows the Legislature to protect its policymaking function.” IT–Davy, 74 S.W.3d at 854. Moreover, it is a well-established rule that, for the Legislature to waive immunity, “it must do so by clear and unambiguous language.” Barfield, 898 S.W.2d at 291.

          Under title 5 of the Texas Civil Practice and Remedies Code (the Texas Tort Claims Act), entitled “Government Liability,” in subchapter B, entitled “Tort Liability of Governmental Units,” the Legislature “waived and abolished” sovereign immunity from suit “to the extent of liability created by this chapter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Vernon 1997) (emphasis added). In section 101.0215, entitled “Liability of a Municipality,” the Legislature specifically noted that

A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public . . . .

Id. § 101.0215 (Vernon Supp. 2004-2005) (emphasis added).  

          In regard to negligence actions brought against governmental units arising from their governmental functions, in section 101.021, entitled “Governmental Liability,” the Legislature expressly provided that

A governmental unit in the state is liable 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 Texas law; and

(2)personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Id. § 101.021 (Vernon 1997) (emphasis added). A “governmental unit” is defined as “a political subdivision of this state, including any city.” Id. § 101.001(3)(B) (Vernon Supp. 2004-2005).

          Regardless of whether a city’s governmental immunity from tort liability derives from the State’s sovereign immunity, a city, as a “governmental unit” enjoys that immunity against all plaintiffs, period. The Legislature, recognizing that cities enjoy governmental immunity from liability for their governmental functions, has expressly provided that municipalities are “liable” for property damages “arising from their governmental functions” only in the limited circumstance in which the property damages are proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the property damages arise from the operation or use of a motor-driven vehicle or motor-driven equipment. Id. §§ 101.021, 101.0215. According to the Texas Legislature, this is the only circumstance in which a plaintiff—any plaintiff—may sue a municipality for property damages arising from its performance of a governmental function.

          Moreover, it does not logically follow that “because any immunity that a municipality enjoys derives from the State’s own immunity,” a city’s “governmental immunity does not shield” it from tort claims asserted by state governmental units. The public policy underlying sovereign and governmental immunity is simply that “[s]ubjecting the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes toward defending lawsuits and paying judgments.” IT–Davy, 74 S.W.3d at 854. This public policy applies equally to all governmental units, not just to state governmental units. As noted above, the Texas Supreme Court has deferred to the Legislature to waive sovereign immunity from suit because “the Legislature is better suited than the courts to weigh the conflicting public policies associated with waiving immunity and exposing the government to increased liability, the burden of which the general public must ultimately bear.” Id. (emphasis added). In fact, “in the Code Construction Act, the Legislature expressed its desire to maintain control over sovereign immunity ‘[i]n order to preserve [its] interest in managing state fiscal matters through the appropriations process.” Id. (quoting Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2004-2005)).

          The bottom line is that, if the Texas Legislature wants to subject municipalities and other local governmental units to unlimited liability in negligence suits brought by state governmental units, it can amend the Texas Tort Claims Act to allow for such liability. However, this is not a job for an intermediate court of appeals.  

          Finally, it must be noted that the majority’s reliance on the reasoning and conclusion of Texas Workers’ Compensation Commission v. City of Eagle Pass/Texas Municipal League Workers’ Compensation Joint Insurance Fund, 14 S.W.3d 801 (Tex. App.—Austin 2000, pet. denied), is misplaced. The point of Eagle Pass was not that governmental immunity does not shield a municipality from tort claims asserted by the State, but that “because municipalities and other political subdivisions of the State exist under the authority of the State and are subject to the State’s regulatory authority, such entities do not enjoy sovereign immunity from state regulatory authority.” Id. at 803 (emphasis added). Accordingly, the Eagle Pass court sustained “the Commission’s contention that sovereign immunity is inapplicable in the present situation.” Id. at 804 (emphasis added). This is a far cry from subjecting all local governmental units in Texas to unlimited tort liability in lawsuits brought by state governmental units “because any immunity that a [local governmental unit] enjoys derives from the State’s own immunity.”

     Conclusion

          Immunity means immunity, i.e., immunity from suit or liability as to all potential plaintiffs—including state governmental units. Regardless of any “derivative” nature of sovereign immunity, the Legislature, in the Tort Claims Act, has expressly defined, quite literally, the “governmental liability” of municipalities and all other governmental units as to all potential plaintiffs. Thus, the panel’s broad holding judicially creates an exception to the Legislature’s expressly stated limits of liability for local governmental units, and the primary effect of the holding is that it relieves the State of the deficiency of its own pleadings. Accordingly, en banc consideration of the panel’s extraordinary holding, especially in light of its far-reaching effects, is required. See Tex. R. App. P. 41.2(c).

          As noted in the amicus curiae briefs filed by the Texas Municipal League, the Texas City Attorney’s Association, the Texas Council Risk Management Fund, the Texas Water Conservation Association Risk Management Fund, and the Texas Association of Counties in support of the City of Galveston:

[I]ntermediate appellate courts wisely tend to refrain from recognizing new areas of liability, and, in this particular instance, the court of appeals is compelled to exercise restraint because the exclusive power to consent to suit against governmental units resides in the Legislature, not the courts.  

          I agree. This Court should give due consideration to the good-faith counsel of amici.  

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Bland.

Justice Keyes, dissenting.

En banc consideration was requested. See Tex. R. App. P. 41.2(c).

A majority of Justices voted against en banc consideration. See id.

Justice Jennings, dissenting from the denial of en banc consideration.