City of San Antonio v. Daniel Canales ( 2008 )

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MEMORANDUM OPINION
No. 04-08-00213-CV
CITY OF SAN ANTONIO,
Appellant
v.
Daniel CANALES,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-12797
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 1, 2008
AFFIRMED
Daniel Canales sued the City of San Antonio claiming the City wrongfully demolished his
residence and its contents after the structure was partially damaged by fire. Canales pled that
governmental immunity was waived under section 101.21 of the Texas Tort Claims Act. The City
answered and filed a plea to the jurisdiction asking that the suit be dismissed because Canales’s
pleadings failed to establish waiver of the City’s governmental immunity. The trial court denied the
City’s motion and this accelerated appeal followed. Finding no error, we affirm the trial court’s
order.
04-08-00213-CV
1. In its first two issues, the City contends Canales has not pled facts sufficient to establish
waiver of immunity because all of his complaints concern a “discretionary” decision made by City
officials for which they and the City retain immunity from suit. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.056(2) (Vernon 2005) (waiver provisions under Texas Tort Claims Act do not apply to
claims based on the City’s discretionary decisions). Specifically, the City maintains in its briefing
that the fire chief was performing a discretionary duty when he made the emergency decision to
demolish the fire-damaged structure. An act is discretionary for purposes of not waiving sovereign
immunity if the act “requires exercising judgment and the law does not mandate performing the act
with such precision that nothing is left to discretion or judgment.” State v. Rodriguez, 985 S.W.2d
83, 85 (Tex. 1999) (per curiam). The record before us, which consists of only pleadings, establishes
that Canales did plead that governmental immunity was waived because damages to his property was
caused by the wrongful act or omission or the negligence of City employees acting within the scope
of their employment and through the use of motorized equipment. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021 (Vernon 2005). In his pleadings, Canales claims certain procedures must be
followed under the City Code even in an “emergency case,” including that the “employee must
obtain the concurrence of the director of development services” and “determine that under the
circumstances no other abatement procedure is reasonably available except demolition.” The failure
to follow specific procedural steps set forth in the City Code, as alleged by Canales, may not be
discretionary. See Rodriguez, 985 S.W.2d at 85; City of El Paso v. W.E.B. Investments, 950 S.W.2d
166, 170 (Tex. App.—El Paso 1997, pet. denied) (city employee who failed to follow non-
discretionary city policy before demolishing building was subject to suit). Accordingly, we cannot
say Canales has failed to plead sufficient facts to establish waiver of governmental immunity. See
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04-08-00213-CV
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (when reviewing plea
to jurisdiction, we construe pleadings in favor of plaintiff).
2. The City next argues that no negligent implementation of policy exists under the facts
pleaded by Canales and “[a]ny alleged failure to follow the administrative procedures would at the
most be negligent discretionary formulation of the order for which the City would still retain
immunity.” (emphasis added). We disagree. Our Supreme Court, in discussing “the discretionary
powers exemption[] to the Tort Claims Act, . . . distinguished between the negligent formulation of
policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for
which immunity is waived.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)
(citing State v. Terrell, 588 S.W.2d 784, 787-88 (Tex. 1979)). If an employee acts negligently in
carrying out policy, government liability may exist under the Act. City of Brownsville, 897 S.W.2d
at 754. Here, Canales’s pleadings sufficiently allege that the City Code established a set procedure
to be followed prior to demolishing a structure even in emergency circumstances; therefore, under
these pleadings, government liability may exist under the Act. Finding no error, we affirm the trial
court’s decision denying the City of San Antonio’s plea to the jurisdiction.
Phylis J. Speedlin, Justice
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